Date: 20050225
Docket: IMM-4455-04
Citation: 2005 FC 294
Montréal, Quebec, February 25, 2005
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
VICKY KEBOULU MANKOTO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Immigration and Refugee Board, Refugee Protection Division (the panel), that the applicant is not a Convention refugee or a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). Further, the panel decided to exclude the applicant under the United Nations Convention Relating to the Status of Refugees, July 28, 1959, [1969] Can. T.S. No. 6, preamble, paragraph 1F(a) (the Convention).
[2] Mr. Mankoto is a citizen of the Democratic Republic of Congo (DRC). He was appointed as an interim judge in 1996 but had not been assigned to that duty until March 2000.
[3] At the same time as his judicial duties, he allegedly carried out duties as provincial president of the organization Transparency Africa, a non-governmental organization (NGO) responsible for fighting corruption and money laundering and for fighting against secret commissions. He claims that in April 2000, when he was the judge of the Likasi Court, workmen came to tell him that there were Angolans and Zimbabweans stealing ore. He allegedly investigated as an official of the Public prosecutor and had some foreigners arrested in relation to that crime.
[4] He also claims that he provided information on the illegal exploitation of the DRC's natural resources to members of a group of experts implemented by the Secretary-General of the United Nations (UN). That group published a report in April 2001, in which several Congolese dignitaries were specifically identified and implicated in pillaging natural resources, including the Minister of Justice.
[5] The applicant submits that it was precisely because of his involvement in the distribution of information within that group of experts that he had problems. He was threatened, intimidated and arrested on October 2, 2001. He was detained at Buluo prison for three months in inhumane conditions, without a trial. He escaped from the place of his detention in December 2001 with the help of accomplices. He arrived at the Canadian border on April 3, 2002, via the United States to claim refugee status.
PANEL'S DECISION
[6] The panel based the applicant's non-inclusion on his lack of credibility. The panel found the applicant's testimony tedious and contradictory. In certain versions, the applicant had been imprisoned for two months, in others, he had been imprisoned for three months. Further, the applicant was able to pass all the control points without having any problems with the authorities while claiming that these authorities were actively searching for him. In the matter of his role in the NGO, that information was known well before he was in Likasi.
[7] The panel also determined that the applicant should be excluded from the definition of the Convention because he was complicit in crimes against humanity by his voluntary involvement in a justice system led by dictators.
[8] The objective situation on the arbitrary arrests and detentions under the Mobutu regime and the Kabila regime is very well documented. All the reports on this country state that the governments that have succeeded have engaged in abuses against human rights, crimes against humanity and war crimes.
[9] In the panel's opinion, the applicant meets all the criteria supporting a finding that there are serious reasons to believe that he committed or, at the very least, was complicit in a crime against humanity, considering the importance of his position, his title in the administration of a region and his responsibilities during his career within the public service of his country. The burden of proof resting on the Minister is a lesser burden of proof than that of the balance of probabilities and that burden has been met. Accordingly, the applicant must be excluded pursuant to paragraph 1F(a) of the Convention.
ANALYSIS
Applicant's inclusion
[10] The panel's determination to the effect that the applicant is not a refugee is based on his lack of credibility. Therefore, the standard of patent unreasonableness applies to that determination: Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.)(QL); N'Sungani v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2142 (F.C.)(QL).
[11] In my opinion, many of the elements accepted by the panel establish an erroneous analysis of the evidence.
[12] First, the evidence indicates that the applicant had been imprisoned for two months and 23 days; therefore, the fact that he stated in one version that he had been imprisoned for two months only to state later on that it was rather three months, can certainly not be held against him as being inconsistent.
[13] Second, the panel's finding to the effect that the applicant passed all the control points without problems with the authorities, while claiming to be sought by them, is patently unreasonable. In fact, the evidence (exhibit P-33) clearly establishes that the members of the NGO Transparency Africa mobilized to save the applicant, get a visa and help him go through customs to leave the country.
[14] And thirdly, as for the applicant's role in the UN report on the pillaging of the DRC's resources, it is quite simply illogical to question the applicant's credibility because certain facts were known by the international community before the applicant was transferred to the Likasi region. It is not disputed that the UN designated some experts to study the issue in 2000, which led to two reports, one in 2001 and the other in 2002. Because certain facts were known, that does not mean that the applicant could not have contributed to the disclosure of certain (damaging) information when the UN investigation was underway. Once again, exhibit P-33 explains the applicant's role in that investigation, and therefore it explains why efforts were made to help the applicant escape.
[15] Hence, the inferences drawn by the panel are not supported by the evidence, with the result that the panel's determination regarding the applicant's lack of credibility is patently unreasonable and warrants the intervention of the Court.
Applicant's exclusion
[16] The panel's findings of fact cannot be reviewed unless they are patently unreasonable. However, to the extent that these findings apply the law to the facts of the case, they cannot be reviewed unless they are unreasonable (see Harb v. Canada (Minister of Citizenship and Immigration) (2003), 238 F.T.R. 194 (F.C.A.)).
[17] The panel held that the applicant was complicit for being associated with crimes against humanity which were committed during the Mobutu and Kabila regimes.
[18] The applicable test to determine whether a person is complicit by association, and therefore subject to exclusion under paragraph 1F(a), is settled in the case law. Belonging to an organization that has committed war crimes or crimes against humanity, or mere presence at the scene of an offence, are generally not sufficient in themselves to establish complicity: Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), at page 317.
[19] It is a matter of whether the person "participate[d] personally and knowingly participated" in the activities in question: see Harb, supra, at paragraph 19. The Federal Court explained the meaning of this expression in Bazargan v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1209 (C.A.)(QL), at paragraphs 11 and 12:
[11] 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. At p. 318, MacGuigan J.A. said that "[a]t bottom, complicity rests . . . on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it". Those who become involved in an operation that is not theirs, but that they know will probably lead to the commission of an international offence, lay themselves open to the application of the exclusion clause in the same way as those who play a direct part in the operation.
[12] That being said, everything becomes a question of fact. The Minister does not have to prove the respondent's guilt. He merely has to show - and the burden of proof resting on him is "less than the balance of probabilities" - that there are serious reasons for considering that the respondent is guilty. . . . [Note omitted]
[20] In this case, in my opinion the panel's decision raises some serious questions.
[21] The panel determined that the applicant had been a judge since 1996, when President Mobutu was in power, then later under the Kabila presidency. The evidence indicates to the contrary that the applicant, though named as interim judge in 1996, did not begin to hold that position until 2000. Accordingly, stating that his involvement as a judge in these abusive regimes was ongoing over a long period of time is misconstruing the evidence.
[22] Did the applicant become complicit by association in a crime against humanity during the brief period that he worked as a judge?
[23] There is significant documentary evidence to the effect that the numerous abuses committed by the Mobutu and Kabila regimes fell under the definition of crimes against humanity.
[24] However, as I stated earlier, for paragraph 1F(a) to apply, mere membership in organization responsible for international crimes is not sufficient for there to be complicity. The required element is "personal and knowing participation". Certainly, the more important the person's function within the organization, the more likely there will be complicity: Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.). That said, in this case the applicant was not in a position of command. Further, the evidence does not establish that he used his influence or that he was involved in any way, directly or indirectly, in the perpetration of these crimes, or that he assented to them. The documentary evidence rather suggests that the crimes in question were committed by the military authorities and those acting under the auspices of the Military Court. Yet, as a deputy judge at the Likasi Court, common law instance, the evidence indicates that the applicant, during the period in question, heard four to five cases involving common law offences (theft, fraud). There is quite simply no connection between the applicant and the crimes against humanity committed under the dictators Mobutu and Kabila.
[25] The evidence also fails to establish that the applicant had knowledge of the crimes as they were being committed in contrast, for example, with Sivakumar, supra. Nevertheless, it is not determinative that the person knows in a general sense that such war crimes and crimes against humanity are being committed; the person must rather manifest a common purpose, if only by his or her own failure to act, with those committing them: Ramirez, supra. And in my opinion there is nothing to establish that the applicant in this case did have such a common purpose.
[26] In summary, the panel's decision contains almost no facts that support the finding that the applicant personnally and knowingly participated in the crimes in question. The panel was quick to presume that the applicant had personally and knowingly participated in the disputed crimes, based on his duty as a common law judge. Therefore, in my opinion, the manner in which the panel applied the circumstances of this matter to the legal test for complicity is unreasonable.
[27] For all of these reasons, this application for judicial review is allowed. The matter is referred before a differently constituted panel for redetermination.
ORDER
THE COURT ORDERS that:
[1] The application for judicial review be allowed.
[2] The matter is referred to a differently constituted panel for redetermination.
« Danièle Tremblay-Lamer »
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4455-04
STYLE OF CAUSE: VICKY KEBOULU MANKOTO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 22, 2005
REASONS FOR ORDER AND ORDER:
MADAM JUSTICE DANIÈLE TREMBLAY-LAMER
DATE OF REASONS: February 25, 2005
APPEARANCES:
Lia Cristinariu FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lia Cristinariu FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
I note in passing that, in Ledezma v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1664 (T.D.), the Court had decided that, even if the applicant had a personal relationship with one of the dictators in question (the dictator was a personal friend of the applicant's father), that was not enough to cause the application of the exclusion clause. The applicant's claim was however dismissed, on other grounds. Nevertheless, the relationship between the applicant and the dictator (who was ultimately held responsible for the crimes in question) was much closer than the applicant in this case and President Kabila or those who committed such crimes under his regime. See also Sungu v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 192 (T.D.).
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