Date: 20110427
Docket: IMM-3825-10
Citation: 2011 FC 475
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, April 27, 2011
PRESENT: The
Honourable Mr. Justice Beaudry
BETWEEN:
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DEO BUGEGENE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR ORDER AND ORDER
[1]
This
is an application for judicial review of the decision dated June 8, 2010, of
the Immigration and Refugee Board’s Refugee Protection Division (the panel). It
determined that the applicant was excluded from the definition of refugee
within the meaning of paragraph 1F(a) of Article 1
of the United Nations Convention Relating to the Status of Refugees (the
Convention).
[2]
For
the reasons explained below, the application will be dismissed.
Facts
[3]
The
applicant is a citizen of Burundi. He claimed refugee
protection in Canada with his
spouse and children.
[4]
The
applicant was excluded from the definition of refugee, while the members of his
family were accepted.
[5]
The
applicant is a Tutsi from the northwest of the country. He joined the army in
1973.
[6]
Two
weeks after he enlisted in the army, he left to participate in anti-aircraft
artillery training in the USSR until 1977. He alleges that he suffered discrimination
because he was not a southern Tutsi.
[7]
Upon
his return to Burundi in 1977, the
applicant attended an officer training school, where he focused on
anti-aircraft defence.
[8]
He
returned to the USSR from 1987 to 1990 for further training
equivalent to the level of a Masters in military science. During these years,
the army committed atrocities against the Hutus in his country.
[9]
The
southern officers attempted a coup on July 3, 1993. A subsequent attempted
coup on October 21, 1993, resulted in the assassination of President Ndadaye.
The applicant explained how he resisted the rebels in his Personal Information
Form (PIF) (Tribunal Record pages 69 to 71). He fled to the Democratic
Republic of the Congo (DRC) to seek asylum, where he was arrested and detained
for 21 months.
[10]
He
was charged with the murder of President Ndadaye but the charge was later
withdrawn. He was also charged with deserting the army. He received a
conditional six-month sentence, but appealed that sentence and the proceedings
before the Supreme Court have not yet been completed.
[11]
Upon
his return to Burundi, the
applicant continued to have problems with the authorities because of statements
he had made during the events of 1993. In October 2006, he took advantage of a
change in the political environment and held a press conference in order to
rebuild his reputation and advance his legal proceedings.
[12]
After
this press conference, he started having serious problems: in 1997 someone
threw a grenade into his business; in 2001 he was arrested and detained for
four hours; in 2003 or 2004, his takes were increased considerably and his
application for a pardon was unsuccessful. Fearing for his and his family’s
lives, he fled. They arrived in Canada on April 9, 2007, and
claimed refugee protection.
Impugned
decision
[13]
On
the issue of credibility, the panel found that the applicant’s testimony
contained no contradictions, that he answered spontaneously and without hesitation
and that much of his testimony was corroborated by an abundant amount of
documentary evidence.
[14]
The panel
also determined that the applicant had been persecuted by reason of his
political opinion. It was of the view that his political opinion had been
demonstrated by his actions at the time of the failed coup in 1993, his
departure to the DRC, his appeal of his sentence, and finally his press conference
in 2006 at which he spoke openly about the situation and voiced his opinion (decision,
at paras. 36 to 46).
[15]
The
panel determined that the members of the applicant’s family are Convention
refugees by reason of their membership in a particular social group, namely
that of family.
[16]
However,
given that the applicant had been a member of the army for 20 years, namely
from 1973 to 1993, and even if he had not personally committed crimes against
humanity, the panel excluded him by reason of his knowledge of the crimes
committed by the army and by reason of the rank he held, namely that of major.
He could have disassociated himself from the army by resigning, which he did
not do. The panel determined that he was complicit by association, citing Pineda
Collins v. Canada (Minister of Citizenship and Immigration),
2005
FC 732.
[17]
Based
on the abundant amount of documentary evidence, the panel found that crimes had
been committed by the army, particularly in 1965, 1972, 1988 and 1991. It did
not believe the applicant when he stated that at the time he joined the army in
1973 and although he was only 20 years old, that he did not know about the
atrocities committed by the army in 1965, and especially those committed in
1972.
[18]
Similarly,
the panel did not believe the applicant when he stated that he was in Russia in 1988 and
had not been informed about the crimes committed by the army that year. The
applicant alleged that he had only heard rumours.
[19]
As for the
massacre in 1991, once again the panel found it impossible that the applicant,
who commanded a military camp in Bujumbura, knew so little about
this, since the government had admitted that 500 people had died. The massacre
had taken place in the province of Cibitoke and in Bujumbura.
[20]
The
panel referred to the applicant’s PIF and the transcript of his press
conference on October 23, 2006, to infer that he had been aware of the crimes
committed by the army. The panel wrote the following at paragraph 81 of its decision
“… It is not certain that the male claimant had enough influence to
oppose the army’s actions. Regardless, he did not try to dissociate himself.
The male claimant stated that he knew only one colleague who had resigned, and
that person suffered economic hardship as a result because of an order
preventing him from being hired without the army’s authorization. The panel is
of the opinion that these problems did not affect his safety and could not be a
valid reason for the male claimant to maintain his association with the army … ”.
[21]
In
conclusion, the panel was of the opinion that the applicant could have left the
army well before 1993 and did not do so. Furthermore, due to his knowledge of
the crimes committed and his high rank in the army, there were therefore
serious reasons for considering that he had committed a crime against humanity.
Analysis
[22]
The
applicant submits that the panel made two significant errors. First, that it
erred in law in the definition of complicity by association and second, that it
erred in fact when it stated that it did not believe the applicant on the
subject of his knowledge of the crimes committed by the army at the time he
joined in 1973. Same scenario for the massacres in 1988 and 1991.
[23]
With
regard to the first argument, the applicant cited the following decisions: Ramirez
v. Canada (Minister of Citizenship and Immigration) 1992 2 FC 306; Bazargan
FCA A-400-95; Bouasla v. Canada (Minister of Citizenship and Immigration)
2008 FC 930; Zazai v. Canada (Minister of Citizenship and Immigration)
2005 FCA 303; Contreras Magan v. Canada (Minister of Citizenship and Immigration)
2007 FC 888; Ezokola v. Canada (Minister of Citizenship and Immigration)
2010 FC 662; Valère v. Canada (Minister of Citizenship and Immigration)
2005 FC 524; Pineda Collins v. Canada (Minister of Citizenship and Immigration)
2005 FC 732.
[24]
On
the basis of these cases, the applicant argued that in addition to having
knowledge about the crimes committed, there must be a shared common purpose, a
personal involvement [translation] “the person
has to have put his own hand to the workings” to arrive at the notion of
complicity by association.
[25]
As
for the second argument, the applicant claimed that the massacres in 1965 and
1972 were not relevant because the Burundian army was not considered to be an
organization directed toward a limited and brutal purpose. In addition, at the
time he joined the army he did not know that the army had committed crimes, he
believed instead that it had intervened to restore calm at the school where he
was studying.
[26]
As
for the events in 1988, he indicated that he was in the USSR and that the
information that he received was only fragmentary and that there were rumours
circulating to the effect that there had been confrontations between the rebels
and the army.
[27]
As
for the 1991 massacre, the applicant mentioned that when he returned to the
country in 1990, the president at the time had adopted a policy of national
reconciliation which included the creation of a commission tasked with
promoting unity as well as the integration of Hutus into the governing party
and the government.
[28]
The
panel should have taken the applicant at his word when he explained that he had
never been directly or indirectly associated with the crimes committed by the
army. If he had moved up through the ranks of the army, this was due to the
fact that he had no disciplinary file and because ranks were obtained in an
automatic manner.
[29]
Finally,
the best evidence provided by the applicant regarding his lack of a shared
common purpose with the violent acts committed by the army is his conduct
during the events of 1993. In fact, he had been involved in the coup against
his will. He had tried to stop those involved in the coup but the men under his
command disobeyed his orders. He had never supported the coup because he knew
full well that it would mean an end to the democratic reforms that he
supported. He therefore fled the country and later suffered persecution to such
an extent that members of his family were recognized as being refugees.
[30]
For
its part, the respondent pointed out to the Court that in the Ezokola case,
an appeal has been filed with the Federal Court of Appeal. That case is to be
heard soon. The two parties agree that a judgment should be rendered in this
case without waiting for the result of the Federal Court of Appeal’s judgment
since the facts in this case are very unusual.
[31]
With
regard to the law, the respondent noted that the Minister does not have to
prove that the applicant is guilty within the meaning of the Criminal Code in
order for him to be complicit by association. This evidence is much less
onerous, that is to say, [translation] “having
serious reasons to believe” that a person committed a crime, Bazargan v.
Canada (Minister of
Citizenship and Immigration).
[32]
Recently,
Justice Boivin of our Court, in Ndabambarire v. Canada (Minister of
Citizenship and Immigration) 2010 FC 1, undertook an
exhaustive analysis of the case law regarding complicity by association. From
this he identified the following criteria: method of recruitment; position and
rank in the organization; nature of the organization; knowledge of atrocities;
length of participation in the organization’s activities; opportunity to leave
the organization. He went so far as to conclude, at paragraph 38, that:
“…Complicity by association is established by analyzing the nature of
the crimes of which the persecuting organization or group with which the
claimant was associated is accused, even if the persecuting group is not an
organization directed to a limited, brutal purpose. Complicity by association
can be established even if the person covered by the exclusion clause was not a
member of the persecuting group.”
[33]
I
agree with this reasoning and with the choice of standard of review. In
applying the principles identified in that matter to the facts in the case
under review, I do not find it unreasonable that the panel determined that the
applicant was complicit by association in crimes committed by the army, at
least for the massacre in November 1991.
[34]
Allow
me to explain. Assuming, but without deciding that the panel was mistaken by
linking the applicant to the atrocities committed by the army in 1965, 1972 and
1988, I find that the panel’s findings excluding the applicant for the 1991
atrocities are supported by the evidence. In fact, the documentary evidence the
panel relied upon with regard to the existence and location of the crimes
committed in 1991 is not contested.
[35]
The
applicant held a very high-ranking military position (commander) in the army in
Bujumbura, one of the
locations of the massacre in 1991. The applicant only dissociated himself from
the army in 1993, during the coup. When the panel writes, at paragraph 70, that
“... His dissociation had nothing to do with the crimes committed by the
army previously, when the male claimant was not only a member of the army, but
also a member of its senior leadership”, this finding is not unreasonable in light of the evidence.
[36]
The
same applies with regard to the panel’s assertion that the applicant knew about
the crimes against humanity committed by the Burundian army while he was among
its ranks.
[37]
The
Court’s intervention is not warranted.
[38]
No
question was proposed for certification. This record does not contain any.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be dismissed. No question is certified.
“Michel
Beaudry”
Certified
true translation
Sebastian
Desbarats, Translator
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