Docket: IMM-3712-15
Citation:
2016 FC 364
Toronto, Ontario, March 31, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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LEONARDO FABIO
MENDIETA PARRA
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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
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of the decision of a Member of the Immigration Division [ID]
of the Immigration and Refugee Board of Canada, finding the applicant
inadmissible under paragraph 35(1)(a) of the IRPA on grounds of violating human
or international rights, committing an act outside Canada that constitutes an
offence referred to in sections 4 to 7 of the Crimes Against Humanity and
War Crimes Act, SC 2000, c 24 [CAHWCA], specifically a crime against
humanity.
[2]
For the reasons that follow the application is
denied.
I.
Background
[3]
The applicant is a citizen of Columbia born on
June 22, 1967 in that country. He began his mandatory military service in
approximately April, 1985 and served with the 20th Brigade of the
Columbian military until October 1, 1986 when he completed his mandatory
military service. The Minister alleged before the ID that while serving with
the 20th Brigade, the applicant was complicit in crimes against
humanity. There is no dispute between the parties that the 20th
Brigade was engaged in the commission of acts that amounted to crimes against
humanity during the period the applicant served with the unit. The issue is
whether the applicant was complicit in the commission of these acts.
[4]
While with the 20th Brigade, the
applicant’s duties included surveying and arresting individuals and bringing
them to where he knew they would be interrogated and tortured. This included surveillance
of the Fuerzas Armadas Revolucionarias de Colombia [FARC] and paramilitaries by
listening to, taping or intercepting communications. The applicant would also secure
the areas where more senior officers were interrogating and torturing individuals.
The applicant witnessed acts of torture, and some of the victims of torture
included members of the civilian population.
[5]
The nature of the applicant’s work subsequent to
the completion of his mandatory service on October 1, 1986 is not entirely clear.
It appears it involved the provision of security support to humanitarian
activities as part of or on behalf of the Colombian military through a private
company.
[6]
The applicant arrived in Canada in February,
2014 and claimed refugee protection. The applicant was interviewed by the
Canadian Border Services Agency [CBSA] several times between February 23 and
February 28, 2014 [the CBSA Interviews]. In the course of these Interviews he discussed
his military service extensively.
[7]
As a result of the CBSA Interviews, CBSA formed
the opinion that the applicant may be inadmissible pursuant to paragraph
35(1)(a) of the IRPA and completed a subsection 44(1) Report and a subsection
44(2) Referral to the ID.
II.
ID Decision
[8]
Before the ID, neither the applicant’s service
in the 20th Brigade, or the fact that the 20th Brigade
was responsible for the commission of crimes against humanity during the period
of the applicant’s service was in dispute.
[9]
The issues before the ID were (1) whether the ID
should rely on the evidence the applicant gave during the CBSA interviews and
(2) whether the applicant voluntarily contributed to the commission of crimes
against humanity or was subject to duress as a result of the involuntary nature
of his military service.
[10]
The applicant submitted that the CBSA Interviews
should be discounted in favour of the applicant’s evidence before the ID on the
basis that counsel was not present for the CBSA Interviews and that there were
issues with the translation. In respect to the CBSA Interviews, the ID noted the
following:
A.
Before the ID, the applicant did not deny any of
the statements made during the course of the CBSA Interviews, but rather sought
to minimize his role and justify his involvement with the 20th
Brigade on the basis that he was coerced;
B.
The applicant was extensively interviewed and
while providing candid details of his experience he did not mention a desire to
escape from the 20th Brigade or indicate that he had been subjected
to intimidation and daily threats of harm to himself or his family;
C.
That CBSA Officers made the applicant aware of
his right to counsel during the CBSA Interviews; and
D.
That at no time prior to the ID hearing did the
applicant, who was represented by counsel, file statements pointing to
inaccuracies in the declarations provided by CBSA Officers or request an audit
of the CBSA Interviews to assure the accuracy of interpretation.
[11]
The ID rejected the argument that the CBSA
Interviews should be dismissed or discounted, instead determining that the Interview
statements were a credible and trustworthy recounting of the applicant’s experience
while a soldier in the Colombian military. The ID further found the applicant’s
testimony at the ID hearing relating to duress and voluntariness not to be credible
because he failed to provide this information at the CBSA Interviews.
[12]
The ID found the applicant’s involvement with
the 20th Brigade amounted to significant and knowing contribution to
the torture and that torture is identified as a crime against humanity under subsection
6(3) of the CAHWCA.
[13]
The ID then considered the question of complicity,
noting that complicity is a mode of commission of an offence. The ID relied on the
six factors identified in Ezokola v Canada (Citizenship and Immigration),
[2013] 2 S.C.R. 678 [Ezokola] to assess whether the applicant was complicit
in the crimes of the 20th Brigade during his period service.
[14]
The ID concludes that while the applicant did
not participate in torture, he was aware of it, was close to it, supported it,
did not question it, and sought employment with the Columbian military even
after leaving the 20th Brigade at the completion of his compulsory
service. The ID also noted that (1) the applicant’s evidence at the CBSA
Interviews that he perceived the 20th Brigade to be a good unit as
compared to the rest of the Columbian military and (2) the lack of evidence of
any legal obligation to remain in the 20th Brigade detracted from
the applicant’s argument that he could not leave the 20th Brigade
during his compulsory service.
[15]
The ID found that the applicant shared a common
purpose with his unit, did not disengage at the earliest opportunity and is
complicit in torture and crimes against humanity. The ID found the applicant
inadmissible under paragraph 35(1)(a) of the IRPA.
III.
Issues
[16]
The application raises the following issues:
A.
What is the applicable standard of review;
B.
Did the ID have a rational basis to prefer the
CBSA Interviews over the applicant’s testimony at the ID hearing;
C.
Did the ID err in failing to mention all of the
applicant’s arguments and evidence the applicant presented; and
D.
Did the ID understand and apply the Ezokola
test?
IV.
Analysis
A.
Standard of Review
[17]
The reasonableness standard of review applies to
the ID’s decision on questions of fact and mixed fact and law, including on whether
the applicant was complicit in crimes against humanity (Lopes v Canada
(Minister of Citizenship and Immigration), 2010 FC 403 at para 67, 367 FTR
41).
[18]
In reviewing the ID’s decision on a
reasonableness standard, the question before the Court is not whether the applicant
can advance an alternative interpretation of the evidence and submissions before
the ID, but rather whether there is a reasonable basis in the law and facts,
i.e., the evidence, for the ID to have concluded that the applicant’s conduct
constituted complicity in torture, a crime against humanity (Dunsmuir v New
Brunswick, [2008] 1 S.C.R. 190 at para 47; Canada (Citizenship and
Immigration) v Khosa, [2009] 1 S.C.R. 339 at para 59; Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), [2011]
3 SCR 708 at para 17 [Newfoundland Nurses]).
B.
Is there a rational basis to prefer the CBSA
Interviews?
[19]
The applicant submits it was unreasonable for
the ID to reject his testimony before the ID as not credible where it minimized
his role in the activities of the 20th Brigade or sought to demonstrate
that his participation was coerced. The applicant argues that these matters
were not addressed in the applicant’s CBSA Interviews because they were not
asked.
[20]
The applicant also argues that although he
agreed to proceed with the CBSA Interviews in the absence of counsel and that
there is no issue relating to the denial of counsel, the ID should have
considered the absence of counsel when assessing the applicant’s testimony
before the ID. The applicant submits that he could not reasonably have been
expected to have knowledge of the information that was relevant to a finding of
complicity and the absence of this information from the Interviews where CBSA Officers
did not question the applicant on this topic was not unreasonable.
[21]
The applicant further submits that his concerns
with the interpreter were not that the interpretation was poor but rather the
applicant was not in a position to recognize, through the interpreter if
something he had said was not properly understood so that he could have
clarified his response. Finally the applicant argues that he wanted to provide
some clarifications at the outset of his fourth and final CBSA interview but
was not permitted to do so and this issue is not addressed by the ID.
[22]
I am not persuaded by the applicant’s arguments.
It was rationally open to the ID to prefer the applicant’s evidence from the
CBSA Interviews over his testimony at the ID hearing.
[23]
The applicant’s membership in, role with, and the
actions of the 20th Brigade were not in dispute. The real dispute at
the ID and on this judicial review is whether the applicant’s role was
voluntary and if he was under duress when serving. In reaching its conclusion
that no duress existed and the applicant’s actions while serving in the 20th
Brigade were voluntary, the ID preferred the applicant’s evidence at the CBSA
Interviews which demonstrated the absence of duress and involuntariness, as
opposed to the applicant’s testimony before the ID which the ID characterized
at paragraph 9 of the decision as an attempt to “minimize
his role and explain that he was coerced into his duties.”
[24]
On the issue of the presence of counsel during
the CBSA Interviews, the respondent submits, and the applicant does not
dispute, that before each of the first three CBSA Interviews, the CBSA Officer
that interviewed the applicant made him aware of his Charter right to
counsel which he waived. In addition, prior to the fourth CBSA Interview, the applicant
spoke to a lawyer over the phone, and it was during this Interview that the
most pertinent information was provided by the applicant. While the applicant
submits that during this fourth CBSA Interview he was denied the opportunity to
provide clarification of previous statements, as the respondent noted in oral
and written submissions the applicant was provided opportunities to disclose
relevant information on the issue of complicity. The applicant correctly notes
that the CBSA Officer early in the fourth CBSA Interview stated the purpose of
the Interview was to discuss potential human rights violations and not issues
relating to a detention review. I agree with respondent’s submission that there
were many opportunities throughout the CBSA Interviews, particularly the fourth
Interview, for the applicant to explain that he remained with the 20th
Brigade due to daily threats and intimidation, but he did not do so.
[25]
I am satisfied that the ID had a rational basis
to prefer the evidence the applicant provided in CBSA Interviews, particularly
the fourth Interview, over that provided before the ID on the issue of
complicity and that the applicant’s arguments do not undermine the
reasonableness of the ID’s finding in this regard.
C.
Did the ID need to address all the evidence?
[26]
The ID did not err in failing to address each of
the issues the applicant raised. As has been stated by the Supreme Court of
Canada in Construction Labour Relations v Driver Iron Inc, [2012] 3 SCR
405 at paragraph 3, “This Court has strongly emphasized
that administrative tribunals do not have to consider and comment upon every
issue raised by the parties in their reasons. For reviewing courts, the issue
remains whether the decision, viewed as a whole in the context of the record,
is reasonable.”
[27]
While there is a lack of clarity in regard to
the applicant’s connection with the Colombian military after the completion of
his mandatory service in 1986, this confusion arises out of the inconsistent
nature of the applicant’s evidence not a misapprehension of the evidence by the
ID. Although the ID does not mention the applicant’s evidence before it as it
relates to the applicant being employed by an independent contractor, the fact
is the applicant subjectively viewed himself as still being part of the
Columbian military between 1986 and 1990, based upon the contents of the CBSA Interviews.
Since the ID preferred the evidence at the CBSA Interviews over the applicant’s
testimony at the ID hearing due to credibility, the ID did not, in my opinion, err
in relying on the applicant’s evidence in the CBSA Interviews regarding his
perception of still being part of the Columbian military after leaving the 20th
Brigade. As such it was not unreasonable for the ID to consider this evidence
for the purpose of finding that the applicant’s testimony before the ID to the
effect that he wanted to leave the 20th Brigade was not credible.
[28]
Similarly, the failure to address the applicant’s
age when joining the military is not an oversight that impugns “the validity of either the reasons or the result under a
reasonableness analysis” (Newfoundland Nurses at para 16). The
evidence establishes that the applicant was in no different a position than any
other young male in Colombia in that he was subject to mandatory military
service. In addition, while the evidence indicates recruitment occurred over
two months before the applicant’s 18th birthday, the evidence also
indicates that his involvement in crimes against humanity did not occur until
after his 18th birthday. While it may have been preferable for the
ID to have addressed the question of the applicant’s vulnerability on the basis
of his age at the time of his recruitment, the fact that a decision does not
address all of the issues a reviewing court would prefer does not render the
decision unreasonable (Newfoundland Nurses at para 16).
D.
Did the ID understand and apply the Ezokola test?
[29]
Justice LeBel and Justice Fish’s unanimous
decision in Ezokola contains the test for determining inadmissibility in
this case. In Ezokola, the Supreme Court of Canada makes clear that criminal
responsibility does not rest solely with the direct perpetrators of crime, and
that individuals may be excluded from refugee protection through a variety of
modes of commission, but that exclusion cannot arise on the basis of guilt by
association (Ezokola at paras 1-3, 82).
[30]
Instead, the Court held that “To exclude a claimant from the definition of “refugee” by
virtue of art. 1F(a), there must be serious reasons for considering that the
claimant has voluntarily made a significant and knowing contribution to the
organization’s crime or criminal purpose” (Ezokola at para 84).
The Court then set out the key components of the contribution-based test for
complicity (Ezokola at paras 85-91), the very components identified and
adopted by the ID in the conduct of its analysis.
[31]
In this case, while the ID makes reference to Ramirez
v Canada (Minister of Employment and Immigration), [1992] FCJ No 109, 135
NR 390 (CA), it is clear that the ID recognized that Ezokola contains
the applicable legal test and the ID applied that test in this case.
V.
Conclusion
[32]
I am satisfied that the ID has reasonably
concluded the applicant is inadmissible under paragraph 35(1)(a) of the IRPA.
[33]
The parties have not identified a question for
certification.
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