Date: 20080611
Docket: IMM-5149-07
Citation:
2008 FC 585
Montréal, Quebec, June 11, 2008
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
ERIC
FRANCIS TCHOUMBOU
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the panel) dated November 9,
2007, in which the panel determined that the applicant is not a 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 (the IRPA). The panel found that
there were serious reasons to believe that the applicant had been complicit or
had committed crimes against humanity as well as a serious non-political crime
and that he had acted in a manner contrary to the purposes and principles of
the United Nations; the panel, therefore, determined that he came under the
exclusions set out in subsections 1F(a),
(b) and (c) of the Convention.
FACTS
[2]
The
applicant was born on May 18, 1985, in Douala, Cameroon. In August 2003, he
joined the [translation] “Youth
Section” of the Cameroon People’s Democratic Movement (YCPDM), a political
party affiliated with the current head of state of the country, President Paul
Biya.
[4]
In his
Personal Information Form (PIF), the applicant also wrote that he infiltrated
the political opposition parties that demonstrated against President Biya’s
government in order to identify the organizers, those who encouraged the
demonstrators to disturb the peace or defeat the current government. However,
at the hearing before the panel on November 9, 2007, he denied having played
this role.
[5]
In May 2004, a member of the YCPDM allegedly
took the applicant to a room where police officers were beating opposition
militants. He was asked to participate in the beatings, but he refused and left
the room.
[6]
On May 18,
2004, government agents went to the applicant’s home and arrested him. He says
that he was beaten and tortured for refusing to carry out the orders he had
been given.
[7]
On May 20,
2004, a prison guard told the applicant that he had received an order to kill
him. That night, the guard released him and suggested that he flee Cameroon if
he wanted to stay alive. The applicant took refuge at the home of a friend in
Bafang, where he hid for more than a year. On September 10, 2005, the applicant
left Cameroon with his own passport and arrived in Canada where he requested
asylum.
IMPUGNED DECISION
[8]
After
reviewing the documentary evidence on the situation in Cameroon, the panel
noted that President Paul Biya violently repressed those who challenged his
power and did not hesitate to use torture frequently.
[9]
However,
the panel noted that the applicant was a member of the YCPDM from
August 2003 to May 2004 and that his membership card indicated that he was
part of the [translation] “party
militia”. The panel also pointed out that the applicant himself stated in his
PIF that he had infiltrated the political opposition parties at various
demonstrations in order to identify the organizers.
[10]
At the
hearing, the applicant denied infiltrating any group, but the panel found that
the explanations he provided to justify these contradictions were
unsatisfactory.
[11]
With
respect to the reference to his membership card, which indicates that the
applicant was a member of the “party militia”, the panel rejected the
explanation that the term “militia” in Cameroon simply means that a person is a
member of a party. The panel found that the applicant was a part of a
paramilitary organization whose goal was to keep President Biya’s party in
power.
[12]
The panel
commented on the fact that the applicant spoke of his “superiors”, who
allegedly were secret agents, at the interview with an immigration officer. The
applicant’s explanation that he meant “elders” was considered improbable
because in the French-speaking world in general, the expression “my superiors”
has no connection at all to the term “elders”.
[13]
As for the
torture that the applicant claims to have suffered, the panel concluded that he
had not established on a balance of probabilities that this incident really
happened or that it caused the applicant to leave his country.
[14]
The panel
noted that this was not the first time that the applicant had made arrangements
to come to live in Canada; he had applied for a student visa between January
and April 2004.
[15]
The panel
also dismissed the applicant’s arguments that he knew nothing about the
repression in his country when he lived there. Since he is educated and lived
in one of the largest cities in the country, it is difficult for him to plead
ignorance.
[16]
The panel
therefore concluded that the applicant had personally and knowingly
participated in persecutorial acts committed by President Biya’s party by
joining the YCPDM in 2003, with full knowledge of the situation.
[17]
Since the
“militia” to which the applicant belonged worked alongside the secret police to
repress opponents of the regime and since the secret police had a brutal
purpose, the panel determined that mere membership in this organization implied
personal and knowing participation by the applicant in persecutorial acts
committed by the organization.
[18]
Despite
this finding, which would in itself have been determinative, the panel
continued its analysis. It concluded that the applicant was complicit by
association in crimes against humanity because he had to have been aware of the
abuses committed and the torture of the opponents to the regime whom the
applicant identified by infiltrating the opposition parties. Consequently, the
panel found that the exclusions set out in paragraphs 1F(a) and 1F(c) of the
Convention applied.
[19]
The panel
also determined that the applicant came under paragraph 1F(b) of the Convention because he
was involved in procuring, which is an offence under section 212 of the Criminal
Code. In exchange for pocket money, good meals in restaurants and being
part of the entourage of President Biya’s cousin, the applicant found girls,
who may sometimes have been minors, so that this cousin could have sexual
relations with them.
[20]
The panel
concluded that the applicant could not qualify as a refugee or a person in need
of protection, and therefore it dismissed the application. The applicant has
brought an application for judicial review of this negative decision.
ANALYSIS
(1) What is the applicable
standard of review?
[21]
As a
result of the Supreme Court of Canada’s decision in Dunsmuir v. New
Brunswick, 2008 SCC 9, there are only two standards, correctness and
reasonableness. However, this recent change does not appear to alter the
standards of review applicable to the questions at issue in this case. In fact,
the Supreme Court established that reviewing courts must first ascertain
“whether the jurisprudence has already determined in a satisfactory manner the
degree of deference” (at para. 62).
[22]
The
question of whether certain acts fall within the definition of crimes against
humanity is a question of law; according to the jurisprudence, the appropriate
standard for this question was correctness: see Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R.
982; Mendez-Leyva v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 523,
[2001] F.C.J. No. 846 (QL); Gonzalez v. Canada (Minister of
Employment and Immigration), [1994] 3
F.C. 646.
[23]
The
finding regarding the applicant’s exclusion is a mixed question of fact and
law, which required the Court’s intervention in cases where the decision was
unreasonable: see Harb v. Canada (Minister of Citizenship and
Immigration), 2003 FCA
39, [2003] F.C.J. No. 108 (QL); Salgado v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1,
[2006] F.C.J. No. 1 (QL).
[24]
Reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process as well as whether the
decision falls within a range of possible, acceptable outcomes that are
defensible in respect of the facts and law (Dunsmuir, above, at para.
47).
(2)
Did
the panel err in finding that the applicant was excluded from the definition of
Convention refugee and person in need of protection under subsections 1F(a)
and (c)?
[25]
The
applicant submits that the panel did not specifically identify the crime
against humanity that he committed and that there was no evidence to connect
him, directly or indirectly, to the crimes committed by President Biya. He
contends that he did not have the requisite mens rea to commit a crime
against humanity and that his mere membership in a political party was not
sufficient. Accordingly, the Minister did not discharge his burden of
demonstrating the applicant’s personal and knowing participation.
[26]
In Mugesera
v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100,
the Supreme Court of Canada established the elements of a crime against
humanity. A proscribed act must have been committed as part of a widespread or
systemic attack. The attack must have been directed against a civilian
population or an identifiable group. Last, the person committing the act must
have known of the attack and knew or took the risk that his or her act
comprised a part of the attack.
[27]
In this
case, the panel determined that President Biya, through members of his party
and the police, violently repressed those who challenged his power and that he
did not hesitate to torture dissidents. The panel relied on reports published
by human rights organizations which all denounce the excessive use of brutal
methods to repress dissidents, i.e., members of the Cameroon opposition,
journalists and human rights activists.
[28]
As I
stated above, a crime against humanity involves a systematic attack on a
civilian population or an identifiable group. In Sumaida v.
Canada (Minister of Citizenship and Immigration), [2000] 3
F.C. 66, [2000] F.C.J. No. 10 (QL), at para. 19, the Federal Court
of Appeal determined that such a group could be composed of students in the
United Kingdom who were members of the Al Da’wa group and their families in
Iraq. Similarly, I am of the view that dissidents of the Cameroon regime as
well as human rights activists who were targeted and tortured by the
authorities qualify as an “identifiable group” under the definition of “crimes
against humanity”.
[29]
The panel
found that the “militia” to which the applicant belonged was an organization
with a brutal purpose and that, therefore, mere membership in it was sufficient
for an inference to be drawn that the applicant personally and knowingly
participated in persecutorial acts (Ramirez v. Canada (Minister of
Employment and Immigration), [1992] 2 F.C. 306 [Ramirez]). In
reaching this conclusion, the panel referred to the Larousse dictionary,
which defines the term “militia” as follows: [translation]
“a paramilitary organization which is a basic component
of certain totalitarian parties or dictatorships”.
[30]
Although it is possible that the militia of President Biya’s
political party is an organization that is principally directed to a limited,
brutal purpose, the panel did not conduct a comprehensive analysis in reaching
this conclusion. The jurisprudence has determined that “if one is going to conclude
that membership in, or close association with, a group automatically leads to a
conclusion of complicity in crimes against humanity committed by members of
that group, the evidence concerning the characterization of the
organization must be free from doubt.” (Canada (Minister of
Citizenship and Immigration) v. Hajialikhani, [1998] F.C.J. No. 1464 (QL) at para.
24).
[Emphasis added.]
[31]
The panel’s analysis of the militia’s objectives consisted of
noting the definition of the term “militia” and stating that it operated
alongside the secret police to repress opponents. Although the jurisprudence
has determined that secret police may, in fact, be an organization with a
brutal purpose (see Ramirez, above, at para. 16; Sumaida, above,
at para. 24) and that a member’s personal participation can be inferred, it is
not sufficient, in my view, to note the definition of militia and to state that
the party worked with the secret police to make a finding that the militia was
also such an organization.
[32]
Thus,
in the absence of indisputable evidence to reach this conclusion, I am of the
view that mere membership in the militia is not sufficient to determine that
the applicant was complicit.
[33]
Notwithstanding
the foregoing, the applicant may be considered complicit by association
if he personally and knowingly participated in the crimes committed by an
organization or knowingly tolerated them (Sivakumar v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 433 [Sivakumar]).
The panel pursued its analysis along those lines.
[34]
To make a
finding that the applicant was complicit by association, the panel had to
determine “the existence of a shared common purpose and the knowledge that all
of the parties in question may have of it.” (Ramirez, above, at para.
26).
[35]
The
applicant’s direct or indirect participation must be knowing and personal,
which implies a common intention. A refugee claimant is excluded for complicity if
the claimant is a member of a group that has committed a crime against
humanity, has knowledge of the group’s activities, actively supports the group
and has failed to disengage himself or herself from it at the earliest opportunity
(Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79). Moreover, the case for an
individual’s complicity in a crime against humanity committed by his or her
organization is stronger if the individual member in question holds a position
of importance within the organization. The methods of recruitment, the
applicant’s position and rank in the organization, the nature of the
organization, the applicant’s knowledge of atrocities, the length of time in
the organization and the opportunity to leave the organization are also
relevant (Plaisir v. Canada (Minister of Citizenship and Immigration),
2007 FC 264, [2007] F.C.J. No. 391 (QL), at para. 18; Fabela v. Canada (Minister of Citizenship and Immigration),
2005 FC
1028, [2005] F.C.J. No. 1277
(QL)).
[36]
Given
the scope of repression in Cameroon, the applicant’s level of education and the role that he
played as infiltrator to identify the opponents of the regime, the panel
determined that he had to have been aware of the abuses committed against the
opponents after he identified them, which led to their arrest, detention and
torture.
[37]
In
my opinion, it was reasonable for the panel to infer that the applicant had a
shared common purpose because he joined the CPDM’s militia between August 2003
and May 2004, infiltrated the opponents of the regime and was unable to establish that he
left the CPDM because he was against the repression. He stated the following in
his PIF:
[translation]
I was a member of the youth section of
the political party called the “Cameroon People’s Democratic Movement” (YCPDM)
of President Paul BIYA who is the current head of state of my country. The
leader of the YCPDM put me in with a group of members that had to do certain
tasks for the government.
First, the President’s cousin started
using me to call or find girls for him; then, I would be sent to infiltrate the
political opposition parties that were demonstrating against the government in
order to identify the organizers and those who incited the others to take to
the street. I also identified those who were sounding alarms and who encouraged
the demonstrators to do anything they could to disturb the peace and to defeat
the current government’s actions.
[38]
It
is difficult to subsequently contend that he never infiltrated opposition
parties and that his only task was to find girls for the President’s cousin. He
described in detail his role in identifying members of the opposition, and
therefore I believe that the panel was justified in determining that the
applicant was not credible when he attempted to say the opposite at the
hearing.
[39]
As
for failing to disassociate himself from the group at the earliest opportunity, the applicant alleged that he was arrested and tortured
because he refused to follow the orders to beat opposition members in May 2004.
The panel determined that he was not credible on this point considering his
statements at the port of entry and in his PIF as well as the confused
explanations he provided when he testified at the hearing.
[40]
Since
the applicant had to have been aware of the abuses committed, including the
torturing of opponents whom he identified once they were arrested and detained
and since he did not establish in a credible manner that he disassociated
himself from the group at the earliest opportunity, it was reasonable for the
panel to conclude that there were serious reasons to believe that he was
complicit in crimes against humanity and in actions that were contrary to the
purposes and principles of the United Nations.
[41]
Given
that the exclusion pursuant to paragraph 1F(a) and 1F(c) is
well founded, it is not necessary to examine the validity of the exclusion
under paragraph 1F(b).
CONCLUSION
[42]
For these
reasons, the application for judicial review is dismissed.
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