Date: 20070906
Docket: IMM-6787-06
Citation:
2007 FC 888
Ottawa, Ontario, September 6, 2007
PRESENT:
THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
MIGUEL
LUIS CONTRERAS MAGAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
OVERVIEW
[1] [27] I will rely on case law of this Court, according to which
merely belonging to an organization that, as the male applicant argues, is a
legal entity responsible for defending Peruvian territory and is recognized by
the Peruvian constitution is insufficient to establish complicity or complicity
through association, unless the organization is principally directed to a
limited, brutal purpose, such as a secret police: Ramirez, supra; Sivakumar,
supra. At the hearing, it was agreed that the Peruvian army is not such an
organization.
[28] In his
affidavit and testimony, the male applicant stated that he did not hold a
strategic position in the Peruvian army in the early years of his military
service. When he became a pilot, he had no decision-making powers and flew
reconnaissance, not combat, aircraft. As chief of the intelligence section, he
had to prevent drug traffickers from infiltrating the battalion and protect the
base from terrorist attacks. He argues that he never had a post in the
insurgent areas where, according to the documentary evidence, the Peruvian army
has committed acts of repression. He maintains that he was not aware of the
army’s plans concerning the intervention at the Japanese embassy during the
hostage-taking incident.
(La Hoz v. Canada (Minister
of Citizenship and Immigration), 2005 FC 762, [2005] F.C.J. no. 940 (QL);
also, IMM-5239-04, specifying the case of Miguel Luis Contreras Magan.)
[2]
On June
18, 2002, the applicant, Mr. Miguel Luis Contreras Magan, claimed refugee
status in Canada.
[3]
The
hearing before the Immigration and Refugee Board (the Board) was held on
February 16 and March 2, 2004. The Board rendered its decision on May 10,
2004. On November 17, 2004, leave was granted to commence an application
for judicial review.
[4]
On May 30,
2005, the Federal Court ordered that the application for judicial review be
allowed. (La Hoz, hereinabove)
[5]
Mr.
Justice Edmond Blanchard allowed the application for judicial review of the
Board’s decision, where it held that the Convention did not apply to the male
applicant, ordered that the Board’s decision in this regard be set aside and
that the matter be referred back for a new hearing before a differently
constituted panel.
[6]
Accordingly,
a new hearing was held on April 6, 2006 and on September 13, 2006. The Board
rendered its negative decision on November 1, 2006.
[7]
In this
new decision, the Board failed to take into account Blanchard J.’s reasons for
order dated May 30, 2005 (La Hoz, supra) with respect to Mr. Magan.
[8]
Illustrating
the kind of grounds to be taken into consideration, Blanchard J. wrote as
follows:
[23] The evidence must show that there are serious reasons for considering
that the male applicant committed crimes against humanity. The Board did not
address this issue. It did not establish which war crimes the male applicant
allegedly committed. It simply referred to war crimes in broad terms and found
that the Peruvian army frequently uses torture and commits acts of violence
against civilians in areas where Tupac Amaru and Shining Path rebels are found.
Since it ruled that the male applicant’s testimony was not credible, the
Board concluded that, because he was a member of the Peruvian army, he was
responsible for these crimes. In my view, these reasons are not sufficient
to establish that the male applicant committed crimes against humanity.
[24] The second step in
assessing exclusion is determining the extent of the male applicant’s
involvement. The various degrees of involvement in perpetrating crimes against
humanity have been clearly set out by the Federal Court of Appeal in Sivakumar,
supra. Depending on the facts, an individual can be:
- directly
involved
- complicit
- complicit
through association.
[25] In determining the validity
of exclusion on grounds of complicity or complicity through association, it
must be established that the refugee claimant personally and knowingly
participated in acts of persecution: Ramirez, supra. As the Federal
Court of Appeal has stated at paragraph 39 of its decision in Moreno, supra,
complicity rests also on the existence of common intent of the perpetrator and
accomplice.
At bottom, complicity rests in such cases, I believe,
on the existence of a shared common purpose and the knowledge that all of the
parties in question may have of it.
[26] In my view, the Board found, without providing sufficient reasons, that
the male applicant was responsible for perpetrating the acts listed in
paragraphs (a) and (c) of section 1F of the Convention simply
because he had been a member of the Peruvian army, which, according to
documentation on current conditions in Peru, has members that have committed
these acts. My review of the entire record leads me to conclude that the Board
did not consider whether it had been proven that the male applicant personally
and knowingly participated in the perpetration of these crimes.
[27] I will rely on case law of this Court, according to which merely
belonging to an organization that, as the male applicant argues, is a legal
entity responsible for defending Peruvian territory and is recognized by the
Peruvian constitution is insufficient to establish complicity or complicity
through association, unless the organization is principally directed to a
limited, brutal purpose, such as a secret police: Ramirez, supra; Sivakumar,
supra. At the hearing, it was agreed that the Peruvian army is not such an
organization.
[28] In his affidavit and testimony, the male applicant stated that he
did not hold a strategic position in the Peruvian army in the early years of
his military service. When he became a pilot, he had no decision-making powers
and flew reconnaissance, not combat, aircraft. As chief of the intelligence
section, he had to prevent drug traffickers from infiltrating the battalion and
protect the base from terrorist attacks. He argues that he never had a post in
the insurgent areas where, according to the documentary evidence, the Peruvian
army has committed acts of repression. He maintains that he was not aware of
the army’s plans concerning the intervention at the Japanese embassy during the
hostage-taking incident.
[...]
[31] No such specific
findings were made in this case. Procedural fairness requires that specific
findings be made regarding crimes the Board feels have been committed by a
claimant. In my view, the Board limited itself to drawing inferences without
clearly establishing the crimes the male applicant participated in. It simply
laid responsibility on him for crimes committed by the Peruvian army, that is,
acts of torture and abuses against the civilian population, based on
documentary evidence on Peru. The Board did not establish the male applicant’s
complicity in the perpetration of these acts. Since it found the male applicant
was not credible, the Board concluded that he had been involved in the
commission of broadly defined crimes. The Court cannot uphold this conclusion.
Since this omission is an error of law, I find that the Board’s decision is
incorrect and that intervention is warranted in this case with respect to the
finding of the male applicant’s exclusion.
(emphasis added)
[9]
Therefore,
it is clear that, for the second time, the Board erred in law and in
fact.
[10]
The Board
made a significant error of law.
[11]
The
applicant’s arguments are substantially well-founded; they raise serious issues
and demonstrate the need to refer the matter back to the tribunal of first
instance a second time for a de novo review before a differently
constituted panel.
[12]
Accordingly,
the decision is set aside and a new hearing is ordered.
JUDGMENT
The Court has, for the second time, in
the same case, followed the same reasoning to make the same findings that were
ignored by the tribunal of first instance.
THE COURT ORDERS that the decision of the tribunal
of first instance be set aside and that the matter be referred back to the
tribunal of first instance for a de novo review before a differently
constituted panel.
“Michel
M.J. Shore”
Certified
true translation
François
Brunet, LLB, BCL
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