Date: 20031010
Docket: IMM-4644-02
Citation: 2003 FC 1177
Ottawa, Ontario, October 10, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
MARIO ROBERTO CIRILO RUIZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review from a decision by the Refugee Division ("the panel") on September 6, 2002, in which it concluded that the applicant was not a Convention refugee and was excluded from the Convention under Article 1F(a) and (c).
[2] The applicant, a citizen of Peru, and his wife Ms. Mejia, arrived in Canada accompanied by their two minor sons on March 16, 2001. They claimed refugee status at the point of entry. The applicant alleged a well-founded fear of persecution in his country on account of alleged political opinions.
[3] Ms. Mejia challenged the panel's conclusions in case IMM-4645-032 of the Federal Court Registry.
[4] In support of his claim, the applicant alleged the following facts.
[5] The applicant entered the Navy in Peru in 1984. After training for three years at the Naval Technical Instruction Training Centre, he worked in emergency zones created by the government to combat the Shining Path and the Tupac Amaru Revolutionary Movement ("the TARM").
[6] He had his first confrontation with the Shining Path in the Aguaytia zone in 2000 and 2001.
[7] On October 10, 2000, the patrol to which he belonged allegedly captured three rebels who admitted there was a rebel base in the vicinity. On January 15, 2001, the patrol allegedly took control of that base and captured 10 persons in possession of weapons, ammunition and drugs. Mr. Ruiz said his problems and those of his family were due to that arrest. He said he described the circumstances to his commanding officer and prepared a report which he forwarded to the Intelligence Branch.
[8] On January 16, 2001, Mr. Ruiz received death threats. He said he informed the commanding officer, who promised to investigate. He said he was also threatened with death the following day if he did not withdraw his report.
[9] On January 25, 2001, Ms. Mejia said she was stopped in front of the house by two individuals who threatened to kill her. She said she laid a complaint at the police station the same day. However, she could not identify the individuals. On February 10, 2001, she said she was struck and raped by three hooded men; her cousin was killed.
[10] The applicant said he decided to hide with his family and to take the necessary steps to leave the country as quickly as possible after reporting what had happened to the authorities.
[11] Mr. Ruiz and his family left Peru on March 15, 2001.
[12] The panel concluded that the story related by Mr. Ruiz was not credible in view of improbabilities in his testimony involving the essential parts of his claim. Consequently, he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[13] The panel further concluded that the principal applicant was excluded from the scope of the Convention under Article 1F(a) and (c).
1. Applicant not a Convention refugee
[14] It is well settled that the applicable standard of review on questions of fact is that of the patently unreasonable decision.
[15] The panel did not find Mr. Ruiz's story credible. It noted several contradictions, inconsistencies and improbabilities in his testimony, which was contradicted by the documentary evidence in the record, and for which the applicant could provide no satisfactory explanation.
[16] This conclusion is supported by the evidence in the record and cannot be disregarded, since it is not patently unreasonable.
[17] On the panel's conclusion that even if Mr. Ruiz's story was credible his claim had no connection with the Convention, earlier decisions have established that victims of crime or personal revenge are not a particular social group within the meaning of the Convention (Chan v. Canada (M.E.I.), [1995] 3 S.C.R. 593; Ward v. Canada, [1993] 2 S.C.R. 689; Calero v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1159 (QL); Karpounin v. Canada (Minister of Employment and Immigration) (1995), 92 F.T.R. 219; Wilcox v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1157 (QL); Marincas v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1254 (QL)).
[18] It is true that since Klinko v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 327, in cases where corruption is so widespread in a government that it is part of the latter's structure, a denunciation of corruption is the expression of a "political opinion". It is obvious that a person who is only obeying orders without denouncing corruption cannot say that he expressed a "political opinion".
[19] The applicant maintained that he and his family had suffered reprisals because he was regarded as a person who was fighting corruption by an alliance between drug traffickers and corrupt members of the military. This argument is not based on any evidence. This Court has recently considered a similar situation in Stefanov v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 954 (QL), in which the applicant claimed refugee status because he refused to alter software he had created to help a Bulgarian organized crime group embezzle funds. In paragraph 26, Blanchard J. wrote:
The applicant argues that this is a case where the evidence supports a finding that the sole primary reason for the persecution was his opposition to corruption and that there is therefore a nexus to the Convention. I do not agree. In my view, the evidence does not establish the applicant's opposition to corruption based on a political position which would engage the machinery of state government. The applicant's action on this isolated incident does not establish a political position rooted in political conviction.
[20] These conclusions are applicable in the case at bar.
[21] Consequently, the panel made no error that would justify this Court's intervention.
2. Exclusion of applicant
[22] The definition of a "Convention refugee" in subsection 2(1) of the Act reads as follows:
| . . . but does not include any person to whom the Convention does not apply pursuant to section E or F or Article 1 thereof, which sections are set out in the schedule to this Act . . .
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Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.
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[23] Section F(a) of Article 1 of the Convention reads as follows:
| (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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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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[24] The Federal Court of Appeal has many times adopted the definition of a crime against humanity contained in Article 6 of the Statute of the International Military Tribunal. It includes:
(c) 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.
(See as to this: Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433; Gonzalez v. Canada (Minister of Employment of Immigration), [1994] 3 F.C. 646; Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66.)
[25] In Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306, the Federal Court of Appeal established that the standard of evidence contained in the phrase "serious reasons for considering" is well below that required in the criminal law ("beyond a reasonable doubt") or the civil law ("on a balance of probabilities").
[26] It also set out the applicable requirements for determining participation or complicity in order for the exclusion clause to apply, at pages 317-18:
Clearly no one can "commit" international crimes without personal and knowing participation.
What degree of complicity, then, is required to be an accomplice or abettor? A first conclusion I come to is that mere membership in an organization which from time to time commits international offences is not normally sufficient for exclusion from refugee status . . .
. . . . .
It seems apparent, however, that where an organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts.
. . . . .
However, someone who is an associate of the principal offenders can never, in my view, be said to be a mere on-looker. Members of a participating group may be rightly considered to be personal and knowing participants, depending on the facts.
At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it. Such a principle reflects domestic law (e.g., subsection 21(2) of the Criminal Code), and I believe is the best interpretation of international law.
[27] Accordingly, for an exclusion clause to apply it must first be shown that there has been a certain degree of "personal and knowing participation" in the international crimes. This is the necessary mens rea. Complicity depends essentially on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it. The more important the position a person occupies in an organization which has committed one or more crimes, the more likely his or her complicity will be.
[28] However, mere membership in a military organization which from time to time commits inhuman acts against the civilian population is not in itself sufficient to apply the exclusion provision, unless that organization pursues "limited, brutal purposes". Accordingly, an exception to this general rule arises where the organization is one whose very existence is premised on achieving political or social ends by any means deemed necessary (Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298).
[29] In the case at bar, the applicant enrolled in the Navy in 1984 as an infantryman. He did not become the head of a patrol with a complement of 150 soldiers until 2000. His testimony indicated that he denied knowledge of any reputation for brutality by the Navy. As in Moreno, supra, there is no evidence in the record that the applicant had prior knowledge of the crimes that were to be committed. It also cannot be said that he directly assisted his superiors or encouraged them to commit an international crime. Also, acts or omissions which amount to passive acquiescence are not a basis for relying on the exclusion clause: there must be personal and knowing participation. Equally, his complicity cannot be inferred from his duties, since he did not hold important positions. There is no evidence to support the existence of a shared common purpose like that between the "principal offender" and the "accomplice".
[30] Of course, his mere membership would have been a sufficient basis for concluding he had participated if it was an organization which existed for "limited, brutal purposes".
[31] I note that in Ramirez, supra the applicant was a member of the Salvadoran Army, an organization whose members had committed crimes against humanity such as torture and the execution of civilians. The applicant had himself admitted participating in atrocities against the public. As a soldier, he had even tortured and killed unarmed persons. MacGuigan J.A. stated (at 326) that "the torture and killing of captives had become a military way of life in El Salvador". Later, the Court noted that "one of [the] common objectives [of the military force] was the torture of prisoners to attract information" (at 327). However, the Court did not find in that case that the Salvadoran Army was an organization which existed primarily for "limited, brutal purposes".
[32] I have to conclude that if an organization such as the Salvadoran Army in Ramirez, supra does not meet the necessary requirements to be classified as an organization which exists for "limited, brutal purposes", the panel did not have sufficient evidence in the case at bar to come to such a conclusion.
[33] I agree with the respondent that it is not necessary for the applicant to have personally participated in the acts of violence. However, the panel had to analyze the way in which the applicant had participated in the shared, common purpose of the Peruvian Navy and had knowledge of the crimes committed.
[34] I therefore conclude that the panel made an error of law and fact in excluding the applicant from Convention protection.
[35] However, the panel made no error in its conclusion that the applicant lacked credibility, so there is no basis for referring the matter back to the panel for rehearing.
[36] For these reasons, the application for judicial review is dismissed.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed.
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"Danièle Tremblay-Lamer"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET: IMM-4644-02
STYLE OF CAUSE: MARIO ROBERTO CIRILO RUIZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: SEPTEMBER 24, 2003
REASONS FOR ORDER AND ORDER: TREMBLAY-LAMER J.
DATE OF REASONS: October 10, 2003
APPEARANCES:
Alain Joffe Applicant
Michel Pépin Respondent
SOLICITORS OF RECORD:
Alain Joffe Applicant
606-10 St-Jacques
Montréal, Que. H2Y 1L3
Morris Rosenberg Respondent
Deputy Attorney General of Canada
Montréal, Quebec
IMMIGRATION AND REFUGEE BOARD Panel
Refugee Division
200 boul. René-Lévesque Ouest
Tour Est, Bureau 102
Montréal, Quebec H2Z 1X4
Tel.: 541-283-7733
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