Docket: IMM-1870-17
Citation:
2017 FC 1157
Ottawa, Ontario, December 20, 2017
PRESENT: The
Honourable Mr. Justice Barnes
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BETWEEN:
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JAIME CARRASCO
VARELA
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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 application for judicial review seeks to
set aside a decision rejecting the Applicant’s claim to humanitarian and
compassionate (H&C) relief brought under subsection 25(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. The decision under
review was made by a Senior Decision Maker [Officer] on March 15, 2017 [Decision].
It was necessary for the Applicant, Jaime Carrasco Varela [Mr. Carrasco], to
apply for H&C relief because he had been held by the Immigration Division [Board]
to be inadmissible to Canada for having committed crimes against humanity as
defined by subsection 6(3) of the Crimes Against Humanity and War Crimes Act,
SC 2000, c 24. That decision was later upheld by Justice Sean Harrington
in Varela v Canada (Citizenship and Immigration), 2008 FC 436, [2008]
FCJ No 568.
[2]
At the center of this case lies an unsettling
personal history, including findings against Mr. Carrasco of inhumane conduct. Notwithstanding
that history and the fact that Mr. Carrasco has never been held accountable for
it, he sought H&C relief on the strength of his Canadian establishment and
the benefits of maintaining the unity of his family.
[3]
It is essential from the outset to appreciate
that this application concerns the reasonableness of the H&C Decision. It
is decidedly not about the outcomes of any of the earlier proceedings and, most
notably, this is not an opportunity to challenge the merits of the
inadmissibility findings made against Mr. Carrasco. At the admissibility stage
he was found to have taken part in the inhumane treatment of political
prisoners under his watch. His excuse of superior orders was rejected on the
basis that the orders he followed were known by him to be manifestly unlawful
and, yet, he did not withdraw from military service. His excuse of duress was
similarly rejected because the consequences of withdrawal were minor in
comparison to the harm that was inflicted on prisoners.
[4]
In the end, most of Mr. Carrasco’s exculpatory
testimony was rejected. For example, his assertion that he was unaware that
disappearing prisoners were being murdered was rejected. His evidence that his
military service was essentially passive and that he frequently confronted his
superiors about their tactics was also rejected, largely because, well into his
tenure, he had been hand-picked to participate in an execution squad that
murdered four detainees, including a juvenile. Even after that abhorrent act,
the Board observed that it took Mr. Carrasco another year to leave Nicaragua. The
Board’s findings on this history are reflected in the following passage:
In the final analysis, I find on a balance
of probabilities, that little if any credence can be applied to the
preponderance of Jaime Carrasco Varela’s evidence before this admissibility
hearing. I am not convinced that he ever experienced discipline problems while
being employed by the Nicaraguan army or as a member of the Sandinista Front of
National Liberation. I find that there are reasonable grounds to believe he was
an active and willing participant in combat against the contras within the
country of Nicaragua, activities that included the committing of atrocities
against individuals under his guard, the killing of peasants in the mountains
and the execution of 4 prisoners responsible for the kidnapping of a Soviet
attaché. I believe that this execution represented yet another example of a
widespread and systematic attack against any civilian population, specifically,
4 individuals operating contrary to the rule of the FSLN.
For the purpose of Mr. Carrasco’s H&C
application, the above findings were correctly found by the Officer to be
immutable: see Sabadao v Canada (Citizenship and Immigration), 2014 FC
815 at para 22, 462 FTR 121, and the Officer’s reasons at Certified Tribunal Record,
Vol 1, pp 7-8, lines 93-99.
[5]
Mr. Crane raises several issues in support of Mr.
Carrasco’s claim to relief. They are the following:
1.
Did the Officer err by applying only an identity
code to the Decision under review?
2.
Did the Officer err in considering the best
interests of Mr. Carrasco’s children?
3.
Did the Officer err by taking into account
irrelevant evidence in the form of the current prison conditions in Nicaragua?
4.
Did the Officer err in the assessment of the
defences of duress, superior orders, and complicity?
5.
Did the Officer err in considering the issue of a
Nicaraguan amnesty?
[6]
I will apply the standard of correctness to the
first issue and reasonableness to the rest.
Did the Officer Err by Applying Only an Identity Code to
the Decision Under Review?
[7]
There is no merit to this argument. A strong
presumption of regularity applies to decisions of this sort: see Canada v
Weimer, (1998) 228 NR 341 at paras 12-13, [1999] WDFL 60. The presumption
can be rebutted with convincing evidence that the decision-maker lacked the
authority to decide, but here no such evidence was presented. This situation
is, in practical terms, no different than one where the decision-maker’s
signature is illegible. If identity of the decision-maker is somehow a
material issue on judicial review, the affected party has a duty to ask for it.
Standing silent and complaining later is not an available option.
Did the Officer Err in Considering the Best Interests of Mr. Carrasco’s
Children?
[8]
Mr. Carrasco asserts that the Officer erred in
considering the best interests of his five children. In particular he says
that the Officer failed to make a decision about whether the interests of the
children would best be served by him remaining in Canada or, conversely, would
be harmed by his removal. This argument is supported, he says, by the
Officer’s references to the children’s best interests being satisfied in any of
the possible eventualities.
[9]
I reject this argument because it relies on the
isolation of language from its surrounding context. The Officer clearly
understood that if Mr. Carrasco was removed and his adult children either
remained in Canada or returned with him to Nicaragua they would face “emotional and logistical difficulties”.
[10]
Viewed holistically, the Decision recognizes that
the family unit would ultimately benefit from being left intact in Canada. This
is reflected in the Officer’s summary of the factors favouring relief:
I have balanced the known history of Mr.
Carrasco in Nicaragua, and his involvement in crimes against humanity while he
was a guard at El Chipote prison in Managua against the positive factors in
this case: his prolonged residence in Canada, the presence of his children in
Canada, all of whom are now Canadian citizens, the potential separation from
his spouse, his good civic record, and evidence of his establishment
demonstrated by his involvement in his local community and the letters of
support submitted on his behalf. It is my opinion that the seriousness of the
circumstances surrounding his inadmissibility outweighs the factors in favour
of allowing the exemption, including consideration of the best interests of the
children directly impacted by this decision.
[11]
Overall, the Officer’s treatment of this issue
was thorough and thoughtful and evinces no reviewable error.
[12]
The suggestion that the Officer erred by failing
to address the children’s wishes is equally without merit. The Officer clearly
understood where their perceived interests lay and she recognized that those
interests favoured family unity in Canada. But in the end she reasonably found
that the identified family hardships paled in significance to the harm Mr.
Carrasco had inflicted on his many victims. That was a reasonable conclusion
on the evidentiary record. Indeed, to have found otherwise would tend to shock
the conscience of reasonable people in any civilized community. Individuals
like Mr. Carrasco who commit the kinds of atrocities he carried out should
rarely expect to find a safe haven in Canada based on humanitarian concerns of
the sort he raised.
Did the Officer
Err by Taking Into Account Irrelevant Evidence in the Form of the Current Prison
Conditions in Nicaragua?
[13]
While I accept the point made by Mr. Carrasco’s
counsel that the Officer’s discussion about current Nicaraguan prison
conditions was not relevant to her assessment, there is also no basis to infer
that this evidence had any material bearing on the outcome. In context, it is
nothing more than an extraneous and immaterial observation that not much had
changed in the intervening years.
Did the Officer
Err in the Assessment of the Defences of Duress, Superior Orders and Complicity?
[14]
Mr. Carrasco’s concerns about the Officer’s
treatment of the issues of duress, superior orders, and complicity are not
entirely clear. These points were fully considered by the Officer but, drawing
on the views of Justice Harrington, each of them was rejected. Mr. Carrasco
could not benefit from the defence of superior orders because those orders were
manifestly unlawful. He could not benefit from duress because, as he was never
in imminent physical peril, there was none. While Justice Harrington’s views
may have been obiter they nevertheless represent a correct view of the
law on these issues. It was not an error for the Officer to adopt Justice Harrington’s
analysis as his own. It was also not open to Mr. Carrasco, in the context of
an H&C assessment, to challenge the rejection of these defences made at the
admissibility stage.
[15]
Mr. Carrasco complains that the Officer
considered the decision in Ezokola v Canada, 2013 SCC 40, [2013] 2 SCR
678, on the issue of complicity only to dismiss its relevance (see para
87 of the Applicant’s Memorandum of Argument). What the Officer actually said
was the following:
I am cognizant that new jurisprudence in the
case of Ezokola provides guidance on the assessment of complicity in
human rights violations in the case of individuals who are excluded from
refugee protection or who are found inadmissible, as Mr. Carrasco has been.
However, Mr. Carrasco’s inadmissibility stems not from complicity with the
Sandinista regime, but from his activities as a prison guard at El Chipote,
where, in providing support to the perpetrators, he contributed substantially
to the commission of the crimes that he described in detail and that he [sic]
took place in that prison during his tenure.
[16]
This is not only a reasonable interpretation of Ezokola,
above, it is the correct interpretation. Mr. Carrasco was not a passive
observer of the serious criminal acts that had taken place over several years in
the El Chipote Prison; he was an active and knowing participant in that
mistreatment. As the Officer noted, Mr. Carrasco was a persecutor in his
own right, and Ezokola, above, did not apply to his situation.
Did the Officer Err in Considering the Issue of a Nicaraguan
Amnesty?
[17]
The Officer dealt with the amnesty issue by
adopting the views of Justice Harrington in the earlier judicial review of the Board’s
admissibility finding. Justice Harrington’s decision on this point was as
follows:
[36] The Board noted Mr. Carrasco’s
argument that the Managua Accord led to a general amnesty in favour of
Sandinistas and Contras alike. This amnesty is claimed to serve as a complete
discharge or exoneration, and as a defence to all inadmissibility allegations.
The Board obviously considered the submissions were without merit, but never
analyzed them. The more important the issue, the more important it is to give
reasons. If one is to be branded as one who has committed a crime against
humanity, and one submits what may be a defence then that defence should be considered
and reasons given why it was rejected.
…
[39] The legal issue is whether an
amnesty could have benefited Mr. Carrasco at the admissibility hearing. The
Minister argues that the record does not contain sufficient detail of the
amnesty. That may, or may not, be so, but the Board did not make a ruling on
that point.
[40] Two interesting articles were
cited to me; Rikhof “The Treatment of the Exclusion Clauses in Canadian Refugee
Law” (1994), 24 Imm. L.R. (2d) 31 and Yasmin Naqvi “Amnesty for War Crime:
Defining the Limits of International Recognition”, [2003] 85 Int’l Rev. Red Cross 583. They make the assertion that
amnesties do not presently have international effect. However, within the Canadian
context, they really address the issue whether a person could or should be
charged with a crime against humanity, notwithstanding a general pardon or
amnesty. More on point are the United Nations Refugee Agency (UNHCR) Guidelines
on International Protection: Application of the Exclusion Clauses: Article 1F
of the 1951 Convention Relating to the Status of Refugees. [HCR/GIP/03/05,
4 September 2003]. Paragraph 23 thereof provides;
Where expiation of the crime
is considered to have taken place, application of the exclusion clauses may no
longer be justified. This may be the case where the individual has served a
penal sentence for the crime in question, or perhaps where a significant period
of time has elapsed since commission of the offence. Relevant factors would
include the seriousness of the offence, the passage of time, and any expression
of regret shown but the individual concerned. In considering the effect of any
pardon or amnesty, consideration should be given to whether it reflects the
democratic will of the relevant country and whether the individual has been held
accountable in any other way. Some crimes are, however, so grave and heinous
that the application of Article 1F is still considered justified despite the
existence of a pardon amnesty.
[41] Section 36 of the IRPA
specifically provides that inadmissibility on the grounds of serious
criminality may not be based on a conviction in respect of which a pardon has
been granted, or if there has been a final acquittal. Furthermore,
rehabilitation is taken into account. Although section 35 which deals with war
crimes and crimes against humanity is silent on these matters, given the
international context of the case, the United Nations Guidelines cannot simply
be ignored.
[42] The Crimes Against Humanity and
War Crimes Act, but again I emphasize in the criminal charge context rather
than in the immigration and refugee context, sets out at section 12 that if the
person has been tried and dealt with outside Canada in such a manner that if he
or she had been tried and dealt with in Canada a plea of autrefois acquit,
autrefois convict or pardon would be available, the person is deemed to
have been so tried and dealt with in Canada.
[43] Mr. Carrasco has not been dealt
with on the criminal level in Nicaragua, Canada or elsewhere.
[44] In any event, I hold, taking into
account the UNHCR Handbook, that Mr. Carrasco’s participation in a death squad
and in the treatment of prisoners above described was so grave and heinous that
as a matter of law the full application of section 35 of IRPA cannot be
mitigated.
[45] It follows, as per Sivakumar,
above, that it is not necessary to send this matter back for a new
determination, as there was only one legal conclusion open to the Board.
[18]
Mr. Crane makes a similar argument to the one
rejected by Justice Harrington. He contends that the Officer erred by failing
to deal with a new argument that had not been raised at the admissibility
hearing, that is to say, that Article 6(5) of Additional Protocol II to the
Geneva Conventions should be considered.
[19]
While it is true that the Officer did not deal
with this issue, there was no need to do so. Neither the above-noted Article
nor the Nicaraguan amnesty had any application to the types of crimes for which
Mr. Carrasco was found responsible.
[20]
I have no doubt that the existence of an applicable
amnesty or a pardon would be relevant to an H&C review. But, whether or
not the home authorities have, for domestic purposes, elected not to hold
persecutors accountable or have otherwise turned a blind eye to their crimes,
Canada is still entitled to refuse H&C relief to individuals like Mr.
Carrasco. If, as Justice Harrington noted above, an amnesty would not
protect Mr. Carrasco from an adverse admissibility finding, it surely could not
absolve him for his crimes in the context of an application in Canada for
H&C relief. There was no error in the Officer’s treatment of this issue.
[21]
For the foregoing reasons, this application is
dismissed.
[22]
Mr. Crane has proposed the following
question for certification:
Did the Senior Decision Maker have to
address the argument relating to the application of Article 6(5) of Additional
Protocol II to the Geneva Conventions in relation to the “defences” to Crimes
Against Humanity?
[23]
For the reasons given by the Minister’s counsel
in correspondence dated December 7, 2017, I decline to certify this question.
The law is settled that an applicable amnesty in one’s home country is relevant
to admissibility. It follows that the issue would be relevant and must be considered
in a H&C assessment. In this case, it was considered and dismissed because
of the gravity of Mr. Carrasco’s crimes. Accordingly, the above question
would neither be dispositive of the case nor does it raise an issue extending
beyond the particular facts of this case.
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