Date: 20060929
Docket: IMM-7245-05
Citation: 2006 FC 1140
BETWEEN:
Javier
Ivan TORRES RUBIANES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard
J.
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the “Board”) dated December 8, 2005,
wherein the Board found that the applicant is excluded from entitlement to
protection pursuant to section 98 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (the “Act”) as set out in Article 1F(a) of the
Convention Relating to the Status of Refugees, which reads:
|
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;
|
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;
|
[2]
Javier
Ivan Torres Rubianes (the “applicant”), a citizen of Colombia, claims to have a
well-founded fear of persecution by the guerrilla groups known as the National
Liberation Army (ELN) and the Revolutionary Armed Forces of Colombia (FARC)
because of his perceived political opinion. In addition, he claims to be at
risk of losing his life or being subjected to cruel and unusual treatment or
punishment in Colombia.
1. Burden of proof, standard of
proof and standard of review
[3]
The
burden of proof before the Board was on the Minister’s representative to
demonstrate that there are “serious reasons for considering” that a claimant is
excluded from claiming refugee status (Ardila v. Minister of Citizenship and
Immigration,
2005 FC 1518; Ali v. Solicitor General, 2005 FC 1306). To find
“serious reasons for considering” that a claimant is excluded, the Board must
be satisfied that the evidence demonstrates “something more than suspicion or
conjecture, but something less than proof on a balance of probabilities.” This
lower than usual standard of proof reflects Canada’s and the
international community’s resolve to ensure that war criminals are denied safe
havens (Sivakumar
v. Canada (M.E.I.),
[1994] 1 F.C. 433 (C.A.); Liang v. Minister of Citizenship and Immigration,
2003 FC 1501).
[4]
The
standard of review in exclusion findings on questions of law is correctness, on
questions of fact is patent unreasonableness, and on the application of the law
to the facts is reasonableness simpliciter (Harb v. Minister of
Citizenship and Immigration, 2003 FCA 39).
2. Test for complicity
[5]
The
Board accepted that, given that the Colombian Army is not an organization with
a “limited, brutal purpose”, the mere fact that the applicant was a member of
that army was insufficient to demonstrate that there are serious reasons for
believing that he was complicit in crimes against humanity (Ardila v. Minister of
Citizenship and Immigration, 2005 FC 1518; Valère v. Minister of Citizenship and
Immigration, 2005 FC 524). Therefore, evidence of knowing participation was
required to determine whether the applicant was complicit.
[6]
To
determine whether there were “serious reasons to believe” that the applicant
was complicit in crimes against humanity, the Board then proceeded to consider
the six relevant factors of the test for complicity:
- Nature of the organization;
- Method of recruitment;
- Position/rank in the organization;
- Length of time in the organization;
- Opportunity to leave the
organization; and
- Knowledge of organization’s
atrocities.
- Nature
of the organization
[7]
The
Board stated the following in its reasons:
The panel
finds that not only did the Colombian Armed Forces commit gross human rights
abuses amounting to crimes against humanity during the period of time that the
claimant was a serviceman, but these crimes were particularly committed by
Mobile Brigade 1 in Meta at a time when the principal claimant was stationed
there as sub-lieutenant.
[8]
According
to the applicant, the documentary evidence sets out alleged human rights abuses
by the Colombian Army’s Mobile Brigades, but there is no evidence that his
unit, Mobile Brigade 1, committed any crimes against humanity between May –
August 1993 when the applicant was a member. Thus, the Board made an erroneous
finding of fact.
[9]
There
was, however, considerable evidence documenting the atrocities committed by
both the Colombian Army as a whole, and Mobile Brigade 1 in particular. In the
December 1994 “Visit to Colombia Joint report”, the United Nations indicated
that the recorded number of homicides was increasing, that the military was
thought to be responsible for half of such killings, and that it was believed
that the military responsibility for such deaths was increasing (Tribunal
Record, at pages 529 to 532). The United Nations was particularly concerned
with the role of the Mobile Brigades in perpetrating such abuses (page 532):
. . . These brigades (Mobile Brigades 1
and 2) are reported to patrol the country during extended periods, without
having a permanent base, and the battalions which normally operate in the
region do not consider themselves responsible for their activities. Members of
mobile brigades are said to be accountable for a high number of enforced
disappearances, torture and extrajudicial, summary or arbitrary executions. . .
.
[10]
This
concern was echoed by other human rights organizations. The 1993 Human Rights
Watch report, “Political Violence and Counterinsurgency in Colombia”, contains a
40-page analysis of the role of Mobile Brigades in the commission of crimes
against humanity (Tribunal Record, at pages 470 to 472, 480, 485 and 487).
General observations on the activities of Mobile Brigades 1 and 2 include:
·
Ordering
indiscriminate air strikes prior to Mobile Brigade units moving in to comb an
area;
·
Having as
a specific goal the terrorizing of civilians;
·
Failing to
distinguish between civilian non-combatants and guerrillas;
·
Defining
the “enemy” as not only guerrillas, but local leaders;
·
Not
wearing uniforms or insignia to avoid identification; and
·
Threatening
persons who tried to complain about military abuses.
[11]
Specific,
dated examples of atrocities committed by the Mobile Brigades are provided in
the evidence, from the bombing, “disappearing”, torture, robbery and
threatening of the La Uribe villagers in February 1992, to the torture of
civilians in March 1993, to further disappearances in October 1993 (Tribunal
Record, pages 481-482, 484 and 637).
[12]
The
applicant was stationed with Mobile Brigade 1 from May to August 1993. The
Board considered the documentary evidence and determined that gross human
rights abuses were committed by Mobile Brigade 1 in February 1992 and that such
abuse “continued and increased during 1993.” The Board then concluded that
Mobile Brigade 1 committed crimes against humanity while the applicant was
stationed there. In my opinion, it was not patently unreasonable for the Board
to conclude on a balance of probabilities that the Colombian Army, and more
specifically Mobile Brigade 1, committed crimes against humanity while the
applicant was stationed there.
- Method of
recruitment
[13]
The
Board noted that the applicant voluntarily joined the Army after his compulsory
year of service, completing officer training as well as specialized courses in
military intelligence and guerrilla tactics. The applicant does not dispute
this finding.
- Position/rank in
the organization
[14]
The
applicant submits that when he was a member of Mobile Brigade 1, he was a
sub-lieutenant receiving intelligence on the FARC guerrillas gathered by other
members of the Brigade, classifying this information, and passing it on to his
superiors. A sub-lieutenant working as an intelligence receiver and classifier
has a low rank. It is bizarre that the Board equated him with the applicant in
the Sivakumar case, who was the Chief of Intelligence for the Liberation
Tigers of Tamil Eelam.
[15]
The
respondent concedes that the Board erred in finding that the applicant had the
rank of sub-lieutenant for four of six years of service. Rather, the
applicant’s uncontested evidence is that he did not obtain this rank until he
graduated from military school in December 1991, and has therefore served as a
sub-lieutenant for twenty months (Tribunal Record, pages 18, 29 and 184).
[16]
However,
in my opinion, this error is not determinative, as the Board did not make any
particular finding regarding the applicant’s complicity based on the length of
time he held this rank. Rather, the Board held that the applicant’s rank,
specialized intelligence training, and responsibilities in the areas of
intelligence and as a leader of a platoon all supported the inference of a
shared common purpose with the activities of Mobile Brigade 1.
- Length of time in
the organization
[17]
The
Board noted that the applicant served in the Colombian military for six years.
There is no indication that the Board based its conclusion that there are
serious reasons to believe the applicant was complicit in crimes against
humanity on this one factor (Bedoya v. Minister of Citizenship and
Immigration, 2005 FC 1092).
- Opportunity to
leave the organization
[18]
The
applicant does not dispute the fact that he only resigned from the military in
1993, after he started receiving threats from guerrillas. It was not
unreasonable for the Board to find that the applicant’s failure to leave the
Army when the opportunity existed, and only leaving when he felt his life was
in danger, supported a finding of complicity.
- Knowledge
of organization’s atrocities
[19]
The
applicant testified that though the goal of the Brigade was to capture
guerrillas and bring them in for “interviews”, he never participated in such
interviews, never personally witnessed any abuse, and thought that such abuses
were isolated and that perpetrators were punished. The applicant submits that
he therefore did not have the requisite mens rea to be found complicit.
[20]
However,
a simple denial of knowledge, even if credible, “cannot suffice to negate the
presence of a common purpose. A plaintiff’s actions can be more revealing than
his testimony and the circumstances may be such that it can be inferred that a
person shares the objectives of those with whom he is collaborating” (Harb
v. Canada (M.C.I.) (2003), 302 N.R. 178 (F.C.A.); see also Shakarabi v.
Canada (M.C.I.), [1998] F.C.J. No. 444; and Ali, supra).
[21]
In
my opinion, the Board was entitled to find that the applicant’s testimony was
simply not credible on this point. As the Board noted, it is because of the
applicant’s rank and specific intelligence training that it found it
implausible that he would not be aware of the atrocities that this Brigade was
well-known for committing. Further, given the clear documentary evidence that
the Mobile Brigade 1 was involved in widespread human rights abuses, it was not
unreasonable for the Board to find the applicant’s alleged ignorance of these
facts implausible (Akramov v. Minister of Citizenship and Immigration,
2006 FC 122).
[22]
Similarly,
the evidence clearly indicates that perpetrators of human rights abuses were
not punished in either the military or civilian legal system, as alleged by the
applicant (Tribunal Record, pages 508, 510, 512, 517, 520, 544, 610 and 627).
- Reasonableness of
the Board’s conclusion
[23]
The
applicant finally submits that the conclusion of the Board is unreasonable. I
do not agree.
[24]
As
noted above, the Board considered the widespread and systematic abuses by the
military during the years the applicant was in the Army, and found that the
applicant:
- Was in a position of authority over
other soldiers as leader of a counter-guerrilla platoon;
- Also did intelligence work;
- Joined voluntarily and remained with
the army over six years when crimes against humanity are well-documented
and known to have occurred;
- Further was placed with a notorious
Mobile Brigade and quit only because he personally started receiving
threats from guerrilla groups; and
- Was reasonably imputed to have
knowledge of the atrocities that were occurring, but did nothing to stop
them and continued his work within the Mobile Brigade.
[25]
The
Supreme Court of Canada has determined that, when determining whether or not a
decision is unreasonable, “a reviewing court should not seize on one or more mistakes
or elements of the decision which do not affect the decision as a whole” (see Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, paragraph 56).
[26]
The
Board considered the evidence relevant to each of the factors listed by the
Federal Court of Appeal in Sivakumar, supra, before determining
that there were serious reasons to believe that the applicant was complicit in
crimes against humanity. In my opinion, the Board’s determination as to whether
the circumstances of this case supported an inference of complicity is not
unreasonable.
3. Conclusion
[27]
For
all the above reasons, the intervention of this Court is unwarranted and the application
for judicial review is dismissed.
“Yvon
Pinard”
Ottawa, Ontario
September
29, 2006
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