Date: 20060125
Docket: IMM-2818-05
Citation: 2006 FC 39
BETWEEN:
ROSMERY IVONNE
HERNANDEZ HERNANDEZ
OSCAR NAVARRO
Applicants
- and -
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER
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 IRB), dated April 13, 2005, ruling that the applicant is not
a “Convention refugee” or a “person in need of protection” under the definitions
provided in sections 96 and 97, respectively, of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27.
[2] Oscar Navarro (the male applicant)
and his common-law spouse, Rosmery Ivonne Hernandez Hernandez (the female
applicant) are citizens of El Salvador who claim that they were verbally
threatened by an armed gang.
[3] In respect of the male applicant,
the IRB simply addressed the issue of exclusion and found that there were
reasons to believe in his participation and complicity in the commission of
crimes against humanity, in view of:
- his testimony about his voluntary membership in the
National Guard starting in July 1982, at a time when this police force was
already engaged in the perpetration of inhuman acts on a large scale;
- his promotions to the ranks of corporal and deputy
sergeant;
- his knowledge of serious and systematic violations of
human rights which were being committed by this police force, violations of
which he could not have been unaware, given his many years of service within
the National Guard and the duties he had held; and
- the fact that he had never contemplated resigning.
[4] In respect of the female applicant,
the IRB rejected her refugee claim as it had not identified any credible
element in support of her claim, and refused in particular to believe that she
had been attacked by criminal elements, as the male applicant alleged.
[5] Concerning the male applicant Oscar
Navarro, first, he argues that the IRB erred in finding that there were serious
reasons for considering that he has committed a crime against humanity. The
applicant says he belonged to the National Guard from 1982 to 1994, but he
maintains that the National Guard, as a national institution, was not dedicated
to repression but was responsible for protecting civilians.
[6] Moreover, he says, there is nothing
in the evidence put before the IRB that would indicate that he participated
directly or indirectly in massacres, violations of human rights or crimes
against humanity.
[7] The characterization of acts as
international crimes against humanity is a question of law. An act must satisfy
the legal tests laid down in the Criminal Code and in international law
if it is to be considered a crime against humanity.
[8] As the Supreme Court of Canada held
in Mugesera v. Minister of Citizenship and Immigration, 2005 SCC 40:
[170] . . . the criminal act requirement for crimes against
humanity in ss. 7(3.76) and 7(3.77) [of the Criminal Code] is made up of
three essential elements: (1) a proscribed act is carried out; (2) the act
occurs as part of a widespread or systematic attack; and (3) the attack is
directed against any civilian population. . . .
[9] The documentary evidence enabled
the IRB to find that the National Guard devoted itself systematically to widespread
torture, kidnapping and murder of men, women and children in the civilian
population. The documentary evidence also enabled the IRB to find that the
attacks by the National Guard were committed as part of widespread and
systematic attacks. In my opinion, these findings of the IRB are correct.
[10] As to the second issue, the
applicant’s participation, the cases are clear concerning the onus, which was
on the Minister in terms of exclusion, “serious reasons for considering”,
namely, a lesser onus than the balance of probabilities. To apply the exclusion
clause, the IRB simply had to be satisfied, to a lesser degree than a balance
of probabilities, that the applicant had been an accomplice in the crimes
against humanity which the National Guard had perpetrated (see Sivakumar v.
Canada (M.E.I.), [1994] 1 F.C. 433, leave to appeal to the Supreme Court of
Canada, No. 23962, denied on June 2, 1994, and Ramirez v. Canada (M.E.I.),
[1992] 2 F.C. 306 (C.A.)). More than a doubt or speculation is required, but there
need not be a balance of probabilities.
[11] From the facts, the IRB was able to
find (to have “serious reasons for considering”) that the applicant was an
accomplice in the crimes committed by the National Guard during the years in
which he had served in its ranks, years that coincided exactly with the period
in which the National Guard had systematically engaged in widespread torture,
kidnapping and murder.
[12] The principles of complicity were
summarized as follows by Madam Justice Reed in Penate v. Canada (M.E.I.),
[1994] 2 F.C. 79, at page 84:
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. . . .
[13] In Harb v. Canada (M.C.I.),
[2003] F.C.J. No. 108 (F.C.A.) (QL), Mr. Justice Décary explained the notion of
complicity by association in these words:
[11] . . . It is not the nature of the crimes with
which the appellant was charged that led to his exclusion, but that of the
crimes alleged against the organizations with which he was supposed to be
associated. Once those organizations have committed crimes against humanity and
the appellant meets the requirements for membership in the group, knowledge,
participation or complicity imposed by precedent, . . . the exclusion applies
even if the specific acts committed by the appellant himself are not crimes
against humanity as such. . . .
[14] In my opinion, the IRB correctly
applied the jurisprudential principles when it made a finding of complicity by
the applicant with the National Guard. The evidence revealed that it was highly
probable that anyone who was a member of the National Guard in 1982 and 1983
was not only aware of the criminal activities of this police force but
participated in them. Furthermore, the applicant did not dissociate himself
from the group.
[15] Finally, concerning the female
applicant Rosmery Ivonne Hernandez Hernandez, she argues that the IRB erred in
criticizing her for not complaining to the police in El Salvador about her
problems with the armed gang. The documentary evidence, she says, demonstrates
the ineffectiveness of the police authorities.
[16] However, the applicant does not support
this contention by affidavit, did not file any documentary evidence and did not
refer to some pages of documents previously filed at the IRB.
[17] The female applicant says the IRB
also erred in criticizing her for not answering question 31 in her
Personal Information Form (PIF) about the steps she had taken to obtain
protection in her country. The applicant maintains that her file was linked
with that of her common-law husband and that this question had been answered in
his PIF.
[18] The female applicant further alleges
that the IRB erred in criticizing her for not having made a refugee claim in
Mexico and the United States, because she has family only in Canada and El
Salvador. The applicant submits that she does not consider the sister of her husband
to be a member of her direct family.
[19] However, the applicant filed no
affidavit in support of this explanation. What is more, she herself stated in
her PIF that she has a brother in “L.A., USA”, which directly contradicts her
submissions.
[20] In my opinion, it was entirely
reasonable for the IRB to conclude that, if the female applicant had really
fled her country in fear, she would probably have requested international
protection if not in Mexico, at least in the United States (see Hafez v. Minister
of Citizenship and Immigration (November 17, 1994), IMM-3127-93, Huerta
v. Minister of Employment and Immigration (March 17, 1993), A-448-91 and Ilie
v. Minister of Citizenship and Immigration (November 22, 1994),
IMM-462-94).
[21] This Court may intervene only if the
negative inference drawn from a claimant’s conduct is unreasonable, absurd or
arbitrary (Huerta, supra).
[22] The applicants’ arguments on
inclusion in fact bail down to an effort to get the Court to assess differently
the evidence that was available to the IRB. However, it is trite law that this
may not be done (Zrig v. Canada (M.C.I.), [2003] F.C.J. No. 565 (F.C.A.)
(QL).
[23] In my opinion, the IRB did not err
in finding that the female applicant is not a refugee or a person in need of
protection.
[24] For all of these reasons, the
application for judicial review is dismissed in its entirety.
___________________________________
JUDGE
OTTAWA, ONTARIO
January 25, 2006
Certified true translation
François Brunet, LLB, BCL
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