Date: 20060929
Docket: IMM-7347-05
Citation: 2006 FC 1138
BETWEEN:
JOSE
PEDRO JUSTINO
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 November 15,
2005, wherein the Board determined that the applicant was not a Convention
refugee or a person in need of protection by reason that he was excluded from
protection pursuant to section 98 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (the “Act”) under Article 1F(a) for complicity
in crimes against humanity.
[2]
Jose Pedro
Justino (the “applicant”) is a 41-year-old citizen of Angola. He is
married and has four children, including two step-children. The applicant
claims to have a fear of persecution on the Convention ground of a perceived
political opinion.
*
* * * * * *
[3]
By
decision dated November 15, 2005, the Board found that the applicant was
complicit in the commission of crimes against humanity for the following
reasons:
- The applicant joined the Angolan Ministry
of the Interior (“MOI”) voluntarily and worked there for three years;
- The MOI can be described as an
organization resorting to human rights abuses as a regular part of its
operations;
- The applicant was a senior economist
with a responsibility of planning logistical supplies to other parts of
the organization;
- The applicant admitted that he had
knowledge of the human rights abuses perpetrated by parts of the MOI; and
- The applicant had opportunities to
leave the MOI.
* * * * * * * *
[4]
Paragraph
1(F)(a) of the Convention Relating to the Status of Refugees states:
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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;
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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;
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Section
98 of the Act reads as follows:
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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.
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* * * * * * * *
[5]
In
order to properly conclude that an applicant is complicit in crimes against
humanity, the officer must have serious reasons for considering that the
individual committed or was complicit in crimes against humanity. This burden
or standard of proof is less than the civil standard of a balance of
probabilities (Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306 (C.A.)).
[6]
The
applicable standard of review to questions of fact is patent unreasonableness,
while legal findings are subject to the correctness standard of review (see Bedoya
v. Minister of Citizenship and Immigration, 2005 FC 1092, Harb v.
Minister of Citizenship and Immigration, 2003 FCA 39, and Mugesera v. Minister
of Citizenship and Immigration, 2005 SCC 40). The determination of an
applicant’s membership and role in an organization, for example, is a question
of fact and therefore subject to the most deferential standard of review, while
a determination of whether these facts meet the requirements of a crime against
humanity is a question of law.
[7]
Here,
the Board concluded that the applicant was complicit in crimes against humanity
because it determined that he had met the following six factors relevant to
analyzing complicity:
- Nature of the organization;
- Method of recruitment;
- Position/rank in the organization;
- Knowledge of organization’s
atrocities;
- Length of time in the organization;
- Opportunity to leave the organization.
In
analyzing the position/rank factor, the Board concluded:
But his duties as a senior economist
brought him squarely into the realm of strategic support services to persons
and operations that were carrying out human rights abuses.
[8]
According
to the applicant, his testimony and the evidence before the Board make it clear
that the Board erred in characterizing him as a senior economist who supported
those who perpetrated human rights abuses. This was an erroneous finding of
fact, upon which the Board, in part, based its decision.
[9]
However,
the jurisprudence is clear that the rank that the person had in the impugned
organization is not determinative of whether the person can be found to be
complicit in crimes against humanity. It is one of a number of factors to be
taken in account.
[10]
A
person’s rank within an organization, among other things, speaks to the
likelihood of that person’s knowledge and involvement in the organization’s bad
acts. However, one need not be in a leading position in order to be found
complicit. Mr. Justice Barnes, in J.A.O. v. Minister of Citizenship and
Immigration, 2006 FC 178, cited with approval Mr. Justice Blanchard in Sungu
v. Canada (M.C.I.), [2003] 3 F.C. 192, wherein he held:
[31] The
question of complicity was also considered by Madam Justice Reed in Penate
v. Canada (Minister of Employment and
Immigration), [1994] 2 F.C. 79 (T.D.). Following an analysis of the
decisions in Ramirez, supra, Moreno,
supra, and Sivakumar v. Canada (Minister of Employment and
Immigration), [1994] 1 F.C. 433 (C.A.),
Reed J. concluded, at pages 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. […]
[32] Likewise,
in Sivakumar, supra, the Court of Appeal, following Ramirez,
supra, explained that a person may be considered “an accomplice through
association” and laid down the following principles:
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Complicity through association can mean that individuals may be rendered
responsible for the acts of others because of their close association with
the principal actors.
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-
Furthermore, 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. 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.
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-
In such circumstances, an important factor to consider is evidence that the
individual protested
against
the crime or tried to stop its commission or attempted to withdraw from the
organization.
|
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-
Association with an organization responsible for the perpetration of
international crimes may constitute complicity if there is personal and
knowing participation or toleration of the crimes.
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[11]
Regardless
of whether the applicant was a “low-mid level economist” or a “senior
economist”, it is clear that the applicant shared a common purpose with the
organization. The Board found that the applicant could not have done his job
properly concerning materials distribution, financial and logistical support
for the MOI if he had not analysed intelligence reports. Therefore, the
applicant was aware, or should have been aware, that his duties provided
logistical support for the MOI’s security forces’ operations against the
separatist UNITA rebels, and that during that period of time the MOI committed
numerous human rights abuses. The applicant also stated that he knew of the human
rights abuses of the MOI before he joined the organization. The applicant did
not disassociate himself from the organization at his first opportunity.
[12]
It
is my opinion that even if the Board had erred with regard to its
characterization of the applicant’s position/rank, and he were only a “low-mid
level economist”, this would not alter the Board’s conclusion with regard to
the applicant’s complicity.
[13]
The
applicant further submits that there was insufficient evidence before the Board
for it to conclude that he had sufficient personal and knowing participation
for a finding of complicity. I do not agree.
[14]
A
refugee claimant may be excluded from receiving protection if the claimant is
found to be complicit in committing crimes against peace, war crimes or crimes
against humanity. In order to be found to be complicit, a person must have been
a knowing and personal participant in the crimes committed. This Court, echoing
the words of Décary J.A. in Bazargan v. Canada (M.E.I.) (1996), 205 N.R.
282, stated, in Rai v. Canada (M.C.I.), 2001 FCT 784:
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.
[15]
The
evidence is clear that the applicant was an economist with the Angolan MOI,
which was responsible for internal security in the country and thus responsible
for the human rights abuses committed. The applicant chose to remain in the
employ of the MOI for three years despite his knowledge of the Ministry’s bad
acts.
[16]
If
an organization is not directed for a brutal and limited purpose and the
commission of crimes against humanity is not its main function but incidental
to its mandate, there are six factors which must be considered. The Board
clearly directed its mind to the applicant’s activities and his link to the
organization, taking into account the six factors:
In summary,
the claimant in my view has met the test of the six factors identified in
analyzing complicity [Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306
(C.A.)]. In terms of Method of Recruitment, he joined the Ministry
voluntarily. The Nature of the Organization is clearly one that can be
described as resorting to human rights abuses as a regular part of its
operation. The Position/Rank of the claimant reflect that he was a
senior economist with a strategic responsibility of planning logistical
supplies to other parts of the organization. He had by his own admission Knowledge
of the Atrocities perpetrated by segments of the organization; he had in my
view or could have availed himself of Opportunities to Leave the
organization and the Length of Time spent in the organization was three
years – a long time indeed to be constantly aware of what was going on and to
attempt to leave the organization.
[17]
The
evidence was compelling and credible that the security apparatus of the MOI,
during the relevant time, committed crimes against humanity. The U.S. Department
of State Report for Angola for 2000 (released February 2001) stated:
The Ministry of Interior is responsible
for internal security, a function that it exercises through the Angolan
National Police (ANP), the Rapid Intervention Police (PIR), which was created
in 1992 as an elite paramilitary force, and other organs of state security. The
Armed Forces of Angola (FAA) are responsible for protecting the State against
external threats and have intervened in regional conflicts every year since
1996. The FAA claimed that it had integrated more than 10,000 UNITA soldiers
since the 1999 fall offensive. With the resumption of localized hostilities
within the country, the FAA became involved in counterinsurgency operations
against UNITA. The FAA also is involved is similar operations, although on a
smaller-scale, against the Front for the Liberation of the Enclave of Cabinda-Armed
Forces of Cabinda (FLEC-FAC). The Government’s security forces remain firmly
under civilian leadership. Security forces committed numerous, serious human
rights abuses.
[18]
There
is no question that the applicant was a voluntary employee of the MOI for three
years, and that he attained the position of an economist in the Department of
Plannification and Studies. The Board made a finding of fact that the
applicant’s own evidence indicated that he knew about the Ministry’s human
rights abuses even before he joined and that he was aware that his work was
being used as logistic support for the MOI in their efforts to fight against
UNITA rebels.
[19]
The
applicant argues that the Board erred because there was no evidence that linked
his duties as a low-mid level economist to the perpetration of human rights abuses
by some elements of the police. However, the law has never required direct
evidence to satisfy the threshold of “serious reasons for considering”. As the
Federal Court of Appeal, discussing its holding in Sivakumar ([1994] 1
F.C. 433) said in Sumaida v. Canada (M.C.I.), [2000] 3 F.C. 66:
[31] Our
Court never required in that case that a claimant be linked to specific crimes
as the actual perpetrator or that crimes against humanity committed by an
organization be necessarily and directly attributable to specific acts or
omissions of a claimant.
[32] Indeed,
short of that kind of direct involvement and of evidence supporting it, our
Court accepted the notion of complicity defined as a personal and knowing
participation in Ramirez (see page 438 of the Sivakumar decision)
as well as complicity through association . . .
[20]
The
applicant further argues that the funds he distributed could have been directed
to paying the salaries of civil servants and/or police officers who carried out
legitimate functions. That may be so. However, it is clear that the applicant
used his expertise to provide logistic support to the fight against UNITA. He
stated:
I would pick up the information and I
would refer to my Director that the certain province informed that in certain
locality, there was concentration of the enemy, and the enemy was considered
UNITA.
[21]
It
is my opinion that the evidence in this case satisfies the requirements of
complicity in crimes against humanity as established in the jurisprudence (Osagie
v. Canada (M.C.I.), [2000] F.C.J. No. 1133 (T.D.) (QL), Osayande v. Minister
of Citizenship and Immigration, 2002 FCT 368, Ariri v. Minister of
Citizenship and Immigration, 2002 FCT 251, Sivakumar, supra, and
Ramirez, supra).
* * * * * * *
*
[22]
In
my opinion, the Board drew reasonable inferences from the evidence in reaching
its conclusion about his complicity in crimes against humanity. The applicant
has failed to show that these findings were perverse or capricious or not open
to the Board based on the evidence. Consequently, the intervention of this
Court is not warranted and the application for judicial review is dismissed.
“Yvon
Pinard”
Ottawa,
Ontario
September
29, 2006
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