Date:
20051103
Docket:
IMM-882-05
Citation:
2005 FC 1494
Ottawa, Ontario, the 3rd day of November 2005
Present: The Honourable Mr. Justice Blanchard
BETWEEN:
JADALLAH SADAKAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1]
This is an application for judicial review of a
decision by the Refugee Protection Division of the Immigration and Refugee
Board (the Board) of January 19, 2005, holding that the applicant was neither a
Convention refugee nor a person in need of protection pursuant to
provision 1F(a) of the Convention.
[2]
By this application for judicial review the
applicant, Jadallah Sadakah, is asking the Court to set aside the Board’s
decision.
2. Background
[3]
The facts alleged by the applicant, as reflected
in the Board’s decision, are the following. The applicant is a national of
Lebanon, born in 1960. When the civil war began in Lebanon the applicant, in
1975, joined the Lebanese Forces (LF) in his native town Zahlé. In 1980 he was
further involved with the LF by participating in discussions on security
measures to be taken for protection from the Syrians. The applicant was
involved with the defence of his town when it was bombed in April 1981 and
February 1982. Zahlé fell into Syrian hands in 1985. As he was at risk on
account of his membership of the LF, the applicant fled to Beirut.
[4]
On a visit to Zahlé in 1988, the applicant was
arrested and detained by Syrian forces for nearly three weeks. He alleged that
he was mistreated, that he was subjected to [translation]
“the third degree” during his interrogation about his relations with Israel and
charged with working with the Israelis. He suffered physical and psychological
after-effects from this detention.
[5]
In 1990, once the conflict between the LF and
the Lebanese army of General Aoun was over, the applicant returned to Zahlé. In
1994 the militant faction of the LF was dissolved by the Lebanese government
and the LF temporarily stopped their activities. When activities resumed, the
applicant was secretly involved in the party’s propaganda. He said he was
arrested twice by the Lebanese authorities, in early 1999 and in March 1999. He
was required to sign a statement promising to cease all activities related to
the LF. He alleged that he abode by that promise.
[6]
In June 2001, the applicant travelled to Canada.
From Lebanon, his wife told him the officers had come to search their residence
following a demonstration, which took a tragic turn, and in which members of
the LF took part in August 2001. The same scenario occurred again in May 2002
after the assassination of Ramzi Irani. Accordingly, the applicant had his visa
extended in Canada and then claimed refugee status in Canada.
[7]
The applicant’s refugee claim was heard on February
10, September 22 and November 18, 2004. On January 19, 2005 the Board
rejected the claim. The application for leave to file this application for
judicial review was allowed on May 26, 2005.
[8]
The applicant claimed refugee status in Canada
pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act,
S.C.2001, c. 27 (IRPA). He alleged he had a well-founded fear of persecution in
Lebanon on account of his political opinions and Christian religion.
[9]
In addition to the applicant’s testimony, the
Board had the following evidence at its disposal: the applicant’s Personal
Information Form (PIF), other personal documents and documents on the social
and political situation in Lebanon.
3. Impugned decision
[10]
The Board referred first to the definition of
the concept of crimes against humanity set out in article 6 of the Charter
of the International Military Tribunal. The Board then found, based on the
documentary evidence in the record, that the LF were a terrorist organization
for a limited, brutal purpose, on account of the various incidents in which the
LF had been involved.
[11]
The Board concluded that the applicant was aware
of the nature of the LF organization despite the fact that he tried to persuade
the Board to the contrary and to minimize his role in the LF. The Board noted
that mere membership in an organization devoted primarily to a limited, brutal
purpose does not necessarily entail exclusion, but it must be determined
whether the applicant was aware of the human rights violations perpetrated by
the LF, approved in the purposes and activities of the LF and, finally, whether
there were serious reasons for considering that he committed, or was complicit
in crimes against humanity. The Board found that the applicant was much more
deeply involved in the LF activities than he had suggested.
[12]
The Board decided that there were serious
reasons for considering that the applicant was an accomplice in crimes against
humanity perpetrated by the LF and, accordingly, rejected his claim pursuant to
section 1F(a) of the Convention as follows:
The panel finds that the claimant’s
testimony has shown he has a selective memory when confronted with atrocities
committed by the LF, in a deliberate attempt to cover his role as an
accomplice. However, the panel believes that based on his knowledge of the
actions and activities of the LF and the duration of his affiliation with the
LF without leaving it, it can infer and make a finding of complicity on the
part of the claimant.
The panel is of the view that
given his voluntary enlistment in the LF, his active participation in these
forces, his interest in the important role of armed bodyguard for an LF leader,
his long-time affiliation even after learning of the events at Sabra and
Chatila, there are serious reasons for considering that the claimant was
complicit by virtue of his personal and knowing participation in crimes against
humanity committed by the LF.
4. Issue
[13]
In my opinion, this application for judicial
review raises the following issue: did the Board make a reviewable error when
it found that the LF were an organization with a limited, brutal purpose and
that the applicant was an accomplice in crimes perpetrated by the LF?
5. Analysis
[14]
The applicant argued that the Board erroneously
treated the LF as a terrorist organization existing for a limited, brutal
purpose when there was no evidence to support that finding. The documentary
evidence submitted to the Board suggested in fact that the LF were a
politico-military organization for defensive purposes to protect the interests
of Christian communities in the face of threats by Palestinian factions and the
Syrian army. The LF did not appear on any list of terrorist organizations.
[15]
The Board relied on an article in Le Monde
diplomatique, an article in the newspaper Le Monde and an Internet
newswire article from BBC News to find that the documentary evidence indicated
various incidents in which the LF had been involved and which [translation] “clearly describes this
organization as a terrorist organization directed to a limited, brutal
purpose”. The Board found that, based on this documentary evidence, the LF was
responsible for massacres which took place in the Sabra and Chatila camps. It
said that in its opinion [translation]
“all these sources, including United Nations observers, cannot be wrong”.
[16]
I have examined this documentary evidence and
nowhere found any reference to the LF as a terrorist organization, rather as a
Christian militia. I consider that the evidence was insufficient to lead to the
inference drawn from it by the Board. Further, other pieces of evidence in the
record, recalling the background of the LF and explaining their activities,
conflict with the Board’s finding. They describe the political organization of
the LF and the LF militia. I refer in particular to the article by Lewis W.
Snider headed “The Lebanese Forces: Their Origins and Role in Lebanon’s
Politics”, in which there are the following passages describing the LF, their
political activities, militia and reasons for existing:
The enduring political strength of the
Lebanese Forces does not ultimately rest with the militia, but in their
organizational structure, the effectiveness of their social programs and their
ability to mobilize the population for political action.
. . . . .
The military arm of the Lebanese Forces
remains a militia in the sense that it is basically a citizen army as distinct
from a professional army. Many of its personnel hold civilian jobs or attend
college at the same time as they are serving. The militia does not use the
traditional system of military ranks. Authority derives from the
responsibilities assigned to the commanders and other individuals.
. . . . .
The mission of the Lebanese Forces militia
is to rid Lebanon of all foreign forces. This implies being prepared to wage
war not only against irregular forces such as the Palestinian guerrillas, but
against regular armies such as Syria or possibly Israel. This means being able
to wage war in rural as well as urban terrain.
. . . . .
More important than sheer numbers, however
(the militia more than trebled in size from 4,000 to 12,000 in 1981), is its
social composition. That is its second main source of strength. Its ranks
include lawyers, business people, engineers, college faculty members and students
as well as young people from both working and middle class strata.
. . . . .
The official position of the Lebanese
Forces is that none of their activities has been aimed against the Lebanese
government, nor are they intended to compete with the government’s
administrative apparatus.
[17]
I feel that these passages clearly illustrate
the fact that there is evidence in the record to suggest that the LF are not in
fact a terrorist organization for a limited, brutal purpose, but are actually a
political organization with a militia. In this article, the author even
recognizes the involvement of the LF in the Sabra and Chatila massacres.
Regardless of the validity of this conclusion, and even assuming that it is
correct, I feel that this situation does not as such suffice, as the Board
concluded, to make the LF a terrorist organization existing for a limited,
brutal purpose. Consequently, I cannot accept the respondent’s argument that it
is clear that the acts described in the documentary evidence referred to by the
Board are crimes against humanity within the meaning of the relevant
international instruments: Canada (Minister of Citizenship and Immigration)
v. Hajialikhani, [1999] 1 F.C. 181.
[18]
As I see it, the Board did not undertake an
analysis of the documentary evidence but relied heavily on the fact, whether
groundless or not, that the LF took part in the Sabra and Chatila massacres as
a basis for finding that it is a terrorist organization for a limited, brutal
purpose. That does not suffice. A supposedly legitimate organization such as an
army may be responsible for crimes against humanity without thereby being an
organization devoted to a limited, brutal purpose, like a secret police: Moreno
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298. It
is true that there is evidence in the record suggesting that the LF
sporadically committed acts or crimes against humanity. There is also evidence
in the record to show that the LF are a defensive organization to protect the
interests of the Christian communities in Lebanon. I agree with the applicant
that the Board did not consider this evidence about the nature of the LF
organization. Consequently, paragraph 18.1(4)(d) of the Federal
Courts Act, R.S.C. 1985, c. F-7, s. 1; 2002, c. 8, s. 14, applies in
this case: the Board’s decision must be set aside since it made it without
regard for the material before it.
[19]
Further, in my opinion this incorrect finding
led the Board to use inappropriate analytical tools to resolve the issue of the
applicant’s alleged complicity in the crimes against humanity. In the case at
bar, the Board attached no credibility to the applicant’s explanations of his
political activities with the LF, especially during the civil war. It found him
not credible for the following reasons:
[translation]
- the applicant argued that he joined the LF in 1975 to protect
Zahlé, whereas the documentary evidence shows that serious fighting, in the
Board’s view, was localized in Beirut and the Syrian forces bombed Zahlé six
years later;
- the applicant’s testimony about his progress in the LF was
confused and contradictory whereas he testified in detail about the LF internal
information;
- the applicant is aware of the conflict and he cannot have
been without knowledge of the atrocities committed by the various factions;
- the applicant gave an evasive explanation when asked to
explain why he did not question his leaders about the Sabra and Chatila events;
- the fact that the applicant acted unofficially as a bodyguard
for one of the leaders of the barracks where he stayed indicates to the Board
that the LF leadership relied on his active participation, loyalty and trust;
- the applicant was involved in LF propaganda which made his
argument that he did not know of the military operations conducted by the LF
improbable;
- on account of his many trips between Zahlé and Beirut, it is
reasonable to assume that the applicant had knowledge of the LF’s acts and
activities.
[20]
The general rule is that a person cannot have
committed a crime against humanity without there being some degree of personal
and knowing participation: Murillo v. Canada (Minister of Citizenship
and Immigration), [2003] 3 F.C. 287. Mere membership in an organization
sporadically involved in the perpetration of international crimes is not a
basis for applying the exclusion provision: Ramirez v. Canada
(Minister of Employment and Immigration), [1992] 2 F.C. 306. Accordingly,
it must be shown that in fact there were “serious reasons for considering” that
the applicant committed a crime against humanity and, in order to come to a
finding of complicity, the “personal and knowing participation” of the person
in question must be established: Mohammad v. Canada (Minister
of Citizenship and Immigration), [1995] F.C.J. No. 1457 (QL), (1995) 115
F.T.R. 161; Bazargan v. Canada (Minister of Employment and
Immigration), [1996] F.C.J. No. 1209 (QL).
[21]
The general rule is qualified by an exception:
the very existence of the organization is directed to attaining political or
social objectives by any means felt necessary, or the organization is primarily
devoted to a limited, brutal purpose: Moreno, supra. The presumption of
complicity applies once this label is applied to the organization in question:
mere membership in such an organization necessarily implies personal and
knowing participation in acts of persecution: Ramirez, supra.
[22]
Accordingly, I accept the applicant’s argument
that the erroneous finding of the Board that the LF were a terrorist
organization devoted to a limited, brutal purpose had a major impact on the
analysis of the issue of complicity. In cases where the organization is not
designated by this label, complicity is a question of fact: Sivakumar
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C.
433. In the case at bar, the Board did not refer to any event or act by the
applicant that might suggest his direct or indirect participation in the
commission of a crime against humanity. Further, I doubt that the Board’s
finding that he lacked credibility was sound enough to support the inferences
it drew regarding the knowledge the applicant may have had of the crimes
against humanity in issue. In my view, it did not make the findings of fact
necessary for it to infer that the applicant had committed crimes.
[23]
Consequently, I cannot accept the respondent’s
argument that the fact that the applicant was aware of the events that occurred
in Sabra and Chatila suffices to meet the test set forth in Penate v. Canada
(Minister of Employment and Immigration), [1994] 2 F.C. 79. For the reasons
stated above, I cannot accept that argument.
[24]
In short, I feel that the impugned decision must
be set aside on the ground that the Board did not analyse the nature of the
organization in issue and therefore examined the issue of the applicant’s
complicity by using an inappropriate standard.
6. Conclusion
[25]
For the foregoing reasons, the application for
judicial review is allowed and the matter referred back to the Board for
determination by a different member.
[26]
Neither party proposed for certification a
serious question of general importance, as contemplated by paragraph 74(d)
of the IRPA. I am satisfied that such a question is not raised by the case at
bar. No question will be certified.
ORDER
THE COURT ORDERS:
1. The application for judicial review is
allowed and the matter referred back to the Board for reconsideration by a
different member;
2. No question is certified.
“Edmond P. Blanchard”
Certified true translation
François Brunet, LLB, BCL
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