Date: 20050627
Docket: IMM-5754-04
Citation: 2005 FC 888
Ottawa, Ontario, this 27th day of June, 2005
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
LINO DIASONAMA and
EMMANUEL SAMBI
(Applicants)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
(Respondent)
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division (the "panel") of the Immigration and Refugee Board (the "IRB") dated June 2, 2004, wherein the panel determined the Applicants were excluded from claiming refugee status pursuant to Refugee Convention 1F(a) of the United Nations Convention on the Status of Refugees (the "Convention") and thereby inadmissible to Canada by virtue of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). The Applicants seek to have this decision quashed and set aside, and the matter sent back for redetermination before a different panel.
ISSUE
[2] Did the panel properly assess the notions of "member" and "complicity" as they pertain to the inadmissibility provisions of article 1F(a) of the Convention and IRPA? If so, did it otherwise err in fact or law, base its conclusion on erroneous facts, or act in a manner contrary to law, in reaching its decision that the Applicants were inadmissible?
CONCLUSION
[3] For the reasons outlined below, the panel properly assessed all aspects of the claim before it and committed no errors of law or fact or otherwise. Therefore this application for judicial review should be dismissed.
BACKGROUND
[4] Lino Diasonama (Mr. Diasonama) and his adoptive brother Emmanuel Sambi (Mr. Sambi) (collectively, the "Applicants") are citizens of the Democratic Republic of Congo (the "DRC"). They claim to be refugees or persons in need of protection under sections 96 and 97 of IRPA by reason of their imputed political opinions and their membership in a particular group, that is, the family and/or as former members of the political party of the former President Mobutu (the "MPR").
[5] The Applicants' story can be summarized as follows. In 1989, their father, J. P. Mankoto (Mr. Mankoto), a customs officer with his own private business, became a member of the MPR. His sons became members of the youth wing of the party (the "JMPR"). After Kabila came to power in 1997, Mr. Mankoto was twice imprisoned, in September and December 1997. He disappeared following his second arrest. After the first arrest of Mr. Mankoto, he advised Mr. Diasonama and Mr. Sambi to seek the aid of his old friend, Paul Kabongo (Mr. Kabongo). Mr. Kabongo was director of the Agence nationale de renseignements (ANR). He set the Applicants up in fictitious jobs for which they were paid a salary of 500 USD per month. There were three other persons for whom Mr. Kabongo created such fictitious positions. In May 1998, Kabongo was accused of participating in a plot to overthrow the Kabila regime. It became known then that the Applicants were the sons of Mr. Mankoto, were occupying fictitious positions at the ANR and had Rwandan colleagues. Both men were arrested and detained from July to September 1998, during which they were tortured. Following their release, they no longer worked for the ANR. In late 2000, when the Rwandan movement against President Kabila had gained some momentum, one of their fellow former ANR workers warned the Applicants that the other two persons with fictitious positions had been arrested and killed. Mr. Diasonama and Mr. Sambi hid for a while at their uncle's house. While there, they heard that Mr. Diasonama's birth father had been arrested and disappeared. In January 2001, Mr. Diasonama and Mr. Sambi fled the DRC to Canada.
THE CONTESTED DECISION
[6] At the hearing, counsel for the Minister of Citizenship and Immigration (the "Minister" or Respondent) intervened to request that the Applicants be excluded by virtue of article 1F(a) of the Convention because of the Applicants' affiliation with the ANR, an organization that (according to the Minister) had a limited and brutal purpose, that is, the upholding of President Kabila's regime at any cost.
[7] The panel agreed with the Minister and deemed the Applicants to be excluded by virtue of their membership in the ANR. On the basis of a few Response to Information Requests, as well as a number of documents from other sources including Amnesty International and the United Nations Commission for Human Rights, the panel determined that the ANR frequently employed violent methods, arresting persons who never reappeared, holding persons in unhuman conditions, etc., to the extent that the ANR could be considered an organization engaged in the commission of international human rights violations with a limited and brutal purpose.
[8] The panel further found the Applicants to be not credible. It disbelieved a large portion of their story. For instance, it did not believe that the Applicants' positions with the ANR were truly fictitious in nature for a number of reasons: this information was only recently added to their personal information forms ("PIF"), the time-frame in which they worked for the ANR was changed on the eve of the hearing from one year to merely six months, etc. The panel also found it too hard to believe that Mr. Kabongo would have risked himself by creating fictitious positions for the Applicants, since the political climate after President Kabila was elected was tense. Furthermore, the Applicants had testified that Mr. Kabongo gave them the positions in January 1998; however, documentary evidence showed that Mr. Kabongo was no longer the director of the ANR as of August 1997. It also showed that he was arrested in the fall of 1997, not in May 1998. By the middle of 1998, Mr. Kabongo was serving as ambassador to Algeria. Further troubling to the panel was the fact that in the Applicants' original story, they had been "hired" by Mr. Kabongo in July 1997, a time-period which coincided with a heavy recruitment drive by the ANR for recent university graduates, which both of the Applicants were. This evidence tended to discredit the Applicants' claim that the jobs were not real.
[9] The panel determined there was insufficient evidence to properly assess the nature of the Applicants' involvement with the JMPR (the Applicants stated it was very limited), but noted that documentary evidence showed that JMPR members often spied on other students and organizations, lending credibility to the idea that the Applicants would have gone on to work for the ANR.
[10] The panel also found it puzzling that, while the Applicants stated they only got positions (albeit fictitious ones) with the ANR because they were in great need of money to feed their family, once they left the ANR, they had proved to be more than able to get jobs such as taxi-driver and dock-worker.
[11] The panel found the Applicants to be evasive about many aspects of their claim: their understanding of the work done by ANR, the exact circumstances under which Mr. Kabongo had allegedly created fictitious positions for them, the reasons why they were arrested in 1998 and why they feared further persecution in 2000.
[12] The panel found no reason to believe that Mr. Mankoto had in fact been arrested and disappeared. As a mere customs official who was a simple member of the MPR, the panel determined it was unlikely Mr. Mankoto would have been among those targeted by President Kabila following his ascent to power. It did not believe that Mr. Mankoto's property had been seized by the Kabila regime and never returned, since there was documentary evidence that where personal property had been so expropriated, it was eventually returned by order of President Kabila himself. The documentary evidence also stated that persons who had been arrested and detained were eventually freed. Furthermore, the Applicants had stated that their father had been arrested for the second time following his advising the government that he wished to travel to South Africa in order to seek medical aid. The panel found it unlikely Mr. Mankoto would have done such a thing since it was well-known that associates of former President Mobutu were seeking asylum in South Africa.
[13] The panel disbelieved the Applicants' story that the army had come looking for them while they were in hiding at their uncle's house. The Applicants claimed to have been there for a period of two months before fleeing the DRC, and said that the army only came during the daytime when they were not there. The panel did not find this version of events credible.
[14] Finally, the panel disbelieved in its entirety the fact that Mr. Diasonama's birth father was arrested and subsequently disappeared in November or December of 2000, since Mr. Diasonama had been adopted at a very young age. As well, the story that the Applicants' mother was taken in for interrogation after the Applicants went into hiding and then released the next day, was somewhat unbelievable since the documentary evidence tended to show that family members of those accused of treason (as the Applicants claimed to be) are often imprisoned in lieu of the person being sought.
SUBMISSIONS OF THE PARTIES
The Applicants
[15] The Applicants claim that the panel erred in two key ways when it determined that the Applicants were complicit in crimes against humanity committed by the ANR:
< It misapplied the test for determining "complicity" for the purposes of the application of the exclusion clause; and,
< Its determination of the application of the exclusion clause was based on speculation and conjecture, rather than on clear and convincing evidence that the Applicants were knowing participants in crimes against humanity.
The Respondent
[16] The Respondent submits that the Applicants have not shown that the panel's reasons were patently unreasonable. It is clear from the evidence that the Applicants became members of a persecuting group, the ANR, with full knowledge or wilful blindness toward the abuses perpetrated by that group. The Applicants have not shown any new evidence, but are merely stating their denial of personal and knowing participation in any crimes against humanity committed by the ANR. In light of the errors and inconsistencies in the Applicants' version of events, it was reasonable for the Board to find them not credible.
ANALYSIS
Standard of review
[17] This Court cannot substitute its opinion for that of the panel unless the Applicants can demonstrate that the panel's decision was in some way patently unreasonable. The IRB is a specialized tribunal capable of assessing the plausibility and credibility of testimony, and so the Court will not interfere, at least to the extent that the inferences drawn by the panel are reasonable and its reasons expressed clearly and comprehensibly. See Canadian Union of Public Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R. 793 at para. 85:
[T]he standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per LaForest J., at pages 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact-finding be patently unreasonable.
[18] However, this decision is also based on the panel's determination that the Applicants were inadmissible due to their membership in an organization complicit in crimes against humanity (the ANR). In such a circumstance, the appropriate standard of review has been surveyed by the Federal Court of Appeal in Poshteh v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 381 (C.A.) (Poshteh), at paragraphs 21-24:
[21] Paragraph 34(1)(f) forms part of the Immigration Division's constituent legislation. The question of membership in a terrorist organization is not something that is extraneous to its regular work. The expertise of the Immigration Division is in, among other things, determining whether criteria for inadmissibility have been established. These criteria include membership in a terrorist organization. Therefore, the interpretation of the term "member" in paragraph 34(1)(f) is, I think, a legal matter with respect to which the Immigration Division has some expertise.
[...]
[23] Having regard to the pragmatic and functional considerations to which I have adverted, I conclude:
(a) the question of the interpretation of the term "member" in paragraph 34(1)(f) is reviewable on a standard of reasonableness ...
[...]
[24] Applying the relevant standards of review to the legal questions, should the Court find it necessary to intervene, the Court will either quash the Immigration Division's decision if it finds that Mr. Poshteh could not be a member of a terrorist organization or it will remit the matter to the Immigration Division for redetermination having regard to the proper legal tests. However, should the Court not find the Immigration Division's legal determinations with respect to the term "member" and Mr. Poshteh's minor status to be unreasonable or incorrect, respectively, the questions of mixed fact and law, namely the application of the law to the facts by the Immigration Division, should be reviewed on a reasonableness standard.
[19] In Poshteh, the question of whether the organization was in fact a terrorist one was not in dispute. In the current proceedings, however, the Applicants are questioning whether the ANR was an in fact organization involved in crimes against humanity. This is not within the parameters of s. 34, the section in question in Poshteh, but the principle is the same. The determination of whether an organization is one that has been complicit in crimes against humanity, terrorism, or other, has been dealt with previously by this Court according to the standard of reasonableness: see, e.g., Hussain v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1430 (F.C.) at para. 12 et seq.; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1207 (F.C.) at paras. 35-40.
[20] Therefore, the question of whether the ANR was properly determined to be an organization complicit in crimes against humanity will be reviewed according to a reasonableness standard. The assessment of the Applicants' "membership" or "complicity" in the ANR will also be reviewed according to this standard. In these reasons, I will treat these two questions together. Also involved in this analysis will be an assessment of the panel's credibility findings, which will be done on a standard of patent unreasonableness.
The nature of the ANR and the Applicants' role within it
[21] In Suresh v. Canada (Minister of Citizenship and Immigration) (1997), 40 Imm. L.R. (2d) 247 (F.C.T.D.) at 259 (para. 22), rev'd in part (on different grounds), 47 Imm. L.R. (2d) 1 (F.C.A.), Justice Teitelbaum stated that, "Membership cannot and should not be narrowly interpreted when it involves the issue of Canada's national security. Membership also does not only refer to persons who have engaged or who might engage in terrorist activities." See also Canada (Minister of Citizenship and Immigration) v. Singh, (1998) 44 Imm. L.R. (2d) 309 at para. 51 et seq. (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Owens, (2000) 9 Imm. L.R. (3d) 101 at paras. 16-18 (F.C.T.D.); Poshteh, supra, at para. 29.
[22] The general principles regarding the issue of exclusion, as set out by the Federal Court of Appeal in a number of cases, include the following:
< Mere membership in an organization which from time to time may commit international offences is likely not sufficient for exclusion from refugee status;
< Where the organization is one which is directed to a limited, brutal purpose, membership in such an organization may well indicate personal and knowing participation;
< Where the organization is not one directed to such a limited and brutal purpose, personal or knowing participation in persecutorial acts is required.
See Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.); 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.).
[23] There was no evidence before the panel that the Applicants were actually involved in any crimes against humanity committed by the ANR; however, it was (successfully) argued by the Respondent that their mere membership in the ANR made them complicit in the atrocities the ANR is said to have committed. That is to say, because of their membership in the ANR, an organization with a limited and brutal purpose, they either knew or were wilfully blind to the crimes that were being committed by the ANR; therefore, they were complicit in, or were accomplices to, these crimes. In Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.) Madam Justice Reed defined "complicity" as follows:
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.
[24] Based on this definition alone, and leaving aside for the moment the question of whether their posts were fictitious or not, it seems clear to me that the Applicants, as members of the ANR, would be complicit in crimes that may have been committed by the ANR if the ANR is, as the panel found it to be, an organization with a limited brutal purpose.
[25] The panel then determined, on the basis of the evidence before it, that the ANR was an organization which committed international offences as a continuous and regular part of its operations. This was on the basis of documentary evidence that showed that the ANR, as a matter of government policy, participated in the systematic detention, torture, disappearance and killing of political opponents of Kabila's regime as a continuous and regular part of its operations. It did not seem to have a purpose other than this. It is to be noted that the Applicants themselves also admitted that ANR did not use normal means in investigating persons or enforcing security and that human rights were not respected. Therefore, the panel determined that the ANR was an organization to which article 1F(a) of the Convention applied. In the circumstances, this a was reasonable conclusion for the panel to reach.
Credibility findings
[26] The panel's determination of the Applicants' complicity in the ANR crimes against humanity, however, was based on its determination that the Applicants were not credible. As stated previously, the panel should be accorded a significant degree of deference when making credibility assessments.
[27] If it is true that the Applicants held merely fictitious positions in the ANR, allowing them to receive a monthly sum of money, I think it unlikely that the Applicants could be complicit in the ANR. The panel, however, did not so find. It found that the Applicants in fact held real positions with the ANR, and that the Applicants' story to the contrary had been fabricated after-the-fact in an attempt to minimize their involvement with the ANR. This was on the basis of a number of inconsistencies in the Applicants' testimony, as outlined above in the summary of the panel's decision.
[28] The Applicants claim that the panel's determination that they accepted real positions with the ANR was based on conjecture and speculation. From the outset, the Applicants have maintained that the positions were fictitious, that they were largely unaware of the activities of the ANR, and that these positions were simply a means by which they could easily receive money to support their family financially.
[29] The evidence presented by the Applicants on this point is, to say the least, cloudy. The Applicants initially claimed to have worked for the ANR for one year, from about July 1997 to July 1998, in exchange for 500 USD per month. Later the Applicants advised these positions were in fact fictitious in nature. Even later, the Applicants advised that they only worked for the ANR from January 1998 to July 1998, and not from July 1997.
[30] On the basis of these changes, as well as many other inconsistencies between their testimony and the documentary evidence (again, as noted above), the panel determined the Applicants were not credible and rejected the bulk of their evidence. This is not "conjecture and speculation". In fact, it is precisely the role of the panel to assess the credibility of applicants' stories. Negative credibility findings are properly made as long as the panel has given reasons for doing so in clear and unmistakable terms. The panel has done this in this case. It was reasonable of the panel to determine that the Applicants were likely not telling the truth when they advised their positions were fictitious at the ANR, and to determine that they were, in fact, actual employees and therefore complicit in the crimes conducted by the ANR.
CONCLUSION
[31] The Applicants have failed to demonstrate that the decision of the panel was patently unreasonable. There were a number of instances where the Applicants' testimony or evidence was directly contradicted by documentary evidence and they were not able to satisfactorily explain these discrepancies (if at all). In light of this, there is no basis upon which the decision of the panel can be overturned, and as a consequence, this application for judicial review should be dismissed.
[32] The parties were asked whether they wished to suggest questions for the purpose of certification. They did not.
ORDER
THIS COURT ORDERS THAT :
This application for judicial review is denied and no question will be certified.
"Simon Noël"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5754-04
STYLE OF CAUSE: LINO DIASONAMA et al
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY JUNE 21, 2005
REASONS FOR ORDER
AND ORDER BY: NOËL S., J.
DATED: June 27th, 2005
APPEARANCES BY: Mr. Anthony Kako
For the Applicants
Mr. Ian Hicks
For the Respondent
SOLICITORS OF RECORD:
Mr. Anthony Kako
Barrister & Solicitor
Toronto, Ontario
For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20050621
Docket: IMM-5754-04
BETWEEN:
LINO DIASONAMA et al
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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