Date: 20110222
Docket: IMM-4684-10
Citation: 2011 FC 208
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 22, 2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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JMS
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This application for judicial review seeks to
quash a decision of the Refugee Protection Division (RPD) of the Immigration
and Refugee Board of Canada. That decision, rendered on July 13, 2010,
following a hearing on September 16, 2009, excluded the applicant from the
protection granted to refugees and persons in need of protection under the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). That decision was
made under section 98 of the IRPA, according to which a person must be
excluded from the protection granted by the IRPA if he or she is a person
referred to in sections E and F of Article 1 of the United
Nations Convention Relating to the Status of Refugees (the Convention). Leave
to exercise legal recourse was granted by Justice Phelan on October 29,
2010.
Impugned
decision
[2]
The RPD panel was of the opinion that the
applicant was a person referred to in Article 1F(a) of the Convention, in
that he had allegedly committed a crime against peace, a war crime, or a crime
against humanity, as defined in the applicable international instruments. That
finding was based on the applicant’s participation in the activities of a
paramilitary group in an African country that had committed war crimes (the
Group).
[3]
The Panel was not satisfied with the applicant’s
explanation that he had initially become involved with the Group as an
informant for a government agency (the Agency). The applicant explained that it
was only some time later that he became more actively involved in the Group as
a recruitment officer. The Panel analyzed several criteria and found that the applicant
was a person referred to in Article 1F(a) of the Convention.
[4]
The applicable standard of proof in such cases
is whether there are “serious reasons for considering” that the applicant had
committed a crime against
peace, a war crime, or a crime against humanity. The
RPD Panel did not fail to point out that this was indeed a lower standard than the civil standard of
the balance of probabilities but represents something more than a suspicion or
conjecture (Ramirez v. Canada (Minister of
Employment and Immigration), [1992] 2 F.C. 306 (F.C.A)). Then, the Panel
determined that the Group was not an organization with a limited and brutal purpose
during the time period in question, from 1999 to 2005. The analysis
therefore turned on the question of the applicant’s complicity in the acts alleged
against the Group.
[5]
The Panel continued its analysis by assessing
the applicant’s situation according to the applicable criteria for determining
complicity as established by Ramirez, above. Both the applicant and the
Minister conceded that the Group had regularly committed atrocities and war
crimes during the time period in question. At the same time, the Panel assumed “that the organization also had a legitimate
purpose and that it was not only an organization with a brutal and limited
purpose”.
[6]
The second factor analyzed by the RPD Panel was
that of the recruitment method. On this subject, the Panel rejected the
applicant’s explanation that he had initially been recruited into the Group
under the auspices of the Agency. The Panel was of the opinion that he had
voluntarily joined the Group. Moreover,
he maintained his membership with the Group despite being formally prohibited
from being a member of a political party because of his duties. It was only after the Minister intervened in the case that the
applicant qualified his membership in the Group by referring to the Agency’s
involvement. The Panel made a negative inference from this belated disclosure
of facts that were essential to the claim.
[7]
Since the nature of the organization itself was
not challenged, the RPD Panel analyzed the applicant’s position or rank within
the organization. The Panel was of the view that the applicant’s “vague and evasive” answers regarding the Group’s
operations were consistent with the applicant’s attempts to dissociate himself.
The Panel noted that the applicant had been put in charge of recruitment in the capital, a role deemed to be important. The Panel also made
the following remark: “The
refugee protection claimant testified that he took advantage of the fact that
he had worked with the [Group] to obtain a position . . .”. Furthermore, that he had been able to obtain a meeting with a
high‑ranking authority figure from the Group at that time was seen to be
an indication of the applicant’s apparently important role within the Group.
[8]
The other factors analyzed by the Panel also
weighed against the applicant. The applicant himself testified that he had been
aware of the atrocities committed by the Group in that country. However, he
alleged that, being of a different ethnicity as that of the Group, he could not
condone those reprehensible acts, as his family had been victims themselves of
those acts. Since the Panel’s opinion was that the applicant had taken
advantage of his involvement in the Group, the applicant was found to have been
aware of the atrocities. Moreover, the Panel noted that the applicant had
voluntarily joined the organization and never left. The Panel wrote “that the refugee protection claimant was
rather pleased about his membership in the [Group], which had good reasons
to exist, and that he did not have any intention of leaving the organization at
the first opportunity”. In this context, the applicant
was also criticized for having allegedly used his involvement in the
organization to advance his career. In addition, the duration of the
involvement, from 1999 to 2005, was found to be significant.
[9]
In light of the analysis of the Ramirez factors,
the RPD Panel determined that there were serious reasons to consider that the
applicant had participated in acts referred to in Article 1F(a) of the Convention.
Thus, he was excluded from the grounds of protection that might have been
available to him (section 98 of the IRPA).
Parties’
submissions
[10]
The applicant put forward three arguments to
challenge the Panel’s decision. First, it is alleged that the RPD erred in
failing to specify the crimes in which the applicant was complicit. Second, the
finding regarding the applicant’s position in the organization is challenged as
unreasonable. Last, the Panel’s finding on the issue of knowledge and a shared
common purpose is allegedly unreasonable.
[11]
The Minister contends that the Panel’s decision
is reasonable and that it adequately considered the evidence. Moreover, the
Panel criticized the applicant for his lack of credibility, which solidifies
the bases for the decision. In the Minister’s view, the Ramirez factors
were correctly analyzed. The alleged crimes were properly specified, and the
findings on the Ramirez factors are reasonable.
Issues and
applicable standard of review
[12]
In the Court’s opinion, the issues are as
follows. Did the RPD Panel correctly analyze the evidence and the Ramirez factors?
Did the Panel err in its assessment of the applicant’s credibility? These more
general questions encompass the three questions raised by the applicant.
[13]
The standard of review that applies to the
question of assessment of evidence is reasonableness, as it is a question of
mixed fact and law (Dunsmuir v. New Brunswick, 2008 SCC 9; Chowdhury
v. Canada (Minister of Citizenship and Immigration), 2006 FC 139; Rathinasigngam
v. Canada (Minister of Citizenship and Immigration), 2006 FC 988). Thus, on
this subject, the question is whether it was reasonable for the Panel to find
that there were serious reasons to conclude that the applicant had been
complicit in the alleged acts. The question of assessment of credibility is
also gauged on the standard of reasonableness, since deference is owed to the
decision maker in this respect (Zrig v. Canada (Minister of Citizenship and
Immigration), 2003 FCA 178; Rathinasigngam v. Canada (Minister of
Citizenship and Immigration), 2006 FC 988).
Analysis
A. Issue
of credibility
[14]
First, the Court must analyze the issue of the
applicant’s credibility. This issue was determinative for the RPD Panel.
Whether or not the applicant was credible was the principal basis for the conclusions
on the criteria regarding the recruitment method, position in the organization
and possibility of leaving the organization.
[15]
The Panel drew a negative inference from the
fact that “[t]he refugee
protection claimant testified that he [had taken] advantage of the fact that he
had worked with the [Group] to obtain a position”.
This conclusion is wrong. First, there is nothing in the evidence to support it.
Moreover, the political context in which the applicant obtained the position
corroborates this fact. The Group, a faction of which was participating in what
may be characterized as war crimes, was a movement with very strong ethnic
associations in 2001 and still removed from power. Thus, it is
unreasonable, if not wrong, to state that the applicant benefitted from his
association with a rebel group of a certain ethnicity, whereas the government
at the time was of another ethnicity and definitely did not view the Group
favourably. There is therefore no factual basis for the Panel’s finding at
paragraph 31.
[16]
This finding as to the applicant’s credibility
is central to the Panel’s conclusions on several, if not all, aspects of the
determination that the applicant was excluded. On the standard of
reasonableness, the Court’s intervention is warranted where a decision does not
fall within a range of possible outcomes which are defensible in fact and law (Dunsmuir,
above, at para. 47). Here, since one of the bases for the finding
regarding the applicant’s credibility is not supported by the evidence, that
finding is unreasonable.
B. Panel’s
analysis of the Ramirez factors
[17]
At paragraph 11 of Harb v. Canada
(Minister of Citizenship and Immigration), 2003 FCA 39, the Federal
Court of Appeal had the opportunity to rule on the criterion of complicity in
the acts referred to in Article 1F(a):
In our view, it
goes without saying that “personal and knowing participation” can be direct or
indirect and does not require formal membership in the organization that is
ultimately engaged in the condemned activities. It is not working within an
organization that makes someone an accomplice to the organization’s activities,
but knowingly contributing to those activities in any way or making them
possible, whether from within or from outside the organization. At p. 318 F.C.,
[in Ramirez,] MacGuigan, J.A. said that “[a]t bottom complicity rests .
. . on the existence of a shared common purpose and the knowledge that all of
the parties in question may have of it”. Those who become involved in an operation
that is not theirs, but that they know will probably lead to the commission of
an international offence, lay themselves open to the application of the
exclusion clause in the same way as those who play a direct part in the
operation.
[18]
In this regard, the Panel properly identified
the nature of the Group’s alleged acts, especially since the applicant
acknowledged them. However, it is the analysis of the applicant’s degree of participation
that is problematic. Since the organization did not have a limited and brutal
purpose, mere association with the Group was not enough: a more in‑depth
analysis was required (Ramirez, at para. 13). As submitted by the
applicant, the alleged acts and, in particular, the applicant’s ties to those
acts, needed to be specified (Cardenas v. Canada (Minister of Employment and
Immigration), (1994) 74 F.T.R. 214 (F.C.A); Sivakumar v. Canada (Minister
of Employment and Immigration), [1994] 1 F.C. 433 (F.C.A)).
[19]
As noted above, an incorrect conclusion regarding
the applicant’s credibility was central to the assessment of his complicity and
necessarily tainted the Panel’s decision. However, a thorough analysis of the
case law and evidence before the Panel shows that the Panel erred in its
assessment of the Ramirez factors.
[20]
To begin with, without resolving the issue on
the merits, the Court notes that the applicant’s situation seems similar to the
one presented in Cardenas v. Canada (Minister of Employment and Immigration),
(1994) 74 F.T.R. 21. The applicant’s involvement in the Group was apparently
not by participating directly in the commission of the acts referred to in
paragraph F(a). Rather, because of his ethnicity, the applicant was put in
charge of recruitment and political duties, that is, legitimizing the Group in
the eyes of the population and the authorities. This is explained by the
political context then, at a time when the Group allegedly wanted to lay down its
arms and integrate itself into the political process. The applicant
commented quite clearly on his involvement in this regard and qualified it
through the political context. However, the Panel relied on the applicant’s
general statements and failed to analyze the qualifications made by the
applicant.
[21]
It is also obvious that the Panel criticized the
applicant for having held high enough positions so as to be able to use his
involvement to advance his career. In doing so, the Panel not only came to a
conclusion that was based on an incorrect credibility finding but also failed
to address in its reasons the issue of the applicant’s ethnicity and his ties
to the Group. More specifically, the Panel should have commented on the
evidence that a person of the same ethnic group as that of the applicant would
not have been able to rise in the ranks of a movement of another ethnic group,
given the political context. This evidence was important, and the Panel was
required to analyze it and explain why it was rejected.
[22]
The Court also notes, without commenting on its
validity and probative force, that there is some evidence on file that the
applicant has been involved in promoting human rights. This involvement seems
to be central to his claim for refugee protection. While the Court draws no
conclusions on the merits of this evidence, it may be submitted at the very
least that involvement in the fight for human rights is relevant in the
analysis of the duration of the involvement and the possibility of leaving the
organization. This evidence was simply not taken into consideration.
[23]
The Panel’s analysis of the evidence is therefore
related to the adequacy of the reasons for its decision. As noted by the
Federal Court of Appeal in VIA Rail Canada Inc v. National Transportation
Agency, [2001] 2 F.C. 25 (F.C.A.),
[t]he obligation
to provide adequate reasons is not satisfied by merely reciting the submissions
and evidence of the parties and stating a conclusion. Rather, the decision
maker must set out its findings of fact and the principal evidence upon which
those findings were based. The reasons must address the major points in issue.
The reasoning process followed by the decision maker must be set out and must
reflect consideration of the main relevant factors.
[24]
A fortiori, this
reasoning applies when a decision maker fails to consider evidence that may be
characterized as relevant. A decision maker must have actually assessed the
evidence and given the reasons for excluding it. This is also consistent with
the analysis required by the standard of review of reasonableness.
Conclusion
[25]
The RPD Panel based its assessment of the applicant’s
credibility on elements that were not supported by the evidence on file. This
credibility assessment was determinative in the evaluation of the criteria for complicity
as set out in Ramirez. Next, the analysis of the criteria for complicity
was conducted without reference to important evidence. It was therefore
unreasonable for the RPD Panel to find that there were serious reasons for
considering that the applicant had participated in the commission of the acts
referred to in paragraph F(a).
[26]
The parties proposed no question of general
importance to be certified, and none arose.
JUDGMENT
THE COURT ORDERS AND ADJUGES that the application for judicial review is allowed and the
matter is to be sent back for determination by a newly constituted RPD Panel. There
is no question to be certified.
“Simon Noël”
Certified true
translation
Tu-Quynh Trinh
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