Date: 20111027
Docket: IMM-24-11
Citation: 2011 FC 1190
Ottawa, Ontario, this 27th
day of October 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Williams W. URIOL CASTRO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
On
December 18, 2010, Williams W. Uriol Castro (the “applicant”) filed the present
application
for judicial review of the decision of Me Michelle Langelier, member of the Refugee
Protection Division of the Immigration and Refugee Board (the “Board”),
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001 c. 27, (the “Act”). The Board determined that the applicant was not a Convention
refugee or a person in need of protection under sections 96 and 97 of the Act,
falling under the exclusion of subsection 1F(a) of the United Nations
Convention Relating to the Status of Refugees (the “Convention”) for having
been complicit in crimes against humanity (section 98 of the Act).
[2]
The
applicant is a citizen of Peru.
From January 1992 to January 2008, the applicant was an intelligence officer
for the Peruvian Air Force Intelligence Division (the “Air Force Intelligence
Service”), thereby participating in various reconnaissance missions. The applicant
collected information which was ultimately transferred to the National
Intelligence Service of Peru (“NIS”).
[3]
From
1992 to 2001, the applicant collected information regarding subversion in the
country. To further his investigation of subversion within the country, from
1994 to 2000, the applicant operated his own small printing and photocopying
business near the San Marcos University in Lima. The applicant would
type the homework of students and photocopy documents. If a student brought a
subversive book, he reported them in a weekly report sent to the Air Force
Intelligence Service.
[4]
In
February 2001, the applicant undertook an intelligence mission against drug
traffickers. During the years following this mission, he received threats and
had multiple confrontations with drug traffickers he investigated, causing him
to fear for his life. Consequently, he fled Peru in January 2008, arriving in
the United
States on
February 1, 2008. The applicant then left the United States on March 16, 2008,
arriving in Canada the same day. It is in
March 2008 that the applicant claimed refugee protection under sections 96 and
97 of the Act.
[5]
Before
the hearing, the Minister of Public Safety and Emergency Preparedness
intervened, asking the claimant be excluded under subsections 1F(a) and
(c) of the Convention, pursuant to section 98 of the Act.
* * * * * * *
*
[6]
In
its decision, the Board concluded that the applicant did not qualify for
refugee protection under the Act because he was excluded by the operation of section
98 of the Act and subsection 1F(a) of the Convention as there were
“serious reasons” to believe the applicant was complicit in the commission of
crimes against humanity.
[7]
The
Board begins its decision by setting out the steps of its analysis: firstly,
had the applicant collaborated with the NIS; did the NIS committed crimes
against humanity; and lastly, was the applicant complicit in these crimes.
While the Board concluded that the applicant was not in direct collaboration
with the NIS (paragraph 14 of its
decision), the applicant was nonetheless associated with the NIS during his
employment with the Peruvian Air Force: the pertinent information he obtained
was ultimately sent to the NIS.
[8]
The
Board then compares crimes against humanity, as defined by the applicable
jurisprudence and the Rome Statute of the International Criminal Court,
and the documentary evidence depicting human rights violations committed by the
NIS. The Board emphasized
the existence of La Colina, a death squad lead by the NIS which committed two
infamous massacres, notably one in 1992 against university students in Lima. Based on this
documentary evidence, the Board concluded that the NIS perpetrated crimes
against humanity. This finding remains uncontested by both parties. However,
the applicant disagrees with the Board’s finding of complicity.
[9]
The
last step in the Board’s analysis was determining whether the applicant was
complicit in the crimes against humanity perpetrated by the NIS. The Board goes over
the jurisprudence defining complicity, concluding that complicity rests on a
finding of a shared purpose and common knowledge (Thomas v. Minister of
Citizenship and Immigration, 2007 FC 838; Moreno v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 298 (C.A.)). Despite its finding
that the applicant was not a member of the NIS, the Board concluded that the applicant
knowingly collaborated with the NIS, an organization it goes on to qualify as
having a limited and brutal purpose. Consequently, the applicant was presumed
to have the knowledge required to be considered complicit in the NIS’ commission of crimes
against humanity. In the Board’s opinion, after having gone over the six
accepted factors to determine complicity, as set out in Ryivuze v. Minister
of Citizenship and Immigration, 2007 FC 134, the applicant did not manage
to rebut this presumption of complicity. The Board did not believe the applicant’s
claims that he did not know how the information he was transmitting was being
“processed”, nor that the applicant never identified a student by name, nor
that he was not aware that crimes against humanity were being carried out by
the NIS. Consequently, the
Board concluded that the applicant was complicit in the atrocities committed by
the NIS during his years of
collaboration with this organization.
* * * * * * *
*
[10]
The
issue raised by this application is whether the Board erred in finding that the
applicant knowingly collaborated with the NIS, and, therefore, in concluding that the applicant
was excluded from the definition of refugee under subsection 1F(a) of
the Convention and section 98 of the Act.
[11]
The
applicable standard of review to the Board’s decision to exclude the applicant
from the definition of refugee under subsection 1F(a) of the Convention
and section 98 of the Act is reasonableness (see Ryivuze at para 15,
and Harb v. Minister of Citizenship and Immigration (2003), 302 N.R.
178).
[12]
The
Board’s application of the test for complicity to the case at hand is a
question of fact and law, and therefore must also be reviewed according to a
standard of reasonableness (Thomas at para 15; Ezokola v. Minister of
Citizenship and Immigration, 2011 FCA 224 at para 39). Therefore, the
Board’s conclusions must fall within the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at
para 47).
[13]
This
same standard of reasonableness applies to the Board’s findings of fact (Canada (Citizenship and
Immigration) v. Khosa,
[2009] 1 S.C.R. 339; Thomas at para 14).
[14]
In
the case at bar, the applicant admits that the NIS carried out crimes against humanity. Moreover,
he does not contest the Board’s finding that the NIS was an organization with a limited brutal
purpose. However, the applicant claims that the Board erred in finding that he
was associated with the NIS. The issue then turns
to whether the Board erred in finding that the applicant knowingly collaborated
with the NIS.
[15]
The applicant
first asserts that the Board erred in concluding that through the operation of
his print shop, he collaborated with the NIS. The applicant contends that he did not have a
sufficient degree of involvement in the NIS to be a knowing collaborator. The applicant
emphasizes the chain of transmission of the information he provided. The applicant
never directly communicated with the NIS, nor could he. Rather, being a “second
technician”, the information he gathered went through a hierarchy of personnel
who analyzed the information and someone down the line would eventually
transmit what was pertinent to the NIS. Therefore, the applicant claims that the Board
erred by not explaining how he collaborated with the NIS and not commenting on
his degree of involvement.
[16]
The
applicant further claims the Board erred in concluding that he had personal
knowledge of the crimes against humanity being committed by the NIS and in its
qualification of the use his information was being put to. The Board would be
in error in concluding the applicant was willfully blind when he alleged that
in the seven years he provided information from his print shop and despite
media reports, he did not know human rights abuses were being committed.
Rather, the applicant, being a member of the army, was trained to follow
orders, not to ask questions and did not know that he was contributing to the NIS. However, this argument
is tantamount to an assertion of willful blindness. In Halsbury’s Laws of Canada,
“Criminal Offences and Defences” by Alan D. Gold, willful blindness
is said to occur “where a person who has become aware of the need for some
inquiry declines to make the inquiry because he does not wish to know the
truth. He would prefer to remain ignorant.” The applicant cannot rely on his
obligation to follow orders to justify his supposed ignorance. Such reasoning
ignores that in the commission of crimes against humanity, responsibilities and
tasks are compartmentalized so that each perpetrator can claim ignorance. To
address this reality, the law is designed to declare complicit not only those
directly ordering or carrying out the acts of violence, but also those who
choose to remain ignorant as to the consequences of their seemingly meaningless
acts (Rutayisire
v. Minister of Citizenship and Immigration, 2010 FC 1168 at paras 48 and 50).
[17]
Moreover,
the Board’s factual determinations have to be given deference (Khosa,
above). The applicant has failed to prove that the Board’s factual findings
were unreasonable. As the respondent mentions, the Board explained which
portions of the applicant’s testimony it did not find credible and why, namely
that the applicant tried to minimize his involvement during the second hearing.
Therefore, considering the applicant was an intelligence officer and not an
ordinary citizen, the various media reports, and the applicant’s affirmed
knowledge of the harm suffered by those who opposed the government, it was not
unreasonable for the Board to conclude that the applicant knew the bleak fate
of those he reported as being subversive. The Board’s conclusions fall within
the “range of possible, acceptable outcomes which are defensible in respect of
the facts and law” (Dunsmuir at para 47).
[18]
As
to the applicable law, the parties are in agreement. No one contests that
membership only suffices to establish complicity when an organization has a
limited and brutal purpose (Ramirez v. Canada (Minister of Employment and
Immigration), [1992] 2 F.C. 306 (C.A.)). Since the Board found the applicant
was not a member of the NIS, the applicant could
only be found complicit if it was established that he personally and knowingly
participated in the affairs of the NIS. In Bazargan v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 1209, 205 N.R. 282, at
paragraph 11, the Federal Court of Appeal stated:
.
. . “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. . . .
(Emphasis added.)
[19]
As
stated in Bazargan, at paragraph 12, this determination is a question of
fact. Therefore, in the absence of membership, the question becomes whether the
Board erred in concluding that the applicant knowingly participated “in the
proscribed crimes [based] on the standard of “serious reasons for considering”;
a standard lower than the balance of probabilities” (Savundaranayaga v.
Minister of Citizenship and Immigration, 2009 FC 31, at para 37; Murillo
v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 287 (T.D.)
at para 30).
[20]
Accordingly,
in terms of its factual findings, while this Court may have come to different
conclusions, the Board’s factual determinations were reasonable, being
supported by documentary and oral evidence. Therefore, the Board did not err in
finding that the applicant knowingly collaborated with the NIS, thereby being
complicit in crimes against humanity and excluded from the definition of
refugee by the operation of section 98 of the Act and subsection 1F(a)
of the Convention.
* * * * * * * *
[21]
For
the above-mentioned reasons, this application for judicial review is dismissed.
[22]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial
review of the decision of the Refugee Protection Division of the Immigration
and Refugee Board, determining that the applicant was not a Convention refugee
or a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
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