Docket: IMM-3095-11
Citation: 2012 FC 342
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, March 22, 2012
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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THE MINISTER OF PUBLIC
SAFETY
AND EMERGENCY PREPAREDNESS
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Applicant
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and
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EMMANUEL DUROSEAU
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review filed under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision of the Refugee
Protection Division (RPD) with respect to exclusion dated April 21, 2011.
The RPD determined that there were no serious reasons for considering that the
respondent had committed or had been complicit in crimes described in the United
Nations Convention Relating to the Status of Refugees (the Convention),
which, under section 98 of the IRPA, would have excluded him as a refugee
or a person in need of protection.
I. Facts
[2]
The
applicant, Emmanuel Duroseau, is an
80-year-old citizen of Haiti. He arrived in Canada from the United States on
March 28, 2009 and filed a refugee claim that same day.
[3]
According
to his Personal Information Form (PIF), Mr. Duroseau had allegedly been a
member of the Volontaires de la sécurité nationale (VSN) (also known as the
Tontons Macoutes) from 1968 to 1985. He purportedly left the group because did
not like the conduct of its members, that is to say, the way they arrested,
beat and imprisoned those who opposed the Duvalier regime. Mr. Duroseau
claims that he was subsequently arrested and detained for a day for failing to
report for duty. He then apparently left Haiti by boat in 1987 and applied for
asylum in the United States. However, because of an error, his application was
apparently never completed and he was at risk of being deported back to Haiti.
It was at that point that he came to Canada to claim refugee protection.
[4]
In
a Notice of Intervention, the Minister of Public Safety and Emergency Preparedness
(the Minister) indicated that if Mr. Duroseau had been a member of the
VSN, a group whose human rights violations are well documented, there would be serious
reasons for considering that he had participated or been complicit in the
commission of crimes against humanity or acts contrary to the purposes or
principles of the United Nations within the meaning of the Convention. In that
case, under section 98 of the IRPA, he cannot be a refugee or a person in
need of protection.
[5]
Mr. Duroseau
subsequently sent a response to the Immigration and Refugee Board in which he
explained that his daughter-in-law had written his original narrative and that
he now realized that she had misinterpreted his statements. He stated that he
had not been a member of the VSN, but was simply a tailor. The local VSN leader
was one of his clients and had allegedly offered him a VSN card to protect
himself and his family. However, when that leader died, his replacement
insisted that those who had VSN cards had to put in a few hours of work at the
office. Mr. Duroseau objected and was then beaten and incarcerated for a
day. Fearing persecution, he fled the country by boat to the Bahamas in 1985
before finally arriving in the United States in 1987.
II. Impugned
decision
[6]
The
hearing to review Mr. Duroseau’s refugee claim was held on March 30,
2011. In its analysis with respect to the exclusion, the RPD first pointed out
that the burden is on the Minister to prove that a refugee claimant is excluded the
provision of section F of the Convention and section 98 of the IRPA
and that the standard of proof that applies is the existence of [Translation] ”serious reasons for
considering”—a standard that requires more than mere suspicion, but less than
the standard applicable in civil matters of proof on the balance of
probabilities.
[7]
After
reviewing what a crime against humanity entails, the RPD acknowledged that the
documentary evidence submitted by the Minister proved that human rights
violations had been committed by the VSN and it found that in light of this
evidence, the case law and the admission by the applicant’s counsel, the VSN
had committed crimes against humanity described in the Convention and section 98
of the IRPA.
[8]
The
RPD then noted that, according to case law, mere membership in an organization
that commits such crimes may be sufficient to trigger an exclusion under
section 98 of the IRPA as soon as that membership implies a personal and
knowing participation in persecutorial acts. The RPD stated that the key issue
in this case is not whether Mr. Duroseau was a member of the VSN, but
whether he was complicit in the activities of this group. It thus acknowledged
that membership in this organization creates a rebuttable presumption of
complicity, but, referring to a decision from England, the RPD also noted the
importance of assessing the role or the specific participation of the applicant.
[9]
In
this regard, the RPD remarked that, essentially, complicity rests on the
existence of a shared common purpose and the knowledge that all of the parties
in question may have of it. A person will be considered complicit if that
person is a member of a group described in the Convention and has knowledge of
acts being committed by the group and who does not take steps to prevent them
from occurring, if he has the power to do so, or disassociate him- or herself
from the group at the earliest opportunity, but lends his or her active support
to that group. In the present case, Mr. Duroseau testified that he was
aware of the serious violations committed by the VSN, but claimed that he had
never participated in these violations himself and had never directly or
indirectly supported the purposes pursued by this group.
[10]
In
light of the evidence submitted by the Minister, Mr. Duroseau’s testimony
at the hearing and his personal circumstances ([Translation] ”an 80-year-old person who earned his
living in Haiti working as a tailor in a small town in the northern part of the
country”), the RPD found that the Minister had failed to show, beyond having
mere suspicions, that there were serious reasons for considering that the
applicant himself had participated in crimes or had been complicit in the
commission of such crimes (Reasons for the decision at para 25).
III. Positions
of the parties
[11]
The
Minister explains why he still sought to challenge the RPD’s decision with
respect to the exclusion even though the RPD also dismissed the respondent’s claim
for refugee status and protection. As the Federal Court of Appeal recognized in
a similar case, this question is not moot, because a person who has been found
to be excluded under section 98, while he or she may still file an
application for protection in the context of a pre-removal risk assessment
(PRRA), cannot obtain permanent resident status and can only obtain a stay of
the removal order (Jayasekara v Canada (Minister of Citizenship and Immigration),
2008 FCA 404, [2008] FCJ No 1740).
[12]
As
for the decision itself, the Minister claims that the RPD’s finding was based, among
other things, on the criterion of complicity established in Ezokola v Canada
(Minister of Citizenship and Immigration), 2010 FC 662, [2010] FCJ No 766
(Ezokola), but that this interpretation of the criterion was later
dismissed by the Court of Appeal (Ezokola v Canada (Minister of Citizenship
and Immigration), 2011 FCA 224, [2011] FCJ No 1052). Moreover, given
the evidence and the legal principles established in the case law, the Minister
is of the view that the RPD committed an error when it determined that Mr. Duroseau
had not been complicit in the VSN’s crimes. The Minister compares the facts in
this case to those in Osagie v Canada (Minister of Citizenship and Immigration)
(2000), 186 FTR 143 at para 17, [2000] FCJ No 1133, in which the
evidence showed that the excluded individual voluntarily joined an organization
described in the Convention (in that case the Nigerian military), that he was
aware of the crimes he was committing, that he nonetheless remained a member
for several years despite the fact that he had opportunities to dissociate
himself and when he finally did so it was only because he felt that he was personally
at risk. Lastly, the Minister alleges that the decision is tainted by
determinative factual errors. According to the Minister, the RPD appears to
conclude that the respondent could not have been an accomplice given the fact
that he was 80 years old and earned his living as a tailor in a small town
in the northern part of the country during the relevant period. The Minister
points out that the respondent was between 38 and 55 years old at the
time, that he could have been complicit in crimes while being a tailor and that
the VSN were present throughout the entire country.
[13]
The
respondent replies that the RPD did not err in its interpretation of the law,
that it did not rely on the criterion of complicity used by the Federal Court
in Ezokola and that it never insisted on his having personally
participated in or facilitated the commission of crimes by the VSN. On the
contrary, the RPD simply found that he had not shared a common purpose with the
VSN and that he had not become involved in VSN operations. The respondent is of
the opinion that the Minister is in reality asking the Court to re-weigh the
evidence, including his testimony. As for the allegation that the RPD had
committed a factual error, the respondent dismisses this argument. He notes
that the RPD did not say he was 80 years old in Haiti, but had only made
reference to his age at the time of his testimony in the context of its
assessment of his credibility.
IV. Issue
·
Is
the RPD’s decision tainted by a relevant error of law or by an unreasonable
determinative error of fact?
V. Applicable
standard of review
[14]
The
applicant’s complicity and exclusion described in the Convention and under section 98
of the IRPA are questions of mixed fact and law that give rise to the
reasonableness standard (Ndabambarire v Canada (Minister of
Citizenship and Immigration), 2010 FC 1 at para 27, [2010] FCJ No 40).
In applying this standard, which is concerned mainly with the existence of
justification, transparency and intelligibility within the decision-making process,
this court will intervene only if the decision does not fall within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 RCS
190 (Dunsmuir). However, legal questions concerning the legal framework
to use during analysis are subject to the correctness standard (see Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12, para 44 and Dunsmuir,
supra, at paras 50 and 60).
VI. Analysis
[15]
As
the RPD noted, the burden is on the Minister to prove that, in light of the
evidence before it, there are [Translation]
“serious reasons for considering” that Mr. Duroseau committed or was
complicit in crimes described in the Convention and that “[i]n essence,
reasonable grounds will exist where there is an objective basis for the belief
which is based on compelling and credible information” (Mugesera v Canada (Minister
of Citizenship and Immigration), 2005 SCC 40 at para 114, [2005] 2 RCS
100). This standard goes beyond mere suspicion but not as far as the standard
applicable in civil matters of proof on the balance of probabilities (Lai v
Canada (Minister of Citizenship and Immigration), 2005 FCA 125 at
paras 23 and 25, [2005] FCJ No 584). The Minister is of the view that, in
this case, the RPD’s evidence meets this standard.
[16]
Preferring
not to begin a reassessment of the evidence (other than to identify the factual
errors) submitted by the Minister and of the RPD’s assessment, this Court will
limit itself to the following analysis. There can be no doubt as to the nature
of the VSN. The RPD unequivocally expressed itself in this matter: [Translation] “… there are serious reasons
beyond mere suspicion for believing that, from 1968 to 1985, the VSN or Tontons
Macoutes not only committed crimes against humanity in Haiti, but also that
this organization was pursuing a limited, brutal purpose” (Reasons for the
decision at para 19). This determination is significant because as the RPD
noted, membership in the VSN would create a rebuttable presumption of
complicity: “Membership in an organization that has a limited brutal purpose
does not automatically result in exclusion by itself. Rather, it creates a
rebuttable presumption of complicity or of the two criteria for complicity—a personal
and knowing participation and a sharing of a common purpose.” (Savundaranayaga
v Canada (Minister of Citizenship and Immigration), 2009 FC 31 at
para 41, [2009] FCJ No 21, and see reasons for the decision at para 20).
[17]
Despite
this presumption that would be triggered by Mr. Duroseau’s membership in
the VSN, the RPD made no determination on whether the respondent was a member
of the VSN, despite the fact that there were contradictory versions on the matter.
After noting that mere membership in a group may be sufficient to trigger the
application of the clause, the RPD states that the key issue in this case is
not whether the applicant was a member of the VSN, but whether he was complicit
in the activities of this group. Although it is true that this other
determination on complicity still had to be made, the question of membership
had a significant impact since it determined who had the burden of proving this
complicity.
[18]
When
the RPD finally made a determination on the question of exclusion, it stated that
the Minister did not show that there were serious reasons for considering that
the applicant himself participated in crimes described in the Convention or
that he was complicit in such crimes. However, as the RPD recognized earlier,
if Mr. Duroseau was a member of the VSN, the burden was on him to rebut
the presumption that he was complicit in these crimes and not on the Minister
to prove it. On this point, the RPD’s only observations with respect to the
evidence submitted by the respondent are found on paragraph 23 of its reasons,
where it notes that Mr. Duroseau stated that he was aware of the crimes
committed by the VSN, but that he had never participated in these crimes and
had never directly or indirectly supported the purposes pursued by this group. It
is impossible to know whether these statements were sufficient by themselves to
rebut a presumption of complicity, or whether the RPD had found that he was not
a member and that this presumption did not apply.
[19]
It
should also be noted that in order to determine whether Mr. Duroseau could
be found complicit in crimes committed by the VSN, the case law identified the
following factors: the method of recruitment, the applicant’s position and rank
in the organization, the nature of the organization, the applicant’s knowledge
of the crimes or acts committed, the length of his or her participation in the
organization’s activities, and the opportunity to leave (Ishaku v Canada
(Minister of Citizenship and Immigration), 2011 FC 44 at para 70,
[2011] FCJ No 58). These factors are also listed in Ryivuze v Canada (Minister
of Citizenship and Immigration), 2007 FC 134 at para 38, [2007] FCA No
186, a decision to which the RPD also referred to confirm a person’s complicity
if that person is a member of a persecuting group, has knowledge of the
activities being committed by the group and does not take steps to prevent them
occurring if he or she has the power to do so or does not disengage him‑
or herself from the group at the earliest opportunity, but lends his or her
active support (Reasons for the decision at para 22).
[20]
Despite
all these factors, both those listed by the RPD and those not mentioned, the
RPD merely noted that Mr. Duroseau testified that he had knowledge of the
crimes committed by the VSN, but that he did not support these purposes
directly or indirectly. At no time did the RPD make a determination as to
Mr. Duroseau’s decision to join the VSN (or at the very least that he held
a membership card) from 1968 to 1985, to do nothing to prevent these crimes and
not to disengage himself from the organization before he found himself in
difficult circumstances.
[21]
Even
if these deficiencies are overlooked, in light of the evidence, including
Mr. Duroseau’s statements in his refugee claim and in his PIF that he was
a member of the VSN for at least 10 years, and the impact of this membership on
the burden of proving his complicity is taken into account, it is clear that
the RPD should have determined whether Mr. Duroseau was indeed a member of
the group. Because it did not do so or at the least that it had not made that
determination, it is now impossible for this Court to determine whether the
complicity analysis was done in a reasonable manner. Therefore, taking into
account the lack of transparency and intelligibility of the reasons as to
Mr. Duroseau’s membership in the VSN, this Court cannot determine whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir, supra, at
para 47). For this reason, the RPD’s decision is set aside and the matter
is referred back to the RPD for redetermination by a differently constituted
panel.
[22]
I
would add that the decision identified significant factual errors regarding the
applicant’s personal situation: at the time of the events the applicant was not
80 years old but around 45 years old and, although he was a tailor, this did
not prevent him from being a member of the VSN, an organization operating
throughout the country, including the small towns in the north (see para 24
of the decision). These three errors are the factual basis allowing a
determination of non-exclusion. They must be noted.
[23]
Whether
on the basis of correctness for the questions of law addressed above or that of
reasonableness for the determination of facts, this decision must be referred
back for reassessment, taking into account these reasons.
[24]
The
parties did not submit questions for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application for judicial review on the
exclusion is allowed, the decision of non-exclusion is set aside and the matter
is referred back to the RPD for redetermination.
No question
will be certified.
“Simon Noël”
Certified true
translation
Catherine Jones,
Translator
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