Date: 20060817
Docket: IMM-7339-05
Citation: 2006 FC 992
Québec, Quebec, the 17th
day of August 2006
PRESENT:
THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
AHCENE
CHOUGUI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review under section 72 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Immigration
and Refugee Board–Refugee Protection Division (the Board) dated November 16,
2005, which determined that Ahcene Chougui (the applicant) was not a
Convention refugee or a person in need of protection under subparagraphs 1F(a)
and 1F(c) of Article 1 of the United Nations Convention
Relating to the Status of Refugees.
RELEVANT
FACTS
[2]
The
applicant is a citizen of Algeria. He alleged being
persecuted in Algeria by security
groups and by the Groupe islamique armée
(GIA) [Armed Islamic Group] because he was a member and sympathizer of the Front
islamique du salut (FIS) [Islamic Salvation Front].
[3]
The
applicant alleged that he put up posters and wrote graffiti on the walls of his
city to protest the cancellation of elections. He admitted having once been a
member and sympathizer of the FIS. In January 1992, he was arrested for
the first time and released six hours later. In the beginning of
July 1993, his son was kidnapped and came home three days later.
[4]
In
the beginning of August 1993, the applicant alleged having been arrested
by the Algerian security forces. He was allegedly sent to the Cavaignac
detention centre, where he was supposedly beaten unconscious. After being
interrogated and tortured, the applicant admitted having been a member of the
FIS. He was then allegedly sent to an internment camp in the southern part of
the country, in Ouargla.
[5]
The
applicant alleged having been contacted by the FIS in 1996, but he did not
respond. Numerous threats were made against members of his family. He also
allegedly had problems with military security forces at the end of 1996. He was
interrogated by them on many occasions. In the beginning of 1997, his residence
was allegedly broken into twice.
[6]
On
January
15, 1997,
the applicant left his country with a visa for the United States. He resided
in the United
States
from January 15, 1997 to September 19, 2002, when he made a claim
for refugee protection to the American authorities. On September 18, 2002,
in Washington, the
applicant had his passport renewed for a period of five years. The next day,
the applicant arrived in Canada to claim refugee protection.
ISSUE
[7]
Did
the Board err in determining that the applicant was not a Convention refugee?
ANALYSIS
[8]
Section
98 of the Act reads as follows:
|
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.
|
[9]
Subparagraphs
(a) and (c) of Article 1 of the Convention read as follows:
|
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;
(c) He has been guilty of acts contrary to the
purposes and principles of the United Nations.
|
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;
c) Qu'elles se sont rendues coupables d'agissements
contraires aux buts et aux principes des Nations Unies.
|
[10]
The
standard of review applicable to the Board’s decision according to which
certain acts are included in the definition of “crimes against humanity” is
that of correctness (Mendez-Levya v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 523; Gonzalez v. Canada (Minister of
Citizenship and Immigration) (1994), 24 Imm. L.R. (2d) 229). The standard
of review applicable to the Board’s decision according to which certain acts
were committed is that of patent unreasonableness. (Mugesera v. Canada (Minister of Citizenship
and Immigration), [2003] F.C.J. No. 1292, 2003 FCA 325).
[11]
On many
occasions, the Federal Court of Appeal has adopted the definition of crimes
against humanity found in section 6 of the Charter of the International
Military Tribunal. Section 6 includes:
Crimes Against
Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane
acts committed against any civilian population, before or during the war; or
persecutions on political, racial or religious grounds in execution of or in
connection with any crime within the jurisdiction of the Tribunal, whether or
not in violation of the domestic law of the country where perpetrated.
Sivakumar v. Canada (Minister of Employment and
Immigration),
[1994] 1 F.C. 433; Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646; Sumaida v. Canada (Minister of Employment and
Immigration),
[2000] 3 F.C. 66.).
[12]
Under
section 1(F) of the Convention, there must be “serious reasons for considering”
that a person has committed a crime against humanity. In Ramirez v. Canada (Minister of Employment
and Immigration), [1992] 2 F.C. 306, the Court stated that this
standard of proof was less than the balance of probabilities. It is up to the
government to adduce evidence which meets this standard (Srour v. Canada
(Minister of Citizenship and Immigration.), [1995] F.C.J. No. 133).
[13]
Accomplices
as well as principals actors can be considered to have committed international
crimes. Complicity has been defined as personal and knowing participation or an
association by which persons may be held liable for acts committed by others
because of their close association with the principal actors. Complicity
depends on the existence of a shared common purpose and the knowledge that all
of the parties in question may have of it (see Ramirez, supra; Sivakuma,
supra). In Bazargan v. Canada (Minister of Citizenship and Immigration [1996] F.C.J. No. 1209,
at paragraphs 11 and 12, the Federal Court of Appeal concluded that the
determination of complicity is a question of fact:
In our view, it goes
without saying that “personal and knowing participation” can be direct or
indirect and does not require formal membership in the organization that is
ultimately engaged in the condemned activities. It is not working within an
organization that makes someone an accomplice to the organization's activities,
but knowingly contributing to those activities in any way or making them
possible, whether from within or from outside the organization. At p. 318,
MacGuigan J.A. said that “[a]t bottom, complicity rests . . . on the
existence of a shared common purpose and the knowledge that all of the parties
in question may have of it”. Those who become involved in an operation that is
not theirs, but that they know will probably lead to the commission of an
international offence, lay themselves open to the application of the exclusion
clause in the same way as those who play a direct part in the operation.
That being said,
everything becomes a question of fact. The Minister does not have to prove the
respondent's guilt. He merely has to show—and the burden of proof resting on
him is “less than the balance of probabilities . . . ” .
[14]
In the
present case, to be excluded from the application of the definition of a
Convention refugee, it was necessary to show that crimes against humanity had
been committed. In addition, to show that the applicant had been an accomplice
to these crimes, it was necessary to prove that he knew of the crimes and
shared a common purpose with those persons who committed them.
[15]
In its
decision, the Board made a detailed analysis of the FIS and concluded that the
group had committed crimes against humanity. At page 7 of its decision,
the Board cited an excerpt from a report by Human Rights Watch:
Meanwhile, an underground Islamist
movement, whose structure and links to the overt political leadership of the
FIS remained nebulous, took up arms against the regime. Most of its operations
consisted of hit-and-run ambushes targeting police and gendarmes, and acts of
sabotage against state property. These attacks began to occur on an
almost-daily basis in 1992 and intensified in 1993.
FIS leaders did, however, give their
clear blessing to the armed struggle, even though the party did not claim
responsibility for specific attacks. In an interview published on February 26, 1993 in the Paris-based daily Libération,
exiled FIS leader Rabah Kebir said: “The violence stems from the dictatorship,
which has left us no alternative to reciprocal violence.” Asked about the first
killings of foreigners in Algeria by armed groups in September
and October, Kebir told Radio France Internationale, “The FIS has no policy of
killing foreigners, but there is a popular movement that is difficult to
control.”
[16] At page 4 of its decision, the Board mentioned that
according to the documentary evidence, the FIS is “an
Islamist movement that uses violence and has committed numerous brutal, cruel
and inhuman acts”. The applicant alleged that the Board did not specify the
documents it relied on in drawing this conclusion. Another reading of the
decision shows that the sentence mentioned by the applicant is an introduction
to what follows. As mentioned above, the Board cited an excerpt from a report
by Human Rights
Watch. The conclusions mentioned in the sentence invoked by the applicant are
supported by the excerpt from the report.
[17] The applicant submitted that at pages 7 and 10 of
its decision, the Board did not cite any evidence in support of its
conclusions. The paragraphs mentioned by the applicant and which are on
pages 7 and 10 are summaries of the conclusions made on the basis of the
documentary evidence already cited in the decision, that is to say, the
abovementioned report from Human Rights Watch.
[18] The applicant alleged that in its reasons, the
Board did not mention any specific act of violence allegedly committed by the
FIS. I do not agree with the applicant. The fact that there is a connection
between the FIS and those who commit acts of violence is stated in the excerpt
from the Human Rights Watch report, which mentions “hit-and-run ambushes
targeting police and gendarmes, and acts of sabotage against state property”.
[19] The applicant alleged that in its reasons, the
Board did not specify the crimes he was supposed to have committed. I do not
agree with the applicant. At page 10 of the decision the Board cited the
following:
However, in the months and years that
followed, and after the radicalization of the FIS movement and its armed wing
in Algeria, the claimant continued his
work in his community, trying to bring the people in his district to accept FIS
ideology. As the panel mentioned above, both in the documentary evidence and
according to the tribunal’s specialized knowledge, there were in many cases
abuses of power where hundreds and thousands of people were killed in those
clashes, so the panel is of the view that the claimant, by his actions from
1988 until 1994 at least, associated himself directly with the FIS . . . .
The panel is of the view that, during the
many years when the claimant took part in activities associated with the FIS,
he was at least complicit in the group’s actions.
[20] The Board concluded that through his actions, the
applicant showed a certain degree of complicity with the FIS. In El-Kachi v.
Canada (Minister of Citizenship and Immigration), [2002] F.C.J.
No. 554, at paragraph 18, Mr. Justice Edmond P. Blanchard briefly
reviewed the case law concerning complicity and exclusion from the definition
of a Convention refugee:
The question of complicity was also
considered by Reed J. in Penate v. Canada (Minister of Citizenship
and Immigration), [1994] 2 F.C. 79. Following an analysis of 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.) and Sivakumar v. Canada (Minister of Employment and
Immigration), [1994] 1 F.C. 433, Reed J. concluded at 84-85:
As I understand the jurisprudence, it is
that a person who is a member of the persecuting group and who has knowledge
that activities are being committed by the group and who neither takes
steps to prevent them occurring (if he has the power to do so) nor disengages
himself from the group at the earliest opportunity (consistent with safety
for himself) but who lends his active support to the group will be considered
to be an accomplice. A shared common purpose will be considered to exist. I
note that the situation envisaged by this jurisprudence is not one in which
isolated incidents of international offences have occurred but where the
commission of such offences is a continuous and regular part of the operation.
[Emphasis added.]
[21] I am satisfied the documentary evidence shows that
crimes against humanity, within the meaning of the international instruments
which have provisions concerning such crimes, have been committed. The evidence
also shows that the applicant was aware of the fact that crimes against
humanity had been committed. The applicant was an accomplice to these crimes
against humanity because of a common purpose he shared with the perpetrators of
those acts. Moreover, the applicant did not dissociate himself from the FIS at
the first available opportunity. I am of the opinion that the Board’s decision
to exclude the applicant from the definition of a Convention refugee was not
unreasonable.
[22] The applicant alleged that the Board erred in
failing to confront him with the documentary evidence. I do not agree with the
applicant’s argument and will adopt the reasoning of Mr. Justice
Marc Noël in A.V. v. Canada (Minister of Citizenship and Immigration)
[1995] F.C.J. No. 900, at paragraph 10:
I also reject the applicants’ argument
that the panel should have confronted them with the documentary evidence used
to diminish their credibility. The documents used by the panel were
included among those submitted by the refugee hearing officer when the hearing
began and were listed in the index to the file on the state of Israel received
by the applicants before the hearing. The applicants adduced their own
documentary evidence. Among this evidence, the panel was entitled to rely
on that which it considered most consistent with reality. This is what it
did.
[23] The applicant alleged that the Board erred in
failing to analyze all the documentary evidence. In Florea v. Canada
(Minister of Citizenship and Immigration) [1993] F.C.J. No. 598,
Mr. Justice James Hugessen wrote the following:
The fact that the Division did not
mention each and every one of the documents entered in evidence before it does
not indicate that it did not take them into account: on the contrary, a tribunal
is assumed to have weighed and considered all the evidence presented to it
unless the contrary is shown.
[24] There is a presumption to the effect that a
tribunal has studied all the evidence before it. In addition, the Board is not
required to comment on all the documentary evidence and testimony (Tameh v.
Canada (Minister of Citizenship and Immigration [2003] F.C.J. No. 1859).
The applicant has not succeeded in rebutting the presumption that the Board
considered all the evidence submitted in this case; therefore, the Court’s
intervention is unwarranted in the circumstances.
JUDGMENT
1. The application for judicial
review is dismissed;
2. No question for certification.
“Pierre Blais”
Certified
true translation
Michael
Palles
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