Date: 20050725
Docket: IMM-7282-04
Citation: 2005 FC 1028
Ottawa, Ontario, July 25, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
VERONICA MARIA FABELA
JUAN MANUEL ARREDONDO
JESSICA ARREDONDO
ELVIA ROSARIO ARREDONDO LOPEZ
JOSE MANUEL ARREDONDO SALGADO
TOMAS ARREDONDO SALGADO
VERONICA ARREDONDO FABELA
ARMANDO ARREDONDO SALGADO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (Act), against a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated August 4, 2004, wherein the Board determined that the Applicants were not Convention refugees or persons in need of protection pursuant to section 96 and 97 of the Act.
ISSUES
[2] The issues are as follows:
1. Did the Board commit an error in excluding the principal Applicant under Article 1(F)(a) of the United Nations Convention Relating to the Status of Refugee (Convention)?
2. Did the Board commit an error in concluding that an internal flight alternative (IFA) was available for all the Applicants?
[3] For the following reasons, I have to answer the questions raised in a negative manner. Therefore, the application for judicial review will be dismissed.
BACKGROUND
[4] The Applicants are all citizens of Mexico and are claiming refugee protection based on their membership in a particular social group; witnesses of corruption in the Mexican Judicial Police forces.
[5] Tomas Arredondo Salgado (the principal Applicant) was a police officer in Toluca, Mexico from 1985 to 1998. Having been a witness of police abuse of power and corruption, the principal Applicant alleges that he fears for his life and that he would be exposed to persecution at the hand of corrupt police officers because he refused to engage in corrupt activities. He alleges that he was fraudulently charged by corrupt police officers, because they were afraid that he would report their corrupt practices. He argues that in order to escape from possible persecution and torture at the hand of the Mexican Judicial Police, he had to flee his country. As a result of his decision to leave his country, his family became the target of police threats, harassment, violence and abuse. Consequently, they all decided to join the principal Applicant in Canada.
[6] In addition, Elvia Rosario Arredondo Lopez, the principal Applicant's niece, alleges persecution on the basis of her membership in a particular social group, a woman victim of violence at the hand of her ex-boyfriend. She alleges that her ex-boyfriend and his mother did not want her to have the baby she was carrying, and that they wanted her to have an abortion, or to give the baby in adoption. She is afraid that they will take her baby away if they find her. Fearing for her own safety, and for the safety of her child, she does not want to go back to her country.
CONTESTED DECISION
[7] In the first part of its decision, the Board excluded the principal Applicant as a Convention Refugee because of Article 1(F)(a) of the Convention which provides that the Convention shall not apply to any person who has committed a crime against peace, a war crime, or a crime against humanity.
[8] The Board=s decision is based on the fact that the principal Applicant had been a police officer for many years in a police service recognized for its corrupt activities. The Board was of the opinion that he had personal and knowledge of the participation in systematic and widespread torture while he was an officer of this organization. The Board drew a negative conclusion from the fact that Tomas Arredondo Salgado achieved a higher-than-average confession rate of 90% while his colleagues achieved an average of 60%. Moreover, he was awarded a monetary prize for having enforced the most arrest warrants.
[9] In the alternative, the Board considered the principal Applicant as a Convention refugee like all of the other Applicants. After a complete analysis of all the evidence adduced before it, the Board concluded that all the Applicants have an IFA in Monterrey, where the principal Applicant=s brother still lives. The Board=s decision was based on a number of elements. First, there is no evidence that the principal Applicant=s brother, who lives in Monterrey, is being asked about the principal Applicant. Second, there is no evidence that the principal Applicant=s sister, who still lives in Toluca, is having problems related to the police wanting to locate her brother. Third, the principal Applicant=s mother was only asked once in a year about her son's whereabouts. The lack of details with respect to those inquiries has not persuaded the Board that the police are seriously attempting to locate him, even in his hometown of Toluca. Accordingly, the Board concluded that they would find safe refuge in Monterrey, a town located 12 hours from Toluca.
ANALYSIS
Exclusion based on Article 1(F)(a) of the Convention
[10] The standard of review for the Board's decision that certain acts fall within the definition of "crimes against humanity" is correctness (Mendez-Levya v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 846 para. 36, 2001 FCT 523; Gonzalez v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 229 (F.C.A.), [1994] 3 F.C. 646, [1994] F.C.J. No. 765) and the standard of review for the Board's decision that certain acts occurred is patent unreasonableness (Mugesera v. Canada(Minister of Citizenship and Immigration), [2003] F.C.J. No. 1292, 2003 FCA 325, [2004] 1 F.C.R. 3).
[11] In the case at hand, there seems to be no contestation that torture and false imprisonment are considered to be crimes against humanity. The Minister submits that the principal Applicant participated in crimes against humanity by virtue of his role in the Mexican Judicial Police. However, the Applicants submit that the Board erroneously concluded that the principal Applicant should be excluded as a Convention refugee under Article 1(F)(a) of the Convention. The crux of the Applicants' allegation is that the crimes perpetrated by the Mexican Judicial Police do not constitute crimes against humanity.
a) Do the crimes perpetrated by the Mexican Judicial Police fall within the definition of crimes against humanity?
[12] The Applicants argue that the Board ignored the Rome Statute of the International Crime Court (Rome Statute) which requires that a crime against humanity be committed Apursuant to or in furtherance of a State of organizational policy to commit such attack@... The Applicants submit that the Board committed a reviewable error in deciding to rely more on a decision of the International Criminal Tribunal (Tribunal) regarding crimes in the former Yugoslavia, rather than on the Rome Statute.
[13] In fact, the Board cited Prosecutor v. Dragoljub Kuranac, Radomir Kovac and Zoran Vulovic, (2002), Case No. IT-96-23 & 23/1 (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber), online: United Nations http://www.un.org/icty/cases-e/index-e.htm, at para. 98 which held as follows (see p. 8 and 9 of the Board=s reasons):
Contrary to the Appellants' submissions, neither the attack nor the acts of the accused needs to be supported by any form of "policy" or "plan". There was nothing in the Statute or in customary international law at the time of the alleged acts which required proof of the existence of a plan or policy to commit these crimes. As indicated above, proof that the attack was directed against a civilian population and that it was widespread or systematic, are legal elements of the crime. But to prove these elements, it is not necessary to show that they were the result of the existence of a policy or plan. It may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic (especially the latter ) to show that there was in fact a policy or plan, but it may be possible to prove these things by reference to other matters. Thus, the existence of a policy or plan may be evidentially relevant, but it is not a legal element of the crime.
[14] There has been some debate in the jurisprudence of this Tribunal as to whether a policy or plan constitutes an element of the definition of crimes against humanity. The practice reviewed by the Appeals Chamber overwhelmingly supports the contention that no such requirement exists under customary international law.
[15] In Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 at para. 14, [1993] F.C.J. No. 1145, Linden J.A. mentioned that there are certain additional legal requirements commonly accepted as part of the definition of crimes against humanity in international law. He explained that crimes against humanity must generally be committed in a widespread, systematic fashion. He referred to the comment of a Canadian commentator, Joseph Rikhof in "War Crimes, Crimes Against Humanity and Immigration Law" (1993), 19 Imm. L.R. (2d) 18 at page 30:
This requirement does not mean that a crime against humanity cannot be committed against one person, but in order to elevate a domestic crime such as murder or assault to the realm of international law an additional element will have to be found. This element is that the person who has been victimized is a member of a group which has been targeted systematically and in a widespread manner for one of the crimes mentioned...
[16] My understanding of the jurisprudence is that an organization does not need to have an official plan or an official policy for a finding of crimes against humanity. As long as the perpetration of crimes considered to be crimes against humanity are committed in a widespread and systematic fashion by a specific group, then the requirements of the definition of crimes against humanity have been met.
[17] In the case at hand, the principal Applicant was a member of the Mexican State Judicial Police for thirteen (13) years. It is established that this particular organization commits crimes of torture and false imprisonment; crimes recognized for being crimes against humanity. Even if the official purpose of this organization is not the perpetration of those crimes, the evidence suggests that a vast majority of the police officers have participated in such crimes.
[18] In my opinion, the fact that the organization is widely recognized as participating in crimes of torture and false imprisonment against its own nationals is sufficient to conclude that the Mexican Judicial Police committed crimes against humanity.
b) Has the Applicant participated in crimes against humanity by virtue of his role in the Mexican Judicial Police?
[19] As mentioned in Sivakumar, supra at para. 5, there has been a lot of jurisprudence on the question of who is responsible for crimes against humanity. It is trite law that if someone personally commits acts that amount to a crime against humanity, that person is responsible. However, it is now widely recognized that a person can be held liable for such crimes as an accomplice, even though the person has not personally perpetrated the acts himself or herself. The tolerance of such crimes is sufficient to be held liable.
[20] The burden of proof rests on the Minister to prove that the principal Applicant should be excluded from protection. In order to succeed, it must prove that there are Aserious reasons@ for considering that the principal Applicant has committed such crimes. This standard requires something more than suspicion but something less than proof on a balance of probabilities (Sivakumar, supra, at para. 18). This standard of proof is found in Article 1(F) of the Convention which reads as follows:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: [...]
[21] Torture and false imprisonment are included in the definition of crimes against humanity at section 7 of the Rome Statute. Moreover, section 6 of the Charter of the International Military Tribunal, one of the leading international instruments referred to in Article 1(F) of the Convention, establishes the responsibility of a person who acted as an accomplice. Canada=s Crimes Against Humanity and War Crime Act specifically endorses the Rome Statute.
ARTICLE 6 : Charter of the International Military Tribunal
The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing;
(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity;
(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 domestic law of the country where perpetrated.
Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a Common Plan or Conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. (emphasis added).
ARTICLE 7 : Rome Statute of the International Crime Court
Crimes against humanity
1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
2. For the purpose of paragraph 1:
(a) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
(b) "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;
(c) "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;
(d) "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;
(e) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
(f) "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;
(g) "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
(h) "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;
(i) "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.
3. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.
[22] Many Federal Court cases have decided that a person can be found liable of a crime against humanity as an accomplice even if he or she had not personally participated in the acts amounting to the crime (see Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), [1992] F.C.J. No. 109).
[23] In Sivakumar, supra, at para. 6, it was confirmed that the question as to whether a person was an accomplice in crimes against humanity was essentially a question of facts that could only be answered on a case-by-case basis. In Ramirez, supra, the claimant had enlisted in the army voluntarily, and had witnessed the torture and killing of many prisoners. Given the circumstances of that case, the Court found that he was an accomplice.
[24] In the case at hand, the Board analysed the most important factors to consider when determining whether there were serious reasons to believe that the principal Applicant had personal knowledge, or could be considered as an accomplice in the perpetration of crimes against humanity. Those factors are: the method of recruitment, the claimant=s position and rank in the organization, the nature of the organization, the knowledge of atrocities, the length of time in the organization and the opportunity to leave the organization.
[25] As regards the method of recruitment, the evidence shows that the principal Applicant voluntarily joined the police force. When the principal Applicant decided to join the police force, he had just completed an accounting course. Despite the fact that he could have worked as an accountant, he voluntarily made the decision to enlist as a police officer.
[26] With respect to the nature of the organization and the knowledge of atrocities, the documentary evidence establishes that the Mexican Judicial Police were responsible for widespread and systematic use of torture and arbitrary arrest, from 1985 to 1998. Moreover, the principal Applicant testified that he was perfectly aware of the crimes that were committed by some members of the police.
[27] As regards the length of time in the organization, the principal Applicant was a Group chief for numerous years and had officers under his supervision. He was recognized for his higher-than-average confession rate (90%).
[28] The next factor is the opportunity to leave the organization. The principal Applicant was with the police force for more than 13 years. He resigned on two occasions but returned to the force each time. He alleges that he had no other choice than returning to the police force, as it was too difficult for him to find another job. The record shows that the principal Applicant returned to his job as a police officer three days after his first resignation and, one month after his second resignation.
[29] Given all the above evidence, the Board found that there were serious reasons to consider that the principal Applicant was an accomplice in the commission of torture and false accusations in Mexico.
[30] It is of interest to cite Penate v. Canada (Minister of Employment and Immigration),
[1994] 2 F.C. 79, [1993] F.C.J. No. 1292 (Reed J.) at para. 6:
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 take 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.
Internal flight alternative (IFA)
[31] The notion of an IFA is a way of describing a situation in which a person may be in danger of persecution in one part of a country, but not in another. In Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589, [1993] F.C.J. No. 1172 it was held that if the claimant is able to seek safe refuge within his own country, there is no basis for a finding that he is unable or unwilling to avail himself of the protection of that country. In other words, even if the Applicants have a well-founded subjective fear of persecution, the existence of an IFA is sufficient to justify the Board=s refusal to grant asylum.
[32] It is settled law that the idea of an IFA is Ainherent@ to the definition of a Convention refugee. Since the existence or not of an IFA is part of the question of whether the claimant is a Convention refugee, the onus of proof rests on the claimant to demonstrate, on a balance of probabilities, that there is a serious possibility of persecution throughout the country, including the area which is alleged to afford an IFA.
[33] The two tier test to determine the existence of an IFA was expressed by Mahoney J.A. in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1. F.C. 706 (C.A.), [1991] F.C.J. 1256 at 711 and reiterated in Thirunavukkarasu, supra, at para. 12.
In my opinion, in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the appellant being persecuted in [suggested IFA] and that, in all the circumstances including circumstances particular to [the applicant], conditions in [place of IFA] were such that it would be unreasonable for the appellant to seek refuge there.
[34] Based on the jurisprudence and the pragmatic and functional analysis conducted in Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (T.D.), the appropriate standard of review in an application for judicial review, which raises the issue of an IFA, is patent unreasonableness (Chorney v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1263, 2003 FC 999 at para. 10).
[35] In the case at hand, the principal Applicant and some members of his family allege fear of persecution at the hand of the Mexican Judicial Police because of the principal Applicant=s refusal to participate in the widespread and systematic use of torture and arbitrary arrest. However, the mother of the principal Applicant who still lives in Toluca has not encountered any problem with the police. The brother of the principal Applicant who lives in Monterrey has not been harassed by the police about the whereabouts of the principal Applicant.
[36] Monterrey is located at a distance of 12 hours from Toluca. If the police had such a real interest in the principal Applicant, the other members of the principal Applicant=s family, who remain in Mexico, would have been harassed. The evidence demonstrates that this is not the case.
[37] The principal Applicant alleges that the police have a real interest in persecuting him, because he produced a list with all the names of corrupted officials and the crimes they committed. He also added that he started to write a book. He explained that the book was an elaborated version of his list. The principal Applicant was asked to produce the list and the book. Surprisingly, the names of the people he identified as having been involved in crimes and corruption in his testimony did not appear on the list. Moreover, the book is not an expansion of the list. In fact, no one named in the list appears in the book and the book does not contain any reference to cases of torture, false imprisonment or killing. In my view, these inconsistencies are sufficient to question the credibility of the principal Applicant=s story. I believe that the Respondent successfully demonstrated that the principal Applicant's explanation, with respect to the interest of the police, is not sufficient nor is it reliable to justify his fear of persecution.
[38] The Board did not commit an error in concluding that the principal Applicant and his family would find safe refuge in Monterrey. I see no reason to interfere with the Board=s findings.
[39] The parties had the opportunity to submit questions of general importance. They declined to do so. No such questions arise.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.
"Michel Beaudry"
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