Date: 2009030
Docket: IMM-4775-08
Citation: 2009 FC 984
Ottawa, Ontario, September
30, 2009
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
PUGLIO RODOLFO MARINAS RUEDA,
DIONISIA PATRICIA CORNEJO BERRIOS,
JOEL ROMARIO MARINAS CORNEJO,
RODOLFO MARIO MARINAS CORNEJO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision from the Refugee Protection
Division dated October 6, 2008, which found the Applicant Marinas Rueda to be
excluded from the definition of a Convention refugee and which rejected the
remaining Applicants’ claim as Convention refugees or persons in need of
protection.
BACKGROUND
[2]
Mr.
Puglio Marinas Rueda, (the Applicant), his wife, Dionisia Berrios, and his two
sons, Joel Cornejo and Rodolfo Cornejo are citizens of Peru. They
arrived in Canada on October
29, 2004 and filed for refugee protection that day.
[3]
The
Applicant served in the Peruvian Navy. He completed his mandatory military two
year service in 1983 and voluntarily re-enlisted, staying with the Navy until
1992. He was present at the events that occurred at Isla Fronton prison on
June 17 and 18, 1986.
[4]
The
Peruvian Navy had been called to help quell a riot at the Isla Fronton prison.
Some 97 prisoners were killed in the attack on the prisoners. Peruvian
military forces personnel were involved in the execution of prisoners. To
cover up the events, a prison building, the Blue Pavilion, was blown up by a Navy
unit and the trapped prisoners left to die. The actions of the Peruvian military
forces had been held to be a crime against humanity by the Inter-American Court
of Human rights.
[5]
The
Applicants claim for refugee protection was initially rejected on September 29,
2005. The Refugee Protection Division of the Immigration and Refugee Board
found there were serious reasons for believing that the Applicant was complicit
in crimes against humanity perpetuated by the Peruvian Navy. The Board
therefore excluded the Applicant and his family.
[6]
In
the first judicial review, Justice Mactavish found there was no evidence to
support the Board’s conclusion that the Applicant was directly involved. She
also found there was no consideration of evidence that could have led to an
inference that the Applicant did not share a common purpose with the
perpetrators of the atrocities, specifically, his writing a report expressing
disapproval of what happened and being disciplined for doing so by his superiors
as well as his subsequent transfer to a different unit within the Peruvian
Navy. She also found, and the Minister conceded, that the Board erred in
applying its exclusion finding concerning the Applicant to his family members
and in failing to consider their inclusion claims.
[7]
On
rehearing, the Board decided on December 15, 2008 the Applicant is excluded
from the application of the definition of Convention refugee and that from the
status of persons in need of protection pursuant to Article 1F(a) of the United
Nations Convention Relating to the Status of Refugees (the Refugee Convention).
Further, the Board decided the Applicant and his family are not included as
Convention refugees or persons in need of protection.
DECISION UNDER REVIEW
[8]
The
Board found that there was evidence that the Applicant was an accomplice in the
crimes against humanity perpetrated by the Peruvian Navy during of his
service. As such he is excluded from protection in Canada pursuant to
Article 1F(a) of the Refugee Convention.
[9]
The
Board accepted the Applicant’s mere membership in the Peruvian Navy is not
sufficient to establish he was complicit in human rights abuses committed by
the Navy since it could not be characterized as a limited, brutal-purpose
organization. To determine whether the Applicant was complicit, the Board
considered the factors enumerated by the Federal Court in Fabela v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1028.
[10]
The
Board found that the crimes against humanity committed by the Peruvian armed
forces were not limited to the El Fronton incident. Rather, the Board found
that there were many other incidents involving the disappearance, outright
killings, and torture of civilians in Peru from 1980 to the early
1990’s. The Board concluded on documentary evidence that human rights abuses
against civilians by the Peruvian armed forces including the Navy were
widespread and systematic.
[11]
The
Board noted the Applicant joined the military in 1983 as part of his compulsory
military service and voluntarily re-enlisted to pursue a career in the Peruvian
military in April 1985.
[12]
The
Board noted that there was no evidence to suggest that the Applicant was forced
to participate in the incident at El Fronton on June 18 and 19, 1986. The
Board also noted that the Applicant progressed from a low rank in the Fuerza
De Operaciones Especiales (FOES and GOES) as a student to higher rank as an Officer
at Sea during his career which ended in 1992.
[13]
In
the Board’s view, the Applicant’s participation in the events at El Fronton
prison was more significant than his low rank. The Board found the Applicant
witnessed and acquired direct knowledge of the abuses committed in the attack
on the prison. It concluded the Applicant was closer to the events than he said.
It found he could not have otherwise been able to give the detailed
description of the killing of prisoners who were still alive after the
explosions destroyed the Blue Pavilion. The Board found that the Applicant was
not forthcoming with regard to his role at El Fronton as his testimony changed
about the role of his group at the incident.
[14]
The
Board found the Applicant’s subsequent continuation of service from 1986 until
1992 within the Peruvian Navy, including his progression to higher rank,
together with his participation in the high profile operation at El Fronton,
were strong inferences of his complicity in crimes committed by the
organization.
[15]
The
Board found that the Applicant had knowledge of the human rights violations by
the Peruvian military throughout his career in the Navy.
[16]
The
Board was not persuaded that the Applicant wrote a report indicating his
disagreement with the events at El Fronton since he did not provide a copy of
the report nor provide evidence regarding the substance of his statements. The
Board stated that even if he made such a report (which it did not believe)
there was no persuasive evidence to suggest that he could not have terminated
his services within the Peruvian Navy immediately after the El Fronton event.
[17]
In
conclusion, the Board found that the Applicant’s knowledge of the Peruvian Navy’s
human rights violations, his participation and knowledge of the atrocities at
El Fronton, and his long service in the Peruvian Navy indicated he shared a
common purpose with the organization. The Board found the Applicant was
complicit in crimes against humanity.
[18]
With
regard to the inclusion findings, the Board found the Applicants are not
Convention refugees, nor persons in need of protection pursuant to section 97
of the Immigration and Refugee Protection Act, (IRPA).
[19]
The
Board found that the Applicant and his family, whose claims are based on his,
are not Convention refugees or persons in need of protection. The Board found
that the determinative issues were lack of subjective fear, well-founded fear
of persecution, a viable internal flight alternative (IFA) and the availability
of state protection.
[20]
The
Applicant left the Navy in 1992. He was subsequently arrested and detained for
three months in 1993. He did not leave Peru until 1995
when he visited France. In 1996 he again went to France, without his
family, and made a refugee claim which was denied in 1999. He returned to Peru that year.
In November 2000 he visited the United States, returning to Peru in December
2000. In May 2001 he and his family went to the USA on a
six-month permit, and they stayed there illegally for three years.
[21]
The
Board found the Applicant did not have a well-founded fear of persecution in Peru. It decided,
on a balance of probabilities, the Peruvian authorities did not have any
interest in harming the Applicant or his family.
[22]
The
Board found the Applicant and his family had a viable IFA in Callao, Peru. Where the
Applicant lived and worked between 1999 and 2000 in Callao without
problems. The Board found that since the Applicant’s detention in 1993, his
agents of persecution have not made any efforts to target him.
[23]
Finally,
the Board found that there was adequate state protection. The Applicant had
not attempted to access any state protection agency. The Board found there was
no evidence the state entities would not assist him. Furthermore, the Board
cited documentary evidence demonstrating military officers and heads of state
were being prosecuted for the atrocities committed against civilians. The
Board found, though not necessarily perfect, state protection is available to
the Applicants in Peru.
LEGISLATION
[24]
Section
98 of IRPA provides:
A person
referred to in section E or F of Article 1 of the Refugee Convention is not a
convention refugee or a person in need of protection.
[25]
Section
F(a) of Article 1 of the Convention provides:
F. the
provisions of this Convention shall not apply to any person with respect to
whom there are serous 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.
ISSUES
[26]
In
my view the issues are:
a. on the
question of the Applicant’s exclusion, did the Board err in consideration of
the evidence of the Applicant’s complicity in crimes against humanity;
b. on the
question of inclusion, did the Board err with respect to assessing subjective
fear of persecution, internal flight alternative, and state protection.
STANDARD OF REVIEW
[27]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada decided that
there were two standards of review, correctness and reasonableness. The
standard of review for questions of law was correctness. The standard of
correctness must be maintained to promote just decisions and avoid
inconsistent and unauthorized application of law. Dunsmuir, para. 50.
[28]
The
standard of review was reasonableness for questions of fact and mixed fact and
law. Dunsmuir, para. 53. For a decision to be reasonable, there must
be justification, transparency and intelligibility within the decision making
process. The decision must fall into a range of possible, acceptable outcomes
which are defensible in respect of the facts and the law. Dunsmuir, para.
47.
[29]
The
central issue in this application is whether the Board erred in its conclusion
that the Applicant is excluded from the definition of a refugee due to
complicity in crimes against humanity pursuant to Article 1F(a) of the Refugee
Convention and section 98 of IRPA. There is no evidence that the Applicant
personally committed crimes against humanity and the Board had to determine if,
on the facts, the evidence supported an inference of complicity. This being a
question of mixed fact and law, the standard of review is reasonableness. Harb
v. Canada (Minister of
Citizenship and Immigration), (2003) 302 N.R. 178 at para. 14, Rueda
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 754 at para. 14.
ANALYSIS
[30]
The
Applicant submits that the Board’s decision is unreasonable for a number of
reasons, including: the Board did not properly define the organization with
which the Applicant was complicit, identifying the entire Peruvian Navy. The
Applicant relies on Bedoya v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1092. The Board
also erred in inferring that the Applicant shared a common purpose with the
Peruvian Navy by reference instead to his total service in the Peruvian Navy in
disregard of his low student trainee rank during the El Fronton event. The
Applicant also disputes the Board’s rejection of the Applicant’s claim to have
written a report critical of the El fronton incident.
[31]
The
Applicant relies on Justice Mactavish’s finding at para. 35 of Rueda,
where she stated:
There
was evidence before the Board that could have led to an inference that Mr.
Marinas did not share a common purpose with the perpetrators of the atrocities.
That is, Mr. Marinas prepared a written report after the fact in which he
expressed his disapproval of what had happened at the prison. This report
evidently led to Mr. Marinas having been disciplined by his superiors. There
is, however, no consideration in the Board's reasons as to what, if any, weight
should be attributed to this.
[32]
The
Applicant also submits the Board did not consider the ten complicity factors in
Mohammad v. Canada (M.C.I.), [1995] F.C.J. No. 1457.
[33]
The
Applicant submits the Board failed to address submissions as to why the
Peruvian authorities continue to have an interest in the Applicant a
consideration in the questions of subjective fear, IFA and state protection.
[34]
The
Respondent submits that the Board’s finding regarding The Applicant’s
complicity in crimes against humanity is reasonable. A person may be found to
have committed a crime against humanity even if they did not commit the
specific crime alleged through complicity. Harb v. Canada (M.C.I.), 2003 FCA 39
at para. 11.
[35]
The
Respondent submits that when a person has knowledge that his organization is
committing serious crimes and does not take steps to prevent them, or to
disengage himself that person will be considered to have a shared common
purpose and held to be complicit.
[36]
The
Respondent distinguishes Bedoya on the basis that, Justice Hughes found
in that case that there was no conclusion drawn that the claimant personally
participated or that his particular unit engaged in atrocities. In this case,
the Board clearly found the Applicant’s FOES unit had been directly involved in
and committed crimes against humanity at El Fronton.
[37]
The
Respondent cites a number of other decisions in which this Court found that an applicant
was complicit on similar facts: Rubianes v. Canada (M.C.I.), 2006 FC
1140, at paras. 7, 12-24; and Osayande v. Canada (M.C.I.), 2002 FCT 368,
at para. 14.
[38]
The
Respondent notes that the Board properly inferred the Applicant shared a common
purpose with his organization despite his low rank because he was in the FOES
and GOES unit. The Respondent submits that a high rank is not a requirement
for a finding of complicity. Rank is only one factor to be considered.
[39]
The
Respondent submits that the Board did not err by referring to the entire time the
Applicant was in the service. The Respondent submits the Peruvian Navy was
found to have committed numerous other human rights violations and crimes
against humanity while the Applicant was a member of the Peruvian Navy.
[40]
The
Respondent submits the Board’s decision to reject the critical report allegedly
by the Applicant was reasonable. He had not requested a copy of the report written
for the hearing nor did he say what was in it.
[41]
The
Respondent submits that the five factors identified by the Applicant were
either considered by the Board or they were not relevant. The ten complicity
factors set out in Mohammad, as cited by the Applicant, are considerations
that may be relevant in some cases and not in others. The Respondent submits
that the six factors set out in Bedoya and Ali v. Canada (Solicitor
General),
2005 FC 1306, are more relevant.
Complicity
[42]
In
Rueda v. Canada (Minister of Citizenship and Immigration),
2006
FC 754 paras. 15 to 26, Justice Mactavish thoroughly reviewed the law on
complicity. To summarize:
§
Article 1F(a) of the
Refugees Convention excludes from the scope of the convention any person
with respect to whom there are serious reasons for considering that 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
to such crimes.
§
Section 98 of the Immigration
and Refugee Protection Act incorporates Article 1F(a) of the Convention
into Canadian domestic law.
§
The Minister bears
the burden of establishing that an individual has been directly or indirectly
involved in crimes against humanity: Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (F.C.A.), at para.
10. The standard of proof is more than a mere suspicion, but less than the
civil standard of a balance of probabilities: Lai v. Minister of Citizenship
and Immigration, [2005] F.C.J. No. 584, 2005 FCA 125, at para. 25. The
Minister merely has to show that there are serious reasons for considering that
the claimant is guilty: Ramirez, at para. 5, Moreno v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C. 298 (F.C.A.) at para. 16.
§
The determination of
whether someone has been complicit in crimes against humanity is a factual
question that needs to be examined on a case by case basis.
§
The jurisprudence
from the Federal Court of Appeal establishes certain general principles to be
followed in making such a determination. These cases include the Ramirez,
Moreno and Harb decisions previously cited, as well as Sivakumar
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 and Bazargan
v. Canada (Minister of Citizenship and Immigration) (1996), 205 N.R. 282.
One need not be the actual perpetrator of the crimes against humanity in
question in order to fall within the exclusion. In certain circumstances, individuals
may be held responsible for the actions of others.
§
Passive acquiescence
is not sufficient to establish a basis for exclusion. Personal involvement in
the persecutorial acts must be established in order to demonstrate complicity: Moreno, at para. 50. Mens rea is an essential element of
the crime: Moreno, at para. 51.
§
The rank of the
individual within the organization is relevant. The closer one is to the
decision-making process, the more likely criminal responsibility will attach.
Conversely, the further from the decision-makers, the less likely it the
required degree of complicity necessary to attract the application of the
exclusion clause: see para. 53. See also Sivakumar, at para. 9 and 10.
·
A factor to consider
is whether the individual attempted to stop the crimes from being carried out,
protested against their commission or attempted to withdraw from the organization:
Sivakumar at para. 10. The law does not require that people place themselves
in grave peril in order to extricate themselves from the organization in question.
Neither, however, can they be "amoral robots": Ramirez, para.
22 and Moreno, at para. 47.
[43]
The
Board decided on the documentary evidence that the Peruvian Navy committed
numerous atrocities during the period the Applicant was serving in the Navy. The
Board found his involvement at the El Fronton incident and his service with the
Peruvian navy for the six years following was indicative of his complicity in
crimes against humanity by the Navy.
Nature of the
Organization
[44]
The
degree of association with others is a relevant consideration in assessing
complicity. Justice Layden-Stevenson considered the question of complicity in Zazai
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1356 at para 27:
Accomplices as well as
principal actors may be found to have committed international crimes (although,
for present purposes, I am not concerned with principal actors). The Court
accepted the notion of complicity defined as personal and knowing
participation in Ramirez and complicity through association whereby
individuals may be rendered responsible for the acts of others because of their
close association with the principal actors in Sivakumar v. Canada
[1993] F.C.J. No. 1145. Complicity rests on the existence of a shared common
purpose and the common knowledge that all of the parties may have of it:
Ramirez; Moreno. (emphasis added)
[45]
The
nature of the organizations one is associated with is a consideration. In Bedoya,
Justice Hughes accepted as the considerations for “complicity” the following
factors:
a. the nature of the
organization
b. the method of
recruitment
c. the position/rank
in the organization
d. the length of time
in the organization
e. the opportunity to
leave; and
f. the knowledge of
the organization’s atrocities
Justice Hughes emphasized the importance of
properly characterizing “organization”. He found in that case that the panel
was incorrect in law in stating that the activity of the “army” could be
attributed to the claimant. In fact, the army as a whole was not found to have
a limited brutal purpose.
[46]
The
first difficulty with the Board’s exclusion analysis lies firstly in its
conclusion that the Peruvian Navy as an entity committed crimes against
humanity. It reasoned that the variously described entities committed
atrocities. The entities were described as the Peruvian armed forces,
government forces, military and police, agents of the military and the police, the
military services, the Peruvian military and the police, the navy and
the Sinchis, counter-insurgency units of what was then the Civil Guard, the
army, the army, the police and combined forces, members of the army, other
official forces . . . included the navy’s marines, investigative
police, combined forces, the intelligence services and regular police, the army
and navy counter –insurgency forces and the Peruvian Navy. It is
to be noted that the Board included a wide sweep of government forces in its
recitation in which the Navy is mentioned but four times.
[47]
The
Board concluded that:
“The aforementioned examples are only a
few of the innumerable atrocities that were committed by the Peruvian Military,
including the Peruvian Navy. Based on the documentary evidence entered as
exhibits, the panel concludes that crimes against humanity were committed by
Peruvian armed forces, including the navy, without limiting it to the events of
the El Fronton when the claimant was a member of the Peruvian Navy within the
Peruvian armed forces.”
[48]
In
my view, the Board over-generalized without ever determining if the Peruvian Navy,
as an entity, was purposely responsible for crimes against humanity. It did
not assess the conduct of the leadership in command of the Navy. It did not
assess whether general naval orders directed or facilitated the commission of
atrocities by navy units. It did not assess whether officer in the navy chain
of command passed on instructions that contributed to the commission of crimes
against humanity. It did not assess the degree of knowledge seamen and
officers had of atrocities committed by the Navy.
[49]
The
Board’s selected summary of documents mentions the Peruvian Navy on four occasions,
one of which relates to the atrocity at El Fronton. An examination of another
of the documents mentions the Peruvian Navy but goes on to specify political-military
commands in charge of local administration (CPM) were largely responsible for committing
atrocities. This is counter to the Board’s finding of a pattern of conduct or modus
operandi by the Peruvian Navy as a whole. The final report of Truth and
Reconciliation Commission (TRC) in Peru described the role of
CPMs. It stated:
55.
The TRC
affirms that at
some places and moments in the conflict, the behaviour of members of the
armed forces not only involved some individual excesses by officers or
soldiers, but also entailed generalized and/or systematic practices of human
rights violations that constitute crimes against humanity as well as
transgressions of the norms of International Humanitarian Law.
56.
The TRC
concludes that,
in this framework, the political-military commands (CPM), designated the
highest state authority in the emergency zones, may bear the primary
responsibility for these crimes. The judiciary must establish the exact
degree of criminal responsibility of CPM commanders, whether for ordering,
inciting, facilitating or engaging in cover-ups or for having neglected the
fundamental duty to put a stop to the crimes. (emphasis added)
[50]
The
TRC also determined that the armed forces were capable of learning lessons
which allowed them to refine their strategy to become more efficient and less
prone to massive violations of human rights such that during the period of
most intense internal armed conflict (1989-93) also reflected significant
decrease in victims of actions by state agents. Another report indicates the
Navy was less involved in human rights violations post El Fronton. This
general trend puts in doubt the notion that the Peruvian Navy as a whole has a
common purpose of generalized and systematic commission of crimes against
humanity.
[51]
In
Bedoya, Justice Hughes found the relevant organizational unit was Mobile
Brigade 1 which the claimant was a member of, not the whole Columbian Army. In
Rubianes, Justice Pinard found the Board reasonably inferred the
claimant, with responsibilities in the areas of intelligence and as leader of a
platoon, shared a common purpose with the activities of a specific unit, Mobile
Brigade 1. Applying this approach, I conclude the organization which is
relevant is the FOES and GOES unit that the Applicant was a member at the time
of the El Fronton incident
[52]
The
Board instead considered the Peruvian Navy as the organization of reference.
It had accepted that the Peruvian Navy was not an organization with a limited,
brutal-purpose. Given this assessment and given the inadequacy of the Board’s
overly generalized analysis of the role of the Peruvian Navy as a whole in
atrocities committed in Peru during the period 1985 to 1992, it cannot be said
with any confidence that the common purpose of the Peruvian Navy was the
commission of crimes against humanity much less that the Applicant “shared a
common purpose with the Navy, and the Marine Force, given that he tolerated
that murder was part of their modus operandi.”
The Applicant’s Actions
[53]
In
Harb, Justice Decary, for the Federal Court of Appeal, noted that the
South Lebanon Army had committed crimes against humanity and further noted that
the Board had found it as a terrorist organization and one for a limited and
brutal purpose. Justice Decary stated that a simple denial cannot suffice to
negate the presence of a common purpose. He stated a claimant’s actions can be
revealing and the circumstances may be such that it can be inferred that a
person shares the objectives of those with whom he is collaborating.
[54]
In
Ramirez v. Canada (Minister of
Citizenship and Immigration), [1992] 2. F.C. 306 (F.C.A.) at para. 15.,
Justice MacGuigan said:
From the premise that a mens rea
interpretation is required, I find that the standard of “some personal activity
involving persecution,” understood as implying a mental element or knowledge,
is a useful specification of mens rea in this context. Clearly no one can
“commit” international crimes without personal and knowing participation.”
[55]
The
Board found the Applicant was knowledgeable and complicit in the crimes against
humanity committed by the Peruvian Navy FOES and GOES unit at El Fronton. However,
the Applicant’s evidence was that he wrote a report critical of the navy’s
conduct at El Fronton. That report is crucial to his claim of not being
complicit in the commission of that atrocity. The Board did not believe he
wrote a report condemning the navy’s actions at El Fronton because he neither
produced a copy of the report nor did he testify about the substance of his
report. However in the Applicant’s materials he states:
1. I totally
disagreed with what they did to the inmates. Our group of eight had to file a
report on what had occurred, and in that report I expressed my opposition to
what had happened. When my superiors knew about my position there was a great
conflict and they humiliated me and psychologically tortured me. I was
excluded from various duties and training sessions.
2. As I had made
it clear that I disagreed with what they had done to the inmates therefore they
considered me their enemy so the threats and sanctions against me were
constant. My personal life as well as my professional life was ruined.
[56]
The
Applicant has a responsibility to provide evidence in support of his claim.
The Applicant was questioned about the report’s whereabouts and he gave an
explanation why he did not have it which the Board is entitled to accept or
reject. However, there does not appear to be any questions to the Applicant about
the report’s contents. Since he did testify about his report, the absence of specific
questioning about the precise contents, weakens any contention that he should
be disbelieved because he failed to describe further what was in his report.
[57]
Justice
Mactavish found the previous panel’s failure to refer to the Applicant’s
writing a critical report and getting disciplined for doing so was part of the
grounds for granting judicial review of its decision and sending it back for re-determination.
It is clear that the Board must not only address evidence about the report but
also evidence about the Applicant being disciplined for writing it.
[58]
The
Board rejects the Applicant’s evidence about making the report but makes no
reference to relevant evidence corroborating the Applicant’s account. Included
is an entry in the Applicant’s Navy of Peru Personal Notebook dated just one
day after the events at El Fronton. That entry reads (as translated):
|
Date
|
Reason
|
Punishment
|
|
20/06/86
|
Disloyalty
Was
not truthful
(Fronton Island)
|
30
days C/A
|
[59]
As
such, the above entry in the Applicant’s service record is evidence that is
supportive of the Applicant’s account of writing a critical report and being
disciplined for it. Moreover, the Applicant was questioned about being
disciplined after the events at El Fronton, questions which he answered. In my
view, the Board was obligated to address this evidence in its reasons.
Instead, the Board fails to make any mention the Applicant being disciplined.
The implication is that the Board did not consider or ignored this relevant
evidence. As such, the Board erred.
[60]
Justice
Mactavish also found that the Board failed to have regard to the significance
of the Applicant’s attempts to disassociate himself from the actions of his
colleagues after the events at El Fronton by transferring to a different unit
within the Peruvian navy.
[61]
Madam
Justice Reed in Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79
(T.D.) para. 6 stated:
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 from 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.
(emphasis added)
[62]
The
Applicant was a student trainee in the FOES and GOES unit at the time of the El
Fronton atrocity. As a junior member, he would hardly be in a position to take
steps to prevent the atrocity from happening.
[63]
The
Board took his remaining with the Peruvian Navy as a contributing factor in its
complicity finding. As I have stated above, the organization of reference is
the FOES and GOES unit.
[64]
There
is no evidence the other units the Applicant served with after El Fronton later
in his naval career were involved in any way in crimes against humanity. He
transferred to CITN School and worked in the
instruction section in 1987 and 1988 where he served in an administrative
role. He was recalled to his unit and sent to Pucalla in 1991. He denied
being engaged in any fighting other than on one operation to rescue some
soldiers that fled an ambush. Later, he found himself in disagreement with his
superiors which led to his desertion from the Peruvian navy in 1992.
[65]
It
is incumbent on the Board to consider whether the Applicant’s transfer to
another unit was an act of disassociation with the conduct of the FOES and GOES
group at El Fronton. It did not. Again, the Board erred.
[66]
I
find that the Board’s analysis of the evidence concerning the Applicant’s
complicity in the commission of crimes against humanity to be flawed in respect
of identifying the Peruvian Navy as an entity to have purposely committed
crimes against humanity. The Board also erred when it did not consider
corroborative evidence indicating the Applicant was disciplined for writing a
report criticizing the actions at El Fronton. Finally, the Board erred in
failing to consider whether the Applicant’s transfer to another navy unit after
the incident at El Fronton was a way of disassociating himself from the FOES and
GOES conduct.
[67]
The
cumulative effect of these errors is to render the Board’s decision with
respect to exclusion to be unreasonable.
Inclusion Claim
[68]
The
Applicant and his family’s refugee claim rests on his fear of being at risk
because he was a witness to the events at El Fronton in 1983 and that those in
power who were under investigation have threatened him and his family since he
could testify against them. He bases this claim on two specific events. The
first is his arrest and detention in 1993 and the threats made during his
detention to kill him and his family if he didn’t change his position about
what occurred at El Fronton. The second was an attempt to kill his brother
which he believes was an attack targeted at himself because of his knowledge
about El Fronton.
[69]
The
underlying basis for the Applicant’s claim for refugee status is his account of
the events at El Fronton and his opposition to it, an account which the Board
rejected. As I indicated above, the Board’s reasoning is flawed on that issue.
Given the problems with the Board’s treatment of the underlying claim, I
consider it unsafe to allow the Board’s decision in respect of all Applicants on
the inclusion issues to stand.
CONCLUSION
[70]
For
the foregoing reasons, this application for judicial review is granted.
[71]
The
Applicant proposed awaiting the decision before submitting a proposed question
of general importance. The parties will have 14 days from the date of this
Order to propose a certified question.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application for judicial review is granted, and the matter is remitted back to
a differently constituted panel for de-determination.
2.
The
parties will have 14 days from the date of this Order to propose a certified
question.
“Leonard
S. Mandamin”
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