Docket: IMM-1390-11
Citation: 2012 FC 317
Ottawa, Ontario, March 16, 2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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SAMPSON JALLOH
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
A
panel of the Immigration and Refugee Board (Immigration Division) found Mr.
Sampson Jalloh to be inadmissible to Canada for being a member of
an organization believed on reasonable grounds to have engaged in acts of
terrorism and subversion, and to have committed crimes against humanity. Mr.
Jalloh admitted being associated with such an organization but insists that he
was held captive by it and that his acts were carried out under duress to avoid
being killed. The Board rejected that explanation, finding that he had
opportunities to flee during the four years of his alleged captivity.
[2]
Mr.
Jalloh maintains that the Board overlooked important evidence that was relevant
to his defence of duress and that it rendered an unreasonable decision. He asks
me to quash the Board’s decision and send the matter back to another panel of
the Board for redetermination.
[3]
There
are two issues:
1. Did the Board ignore
evidence?
2. Was the Board’s decision
on duress reasonable?
II. Factual Background
[4]
Mr.
Jalloh is a citizen of Liberia, of Mandingo ethnicity.
He arrived in Canada in 2006, and
made a claim for refugee protection. He was alleged to be inadmissible to
Canada on security grounds for being a member of an organization that there are
reasonable grounds to believe has engaged in acts of subversion by force and
terrorism (s 34(1)(b),(c) and (f) of the Immigration
and Refugee Protection Act, SC 2002, c 27 [IRPA]; see Annex for statutory
references). He was also alleged to be inadmissible on grounds of violating
human or international rights for committing an act outside Canada that
constitutes an offence referred to in ss 4-7 of the Crimes Against Humanity
and War Crimes Act, SC 2000, c 24 (s 35(1)(a) of IRPA). A delegate
of the Minister referred Mr. Jalloh’s case to the Board for a hearing.
[5]
Mr.
Jalloh claimed that in late 1992 he was forcibly conscripted by rebels who
executed his father (and many others), was tortured and beaten, and was then
forced to participate in the activities of the National Patriotic Front of
Liberia [NPFL]. He maintained that the consequence of failing to follow the
NPFL’s orders would have been his death. He said that he was a captive
throughout his four years with the group, that all the rebel group members
carried guns (although he never did), and that he never committed an act of
violence.
[6]
He
testified that his role was to go into villages and call out to persons of
Mandingo ethnicity. When they came out of their homes, they would be tortured
and murdered by the rebel fighters. He would then wait in a truck until the
raid was finished.
[7]
Mr.
Jalloh claimed that some of the raids were undertaken by the Small Boys Unit
[SBU], most of whose members were younger than he was. He witnessed persons
being tortured and killed, and at times he had to transport corpses. He said he
was repeatedly beaten and tortured.
[8]
Mr.
Jalloh conceded that the information he gave to Canadian officials was
significantly different than the information he had provided to Dutch officials
in connection with a previous refugee claim in the Netherlands. He said that that
story was given to him by a smuggler. When his Dutch refugee claim failed, he
fled to Canada to avoid removal back to Liberia. With the benefit of counsel to help him
complete his written narrative, he claimed he was now telling the truth.
III. The Board’s Decision
[9]
The
Board considered allegations that Mr. Jalloh had been involved with the NPFL,
an organization alleged to be engaged in subversion, terrorism, and acts of
atrocity, as well as the SBU.
[10]
The
burden fell on the Minister to show that there were reasonable grounds to
believe that Mr. Jalloh was a member of a group involved in terrorism or
subversion, or that he had committed acts contrary to ss 4-7 of the Crimes
Against Humanity and War Crimes Act. The Board began by considering whether
Mr. Jalloh was a “member” of the NPFL. The term “member” has been given a broad
meaning in the case law (eg, Poshteh v Canada (Minister of Citizenship
and Immigration),
2005 FCA 85 (CA), at paras 27-29). Persons may be considered members of an
organization if they belong to it, devote themselves significantly to the
organization and the furtherance of its aims and purposes, or if they have
associated with its members for a substantial period of time.
[11]
The
Board concluded that Mr. Jalloh’s participation in the NPFL raids made him
directly responsible for the harm caused to the victims. The raids sometimes
took place several times a week, throughout the four years he was with the
group. The only time Mr. Jalloh was not involved was during a four-month period
in the fall of 1993, when the area of Gbarnga returned to Liberian government
control. Mr. Jalloh claimed he was tied up and monitored during that period.
Once the NPFL regained control, his role in the raids resumed. This continued
until late 1995 or early 1996, when he was able to escape to Guinea.
[12]
Given
his lengthy and extensive involvement in the raids, their violent nature, his
lack of effort to distance himself from the group, and his failure to take
steps to protect the victims of the NPFL, the Board found Mr. Jalloh fell
within the broad definition of a member. It left the question of duress to a
separate analysis.
[13]
The
Board then referred to the definition of terrorism articulated by the Supreme
Court of Canada in Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, at para
98:
...
“terrorism”…includes any “act intended to cause death or serious bodily injury
to a civilian, or to any other person not taking an active part in the
hostilities in a situation of armed conflict, when the purpose of such act, by
its nature or context, is to intimidate a population, or to compel a government
or an international organization to do or to abstain from doing any act”.
[14]
With
respect to the term “subversion by force,” the Board adopted the definition
from Qu v Canada (Minister of
Citizenship and Immigration), 2001 FCA 399, at para 12: “accomplishing
change by illicit means or for improper purposes related to an organization”.
[15]
The
Board noted that the term “crime against humanity” is defined in both the Criminal
Code, RSC 1985, c C-46, and in Mugesera v Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, at para 119, where the Supreme
Court stated that, for a criminal act to rise to the level of a crime against
humanity, four elements must be present:
1.
An enumerated
proscribed act was committed (this involves showing that the accused committed
the criminal act and had the requisite guilty state of mind for the underlying
act);
2.
The act was committed
as part of a widespread or systematic attack;
3.
The attack was
directed against any civilian population or any identifiable group of persons;
and
4.
The person committing
the proscribed act knew of the attack and knew or took the risk that his or her
act comprised a part of that attack.
[16]
There
was no dispute before the Board about the nature of the NPFL and SBU. They had
clearly committed acts of subversion and terrorism, as well as crimes against
humanity in a systematic and widespread fashion against the civilian
population.
[17]
The
Board then considered whether Mr. Jalloh was complicit in the crimes committed
by the NPFL and SBU. It concluded that, since these were organizations with a “limited,
brutal purpose”, Mr. Jalloh’s involvement amounted to complicity. His
participation contributed to the success of the raids. Further, there was no
doubt that his participation was critical to the rebels’ actions. He knew that
serious human rights violations had been carried out, and he had been
personally involved in them for four years. The Board was not persuaded that
Mr. Jalloh had had no opportunity to leave during that time.
[18]
Finally,
the Board considered Mr. Jalloh’s claim that he participated in the raids only
because he was forced to do so. He maintained that if he had tried to escape,
he would have been killed, as others were. In Kathiravel v Canada (Minister of
Citizenship and Immigration), 2003 FCT 680, at paras 8-10, the Court held
that the defence of duress:
[R]ecognizes
the absence of intent where an individual is motivated to perpetrate the act in
question only in order to avoid grave and imminent peril. The danger must be
such that "a reasonable man would apprehend that he was in such imminent
physical peril as to deprive him of freedom to choose the right and refrain
from the wrong". (…) Most important, the harm inflicted must not be in
excess of that which would otherwise have been directed at the person alleging
coercion.
[19]
The
Board accepted that documentary evidence confirmed that the NPFL and SBU had
forcibly conscripted individuals, but it did not believe Mr. Jalloh’s assertion
that he was continuously held captive and had no chance to escape.
[20]
Mr.
Jalloh testified that he had some freedom in the camps, and that there were periods
when he was without supervision. The Board found that he tried to leave only when
he feared for his own safety, which called into question his assertion
that his actions were involuntary.
[21]
The
Board noted that thousands of people fled Liberia during the same time frame. Indeed, when he
arrived in the Netherlands, Mr. Jalloh claimed
that he was one of those fleeing the violence. The Board concluded that the
evidence did not support Mr. Jalloh’s claim that he was unable to extricate
himself from his circumstances.
[22]
In
the end, the Board found Mr. Jalloh to be inadmissible in accordance with
paragraphs 34(1)(f) and 35(1)(a) of IRPA.
IV. Issue One – Did the Board
ignore evidence?
[23]
Mr.
Jalloh argues that the Board erred by failing to consider medical evidence
supporting his claim of coercion and duress. In particular, in its
analysis of the issue of duress, the Board made no reference to Mr. Jalloh’s
medical evidence. This included evidence from a doctor, a psychologist’s report
and a letter from his trauma counselor. All three reports confirmed that Mr.
Jalloh was beaten and tortured by the rebels, and that he continues to suffer
from Post Traumatic Stress Disorder [PTSD]. This evidence, he submits, is relevant
to his state of mind at the time, including the question of whether he was
genuinely under duress and psychologically incapable of escape.
[24]
In
fact, the Board actually accepted that Mr. Jalloh had been beaten and tortured
by the rebels, and found it credible that he suffered from PTSD due to his
experiences in Liberia. Simply because it did
not mention that evidence again in its analysis of duress does not mean it
ignored the impact of the evidence on that aspect of Mr. Jalloh’s claim.
[25]
In
addition, although Mr. Jalloh submitted medical evidence showing that he bore
physical and psychological scars from his experiences in Liberia, the Board did not find
that those experiences prevented him from escaping. Indeed, at a certain point,
he did escape.
[26]
In
the circumstances, while Mr. Jalloh disagrees with the way the Board weighed
the medical evidence, that is not a basis for allowing an application for
judicial review.
V. Issue Two – Was the Board’s
conclusion on duress reasonable?
[27]
Mr.
Jalloh submits
that the Board’s reasons for finding that he was not under duress, and had
voluntarily taken part in NPFL atrocities, were based on the following weak
premises:
(i)
The rebels did not
conscript Mandingos, they butchered them. However, this did not
contradict Mr. Jalloh’s contention that he was in constant fear of torture and
death while behind rebel lines. In fact, it actually supported his assertion.
As a Mandingo, he was afraid of trying to escape because he had seen what the
rebels did to Mandingos.
(ii)
Mr. Jalloh was able
to listen to the radio and was permitted to have an affair with a local woman,
so he should have been free to leave. Again, this evidence did not contradict
Mr. Jalloh’s contention that he was an involuntary participant in the rebels’
crimes and would be shot if he tried to escape. He testified that he had seen
many other captives killed when they attempted to run.
(iii)
Mr. Jalloh did not
run while the rebels were executing Mandingos in the raided villages; the lack
of supervision during this time meant he should have been able to flee. In
effect, the Board expected a Mandingo man to run through areas controlled by
the rebels while those same rebels were butchering Mandingos. An attempt to
run, he says, would have been a death sentence. Further, he testified that he
was tied up during the raids and could not get away.
(iv)
Thousands of other
people managed to escape Liberia during the civil war, so Mr. Jalloh should
have been able to do so as well. Although thousands of people did manage to
flee, there is no documentary evidence and nothing in the Board’s reasons that
suggests those people were similarly situated to him. There is no indication
that any of them were known to the rebels, were of Mandingo ethnicity, or were
held captive.
[28]
Mr.
Jalloh also submits that the Board was selective in its credibility findings.
It found credible Mr. Jalloh’s testimony about his involvement with the NPFL,
the beatings and torture he endured, his forced conscription, his role in the
group, the NPFL’s conduct, and the treatment of persons of Mandingo ethnicity,
but it disbelieved his claim that he was unable to escape. Accordingly, it held
that he was not under duress. Mr. Jalloh argues that it was more than
reasonable for him to have been afraid to escape after he had seen the rebels
murder his father and those who tried to flee; after he had been captured,
beaten and tortured; and after he had seen them executing Mandingos.
[29]
In
my view, the Board was entitled to accept the majority of Mr. Jalloh’s evidence
while rejecting the parts that were inconsistent or minimized the extent of his
cooperation with the NPFL. In effect, the Board concluded that, at various
points, Mr. Jalloh had a safe avenue of escape available to him. This finding
defeated Mr. Jalloh’s claim that his conduct was involuntary.
[30]
Still,
there are parts of the Board’s decision that are difficult to comprehend. The
Board found there were reasonable grounds to believe that Mr. Jalloh was a
member of the NPFL. Given that it was clear that the NPFL was involved in terrorism
and subversion, the finding that Mr. Jalloh was a member was sufficient to find
him inadmissible to Canada under s 34(1)(f) of IRPA. Similarly, given
that the NPFL was an organization with a “limited, brutal purpose”, the finding
that Mr. Jalloh was a member was sufficient to find him at least presumptively
inadmissible to Canada under s 35(1)(a) of IRPA. The Board went
on, out of caution, to consider other evidence of complicity.
[31]
As
I see it, the Board confused the issues when it concluded that Mr. Jalloh was
complicit in the activities of the NPFL because it was an organization with a
limited, brutal purpose. The latter finding is relevant to complicity only
where the person clearly is a member of the organization. The nature of the
organization alone is not a basis for a finding of complicity.
[32]
On
the facts here, to be inadmissible, Mr. Jalloh would have to be a person
believed on reasonable grounds to be a member of a group involved in terrorism
or subversion (s 34(1)(f)), or to have been involved in crimes against
humanity (s 35(1)(a)). The key question under s 34(1)(f) is
whether the person actually was a member. With respect to crimes against
humanity, the key question is whether the person actually committed, or was
complicit in, that kind of crime. The Board did not recognize these
distinctions. In some cases, where a group has a limited, brutal purpose,
complicity can be presumed if the person clearly was a member.
[33]
A
further confusion in the Board’s reasons arises from its conclusion that Mr.
Jalloh was a member of the NPFL based on his lengthy and extensive involvement in the
raids, their violent nature, his lack of effort to distance himself from the
group, and his failure to take steps to protect the victims of the NPFL. In
determining whether Mr. Jalloh was a member, the Board did not consider
evidence relating to coercion, leaving it to be weighed separately in respect
of the defence of duress.
[34]
The
Board proceeded correctly from the proposition that the word “member” should be
given a broad meaning. A member is someone who belongs to a group, devotes
significant efforts to furthering its purposes, or has associated with other
members over a substantial period of time.
[35]
However,
it is difficult to conceive of a situation where a person could be considered a
member of a group and, at the same time, mount a successful defence of duress.
The Board appears to have proceeded on the assumption that the two issues were
entirely separate. It first found Mr. Jalloh to be a member of the NPFL and then
considered whether his defence of duress was made out. But the Board’s own
reasons make clear that this is a somewhat artificial exercise. For example, it
used evidence that Mr. Jalloh had failed to avail himself of opportunities to
escape to conclude that he was a member of the group. It used the same evidence
to determine that the defence of duress was not available to him.
[36]
In
my view, it is preferable to consider the evidence of membership along with the
evidence of coercion in determining whether there are reasonable grounds to
believe the person genuinely was a member of the group. One way of looking at
this issue is to regard evidence of duress as defeating the mens rea of
membership (Thiyagarajah v Canada (Minister of Citizenship and Immigration), 2011 FC 339). Accordingly, evidence
relating to duress must be considered along with the evidence relating to
membership in deciding whether the person really was a member of the group or,
rather, was motivated by self-preservation.
[37]
In
sum, a
person cannot be considered to be a member of a group when his or her
involvement with it is based on duress. At a minimum, a member is someone who
intentionally carries out acts in furtherance of the group’s goals. A person
who performs acts consistent with those goals while under duress cannot be said
to be a genuine member.
[38]
Therefore,
the finding of membership should rest on indicia that the person’s intentions
were consonant with the group’s objects, not survival. The evidence should be
considered as a whole to determine whether the person was truly a member or
whether his or her acts carried out in the group’s name were coerced. It must
be remembered, of course, that the issue to be decided under s 34(1)(f)
is whether there are reasonable grounds to believe that the person was a
member, not whether the evidence establishes such a connection on a balance of
probabilities, or whether duress has been made out on any particular standard
of proof. This, too, suggests that all of the relevant evidence should be considered
together.
[39]
Notwithstanding
these observations, I cannot conclude that the Board committed any reviewable
error. Its factual findings were supportable on the evidence and any lack of
clarity in its analysis did not derogate from its ultimate conclusion that
there were reasonable grounds to believe that Mr. Jalloh was a member of the
NPFL. Again, that conclusion was reasonable based on the facts and the law.
VI. Conclusion and Disposition
[40]
The
Board’s conclusion was intelligible, justified and transparent; it came within
the range of defensible outcomes based on the facts and the law. I must,
therefore, dismiss this application for judicial review. Neither party proposed
a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application for judicial review is dismissed;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act, SC 2002, c 27
Security
34.
(1) A permanent resident or a foreign national is inadmissible on security
grounds for
(a) engaging in an act of
espionage or an act of subversion against a democratic government,
institution or process as they are understood in Canada;
(b) engaging in or instigating
the subversion by force of any government;
(c) engaging in terrorism;
(d) being a danger to the
security of Canada;
(e) engaging in acts of violence
that would or might endanger the lives or safety of persons in Canada; or
(f) being a member of an
organization that there are reasonable grounds to believe engages, has
engaged or will engage in acts referred to in paragraph (a), (b)
or (c).
Human
or international rights violations
35.
(1) A permanent resident or a foreign national is inadmissible on grounds of
violating human or international rights for
(a) committing an act outside Canada that
constitutes an offence referred to in
sections 4 to 7 of the Crimes Against Humanity and War Crimes Act.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Sécurité
34. (1)
Emportent interdiction de territoire pour raison de sécurité les faits
suivants :
a) être l’auteur d’actes d’espionnage ou
se livrer à la subversion contre toute institution démocratique, au sens où
cette expression s’entend au Canada;
b) être l’instigateur ou l’auteur
d’actes visant au renversement d’un gouvernement par la force;
c) se livrer au terrorisme;
d) constituer un danger pour la sécurité
du Canada;
e) être l’auteur de tout acte de
violence susceptible de mettre en danger la vie ou la sécurité d’autrui au
Canada;
f) être membre d’une organisation dont
il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur
d’un acte visé aux alinéas a), b) ou c).
Atteinte
aux droits humains ou internationaux
35. (1)
Emportent interdiction de territoire pour atteinte aux droits humains ou
internationaux les faits suivants:
a) commettre, hors du Canada, une des
infractions visées aux articles 4 à 7 de la Loi sur les crimes contre
l’humanité et les crimes de guerre.
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