Date: 20161118

Docket: IMM-130-16

Citation: 2016 FC 1284

[ENGLISH TRANSLATION]

Ottawa, Ontario, November 18, 2016

PRESENT: The Honourable Mr. Justice LeBlanc

BETWEEN:

MOHAMMED HABIB HADHIRI

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS:

I.                   Introduction

[1]               This is an appeal from a December 23, 2015 decision of the Immigration and Refugee Board of Canada, Refugee Appeal Division (RAD), which dismissed the applicant’s appeal from a decision of the Refugee Protection Division (RPD) excluding him from the definition of a refugee or a person in need of protection under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), on the ground that there were serious reasons for considering that he had committed crimes against humanity within the meaning of Article 1F(a) of the United Nations Convention Relating to the Status of Refugees (Refugee Convention).

[2]               For the reasons that follow, this application for judicial review is dismissed.

II.                Background

[3]               The applicant is a Tunisian citizen. In December 2013, he left Tunisia for Canada with his wife and their three children. The family, afraid of being persecuted by local Islamic extremist groups if they returned to Tunisia, claimed refugee protection when they arrived in Canada. The family attributes this fear to the fact that the applicant worked as a police officer in the Tunisian Ministry of the Interior. The evidence reveals that between 1988 and 2013, the applicant did in fact work as: (i) an anti-narcotics police inspector (1988–1992); (ii) chief inspector of the intervention and rescue brigade in Tunis (1992–1997); (iii) divisional inspector in the counter-terrorism information brigade (1997–2003); (iv) again in connection with anti-terrorism, head of the foreign office in the district of Bizerte (2003–2008); (v) senior officer and head of the Bizerte district tourist police brigade (2008–2010); and (vi) police commissioner and supervisor of the health department of the internal security forces of the district of Bizerte (2010–2013).

[4]               On January 13, 2014, the Minister of Public Safety and Emergency Preparedness of Canada (the “Minister”) intervened in the refugee claim file. He found that there were serious reasons for considering that during his police career the applicant may have participated in or acted as an accomplice in crimes against humanity in connection with human rights violations committed against the civilian population by various Tunisian police forces during the reign of former President Ben Ali, who was swept from power in January 2011, thereby excluding him from the definition of refugee or person in need of protection within the meaning of the Act.

[5]               On December 23, 2014, the RPD found in favour of the Minister’s intervention, excluded the appellant from the definition of refugee or person in need of protection, and based on the incoherence of his testimony, found that the other family members’ claim for refugee protection lacked credibility. The RPD also found that, in any event, the family had an internal flight alternative.

[6]               More specifically with respect to the exclusion of the applicant, the RPD found that the work performed by the applicant within the Ministry of the Interior under President Ben Ali’s regime was more important and had greater consequences than the applicant was willing to admit. Based on the documentary evidence, it found that under this regime, torture was widespread and based on an elaborate intelligence system that reached all facets of the Ministry of the Interior.

[7]               The applicant and his family appealed this decision before the RAD. For the purposes of this appeal, the RAD found 20 or so documents filed by the appellants inadmissible as new evidence. The RAD also held a hearing. On December 23, 2015, the RAD allowed the appeal of the applicant’s spouse and their children but confirmed the RPD’s decision to exclude the applicant for complicity in crimes against humanity.  

[8]               In this regard, the RAD ruled that as there was reason to believe that the duties and tasks of the applicant within the Ministry of the Interior were significant and important, the key issue was whether, based on Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 [Ezokola], in the performance of his duties, the applicant “made a knowing and significant contribution to the crime or criminal purpose of the Ministry of the Interior” (RAD’s decision, at paragraph 112).

[9]               With respect to this matter, after indicating that it had conducted an independent review of the evidence on record, the RAD was of the view that the applicant’s argument that he had not been aware of the existence of a widespread practice of torture in his country should be rejected. In particular, the RAD noted that the evidence indicated that the applicant admitted that he had heard about torture in the Ministry of the Interior and the abuse of power in the State Security Service but did not look into it. He simply did his job because he was not personally involved in such activities and believed that the perpetrators were being tried and punished (RAD’s decision, at paragraph 134).

[10]           In this context, the RAD found that the applicant had either turned a blind eye when he knew or strongly suspected that if he looked into the matter, he would learn that the practice of torture was widespread in Tunisia under President Ben Ali’s regime, or acted recklessly by showing little concern for the fate of the people that he delivered to his colleagues or supervisors after having performed his duties and assumed his own responsibilities within the Ministry of the Interior (RAD’s decision, at paragraph 139).

[11]           It concluded as follows:

[143]    I am aware that a person cannot be found guilty of complicity when he has not committed any guilty acts and has had no criminal knowledge or intent but simply knew that other persons acting on behalf of the government had committed illegal acts. In this case, the situation goes well beyond knowledge of the commission of illegal acts by certain persons acting on behalf of the government. According to the documentary evidence, it is well established that the acts of torture committed under the Ben Ali regime were conducted on a routine, institutionalized and widespread basis. Consequently, based on a thorough review of the evidence and the criteria applicable in matters of exclusion under Article 1F(a) of the Refugee Convention, I consider, as did the RPD, that a finding of complicity [on the part of the applicant] is appropriate given that there are serious reasons for considering that he voluntarily made a knowing and significant contribution to the practice of torture in his country.

[12]           The applicant contends that the Court must intervene to set aside the RAD’s decision on the basis that it allegedly drew unreasonable conclusions from the evidence regarding how much he knew about torture under the Ben Ali regime and erred in its application of the concepts of wilful blindness and complicity in crimes against humanity.

III.             Issue and standard of review

[13]           The issue here is whether the RAD, in deciding as it did, made an error justifying the Court’s intervention pursuant to section 18.1 of the Federal Courts Act, R.S.C., 1985, chapter F-7.

[14]           The parties agree that the RAD’s decision must be reviewed on the standard of reasonableness, which means that in order to intervene, the Court must be satisfied that the RAD’s findings in this case do not “fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir v New Brunswick, 2008 SCC 9, at paragraph 47, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93, at paragraphs 32, 35; Ching v Canada (Minister of Citizenship and Immigration), 2015 FC 860, at paragraph 31).

[15]           I agree with them.

IV.             Analysis

A.                Applicable law

[16]           According to section 98 of the Act, a person referred to in sections E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. Section F of Article 1 of the Refugee Convention reads as follows:

F.         The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(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;

(b)        he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)        he has been guilty of acts contrary to the purposes and principles of the United Nations.

[17]           As indicated above, section F(a) of Article 1 of the Refugee Convention is germane in this case. Pursuant to subsection 6(3) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, torture committed outside Canada against a civilian population is a crime against humanity under Canadian law. That paragraph reads as follows:

[18]           It is well established that the Minister is responsible for proving that there are serious reasons for considering that the claimant has committed a crime against humanity (Sivakumar v Canada (Minister of Employment and Immigration), [1994] 1 FC 433 at paragraph 18). It is also well established that a decision to deprive a refugee claimant of the opportunity to file an application under section 98 of the Act must be based on serious and convincing findings of fact (Canada (Citizenship and Immigration) v A76, 2014 FC 524 at paragraph 28).

[19]           Moreover, in the international context where some of the world’s worst crimes are committed often at a distance, by a multitude of actors, evidence of direct participation in the commission of a crime against humanity is not required in order to find that section 98 of the Act applies. Evidence of complicity in the perpetration of the crime is sufficient (Ezokola, at paragraph 1). In this case, it is clear that the applicant himself did not commit torture. The issue before the RPD, and then before the RAD, was whether he was complicit.

[20]           With respect to complicity in the commission of crimes against humanity, Ezokola dictates the analytical framework. In this case the Supreme Court narrowed the concept of complicity by ruling that while individuals may be excluded from refugee protection for international crimes through a variety of modes of commission, guilt by association is not one of them. (Ezokola, at paragraph 3). I recently had the opportunity to review Ezokola in Mata Mazima v Canada (Minister of Citizenship and Immigration), 2016 FC 531 [Mata Mazima]. I noted the following regarding the framework to be applied in reviewing international law:

[43]      Following a review of international law and the experiences of certain foreign states related to international crimes, the Supreme Court concluded that an individual will be excluded from refugee protection for complicity in such crimes “if there are serious reasons for considering that he or she voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime” (at paragraphs 29 and 84). The contribution-based approach to complicity thus replaces the “personal and knowing participation” test developed by the Federal Court of Appeal, and excludes from the range of culpable complicity, complicity by mere association or passive acquiescence (at paragraph 53).

[44]      An individual can be complicit without being present at the crime and without physically contributing to the crime if the individual made at least a significant contribution to the group’s crime or criminal purpose (at paragraph 77). This contribution to the crimes committed need not be essential or substantial, but to be significant, it must be something other than an infinitesimal contribution (at paragraphs 56-57). Specifically, the contribution does not have to be “directed to specific identifiable crimes.” It is sufficient that it be directed to wider concepts of common design, such as the accomplishment of an organisation’s purpose by whatever means are necessary including the commission of war crimes (at paragraph 87).

[45]      Again according to Ezokola, for knowing participation to exist, the individual must be aware of the organization’s international crimes or criminal purpose to which he or she belongs and must at least be aware that his or her conduct will assist in the furtherance of the crime or criminal purpose (at paragraph 89). Individuals may also be complicit in international crimes without possessing the mens rea required by the crime itself, knowledge being sufficient to incur liability for contributing to a group of persons acting with a common purpose (at paragraph 59).

[46]      Ultimately, there must be a link between the accused’s conduct and the criminal conduct of the group, and each case must be assessed based on a non-exhaustive list of factors to determine whether an individual has voluntarily made a significant and knowing contribution to a crime or criminal purpose, namely, as previously mentioned: (i) the size and nature of the organization; (ii) the part of the organization with which the individual was most directly concerned; (iii) the individual’s duties within the organization; (iv) his or her position or rank in the organization; (v) the length of time in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and, (vi) the method by which the individual was recruited and his or her opportunity to leave the organization (at paragraphs 57, 67 and 91).

[21]           The issue in this case is therefore whether the RAD, in finding the applicant guilty of complicity on the basis of its belief that there are serious reasons for considering that he has voluntarily made a significant and knowing contribution to the practice of torture in his country, has rendered a decision that satisfies the standard of reasonableness, that is, a decision that falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law.

B.                 The concept of the applicant’s wilful blindness and degree of knowledge of torture practised under the Ben Ali regime

[22]           Based on the documentary evidence, it is clear that there has been widespread, routine use of torture under President Ben Ali’s regime, mainly under the authority of the Ministry of the Interior. It has allegedly been practised by all police forces and intensified following the enactment of anti-terrorism legislation in December 2003. In particular, it appears to have been commonly practised in detention centres (RAD’s decision, at paragraph 131).

[23]           The applicant does not question these findings. Rather, he argues that at the time he was working at the Ministry of the Interior he had no real knowledge or sufficiently strong suspicion of the existence of such practices to enable the RAD to find that there were serious reasons for considering that he had made a knowing and significant contribution to the crime or criminal purpose of the Ministry of the Interior.

[24]           In particular, the applicant criticizes the RAD for not having considered the [translation] “political and social context” prevailing during President Ben Ali’s reign. According to the applicant, in such a context, he could not have any real knowledge of the torture practised by the Ministry of the Interior because of the [translation] “implacable censorship that stifled dissenting opinion” together with the major human rights public relations campaign conducted by President Ben Ali’s regime to camouflage his abuse of power.

[25]           Therefore, according to him, he was only able to gauge the real magnitude of the problem after President Ben Ali was swept from power and the atrocities of the regime were publicly disclosed. Under these circumstances, he believes that he cannot reasonably be considered to have demonstrated wilful blindness in the sense that this concept should be understood in criminal law. In R v Jorgensen, [1995] 4 S.C.R. 55, the Supreme Court of Canada ruled, at paragraph 103 of its judgment, that a finding of wilful blindness, which when it is made, involves a guilty mind (mens rea), requires an affirmative answer to the question: Did the accused “shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”

[26]           I would first note that the RAD considered this argument in detail, as shown in paragraphs 114, 118 and 120 and, more specifically, 127 to 129 of its decision. In other words, the RAD did not fail to analyze the applicant’s argument relating to the political and social environment prevailing in Tunisia between 1988 and 2011, as he claims. Rather, the question here is whether its treatment of this argument undermined the reasonableness of its decision. I think not.

[27]           It is also important to point out that when it dealt with the concept of wilful blindness, it did so in response to the Minister’s submissions, and in doing so it took great care to state that this concept was not formally identified in Ezokola as one of the factors used to review complicity in international crimes. It noted in this regard that it was more a question of the concept of recklessness, which is a distinct—and to some extent, less stringent—concept than wilful blindness (RAD’s decision, at paragraphs 135 and 138; Sansregret v The Queen, [1985] 1 S.C.R. 570 at paragraph 22). The RAD therefore examined the evidence from these two standpoints and found that the applicant had demonstrated both wilful blindness and recklessness (RAD’s decision, at paragraph 139).

[28]           Consequently, although the RAD may have erred in its analysis of the concept of wilful blindness, this would not necessarily undermine the reasonableness of its decision, as its finding that the applicant was also reckless within the meaning of Ezokola would stand. At any rate, I consider that it did not commit any error justifying the intervention of the Court in its treatment of the issue of wilful blindness with respect to the political and social context prevailing under President Ben Ali’s regime.

[29]           First, the RAD noted in this regard that the applicant initially told the RPD that he had not heard of torture or abuse at police stations or detention centres in Tunisia because under the Ben Ali regime, this type of information was not shared and the police, fearing reprisals, did not dare discuss it, even amongst themselves. However, the RAD also pointed out at the same hearing the applicant say he had in fact heard that torture was practised at the Ministry of the Interior and that the Directorate of Public Security, in particular, was engaged in abuses. He also said he had not looked into the matter because he was not personally involved in such practices, and furthermore, he believed that the perpetrators were being tried and punished (RAD’s decision, at paragraphs 118-119).

[30]           The RAD noted that the culture of secrecy that prevailed under Ben Ali’s reign within the internal security forces, had, according to the documentary evidence, [translation] “continued to direct the behaviour of some members of the security forces, even after the fall of President Ben Ali” (RAD’s decision, at paragraph 133). As a result, the RAD said it was reasonable to think, as did the RPD before it, that the applicant, whose duties were [translation] “significant and important within the Ministry of the Interior,” did not reveal everything he knew at the RPD hearing. Moreover, although the applicant had heard of the torture practised in the ministry that employed him, he was simply doing his job and therefore did not attempt to learn more about this practice, notably regarding the fate of people allegedly tortured as a result of his work (RAD’s decision, at paragraphs 112, 119, 120 and 134).

[31]           It seemed to the RAD that this proved to be particularly true when the applicant became head of the foreign office of the district of Bizerte between 2003 and 2008. As head of the foreign office, he was called upon to investigate possible ties between foreigners and terrorist networks at a time when, pursuant to the enactment of anti-terrorist legislation, the use of torture had intensified (RAD’s decision, at paragraph 140).

[32]           The RAD therefore found that the argument that the applicant was unaware of the existence of a widespread practice of torture in his country had to be rejected for the following reasons. He either demonstrated wilful blindness by turning a blind eye [translation] “when he knew or strongly suspected that if he looked into the matter, he would learn that the practice of torture was widespread in his country,” or he was reckless in not wondering about the [translation] “fate of the individuals he delivered to his colleagues or supervisors after having performed and assumed his own responsibilities within the Ministry of the Interior” (RAD’s decision, at paragraph 139). The RPD had previously noted that the applicant provided evasive testimony on the impact of his work. The RAD was of the opinion that the applicant’s statements on these matters appeared [translation] “to bear the hallmarks of confidentiality and a culture of secrecy that prevailed at the time within the internal security forces” (RAD’s decision, at paragraph 139). This culture caused the applicant and his colleagues to fear retaliation, even torture, if they dared discuss the issue. 

[33]           After having reviewed all the evidence on record, I agree with the respondent that it was reasonable for the RAD to find that, despite pervasive censorship, public relations campaigns in favour of human rights to camouflage the practice of torture, and the discovery of the magnitude of the abuses committed under President Ben Ali’s regime when he was swept from power in 2011, the applicant was aware of the torture practised by the organization that employed him and on whose behalf he performed police duties, and that he knew, or ought to have known, that the arrests and transfers of persons and information for which he was responsible led, or were likely to lead, to acts of torture.

[34]           I would note that the applicant worked within the repressive apparatus of the Ben Ali regime for a period of 25 years, 23 of which were under President Ben Ali’s regime, that he went up the ranks and eventually performed very important duties. In the end, the applicant’s submission that despite all these years of the service within this repressive apparatus and the duties he exercised, he did not acquire, at least before the fall of the regime, any personal knowledge of the abuses committed by the apparatus and that he was unaware that his own work could have contributed to them, was not considered plausible by the RPD nor the RAD.

[35]           I fully agree with Mr. Justice Pinard’s comments in Uriol Castro v Canada (Citizenship and Immigration), 2011 FC 1190 [Uriol Castro], who noted that in the commission of crimes against humanity, “responsibilities and tasks are compartmentalized so that each perpetrator can claim ignorance.” To address this reality, wrote Pinard J., the law “is designed to declare complicit not only those directly ordering or carrying out the acts of violence, but also those who choose to remain ignorant as to the consequences of their seemingly meaningless acts” (Uriol Castro, at paragraph 16).

[36]           Even assuming there was no wilful blindness, it is at least permissible to hold, when the RAD’s decision is reviewed on a standard of reasonableness, that there was a form of recklessness supporting a finding of knowing, although secondary, contribution to the abuses committed by the Ministry of the Interior. I would point out that pursuant to Ezokola, it is permissible to find individuals guilty of complicity under international law if they have knowingly or recklessly made a significant contribution to a crime or criminal purpose of the group to which they are associated (Ezokola, at paragraph 68).

[37]           Ultimately, the applicant is asking the Court to reconsider the evidence relating to the political and social context prevailing under President Ben Ali and to draw its own conclusions regarding the consciousness of complicity by contribution of which the applicant is accused. I would point out that it is not for the Court to decide whether the applicant has made a significant and knowing contribution to the crimes against humanity committed by the Ministry of the Interior under President Ben Ali. Its role is instead to determine whether it was reasonable for the RAD to arrive at that conclusion (Mata Mazima, above, at paragraph 54). As I have already indicated, the RAD has examined this issue in detail and I see nothing, either in its analytical approach or its treatment of the evidence, that would justify the intervention of the Court.

[38]           It is important to stress that the RAD did not need to be satisfied beyond a reasonable doubt of the applicant’s complicity by contribution. It was sufficient for it to be satisfied that there were serious reasons for considering the applicant’s voluntary, significant and knowing participation in the crimes against humanity committed by the Ministry of the Interior during Ben Ali’s reign, a burden of proof lying somewhere between the general civil standard of the balance of probabilities and the minimum standard of mere suspicion (Ezokola, at paragraph 101). Again, a review of the evidence on the record leads me to find, based on the standard of review required by this Court, which is reasonableness, that the RAD satisfied this burden.

[39]           This first ground of appeal raised by the applicant against the decision of the RAD will therefore be dismissed.

C.                The applicant’s criminal intent

[40]           Emphasizing the seriousness of the alleged crime, the applicant also maintains that the RAD erred in finding that he had the requisite criminal intent to be complicit in the abuses committed by the Ministry of the Interior.

[41]           This argument comes down to two submissions. On the one hand, relying on paragraph 60 of Ezokola, the applicant contends that recklessness is likely insufficient to establish criminal intent under international law. This may be the case with respect to the procedure for the commission of an international crime under article 25(3)(d) of the Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 of July 17, 1998 [Rome Statute], i.e. acting with a common purpose; however, this is not the case in “what is perhaps the broadest and most controversial mode of liability recognized by the ad hoc tribunals: joint criminal enterprise” (Ezokola, at paragraph 62). In this case, as I have already indicated, mens rea may capture not only knowing contributions but “reckless contributions” (Ezokola, at paragraph 65). This is the concept upon which the Supreme Court drew its inspiration when it wrote:

[67]      For our purposes, we simply note that joint criminal enterprise, even in its broadest form, does not capture individuals merely based on rank or association within an organization or an institution (reference omitted). It requires that the accused have made, at a minimum, a significant contribution to the group’s crime or criminal purpose, made with some form of subjective awareness (whether it be intent, knowledge, or recklessness) of the crime or criminal purpose. In other words, this form of liability, while broad, requires more than a nexus between the accused and the group that committed the crimes. There must be a link between the accused’s conduct and the criminal conduct of the group.

[Emphasis added]

[42]           Summing up its analysis of the concept of complicity in international law, the Supreme Court found that “at a minimum, complicity under international criminal law requires an individual to knowingly (or, at the very least, recklessly) contribute in a significant way to the crime or criminal purpose of a group” (Ezokola, at paragraph 68). [Emphasis added].

[43]           The applicant’s argument based on paragraph 60 of Ezokola must therefore fail.

[44]           Secondly, the applicant maintains that the RAD’s findings regarding his conscious participation in the abuses committed under President Ben Ali’s regime are based solely on suspicion and conjecture and consequently do not satisfy the standard of proof set out in Article 1F(a) of the Refugee Convention, which requires serious and convincing findings of fact.

[45]           As I have already indicated, this standard of proof—that of “serious reasons for considering”—requires more than mere suspicion, but does not go so far as to require the RAD to be satisfied according to the standard of the balance of probabilities and, even less, beyond a reasonable doubt that a refugee claimant has significantly and knowingly contributed to the commission of crimes against humanity (Ezokola, at paragraph 101).

[46]           For the reasons I have already mentioned, my review of the evidence on the record, which was conducted on the standard of reasonableness, leads me to find that the RAD has met that burden. Here again, the applicant is applying for a reconsideration of the evidence in the hope that the Court will draw its own conclusions. However, as I have already said, that is not the Court’s role.

[47]           I reiterate in this regard that the evidence on record provides a rational basis for the RAD’s finding that the applicant, while he was working for nearly 23 years on behalf of the repressive apparatus of a regime that practised torture on a routine basis, did, through wilful blindness or recklessness, knowingly contribute to the commission of crimes against humanity. Ultimately, the RAD, and the RPD before it, did not find it plausible that, despite the political and social context cited by the applicant, it was only after the fall of President Ben Ali’s regime that he acquired personal knowledge of the abuses committed by the President and that he was unaware that his own work could have contributed to it. This finding appears defensible when reviewed on the standard of reasonableness.

[48]           The second ground of appeal raised by the applicant against the RAD’s decision will also be dismissed. 

[49]           Neither party requested that a question be certified for the Federal Court of Appeal. I do not see any questions to be certified either.

JUDGMENT

THE COURT’S JUDGMENT is that:

1.      The application for judicial review is dismissed;

2.      No question is certified.

“René LeBlanc”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:		IMM-130-16
STYLE OF CAUSE:		MOHAMMED HABIB HADHIRI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	Montréal, Quebec
DATE OF HEARING:	June 30, 2016
JUDGMENT AND REASONS:	LEBLANC J.
DATED:	November 18, 2016

APPEARANCES:

Fedora Mathieu	For the Applicant
Daniel Latulippe	For the respondent

SOLICITORS OF RECORD:

Fedora Mathieu Counsel Montréal, Quebec	For the Applicant
William F. Pentney Deputy Attorney General of Canada Montréal, Quebec	For the respondent