Date: 20050906
Docket: IMM-887-05
Citation: 2005 FC 1208
Ottawa, Ontario, the 6th day of September, 2005
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
NEPTALI ELIN PEREZ DE LEON
and
MARVIN ALFREDO PEREZ PEREZ
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision, dated January 21, 2005, by a panel of the Immigration and Refugee Board (Refugee Protection Division) (the Panel and the IRB), allowing the respondents' refugee claim. The applicant is seeking to have the Panel's decision set aside and the matter referred back for determination by a differently constituted panel, pursuant to subsection 18.1(3) of the Federal Courts Act.
[2] The applicant submits in particular that the Panel committed a reviewable error in deciding that notwithstanding the applicant's evidence, the principal respondent (Neptali Elin Perez de Leon) could not be excluded from Canada under article 1F(a) and (c) of the 1951 Convention Relating to the Status of Refugees (the Convention), Schedule to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). At the hearing, the applicant discontinued with respect to the other respondent, the son of the principal respondent, Marvin Alfredo Perez Perez. However, for the purposes of the decision, reference will be made to the son in order to clearly situate the evidence as presented.
ISSUES
[3] There are two main issues:
(1) Did the Panel commit a reviewable error by failing to identify the nature of President Garcia's regime and personal guard in light of the evidence before it?
(2) Did the Panel commit a reviewable error by failing to consider the evidence as a whole concerning the respondent's complicity?
CONCLUSION
[4] For the reasons set out below, the reply to the first question is affirmative, so the application for judicial review is allowed. It is not necessary to address the second question.
FACTS
[5] The principal respondent, Neptali Elin Perez de Leon (Mr. Perez de Leon or simply the respondent) and his son Marvin Alfredo Perez Perez (Marvin) are citizens of Guatemala. They claim that they have a well-founded fear of persecution in their country because of their political opinions and their membership in a social group, the family. Mr. Perez de Leon is married and the father of two daughters and three boys (including Marvin, the oldest). Marvin is 22 years of age. The other members of the family are still living in Guatemala.
[6] Guatemala went through a protracted civil war from 1960 to 1996. In February 1979, Mr. Perez de Leon was forced to do his compulsory military service in the presidential guard. He was 21 years old, three years older than the majority of the new recruits, since he had eluded the military authorities for about three years. He did not agree with the Guatemalan civil war, the actions of the guerrillas or the government's fight against subversion.
[7] After his military service, he returned to his village of Los Cerezos and worked in agriculture and as a letter carrier. In September 1998, large quantities of weapons, hidden by former members of the guerrilla, fell into the hands of new subversive groups in his region whose goal was to persecute everyone who had collaborated with the army during the armed conflict. Fearing for the safety of his family and other villagers, Mr. Perez de Leon collected signatures and requested that the mayor intervene with the authorities.
[8] He then received death threats. He informed the authorities but they did not give him any protection. One day, a group of men entered his home looking for him and injured Marvin (the rest of the family escaped). Once again, Mr. Perez de Leon reported what had happened to the authorities, to no avail.
[9] Mr. Perez de Leon then relocated his family to a village in another region, Tejutla. But in September 2003 the threats began again. After failing to receive any assistance from the authorities in Tejutla, Mr. Perez de Leon and Marvin (who had also been threatened) decided to leave the country. They left Guatemala on October 30, 2003, and after passing through Mexico and the United States, they arrived at the Canadian border on December 22, 2003, where they claimed refugee status.
IMPUGNED DECISION
[10] At the hearing, counsel for the Minister of Citizenship and Immigration (the Minister) intervened to raise Mr. Perez de Leon's exclusion under article 1F(a) and (c) of the Convention. The Panel decided, however, that exclusion did not apply. The Panel referred to the tests set out in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306. The Panel made the following findings:
- Military service is obligatory in Guatemala, and the claimant [Mr. Perez de Leon] could not refuse to perform it without facing severe penalties;
- As with all obligatory military service, he also did not have the choice of the unit in which he would serve;
- In the presidential guard where he served, the claimant never used his weapon or used violence against other soldiers or against civilians, which counsel for the Solicitor General has not disputed; and
- Although he was from a modest background, the claimant did not choose to earn his living by remaining in the armed forces or in the presidential guard at the completion of his military service, but returned to civilian life.
[See page 3 of the Panel's decision.]
[11] As to inclusion, the Panel accepted Mr. Perez de Leon's story that he was wanted by a subversive group for being in the army several years earlier. His testimony is confirmed by the documentary evidence. Although some dates and the way in which the claimants travelled to the United States were not clearly established, Mr. Perez de Leon "provided many details and, without ever exaggerating the situation, gave a spontaneous testimony, which revealed a logic and honesty that impressed the panel". The Panel did not find any contradictions in his story, either. Both men were granted refugee status.
SUBMISSIONS BY THE PARTIES
Applicant
[12] The Minister, as applicant, submits that the Panel's decision must be set aside for two reasons: first, it does not identify the nature of President Garcia's regime and more precisely the presidential guard to which the principal claimant belonged, and second, it is based on a very selective analysis of the evidence.
[13] According to the applicant, where a claimant was part of an organization with a limited, brutal purpose, there is a presumption that the claimant personally and knowingly participated in international crimes. That was the case in this instance. Consequently, the Panel erred, prima facie, by failing to identify the nature of President Garcia's regime. If that had been done, it would have been hard for the Panel to find that Mr. Perez de Leon was not an accomplice. By failing to examine the evidence on this question and determine the nature of President Garcia's regime, particularly because of the acts committed by the members of the presidential guard, the Panel committed a reviewable error.
[14] Even in the absence of any need to conduct such an analysis, the applicant submits that there was enough evidence to find that Mr. Perez de Leon had been an accomplice in crimes against humanity. However, the Panel assessed only the evidence that supported its decision in order to find that he was not. It did not mention a number of important facts, for example that the presidential guard was an elite group, that the respondent had been promoted from private to sergeant, that the applicant had commanded a platoon, and that getting a promotion in the army was apparently conditional on participation in crime. Thus, the applicant argues, this decision is reviewable.
Respondents
[15] The respondents note, first, that no argument against Mr. Perez de Leon's inclusion was made.
[16] The respondents note that the Panel found Mr. Perez de Leon credible in all aspects of his story. He testified that he had never been involved in combat, never used his weapon and never witnessed any crimes against humanity. Moreover, and this is very important, Mr. Perez de Leon was forced to do his military service. He had not chosen to serve with the presidential guard; he could not refuse this position. His supervisors threatened to go after his family if he deserted.
[17] The respondents are of the opinion that the Panel is in the best position to assess the credibility of a refugee claimant and, absent an unreasonable finding, this Court should not intervene. The Panel properly based its finding on the test set out in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306, and there is no reason to allow this judicial review.
ANALYSIS
Standard of review
[18] Generally, questions about the credibility of a claimant are subject on judicial review to the standard of the patently unreasonable decision: Dhindsa v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 2011 (T.D.), at paras. 41-42; see also Montréal (City) v. Canadian Union of Public Employees, Local 301, [1997] 1 S.C.R. 793, at page 844.
[19] However, this application is based instead on the fact that the Panel found that the respondent, Mr. Perez de Leon, should not be excluded under article 1F(a) and (c) of the Convention. In Poshteh v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 381 (C.A.) (Poshteh), Rothstein J.A. conducted a pragmatic and functional analysis of how much deference IRB panels should be shown when it comes to the interpretation of the term "member of an organization" in the Act and the Convention. Rothstein J.A. was of the opinion that this was "a legal matter with respect to which the Immigration Division has some expertise" (at para. 21) that should be reviewed according to the standard of reasonableness. However, in my view, the first issue clearly raises a question of law with no need for an assessment of facts, and this calls for the correctness standard. In other words, should the Panel first identify the nature of the group in question and then consider whether the claimant is a member and/or whether there was personal and knowing participation in acts of that group?
(1) Did the Panel commit a reviewable error by failing to identify the nature of President Garcia's regime and personal guard in light of the evidence before it?
[20] In Ramirez, supra, and subsequent cases (see, for example, Moreno v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 221 (F.C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.)), a number of criteria were identified concerning the question of exclusion. These criteria were summarized by Madam Justice Reed in Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.), at paragraph 5, as follows:
- mere membership in an organization which from time to time commits international offences is not normally sufficient to bring one into the category of an accomplice;
- if the organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may indeed meet the requirements of personal and knowing participation;
- mere presence at the scene of an offence, for example, as a bystander with no intrinsic connection with the persecuting group will not amount to personal involvement;
- physical presence together with other factors may however qualify as a personal and knowing participation.
Reed J. concludes:
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. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation.
[Emphasis added]
[21] According to this case law, then, it is logical and necessary to determine the nature of the organization and then determine whether the claimant was a member of the excluded organization and what his knowledge of and involvement in the organization's actions were. The Panel noted at least twice that the Guatemalan army was committing crimes:
. . . the population knew that the armed forces mistreated the aboriginal civilian population and violently suppressed all of their uprisings.
. . . the abundant documentary evidence concerning the repression of the aboriginal population and guerilla members in Guatemala by the armed forces. . .
[See pages 2-3 of the decision.]
It does not appear to have identified the nature of the regime; the Panel did not determine whether the Guatemalan army, including the presidential guard, was an organization "directed to a limited, brutal purpose". An explicit characterization is essential, in my view, to establish the rebuttable presumption implicit in the approach taken by Reed J. in the preceding paragraph. This characterization - whether the organization is "directed to a limited, brutal purpose" - is essential before proceeding to an assessment of whether or not the principal claimant participated in or knew about the organization's activities (see Penate, supra, at paragraph 19 and Yogo v. Canada (Minister of Citizenship and Immigration) (2001), 205 F.T.R. 185, at paragraph 15).
[22] In the Court's opinion, the Panel committed an error of law warranting its intervention, and on this point alone the application should be allowed. It is therefore unnecessary to proceed to the analysis of the second issue.
[23] The parties were invited to submit a question for certification but declined to do so.
ORDER
THE COURT ORDERS THAT:
- The application for discontinuance with respect to the respondent Marvin Alfredo Perez Perez is allowed:
- The application for judicial review is allowed and the matter shall be referred to a differently constituted panel for redetermination in accordance with the procedure set out here.
"Simon Noël"
Judge
Certified true translation
Peter Douglas
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-887-05
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
NEPTALI ELIN PEREZ DE LEON
and
MARVIN ALFREDO PEREZ PEREZ
Respondents
PLACE OF HEARING: Montréal
DATE OF HEARING: August 31, 2005
REASONS FOR JUDGMENT: Mr. Justice S. Noël
DATE OF REASONS: September 6, 2005
APPEARANCES:
Ian Demers FOR THE APPLICANT
Peter Karavoulias FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Attorney General of Canada FOR THE APPLICANT
Department of Justice - Montréal
Peter Karavoulias - Montréal FOR THE RESPONDENTS
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