Date: 20060210
Docket: IMM-1780-05
Citation: 2006 FC 122
Ottawa, Ontario, February 10, 2006
PRESENT: THE
HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
A, A
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Docket: IMM-1783-05
A, M
A, R
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND
ORDER
[1]
These
are joint applications for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c.27 (the Act) of a decision of the
Refugee Protection Division (the Board) of the Immigration and Refugee Board
rendered on [...] by commissioner [...], dismissing the
applicants’ claims.
[2]
The
Board found that [...] (the principal
applicant) was excluded from refugee status and refugee protection pursuant to
article 1F(a) of the Convention, as referred to in section 98 of the Act, and
that it had not been established that his wife [...] and daughter [...] (the secondary
applicants) have a well-founded fear of persecution in [...] for Convention
reasons or a risk to their lives, a risk of cruel and unusual treatment or
punishment or danger of torture.
ISSUES
[3]
The
applicants raise the following issues:
1. Did the Board commit a
reviewable error in finding that the principal applicant was excluded from
refugee status and refugee protection pursuant to article 1F(a) of the
Convention, as referred to in section 98 of the Act?
2. Did the Board commit a
reviewable error in finding that the secondary applicants did not establish
that they have a well-founded fear of persecution in [...] for Convention
reasons or a risk to their lives, a risk of cruel and unusual treatment or
punishment or danger of torture?
[4]
The
answer to these questions is negative. The applications shall be dismissed.
BACKGROUND
[5]
The
applicants are citizens of [...]. They were married on
[...], and their daughter [...] was born on [...].
[6]
They
arrived in Canada on December 1, 2001, filed a joint claim, and submitted a
single Personal Information File (PIF) in support of their claim. The facts
they allege are as follows.
[7]
The
principal applicant was a military officer with the [...] between 1989 or 1990
and 2001. During that time, he was promoted to the post of [...] and was later
appointed [...], holding the rank of
Major.
[8]
The
principal applicant claims never to have participated in any activities that
could constitute crimes against humanity during the course of his career. The [...] responsibility was to
locate and arrest members of Islamic terrorist groups. A different unit handled
detention and interrogation of the suspects.
[9]
The
principal applicant had no knowledge of atrocities committed by the authorities
against the civilian population until July 2000, when he learned that two
prisoners had died in custody. His inquiries about the incident to his
superiors were not welcome, and though he tried to resign in October 2000, his
superiors would not accept his resignation.
[10]
Upon
being appointed as [...], he was given a list
of political opponents of the regime to arrest so that another unit could
torture them and extract false confessions from them.
[11]
At
his request, he finally obtained his dismissal in June 2001. His dismissal
letter prohibited him from leaving the country for five years, and his superior
assured him that the next five years of his life were going to be extremely
unpleasant. A highly ranked friend who had tried to protect him advised him to
leave the country.
[12]
The
principal applicant’s behaviour led the regime to view him as an opponent. He
received several threats and he was unable to find employment. The police tried
to frame him by planting evidence; he was badly beaten and had to escape the
hospital in fear for his life. His daughter was the target of two attempted
kidnappings.
[13]
The
principal applicant was able to obtain visas for himself and the secondary
applicants to the United States in November 2001. The applicants then crossed
into Canada at Niagara Falls, where they filed their claim.
DECISION UNDER REVIEW
[14]
The
Board found that there were serious reasons for considering that the principal
applicant committed or had been complicit in crimes against humanity
perpetrated by the government security forces against civilians.
[15]
In
its reasons, the Board proceeded to a six-part analysis to assess whether or
not the principal applicant had been complicit in crimes against humanity:
1. Method of recruitment: the Board determined
that the principal applicant had joined the [...] as a volunteer and that his
promotions had been sought and were the result of hard work. The Board was not
convinced by the principal applicant's attempts at the hearing to nuance or
distance himself from the statements he made on this topic in his PIF.
2. Position / Rank in the
organization:
The Board found discrepancies between the principal applicant’s PIF and his
statements during the hearing, where he downplayed or denied his involvement in
activities which could constitute crimes against humanity. It also noted that
the principal applicant had risen to a relatively senior position, having eight
officers under his command at the end of his career.
3. Nature of Organization: the Board relied on
documentary evidence to conclude that [...] security and police
forces had committed numerous and widespread crimes against humanity, ranging
from arbitrary arrests to extrajudicial killings, with impunity. The extent of
these activities led the Board to find that the principal applicant had been an
“active, enthusiastic, and successful participant and accomplice in state
security institutions which had committed crimes against humanity”.
4. Knowledge of
atrocities:
the Board stated that it found it wholly implausible that an officer like the
principal applicant could not have known about the atrocities committed by [...]’s security forces
until July 2000. The Board determined that although the evidence did not
establish whether the principal applicant was personally involved in the
commission of crimes against humanity, he had at the very least been wilfully
blind to the acts perpetrated by government forces against the population.
5. Length of time in the
organization:
the principal applicant’s involvement with the [...] lasted more than 12 years. The
Board determined that this was a very lengthy period of time, which cast doubt
on the credibility of his alleged ignorance or non-participation in crimes
against humanity throughout the quasi-totality of his career.
6. Opportunity
to leave the organization: the Board concluded that the principal
applicant’s statement that he was not able to make a full determination of just
what happened until October 2000, or that he tried to resign immediately, was
not credible. The Board added that even if these statements were true, they did
not sufficiently discharge him as an accomplice to crimes against humanity.
[16]
Relying
upon its six-factor analysis of the evidence, the Board concluded that the
principal applicant was excluded from refugee protection pursuant to Article
1F(a) of the Convention.
[17]
The
Board then addressed the claim of the secondary applicants. Since they did not
submit individual PIFs or testify during the hearing, the Board based its
findings upon the allegations in the principal applicant’s claim.
[18]
The
Board noted numerous inconsistencies and discrepancies in the principal
applicant’s statements, and did not find his explanations credible. The
following are among the inconsistencies noted by the Board:
1. The
principal applicant claims to have received his dismissal letter in June 2001,
but the letter is dated November 23, 2001, just a few days before the applicants
left for Canada. The principal applicant stated that the letter may have been
post-dated, but the Board found that his testimony about how he left the [...] was not credible.
2. The
principal applicant claimed in his PIF that attempts were made to kidnap his
daughter outside her school and later at the family home, but the sequence of
these events is reversed in the Port of Entry (“POE”) notes. The principal
applicant stated that this may be due to an error in translation, but the Board
did not find this explanation credible.
[19]
The
Board concluded that the evidence did not establish that the secondary
applicants have a well-founded fear of persecution in [...] for Convention
reasons or a risk to their lives, a risk of cruel and unusual treatment or punishment
or danger of torture.
ANALYSIS
[20]
The
relevant provisions of the Act read as follows:
|
96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
|
|
96.
A qualité de réfugié au sens de la Convention -- le réfugié -- la personne
qui, craignant avec raison d'être persécutée du fait de sa race, de sa
religion, de sa nationalité, de son appartenance à un groupe social ou de ses
opinions politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
|
|
97.
(1) A person in need of protection is a person in Canada whose removal to
their country or countries of nationality or, if they do not have a country
of nationality, their country of former habitual residence, would subject
them personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care
2)
A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
|
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la
torture au sens de l'article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d'autres personnes
originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes -- sauf celles
infligées au mépris des normes internationales -- et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d'une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
|
98.
A person referred to in section E or F of Article 1 of the Refugee Convention
is not a Convention refugee or a person in need of protection.
|
|
98.
La personne visée aux sections E ou F de l'article premier de la Convention
sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à
protéger.
|
|
SCHEDULE
(Subsection
2(1))
SECTIONS
E AND F OF ARTICLE 1 OF THE UNITED NATIONS CONVENTION RELATING TO THE STATUS
OF REFUGEES
E.
This Convention shall not apply to a person who is recognized by the
competent authorities of the country in which he has taken residence as
having the rights and obligations which are attached to the possession of the
nationality of that country.
F.
The provisions of this Convention shall not apply to any person with respect
to whom there are serious reasons for considering that:
(a)
he has committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make provision
in respect of such crimes; […]
|
|
ANNEXE
(paragraphe
2(1))
SECTIONS
E ET F DE L'ARTICLE PREMIER DE LA CONVENTION DES NATIONS UNIES RELATIVE AU
STATUT DES RÉFUGIÉS
E.
Cette Convention ne sera pas applicable à une personne considérée par les
autorités compétentes du pays dans lequel cette personne a établi sa
résidence comme ayant les droits et les obligations attachés à la possession
de la nationalité de ce pays.
F.
Les dispositions de cette Convention ne seront pas applicables aux personnes
dont on aura des raisons sérieuses de penser :
a)
Qu'elles ont commis un crime contre la paix, un crime de guerre ou un crime
contre l'humanité, au sens des instruments internationaux élaborés pour
prévoir des dispositions relatives à ces crimes; […]
|
1. Did the Board commit a
reviewable error in finding that the principal applicant was excluded from
refugee status and refugee protection pursuant to article 1F(a) of the
Convention, as referred to in section 98 of the Act?
[21]
The
determination of whether or not the principal applicant is excluded from
refugee protection under section 98 of the Act for having been an accomplice to
crimes against humanity is a mixed question of fact and law, and the applicable
standard of review is reasonableness simpliciter (Rocha v. Canada
(Minister of Citizenship and Immigration), 2005 FC 304).
[22]
The
principal applicant argues that the Board erred, misinterpreted or ignored the
evidence before it. He cites the following examples:
1. The
Board erred in finding that the principal applicant had a senior rank, whereas
he had received only three promotions during nine years of service. Moreover,
the documentary evidence before the Board did not specify what particular rank
of [...] officers committed
human rights abuses.
2. The
Board groundlessly inferred from the principal applicant’s appointment to the
post of [...] that he was complicit
in crimes against humanity.
3. There
was no evidence before the Board that every member of the [...] was guilty of human
rights violations. The primary purpose of the service is to fight terrorism and
protect the population.
4. The
panel ignored evidence that the applicants were persecuted in [...].
[23]
In
cases such as this one, the Minister had the onus of proving that there were
“serious reasons to believe” that the principal applicant had been an
accomplice to crimes against humanity. The required standard of proof is lower
than the balance of probabilities, but more than mere suspicion or conjecture (Ramirez
v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306
(C.A.), Moreno v. Canada (Minister of Employment and Immigration),
[1994] 1 F.C. 298 (C.A.), Sivakumar v. Canada (Minister of Employment and
Immigration), [1994] 1 F.C. 433 (C.A.).
[24]
The
Board analyzed the evidence according to the six criteria set out by this Court
in Ali v. Canada (Solicitor General), 2005 FC 1306, and came to the
finding that the Minister had met that burden.
[25]
Despite
the principal applicant’s arguments to the contrary, I don’t believe that the
Board misinterpreted or ignored any of the evidence before it. It simply did
not find the principal applicant’s claims credible, and these findings are
supported by numerous inconsistencies and implausible allegations in his
statements.
[26]
Having
considered the Board’s reasons in light of the evidence before it, I do not
find that it was unreasonable or that the intervention of this Court is
warranted.
[27]
It
is now a well established principle that a refugee claimant need not
necessarily have participated directly in the perpetration of human rights
abuses and crimes against humanity by the organization to which he belongs in
order for him to be found an accomplice to such acts (Ramirez, supra; Bazargan
v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1209
(F.C.A.) (QL)).
[28]
Considering
the clear documentary evidence that [...] security forces have
been involved in widespread human rights abuse, it was not unreasonable for the
Board to find the principal applicant’s alleged ignorance of these facts
implausible. I agree with Teitlebaum J. in Shakarabi v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 444 (F.C.T.D.) (QL), in
paragraphs 22 and 25:
I find that if I were to accept
the applicant's argument it could be used to justify the worst type of human
rights abuses. One could argue that the purpose of many oppressive state
organizations is domestic and foreign security, but that should not mean that
significant human rights violations should occur without impunity. That would
be counter to the principles of Article 1F(a) of the United Nations Convention
Relating to the Status of Refugees. Thus, I have no difficulty denying this
ground of appeal.
[…] It is much too simple to say
that one is unaware of barbaric actions of an organization in order to try to
distance oneself from these barbaric actions. If, as in the present case, an
individual lives and works in a country where persons around him are
disappearing and where one hears of persons arrested and tortured, it appears
to me, to be totally unbelievable that one would not have knowledge of what is
taking place. I believe that the Board came to the correct conclusion on the
evidence before it.
[29]
Despite
the principal applicant’s claims to the contrary, I agree with the Board’s
finding that he rose to a senior rank and post within the [...]. This increases the
likelihood that he was complicit in the commission of many human rights abuses
by the [...] security forces. In Sivakumar,
supra, Justice
Linden wrote at paragraph 10:
In my view, the case for an
individual's complicity in international crimes committed by his or her
organization is stronger if the individual member in question holds a position
of importance within the organization. Bearing in mind that each case must be
decided on its facts, the closer one is to being a leader rather than an
ordinary member, the more likely it is that an inference will be drawn that one
knew of the crime and shared the organization's purpose in committing that
crime. Thus, remaining in an organization in a leadership position with
knowledge that the organization was responsible for crimes against humanity may
constitute complicity. […]
2. Did the Board commit a
reviewable error in finding that the secondary applicants did not establish
that they have a well-founded fear of persecution in [...] for Convention
reasons or a risk to their lives, a risk of cruel and unusual treatment or
punishment or danger of torture?
[30]
The
secondary applicants submit that the board erred in misinterpreting important
elements of the evidence before it. Specifically, they argue that the Board
ignored the two kidnapping attempts on [...].
[31]
Unfortunately,
the secondary applicants did not testify or submit separate PIFs, and the Board
could only come to a conclusion in their case by relying on the evidence
submitted by the principal applicant.
[32]
The
secondary applicants had the onus to establish that they have a well-founded
fear of persecution in [...] for Convention
reasons or a risk to their lives, a risk of cruel and unusual treatment or
punishment or danger of torture.
[33]
The
Board found inconsistencies in the order in which the principal applicant
claimed that the attempted kidnappings took place, and did not find his
explanation about an error in translation credible. Since the secondary
applicants did not testify on this matter, it was not unreasonable for the
Board to come to an adverse credibility finding regarding these alleged
kidnapping attempts.
[34]
The
secondary applicants also submit that the Board failed to consider that they
and the principal applicant left [...] because they are now
viewed as opponents of the regime, and would be in great danger if they
returned. However, the discrepancies as to the date on which the principal
applicant obtained his dismissal letter led the board to doubt the credibility
of the circumstances of the principal applicant’s departure from the [...].
[35]
Since
the Board found that the principal applicant had not clearly established the
circumstances of his departure from [...], it was not unreasonable
for it to conclude that the secondary applicants had not established that they
would be in danger if they were to return to [...].
[36]
Finally,
the secondary applicants claim that they were not allowed to give evidence
during the hearing. With respect, this statement is incorrect. While hindsight
may reveal the applicant’s decision to rely entirely on the testimony of the
principal applicant as a poor strategic choice, this cannot be used as grounds
for review. The transcript of the hearing clearly shows that the applicants’
counsel chose not to present testimony from the secondary applicants (page 865,
Tribunal Record).
Member:
Do you intend to elicit evidence, oral evidence from any other claimant?
Counsel:
If I do, I might be calling the daughter as a witness.
Member:
All right.
Counsel:
Not the wife.
Member:
And I’ll just state that these claims are being heard jointly because you are a
family of claimants and because you rely on the same story. […]
[37]
The
Board’s findings regarding the credibility of the secondary applicant’s claims
are questions of fact, which should only be reviewed by this Court if they were
made in a perverse or capricious manner, or made without regard to the evidence
(Aguebor v. (Canada) Minister of Employment and Immigration), [1993]
F.C.J. No. 732 (F.C.A.) (QL)).
[38]
In
this case, considering how undermined the evidence submitted by the principal
applicant was by inconsistencies and implausible claims, I find that the Board
did not commit a reviewable error in dismissing the secondary applicant’s
claim.
[39]
The
parties did not suggest questions for certification and none arise.
ORDER
THIS COURT ORDERS
that
the applications for judicial review are dismissed. No question is certified.
“Michel Beaudry”
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