Docket: IMM-603-14
Citation:
2014 FC 996
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, October 20, 2014
Present: The Honourable Mr. Justice Shore
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BETWEEN:
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MARINO MANUEL PACHECO MOYA
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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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JUDGMENT AND REASONS
I.
Preliminary
[1]
[translation] “According to the Truth and Reconciliation
Commission, the Shining Path is allegedly responsible for the death of 32,000 victims.
Extreme violence that has no precedent in the history of Latin Americans
guerilla movements” (Daniel Dupuis, ¿Donde
Estàn?: Terreur et disparitions au Peru (1980-2000), Éditions Le Passager
clandestin, 2009, p 29, Tribunal Record, Exhibit M-2, p 343).
[2]
As illustrated above, the members of the Shining
Path (SP) movement have, for several decades and under the guise of an ideological
and political project, perpetrated violent acts with little regard for human
life. Making excuses to avoid responsibility for actions is a refrain that has
been repeated throughout the history of atrocities committed against humanity.
II.
Introduction
[3]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA) of a decision dated November 28, 2013, of the Refugee
Protection Division (RPD) to exclude the applicant from the definition of refugee,
through section 98 of the IRPA and Article 1F(a) of the United
Nations Convention relating to the Status of Refugees (the Convention), for
his complicity in crimes against humanity.
[4]
The Court considers that the RPD properly
determined complicity based on the applicant’s contribution, in accordance with
the teachings of the Supreme Court of Canada in Ezokola v Canada (Citizenship
and Immigration), 2013 SCC 40 (Ezokola). Therefore, the application
for judicial review must be dismissed.
III.
Facts
[5]
The applicant, a citizen of Peru, seeks refugee protection in Canada. The applicant alleges the following facts.
[6]
The applicant claims that he is persecuted by
the SP. He fears that he will be tortured and exposed to a threat to his life
in Peru, because of the interest taken in him and other members of his family
by members of the SP.
[7]
In August 1996, the applicant studied at the
Universidad Nacional del Centro del Perú (UNCP), in Huancayo, at the faculty of
chemical engineering.
[8]
In August 1997, because of conflicts with the SP,
the Peruvian army entered into several public universities, including the UNCP.
Students disappeared and some were killed, including a young female student who
lived with the applicant’s family.
[9]
At the end of August 1999, the applicant was a victim
of a first attack. Three masked persons approached him to attempt to persuade
him to join the SP. After he refused to join the SP, he was tortured by members
of this organization.
[10]
On December 20, 1999, in Huancayo, the
applicant was a victim of a second attack. He was stabbed in numerous places on
his body, which led him to drop out of the UNCP to continue his studies at the National
Industrial Training Service until December 2002.
[11]
After obtaining a visa, the applicant left Peru to arrive in the United States at the end of June 2003. It was then that the applicant met
his spouse, the mother of his son Ken Leonardo. They started to live together on
September 20, 2003.
[12]
On December 5, 2008, the applicant’s
brother was the victim of an attack by members of the SP, who questioned him
regarding the applicant’s location. In November 2009, it was the applicant’s
eldest brother who was intercepted by two armed persons, who tortured him and questioned
him regarding the applicant’s location.
[13]
Fearing deportation in the United States, the applicant, his spouse and their son claimed refugee protection in Canada on August 27, 2010.
IV.
Decision
[14]
Two hearings were held before the RPD, one on
March 7, 2013, and the other on September 26, 2013, so as to determine
the refugee status of the applicant, his spouse and their son. The RPD dismissed
the applicant’s application because of his lack of credibility and his contribution
to crimes against humanity committed by the SP, according to the test set out
in Ezokola, above.
(a)
The RPD’s conclusions as to the applicant’s lack
of credibility
[15]
First, the RPD found that the applicant lacked
credibility because of the numerous contradictions in his testimony:
[translation]
[T]he omission regarding the threat made to
the students and the applicant to oblige them to participate in the meetings, the
inconsistency regarding the duration of this training that allegedly took place
over 6 months or in 4 meetings of a few hours and the contradiction regarding
the security measures that were absent then present at the university, then partially
present, undermined the applicant’s credibility with respect to the alleged climate
of terror that reigned in his department and his university at the time. (RPD
Decision, para 50)
[16]
First, the RPD determined that the applicant voluntarily
provided two litres of acid, meant for bomb-making, to his professor affiliated
with the SP without duress. According to the RPD, the contradictions in the applicant’s
testimony regarding the presence of armed and masked members of the SP in UNCP laboratories
undermined his credibility.
[17]
Then, the RPD found that the applicant’s story
regarding the security measures at the UNCP was not credible. The applicant first
testified that there were security guards monitoring student cards of people
who introduced themselves into the university, then he stated that the university
was not secure, thereby enabling the introduction of armed and masked members
of the SP into the UNCP.
[18]
Further, the RPD found that the applicant provided
contradictory statements relating to the favouritism existing with respect to
access to university services for those that co-operated with the SP, particularly
in favour of chemistry, metallurgy and mining students since they had access to
laboratories. First, the applicant testified that free services were provided
to him in exchange for his contribution and presence at speeches held by the SP.
During the second hearing, the applicant contradicted himself by denying this favouritism
and testifying that he had to pay for these services, as of the second quarter.
[19]
The RPD also noted contradictions relating to
the paramilitary training taken by the applicant, which undermined his
credibility. In particular, at question 8 of his Personal Information Form
(PIF), the applicant then indicated that he allegedly took paramilitary
training from May 15 to November 30, 1997. When confronted by the
respondent with this statement, the applicant stated that he attended two
speeches relating to the SP’s ideologies, then stated that he attended four
speeches in 1996 and 1997 without mentioning that these meetings were held
under the threat armed men, then contradicted this last point.
[20]
Further, the RPD drew a negative inference from
the applicant’s contradictions as to the period where he allegedly studied at
the faculty of chemistry and found that:
[translation]
[T]he contradictions relating to the duration
of the period of his studies done in the faculty of chemistry and concerning
the possibility of stopping his studies, undermined the applicant’s credibility
regarding the duration of the period spent at the faculty of chemistry with
respect to the speed with which he left this faculty; the panel was surprised about
this delay in leaving his faculty. (RPD Decision, at para 57)
[21]
Finally, the RPD noted that the applicant first
attempted to minimize his knowledge of the facts surrounding the SP to then
show that he was indeed aware of the SP’s ideological project and the attacks
committed by this group. On this point, the RPD found that [translation]
“the applicant was fully aware of the acts committed by the
members of this group in his university before registering in 1996, 16 years after
the start of the civil war, while he was living in the centre of the provinces where
numerous massacres had occurred” (RPD Decision, at para 53).
[22]
The Court considers that the RPD reasonably
found that the applicant lacked credibility, given the contradictions,
omissions and implausibilities in the applicant’s testimony, explained above.
(b)
The applicant’s contribution to the crimes against
humanity committed by the SP
[23]
Second, the RPD found that the applicant was
complicit in crimes against humanity, because of his significant, voluntary and
conscious contribution to the crimes perpetrated by the SP. In its reasons, the
RPD indicated at paragraph 144:
[translation]
Given the size of this organization, the
Shining Path, and the number and the severity of the crimes against humanity
that they were guilty of, given that the applicant, even if he is not part of
this organization, was approached by this organization, invited to participate
in training on their ideology, in bomb-making courses, and especially provided
on two occasions chemical material to his professor, who he believes is associated
with this organization and, since the applicant benefitted from free services from
student unions because of his activities with this group, the panel finds that the
applicant is complicit in crimes against humanity.
[24]
With respect to the applicant’s defence of
duress, the RPD notes that it was only at the second hearing, after the possibility
of exclusion under Article 1F(a) was raised, that the applicant testified
that he was threatened by armed and masked members of the SP, forcing him to co-operate.
Therefore, given the applicant’s lack of credibility and the evidence presented,
the RPD found that the applicant was complicit in crimes committed by the SP.
V.
Issue
[25]
Was the RPD decision to exclude the applicant under
section 98 of the IRPA and Article 1F(a) of the Convention reasonable?
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Convention refugee
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Définition de « réfugié »
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96. A Convention refugee is a person
who, by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
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96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
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(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
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a) soit se trouve hors de tout pays
dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut
se réclamer de la protection de chacun de ces pays;
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(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
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b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need of protection
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Personne à protéger
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97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a
country of nationality, their country of former habitual residence, would
subject them personally
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97. (1) A qualité de personne à protéger la personne qui se trouve
au Canada et serait personnellement, par son renvoi vers tout pays dont elle
a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait
sa résidence habituelle, exposée :
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(a) to a danger, believed on substantial grounds to
exist, of torture within the meaning of Article 1 of the Convention Against
Torture; or
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a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or, because of that risk, unwilling to
avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
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(ii) the risk would be faced by the person in every part of that
country and is not faced generally by other individuals in or from that
country,
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(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement
pas,
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(iii) the risk is not inherent or incidental to lawful sanctions,
unless imposed in disregard of accepted international standards, and
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(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
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(iv) the risk is not caused by the inability of that country to
provide adequate health or medical care.
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(iv) la menace ou le risque ne résulte pas de l’incapacité du
pays de fournir des soins médicaux ou de santé adéquats.
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(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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(2) A également qualité de personne à protéger la personne
qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
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Exclusion – Refugee Convention
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Exclusion par application de la Convention sur les réfugiés
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98. A person referred to in section E
or F of Article 1 of the Refugee Convention is not a Convention refugee or a
person in need of protection.
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98. La personne visée aux sections E
ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la
qualité de réfugié ni de personne à protéger.
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[26]
Moreover, Article 1F(a) of the Convention
states:
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1F. The provisions of this Convention
shall not apply to any person with respect to whom there are serious reasons
for considering that :
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1F. Les dispositions de cette Convention
ne seront pas applicables aux personnes dont on aura des raisons sérieuses de
penser :
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(a) he has committed a crime against peace, a war crime, or
a crime against humanity, as defined in the international instruments drawn
up to make provision in respect of such crimes.
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a) qu’elles ont commis un crime contre
la paix, un crime de guerre ou un crime contre l’humanité, au sens des
instruments internationaux élaborés pour prévoir des dispositions relatives à
ces crimes.
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VI.
Position of the parties
[27]
First, the applicant alleged that the RPD’s
findings as to the applicant’s lack of credibility are unreasonable. According
to the applicant, the RPD displayed a lack of objectivity by not considering
the applicant’s explanations, based on all of the evidence.
[28]
Further, the applicant argued that the RPD erred
in finding that the applicant was complicit in the crimes committed by the SP and
in rejecting the defence of duress. The applicant claims that he provided the
SP with litres of acid under direct threat of armed members of the SP. Further,
the applicant claims that he was the victim of attacks by the SP, because he
left the faculty of chemistry.
[29]
Second, the respondent claimed that the
applicant contributed to the criminal activities of the SP by providing it with
litres of acid used to make destructive and deadly bombs, obtained because of
his access to chemistry laboratories. The respondent claimed that this voluntary,
significant and conscious contribution shows that the applicant was complicit
in the crimes against humanity perpetrated by the SP.
[30]
The respondent argued that the defence of duress
raised by the applicant has no basis, given the absence of explicit or implicit
threats to cause death or bodily harm (R. v Ryan, 2013 SCC 3). Further, because
of his lack of credibility, the RPD reasonably rejected the applicant’s
testimony according to which he was threatened by armed and masked members of
the SP.
VII.
Standard of review
[31]
Since the determination of the applicant’s
complicity in crimes against humanity committed by the SP is a question of mixed
facts and law, the applicable standard is that of reasonableness (Ezokola,
above; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12;
Harb v Canada (Minister of Citizenship and Immigration), 2003 FCA 39 at
para 14).
[32]
It has been established that the determination of
the reasonableness of a decision is concerned “mostly
with the existence of justification, transparency and intelligibility within
the decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v New Brunswick, 2008 1
SCR 190 at para 47).
[33]
In addition, the Court must give a high degree
of deference to the RPD, who is in the best position to analyze the evidence and
draw the appropriate conclusions. As a reminder, Justice John Evans stated in Cepeda-Gutierrez,
[1998] FCJ No 1425 (QL):
[14] It is well established that section
18.1(4)(d) of the Federal Court Act does not authorize the Court
to substitute its view of the facts for that of the Board, which has the
benefit not only of seeing and hearing the witnesses, but also of the expertise
of its members in assessing evidence relating to facts that are within their
area of specialized expertise. In addition, and more generally, considerations
of the efficient allocation of decision-making resources between administrative
agencies and the courts strongly indicate that the role to be played in
fact-finding by the Court on an application for judicial review should be
merely residual. Thus, in order to attract judicial intervention under section
18.1(4)(d), the applicant must satisfy the Court, not only that the
Board made a palpably erroneous finding of material fact, but also that the
finding was made “without regard to the evidence [before it]”…
[15] The Court may infer that the
administrative agency under review made the erroneous finding of fact “without
regard to the evidence” from the agency's failure to mention in its reasons some
evidence before it that was relevant to the finding, and pointed to a different
conclusion from that reached by the agency. Just as a court will only defer to
an agency's interpretation of its constituent statute if it provides reasons
for its conclusion, so a court will be reluctant to defer to an agency's
factual determinations in the absence of express findings, and an analysis of
the evidence that shows how the agency reached its result.
VIII. Analysis
[34]
The Court considers that the RPD’s finding that
the applicant was not credible was reasonable, as was its finding of complicity
in the crimes against humanity committed by the SP.
(a)
The applicant’s credibility
[35]
The role of this Court is not to reassess the evidence
so as to draw its own conclusions on the applicant’s credibility, but rather to
determine whether the RPD’s findings in this respect are reasonable (Cepeda-Gutierrez,
above).
[36]
As determined by the RPD in its reasons, the fundamental
question before the RPD was whether the applicant had voluntarily given the litres
of acid to his professor, knowing that this material would be used to make
bombs for the SP.
[37]
From the outset, the RPD validly noted that the explanations
provided by the applicant during the second hearing, on September 26,
2013, were substantially different from those provided at the first hearing of
March 7, 2013.
[38]
The Court rejects the applicant’s argument that the
RPD had allegedly zealously attempted to find inconsistencies in the
applicant’s testimony. Rather, the Court finds that the RPD systematically
addressed explanations provided by the applicant and weighed all of the
evidence so as to draw reasonable conclusions with respect to the applicant’s credibility
and contribution, as a result of its analysis.
[39]
Further, the applicant’s allegation that the RPD
allegedly demonstrated bias is without basis. The Court finds that the
applicant submitted no probative evidence to support this claim. The applicant instead
demonstrated that he does not agree or is not satisfied with the RPD’s findings.
[40]
The RPD noted that it was only after the respondent
intervened on the possibility of exclusion under Article 1F(a) of the
Convention that the applicant did an about-face by offering a contradictory version
of the facts in his original testimony. Specifically, because of the numerous contradictions
and implausibilities in the applicant’s story, the Court considers that the RPD
reasonably found that the applicant lacked credibility, especially with respect
to
(a)
the contributions of litres of acid made by the
applicant under the armed threat of members of the SP in the UNCP chemistry laboratories;
(b)
the payment by the applicant to access university
services in exchange for his contribution and attendance at SP speeches;
(c)
the level of security existing at the UNCP and
the presence of the Peruvian army;
(d)
the ideological and paramilitary training with the
SP taken by the applicant;
(e)
the duration of the applicant’s studies at the faculty
of chemistry;
(f)
the nature of the attacks by the SP on the
applicant.
(b)
Complicity in crimes against humanity committed
by the SP
[41]
For mere association to be raised to the level
of complicity in a crime (or to a group’s crime or criminal purpose), there
must be “serious reasons for considering” that a
contribution to the organization's crime or criminal purpose was voluntary,
significant and conscious (Ezokola, above at para 86).
[42]
As set out in Harb, above, at para 11:
The first of these arguments does not apply in
the case at bar. It is not the nature of the crimes with which the appellant
was charged that led to his exclusion, but that of the crimes alleged against
the organizations with which he was supposed to be associated. Once those
organizations have committed crimes against humanity and the appellant meets
the requirements for membership in the group, knowledge, participation or
complicity imposed by precedent (see inter alia, Ramirez v. Canada (Minister
of Employment and Immigration), [1992] 2 F.C. 306 (C.A.); Moreno v.
Canada (Minister of Citizenship and Immigration), [1994] 1 F.C. 298
(C.A.); Sivakumar v. Canada (Minister of Employment and Immigration),
[1994] 1 F.C. 433 (C.A.); Sumaida v. Canada (Minister of Employment
and Immigration), [2000] 3 F.C. 66 (C.A.); and Bazargan v. Minister of
Employment and Immigration (1996), 205 N.R. 232 (F.C.A.)), the exclusion
applies even if the specific acts committed by the appellant himself are not
crimes against humanity as such. In short, if the organization persecutes the
civilian population the fact that the appellant himself persecuted only the military
population does not mean that he will escape the exclusion, if he is an
accomplice by association as well.
[43]
In this case, it is not disputed that the SP is
responsible for serious crimes against humanity, perpetrated against the civilian
population in a general and widespread manner. As the RPD stated, the crimes
committed by the SP are [translation]
“murders and kidnappings, forcible confinement and forced
recruitment that also obliges the population to be displaced” (RPD
Decision, at para 86).
[44]
The fact that in his testimony, the applicant
admitted having provided the litres of acid to members affiliated with SP, that
he knew that these acids were used to make bombs and that he also took training
on bomb-making, the RPD found
[translation]
[T]hat the applicant is not a principal actor
in these crimes but he could be an accomplice of this group, the Shining Path, because
he allegedly contributed to the crime perpetrated by this organization by
providing them with chemical material. (RPD Decision, para 110)
[45]
The Court noted that, contrary to the context of
Canadian criminal law, in an exclusion proceeding under section 98 of the IRPA,
the burden of proof is on the respondent to show that there are “serious reasons for considering” that a person should
be excluded from the definition of refugee. This standard lies between “mere
suspicion” and the balance of probabilities applicable in civil matters (Mugesera
v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para
114).
[46]
Afterward, in its reasons, the RPD conducted a methodical
analysis of each of the non-exhaustive criteria set out by the Supreme Court in
Ezokola, above (see paras 91 and following):
(i)
The size and nature of the organization: The RPD found that, according to the documentary evidence, the SP is
an organization that generally is clearly directed to a limited, brutal purpose.
(ii)
The part of the organization with which
the refugee claimant was concerned: The RPD found
that the applicant, though not a member of the organization, had contact with the
SP because of his membership in the faculty of chemistry.
(iii)
The refugee claimant's duties and
activities within the organization: The applicant
contributed to the SP’s activities since he stated that that he had knowingly
given them chemical material. The RPD noted that the applicant obtained in return
for this materiel free access to university services. Further, the applicant
participated in ideological training meetings with the SP and took an
extracurricular course on bomb-making.
(iv)
The refugee claimant's position or rank
in the organization: The RPD noted that the
applicant did not hold a particular position within the SP and does not seem to
have exercised any particular authority or influence in the group.
(v)
The length of time the refugee claimant
was in the organization; (vi) the method by which the refugee claimant was
recruited and the refugee claimant's opportunity to leave the organization: The RPD noted that these two factors are not relevant since the
applicant was not a member of the SP.
[47]
Afterward, the RPD analyzed the voluntary,
conscious and significant nature of the applicant’s contribution to the SP.
[48]
First, the RPD analysed the voluntary nature of
the applicant’s contribution. On this point, the applicant raised the defence
of duress since he stated that he had been forced to co‑operate with the
SP. The RPD rejected this allegation and the applicant’s defence of duress because
of his lack of credibility. When the applicant was questioned regarding the
consequences he would have experienced if he had not co‑operated with the
SP, the applicant stated that he would have lost the privilege of free access to
university services. From this standpoint, the RPD reasonably found that the
applicant provided litres of acid to the SP voluntarily.
[49]
Second, the RPD found that the contribution of
the two litres of acid is a significant contribution, since the bombs made with
these chemicals were used to kill people. Further, the RPD relied on a
statement of the applicant contained in his PIF that indicates that this
material was used to make [translation] “high impact” domestic
bombs.
[50]
Third, the RPD found that, by providing the
litres of acid, the applicant contributed consciously since he was aware that
the use of these chemicals was intended to make deadly bombs. Further, he knew
of the ideology and abuses committed by the SP. The RPD relies on the applicant’s
statements in his PIF according to which he knew that the SP was using explosives,
in particular to blow up bridges, colleges and town halls.
IX.
Conclusion
[51]
The RPD’s conclusion that there are “serious reasons for considering” that the applicant was
complicit in the crimes committed by the SP, resulting in the applicant’s exclusion
as a person subject to Article 1F(a) of the Convention is reasonable.
[52]
Therefore, the Court’s intervention is not warranted.
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