Date: 20090107
Docket: IMM-2668-08
Citation: 2009 FC 19
Ottawa, Ontario, January 7,
2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
MUTUMBA,
Fahad Huthy
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
In
a situation of choice wherein one could remove oneself or extricate oneself,
yet, nevertheless, to continue one’s work in an organization that is personally
known to commit torture and, thereby, recognized for its “limited and brutal
purpose”, is to subject oneself to exclusion from convention refugee
protection.
[2]
When
examining the record before the Immigration and Refugee Board (Tribunal), the
following appears: Exhibit M-2 describes a rising level of torture in Uganda (p. 9). The
Internal Security Organization (ISO) is described as a government intelligence
group which uses torture to achieve its objectives (p. 14). Exhibit M-4, Uganda
Country Report, April 2005, Country Information and Policy Unit Immigration and
Nationality Directorate, Home Office, United Kingdom at page 1094: at 2.9
“Among the agencies accused of torture are … the Internal Security Organization
(ISO)”.
[3]
Exhibit
M-3 refers to complaints of alleged human rights violations perpetrated by a
number of Ugandan agencies, including the ISO (Exhibit M-3, p. 21) on page 1347
of the Tribunal Record, the Applicant, himself, when asked whether he had been
aware “about the practice of torture”, answered, “absolutely, yes”.
II. Judicial Procedure
[4]
The
Applicant, a citizen of Uganda, filed an application with the Federal
Court for judicial review challenging a decision rendered by the Tribunal, on
May 26, 2008, which denied the Applicant’s asylum claim. The Tribunal found
that the Applicant was excluded from Convention refugee and protected person
status pursuant to Article 1F(a) of the United Nations Convention
Relating to the Status of Refugees (Refugee Convention) which serves, de jure,
as a bar to such status.
III. Background
[5]
The
Applicant, Mr. Fahad Huthy Mutumba, lived in Kampala, Uganda. He
worked as a teacher from 2002 to 2004.
[6]
Mr.
Mutumba was fired in May 2004 due to his sexual orientation. He was also
excluded from his church in July 2004 for the same reason.
[7]
In
august 2004, Mr. Mutumba was hired by the ISO. He remained with this
organization for fifteen months, i.e. until November 24, 2005.
[8]
Mr.
Mutumba was arrested by his superiors at the ISO, on November 24, 2005. He was
allegedly suspected of having leaked information to the press concerning the
death of a rebel who had died while in custody of the ISO. Mr. Mutumba was
allegedly detained, beaten and tortured for seven days and accused of being a
traitor. Mr. Mutumba was released from custody on December 1, 2005.
[9]
Mr.
Mutumba arrived in Canada on December 10, 2005 and claimed refugee status
on December 15, 2005.
IV. Decision under review
[10]
The
Tribunal found that Mr. Mutumba was excluded from refugee protection under
Article 1F(a) of the Refugee Convention.
V. Analysis
Legislation
[11]
Article
1F(a) of the Refugee Convention reads as follows:
|
F. The
provisions of this Convention shall not apply to any person with respect to
whom there are serious reasons for considering that.
(a) He has committed a crime against peace, a
war crime, or a crime against humanity, as defined in the international
instruments drawn up to make provision in respect of such crimes;
|
F. Les dispositions de cette Convention ne seront pas applicables
aux personnes dont on aura des raisons sérieuses de penser :
a) Qu'elles ont commis un crime contre
la paix, un crime de guerre ou un rime contre l'humanité, au sens des
instruments internationaux élaborés pour prévoir des dispositions relatives à
ces crimes;
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Internal Security
Organization (ISO)
[12]
The
Tribunal found that the ISO is a secret force in Uganda which committed, on a
regular and consistent basis, serious violations of human rights characterized
as crimes against humanity or war crimes under Article 1F(a) of the
Refugee Convention.
[13]
The
Tribunal concluded that the Ugandan ISO is a secret police force and an
organization directed to a limited brutal purpose.
[14]
No
doubt exists as to Mr. Mutumba’s employment by the ISO for a period of fifteen
months between August 2004 and November 2005.
[15]
In Ramirez
v. Canada (Minister of Employment
and Immigration),
[1992] 2 F.C. 306, [2002] F.C.J. No. 109 (QL) (C.A.), the Federal Court of
Appeal noted that mere membership in an organization principally directed to a
limited brutal purpose, may be sufficient to trigger the exclusion clause:
[16] What degree of complicity, then, is required to be an
accomplice or abettor? A first conclusion I come to is that mere membership in
an organization which from time to time commits international offences is not
normally sufficient for exclusion from refugee status. Indeed, this is in
accord with the intention of the signatory states, as is apparent from the
post-war International Military Tribunal …:
It is important to note that the International Military Tribunal
excluded from the collective responsibility 'persons who had no knowledge of
the criminal purposes or acts of the organization and those who were drafted by
the State for membership, unless they were personally implicated in the
commission of acts declared criminal by Article 6 of the Charter as members of
the organization. Membership alone is not enough to come within the scope of
these declarations' [International Military Tribunal, i. 256].
It seems
apparent, however, that where an organization is principally directed to a
limited, brutal purpose, such as a secret police activity, mere membership may
by necessity involve personal and knowing participation in persecutorial acts. (Emphasis added).
[16]
Ramirez has become a seminal
case and its principles have been frequently reiterated by this Court and the
Federal Court of Appeal (Penate v. Canada (Minister of Employment
and Immigration),
[1994] 2 F.C. 79, [1993] F.C.J. No. 1292 (QL) (T.D.); Moreno v. Canada (Minister of Employment
and Immigration),
[1994] 1 F.C. 298, [1993] F.C.J. No. 912 (QL) (C.A.); Sivakumar v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C. 433, [1993] F.C.J.
No. 1145 (QL) (C.A.) ; Ruiz v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1177, [2003] F.C.J. No. 1507 (QL); Thomas v.
Canada (Minister of Citizenship and Immigration), 2007 FC 838, 160 A.C.W.S.
(3d) 148).
[17]
The
Tribunal found the ISO to be a secret police force in Uganda, based on Mr. Mutumba’s
own written statements and documentary evidence. Mr. Mutumba subsequently
denied his own earlier characterization of the ISO.
[18]
Mr.
Mutumba claimed refugee status in Canada on December 15, 2005. The following day, Mr.
Mutumba was interviewed by Examination Officer, Mr. Graham Rowe (Exhibit “A” of
Ketsia Dorceus’ affidavit).
[19]
Mr.
Mutumba’s written statement at point of entry clearly indicates that the ISO is
a secret security agency of the Ugandan government:
My
name is Fahad Huthy Mutumba, aged 35, a Ugandan citizen, born in Mulago Hospital in Mengo, Kampala District, on the 9th
October 1973.
I
had to flee my country in fear of being persecuted by the government security
machinery, for refusing to join the Secret agents organization called the
Internal Security Organisation (ISO). I had worked for them, in a civilian
capacity as an office administrator for over a year, having been introduced
there by Major Haruna Nukorgo, on the 7th August 2004. My main
duties were to record handwritten statements from suspects and type them in
word processing Microsoft programme on the computers.
This
at first didn’t sound a good job for me, working within the army, but having
lost my previous job for being open about my sexuality, made it hard, as I had
a family of six (6) to look after!
The
second reason is because I came out in the open that I was gay.
(signature)
16-12-2005
(Emphasis
added).
[20]
In
his question and answer session with Officer Rowe, Mr. Mutumba indicated that
the ISO was a security agency. Due to his own situation, he admitted
acceptance of his position and awareness that the ISO tortured citizens.
Who
is seeking to harm you?
The
security agency called Internal Security Organization.
Why
are you specifically being targeted?
I
refused to join them because
of their practice of torturing citizens and branding them as traitors.
Why
did they want you to join them?
I
was working for them
taking notes during their interrogations but they wanted me to become more
involved with them.
Did
you ever take part in the torny(sic) torture operations?
No,
I took statements from people that were being interrogated by security personnel.
(Emphasis
added).
[21]
Mr.
Mutumba’s description of the ISO as a “secret agent” or “security agency” and
the torture acts linked with this organization were sufficient to conclude that
it was principally directed to a limited, brutal purpose in the manner
described in Ramirez, above, and subsequent case law.
[22]
Accordingly,
Mr. Mutumba’s membership in the organization for a fifteen month period was
sufficient to trigger the exclusion clause set forth at Article 1F(a) of
the Refugee Convention.
[23]
In
support of its finding that the ISO was a secret police force that carried out
violations of human rights and crimes against humanity, the Tribunal cites two
documents at footnote 2 of its reasons, i.e. Exhibit M-2 Commonwealth Human
Rights Initiative: The police, the people, the politics: Police Accountability
in Uganda, 2006 and Exhibit M-3 Uganda Human Rights Commission Annual
Report, chapter 02: investigations and resolution of complaints, 2004
(Exhibits “B” and “C” of Ketsia Dorceus’ affidavit).
[24]
When
examining the record before the Tribunal, the following appears: Exhibit M-2
describes a rising level of torture in Uganda (p. 9). The
ISO is described as a government intelligence group which uses torture to
achieve its objectives (p. 14). Exhibit M-4, Uganda Country Report, April 2005,
Country Information and Policy Unit Immigration and Nationality Directorate, Home Office, United
Kingdom at page 1094: at 2.9 “Among the agencies accused of torture are … the
Internal Security Organization (ISO)”.
[25]
Exhibit
M-3 refers to complaints of alleged human rights violations perpetrated by a
number of Ugandan agencies, including the ISO (Exhibit M-3, p. 21) on page 1347
of the Tribunal Record, Mr. Mutumba, himself, when asked whether he had been
aware “about the practice of torture”, answered, “absolutely, yes”.
[26]
Taken
as a whole, these documents and Mr. Mutumba’s statements confirm that he was a
member of the ISO. He was aware of the torture perpetrated by this organization
and that it was administered in secret as is evidenced by Mr. Mutumba’s
personal experience of being detained for allegedly leaking information to the
public. Accordingly, the Tribunal had all the required elements to apply the
IF(a) exclusion clause in this case.
[27]
The
first instance tribunal did consider the written submissions of Mr. Mutumba and
the Minister’s representative in its consideration of the issue of exclusion.
No requirement exists that the reasons reflect the totality of the arguments
set out by the parties or that its findings are limited to that suggested by
the litigants.
[28]
Justice
James Russell reiterated the principle set forth by the Federal Court of Appeal
on this issue in Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545
(QL) (F.C.A.):
[53] …
As held in Mehterian …, written reasons of the Board must be
sufficiently clear, precise and intelligible so that a claimant can understand
why the claim has failed …
[29]
In
the present case, the ratio decidendi of the Tribunal is clear, Mr.
Mutumba is excluded under Article 1F(a) as a member of the ISO, an
organization with a limited, brutal purpose, that of torture of Ugandan
citizens. The reasons are clear and give Mr. Mutumba full knowledge of the
reasons in support of the negative decision of the Tribunal.
Evidence provided by the
Applicant on the ISO
[30]
During
the course of the hearing, the Tribunal noted that Mr. Mutumba provided the
Tribunal with very different evidence as to his role in the ISO as compared to
his earlier statements at the point of entry.
[31]
Mr.
Mutumba, at the Tribunal hearing, generally denied statements which he made at
the point of entry interview. He became vague and evasive as to his duties in
the ISO as opposed to earlier statements he had made.
[32]
Mr.
Mutumba claimed, at the hearing, to have had no knowledge of the ISO’s practice
of torture and killing of Ugandan citizens, also qualifying them as “rumours”.
This testimony was in complete contradiction to his testimony at point of entry
where he, himself, spoke of torture perpetrated by this organization.
[33]
In
addition to all else Mr. Mutumba had presented, he referred to his current
medical and psychological condition. This, nevertheless, does not change the
sequence of events which had occurred in Uganda and which led to the finding of exclusion as
rendered by the Tribunal.
[34]
Subsequent
to the evidence, Mr. Mutumba could not invoke a defence of duress as to
his decision to remain with the ISO. In February 2005, seven months after
joining the ISO, Mr. Mutumba specified that he gave thought to leaving the
organization but remained since he did not have any other employment
opportunity at the time. Mr. Mutumba was under no threat of imminent danger had
he left his position at that time.
[35]
The
question of complicity was also considered by Justice Edmond Blanchard in El
Kachi v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 403, [2002] F.C.J. No. 554 (QL).
VI. Conclusion
[36]
The
Board’s decision is upheld and Mr. Mutumba’s application for judicial review is
dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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