Docket:
IMM-11654-12
Citation: 2013 FC 1261
Ottawa, Ontario, December
18, 2013
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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JAMES MOBWANO KAMANZI
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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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REASONS FOR JUDGMENT AND JUDGMENT
1. Introduction
[1]
This is a judicial review application of a
decision by the Refugee Protection Division [RPD] of the Immigration and
Refugee Board [RPD] dated October 25, 2012, finding that the applicant was not
a Convention refugee nor a person in need of protection pursuant to the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
For the reasons which follow, the application is
dismissed.
2. The Facts
[3]
Mr Kamanzi is a citizen of the Democratic
Republic of Congo [DRC] of Tutsi ethnicity. He was born and grew up in Bukavu,
DRC.
[4]
He states that he finished school at the age of
19 and was unemployed for a year and a half while waiting to hear his results
from the state examinations. In November 1996, at age 21 (he was born October
29, 1975), he was recruited as an intelligence agent by Anselme Masasu Nindaga
[Mr Masasu], a leader of the Alliance des forces démocratiques pour la
libération du Congo [AFDL]. This was not a salaried post; instead, he
received periodic gifts of free food, gas, and money. He was tasked with
checking information on local affairs in Bukavu. No training was provided. He
did not become a member of the AFDL.
[5]
Mr Masasu was arrested in 1997. He escaped from
prison in 1998 and was rearrested soon after and remained in prison until 2000,
after which he was released and, the same year, assassinated. The applicant
continued to work on his behalf from 1997 to 1999. He also sold used cars. In
1999 he obtained a better paid job in Kinshasa as an intelligence agent for
Azarias Ruberwa Manywa [Mr Ruberwa], a vice president of the DRC, sounding out
local opinion and gathering information on prices of goods, supply of
electricity, and such. This again was not a salaried position; Mr. Ruberwa
would meet with the applicant once or twice a month and discuss his
information, then give him envelopes containing varying amounts of cash.
[6]
The applicant lived in Rwanda without status for two years. Eventually, he arrived in Canada on June 18, 2008 on a false
passport. He applied for asylum in August 2008.
[7]
At the opening of the hearing on June 29, 2012,
the Board member noted that one of the issues was potential exclusion for
complicity in war crimes or crimes against humanity in being complicit as an
intelligence officer for Anselme Masasu Nindaga who was one of the main leaders
and military commanders of the AFDL. Masasu had recruited 10,000 child soldiers
during 1996 and 1997.
[8]
At his refugee hearing, the applicant denied
being a member of Mr Masasu’s movement or any other political party in the DRC,
but admitted to having gone to work for Masasu at the end of October 1996. The
applicant noted that his family knew Masasu’s family, and then provided an
account of Masasu’s military history and leadership role in the First Congo War
which was consistent with the account provided in the documentary evidence.
The applicant testified that Masasu had left to fight for the liberation of
Tutsis in Rwanda in the 1990s but had returned as the “second commander” of the
Rwandan troops after the fall of Bukavu to the rebels at the end of October
1996.
[9]
The applicant described how he was recruited at
the Bukavu Cathedral by Masasu, who offered to have the applicant work directly
with him to assuage his mother’s concerns about him becoming involved in the
army. Masasu offered to teach the applicant how to do intelligence and
proposed that the applicant work directly with him. The applicant stated that
he saw Masasu often thereafter. He also explained that he could find
information because he was born in Bukavu and grew up there, so he knew many
people – whereas Masasu grew up in Rwanda and needed someone to verify the
local intelligence he was receiving.
[10]
The applicant was asked several questions about
what sorts of intelligence he provided to Masasu. He provided five main
examples:
(i) He said he provided intelligence to Masasu on the local
youth of Bukavu, who were seeking refuge in the Kahuzi-Biega forest to the west
of Bukavu and going to fight for the Mai Mai. Masasu wanted to know how
the Mai Mai were recruiting Bukavu youths. The applicant went and
contacted young persons and did research in the cité, and discovered
that most of them had joined voluntarily; the Mai Mai were not recruiting
them.
(ii)
He said he provided intelligence to Masasu on
local military uprisings against the Rwandan troops in Bukavu. He also said he
provided intelligence in relation to civilians whose houses had been pillaged
and taken by Rwandan troops, and in relation to the unjust arrest of people and
children. The applicant gathered this information to advise Masasu, who then
dealt with the problem.
(iii)
The applicant said he acted as an intermediary
with local customary chiefs. These chiefs wanted Masasu – who was a military
man – to create an office with staff, whom they could communicate with. The
applicant facilitated this dialog and the creation of Masasu’s first office.
(iv)
The applicant also testified that he provided
intelligence to Masasu in relation to the families in Bukavu which did not want
their children to join the liberation army of the AFDL. These families
organized meetings in the cité to stop their children from going to join
the troops. They told their children and everyone else that they should not
join the movement, because they were Rwandan occupiers and people should not be
fighting against Mobutu. They organized local meetings to inform the youths.
The applicant thus advised Masasu that there was this sort of movement to
prevent people from joining the rebel movement or defending it. This pushed
Masasu to take to the radio to try to encourage parents to offer up their
children to go fight against Mobutu’s regime. The applicant further explained
that Masasu would use the intelligence he had gathered in assessing how to
“intervene” on these issues.
(v)
In 1997, the applicant also participated in
negotiations between Masasu and the Mai Mai militias, who were rebelling
against the Rwandan troops in Bukavu at the time. Masasu involved the
applicant in these talks because he had grown up with two of the Mai Mai
leaders in Bukavu before the war and knew them personally. This occurred three
weeks before Masasu was arrested.
[11]
The applicant explained how he started working
for Masasu immediately after they met at the end of October 1996, moving from
Bukavu to Kinshasa, before eventually quitting and returning to Bukavu in
December 1999. The applicant said he even continued to work for Masasu after
his arrest in November 1997, and believed he was the sole intelligence officer
to do so – despite the dismantling of his network and office. The applicant
ultimately described himself as Masasu’s “right hand man” (“homme de
confiance”).
[12]
The Board asked the applicant a series of
questions about his knowledge of the recruitmend of child soldiers. He
described how children were recruited at the outset of the war, and how Kabila
and Kisase Ngandu (the then military chiefs of the AFDL) called on the
population to offer up their children to fight Mobutu. The applicant was asked
if he had any problems with the recruitment of child soldiers, and why he
maintained his association with Masasu when he knew this was going on. He
continued to deny that Masasu was implicated by stating that the recruitment of
child soldiers was “official” and that it was “the AFDL and President Kabila
and Kisase Ngandu who did it.”
3. Contested Decision
[13]
The decision referred to the exclusion pursuant
to section 98 of IRPA and Article 1F(a) of the Convention. The Board
noted that the recruitment of child soldiers was a war crime pursuant to
Article 5 of the Rome Statute of the International Criminal Court.
[14]
The Board applied the factors of the test for
complicity enunciated by Justice Shore in Ishaku v Canada (Minister of Citizenship and Immigration), 2011 FC 44 at para 70 [Ishaku].
This test based on the law at that time was complicity by association, which
was described as follows: Complicity rests on the existence of a shared common
purpose and the knowledge that the individual in question has of the commission
of the crimes. Based on that test the Board member made the following findings
of fact (as translated in respondent’s memorandum) in respect of the factors
cited in Ishaku:
(i) Method of Recruitment: The applicant testified
that he met Nindaga at the cathedral in Bukavu (the capital of South Kivu province in eastern DRC) and was offered a military post, which his mother was
opposed to. The applicant ended up agreeing to work as an intelligence officer
(agent de renseignement) for Nindaga, which the Board fouind to be an entirely
voluntary association.
(ii) Position and Rank: The applicant worked as an
intelligence officer for Nindaga from November 1996 to the end of 1999; he
described his functions as the facilitation of meetings and the exchange of
intelligence between Nindaga and local leaders, the transmission of so-called
unjust arrests of youths and attendance at a meeting with “Mai-Mai” (local
militia) military leaders at Nindaga’s side – due to his knowledge of these leaders.
Without occupying a military post, the Board found the
applicant filled a position of trust (un poste de confiance) and thus
facilitated the work of Nindaga within the AFDL.
(iii)
Knowledge of the Crimes Committed: The applicant was asked by the Board if he had any objective
evidence that Nindaga was not responsible for war crimes. He responded that he
did not have any such evidence. Based on the documentary evidence, the Board
found Nindaga to be responsible for war crimes.
The
applicant stated that he was aware of the recruitment of child soldiers because
this occurred via television programs, among other means. The Board found he
was aware of the recruitment of child soldiers by the AFDL, which Nindaga was
part of.
(iv)
Nature of the Organization: The AFDL was founded in 1996 and comprised several groups,
including Nindaga’s MRLZ group. Amnesty reported that Nindaga, as the leader
of an armed political group, recruited a large number of young men and child
soldiers as fighters and security officers during the 1996 conflict that led to
the overthrow of Mobutu Sese Seko. Similarly, the Board’s research directorate
also indicated that Nindaga played a major role in the recruitment and training
of child soldiers, of whom 10,000 were recruited and used by the AFDL in 1996
and 1997.
(v)
Length of Association and (vi) Opportunity to Leave: The applicant became
associated with Nindaga in November 1996 and his association continued during
the period of recruitment of child soldiers. The applicant continued to act as
an intelligence officer for Nindaga up until the end of 1999, when he wanted a
higher paying post. The Board found that the applicant could have severed his
relationship with Nindaga well before the end of 1999 if he had wished to.
[15]
On the basis of the foregoing findings, the
Board concluded that there existed “serious reasons for considering” that the
applicant was complicit with Masasu in the war crimes contrary to the
requirements of section 98 of the IRPA and the international treaties
respecting these forms of crimes. Accordingly, the member dismissed the
application.
[16]
Subsequent to this decision, the Supreme Court
in Ezokola v Canada (Minister of Citizenship and Immigration), 2013 SCC
40 [Ezokola] modified the test for complicity to require “serious
reasons for considering that the claimant has voluntarily made a significant
and knowing contribution to the organization’s crime or criminal purpose” (at
para 84).
4. Issue
[17]
The issue is whether the decision of the Board
should be set aside based on the new test for complicity prescribed by the
Supreme Court of Canada in Ezokola?
5. Standard of review
[18]
In Nsika v Canada (Minister of Citizenship
and Immigration), 2012 FC 1026, at paras 14-15, Justice Gleason, based upon
the reasons of the Federal Court of Appeal in Ezokola, 2011 FCA 224 held
that the standard of review is correctness for the enunciation of the test for
complicity and reasonableness for the application of the test. The only issue
in this case concerns the application of the test.
6. Analysis
[19]
The applicant relies upon the recent decision of
Justice Campbell in Mudiyanselage v Canada (Minister of Citizenship and Immigration), 2013 FC 1076 [Mudiyanselage]
which held that because the test applied by the RPD had been extinguished as a
matter of law, that it was appropriate that the matter
be re-determined. I quote the relevant passages of the case for the purposes of
this application as follows:
[6] In my opinion, the Supreme Court of Canada's
efforts to bring clarity to complicity under Article 1F(a) has the effect of
impugning the RPD's decision. This is so because the legal test applied by the
RPD has been effectively extinguished as a matter of law.
[7] Nevertheless, Counsel for the Minister advances
the following argument:
While the RPD did not have the benefit of the SCC Ezokola
decision, the impact on the ultimate decision was minimal because in effect the
RPD found that the Applicant has voluntarily and with knowledge provided
significant contribution to the crimes and criminal purpose of the Sri Lankan
Police Force (SLPF).
(Respondent's Memorandum of Argument, September 20,
2013).
In my opinion, the argument has no weight because it is
directed at a specific request with which I cannot comply: a determination by
me of the Applicant's claim on an application of the evidence on the record
before the RPD to the new test stated by the Supreme Court of Canada. In my
opinion this is the sole responsibility of the RPD on a redetermination of the
present Application. I find that the fair and just result in the present
Application is to require the RPD to exercise its responsibility.
[20]
In response to the applicant’s argument, the
respondent submits that this is one of the rare cases where the “futility
doctrine” first enunciated by the Supreme Court of Canada in Mobil Oil
Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202
[Mobil Oil] should be applied as it was by the Federal Court of Appeal
in Cartier v Canada (Attorney General), 2002 FCA 384, where a re-determination
of this claim would result in the same outcome. Specifically reference was made
to paras 32-33 of the decision:
32 I
readily admit that in Mobil Oil, supra, it was a case of a breach of natural
justice and a matter in which the answer to the point of law at issue was
"inevitable" (at page 228) even if the party had an opportunity to be
heard.
33 Nevertheless, I do not see any reason why the rule
developed in Mobil Oil cannot be applied to other types of situation. A
judge must of course act with extreme caution to avoid the process of reviewing
the legality of a decision becoming a process of reviewing its merits. However,
it seems to me that if a judge may ignore a breach of natural justice when
the outcome is inevitable he must a fortiori be allowed to overlook an error of
law when it is not conclusive or when he is [page334] satisfied that if the
Court had applied the right test it would have come to the same conclusion.
I note that this Court has applied Mobil Oil at least twice, in Yassine v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 135 (F.C.A.), in
which Stone J.A. applied the futility rule, explaining that "[t]he limits
within which Professor Wade's distinction should operate are yet to be
established" (at paragraph 10), and in Patel v. Canada (Minister of
Citizenship and Immigration) (2002), 288 N.R. 48 (F.C.A.), in which Evans J.A.
dismissed an application for judicial review because "the error made by
the visa officer was not material to the outcome of the visa application"
(at paragraph 6). Rothstein J.A. also referred to it at paragraph 88 of his
dissent in Canadian Magen David Adom for Israel v. M.N.R., 2002 FCA 323; [2002]
F.C.J. No. 1260 (C.A.) (QL).
[Emphasis added]
[21]
In Sivakumar v Canada (Minister of
Employment and Immigration), [1994] 1 FC 433 (FCA) [Sivakumar],
the Federal Court of Appeal applied the futility doctrine to a situation of war
crimes, indicating that while it would be
inappropriate for a Court to review the record and make findings of fact, if no
properly instructed tribunal could come to a different conclusion, the decision
may be upheld. Paras 32 to 35 are set out below:
32 However,
the closest the panel came to documenting the LTTE's actions, as well as the
appellant's knowledge of and intent to share in the purpose of those acts, and
to determining whether those acts constituted crimes against humanity were
vague statements about "atrocities" and "abhorrent" tactics
committed by all parties to the civil strife in Sri Lanka (Case, at pages
9-10).
33 The
importance of providing findings of fact as to specific crimes against
humanity which the refugee claimant is alleged to have committed cannot be
underestimated in a case such as this where the Refugee Division determined
that the claimant has a well-founded fear of persecution at the hands of the
Sri Lankan government. For example, the Amnesty International Report of 1989
indicates that the Sri Lankan government is responsible for arbitrary arrest
and detention without charge or trial, "disappearances", torture,
death in custody, and extrajudicial killings. Given the seriousness of the
possible consequences of the denial of the appellant's claim on the basis of
section F(a) of Article 1 of the Convention to the appellant and the relatively
low standard of proof required of the Minister, it is crucial that the Refugee
Division set out in its reasons those crimes against humanity for which there
are serious reasons to consider that a claimant has committed them. In failing
to make the required findings of fact, I believe that the Refugee Division can
be said to have made an error of law.
34 In
some cases, the inadequacy of the Refugee Division's findings would
require the case to be sent back to the Refugee Division for a new
determination. However, as MacGuigan J.A. held in Ramirez, supra, this Court may uphold the decision
of the Refugee Division, despite the errors committed by the panel, if
"on the basis of the correct approach, no properly instructed tribunal
could have come to a different conclusion" (pages 323-324). In my
opinion, under the standard articulated in Ramirez, supra, it is not
necessary to send this matter back to the Refugee Division for a new
determination for no properly instructed tribunal could come to any other
conclusion than that there were serious reasons for considering that the
appellant had committed crimes against humanity.
35 While
it would be inappropriate for this Court to review the record and make findings
of fact based on the credibility of the materials and witnesses before the
tribunal, that is not necessary in this appeal. It is incontrovertible that the
appellant knew about the crimes against humanity committed by the LTTE. The
appellant testified before the Refugee Division that he knew that the LTTE was
interrogating and killing people deemed to be traitors to the LTTE (Case, at
pages 113-115). The appellant testified that he argued with Prabaharan, the
leader of the LTTE, about civilian deaths not being in the interest of the
LTTE's cause after the LTTE was accused of civilian deaths (Case, at page 123).
The appellant also stated that while he never allowed any civilian deaths to
occur, he did witness or find out about civilian deaths caused by the LTTE
(Case, at page 124). Further, the appellant testified that he was aware of an
incident in which a member of the LTTE, Aruna, shot 40 members of rival Tamil
groups with a machine gun.
[Emphasis added]
[22]
It does not appear that the court in Mudiyanselage had the benefit of
submissions based on the “futility doctrine”. As this doctrine has been
endorsed by the Federal Court of Appeal, including being applied in a war
crimes situation to uphold the decision of the RPD, I conclude that “if on the
basis of the correct approach, [in this case the test in the Supreme Court
decision in Ezokola] no properly instructed tribunal could
have come to a different conclusion" (Sivakumar, above, at para 34)
that the Board’s decision should be upheld.
[23]
By Articles 5(1)(c) and 8(2)(b)(xxvi) of the Rome
Statute of the International Criminal Court “Conscripting or enlisting children
under the age of fifteen years into the national armed forces or using them to
participate actively in hostilities” is a war crime.
[24]
The actus reus of the particular war crime
in question is that of participating in conscripting child soldiers to
participate in hostilities. It does not require the use of intimidation or
force to conscript the children, merely the act of participating in a voluntary
conscription program meets the requirements to be a war crime.
[25]
I am satisfied that the answers provided by the
applicant to questions described above (see paragraph 10) are overwhelmingly
sufficient and persuasive that were the matter to be re-determined by the Board
with instructions to apply the Supreme Court test of active knowing
participation as the basis for complicity, the Board would conclude the matter
by having “serious reasons to consider” that the applicant voluntarily and
knowingly participated in the conscription of child soldiers.
[26]
In particular, paragraph 10 (iv) above, describes
the active knowing participation of the applicant in obtaining information from
families who did not want their children to join the Army and providing that
information to Masasu to assist him in assessing how to ‘intervene’ on these
issues. I agree with the respondent that the record shows that the applicant
was directly involved in providing Masasu with important intelligence regarding
those who opposed the recruitment of child soldiers, which Mr Masasu then acted
upon. His personal work thus facilitated the terrible crime.
[27]
Being satisfied that it would be futile to
return this matter to the Board for a re-determination because the Board,
properly instructed, would come to the same conclusion dismissing the
applicant’s application on the basis that the applicant participated in the war
crime of conscripting child soldiers, I therefore dismiss the application.
7. Conclusion
[28]
For the above reasons, the application is
dismissed.
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