Docket: IMM-2996-17
Citation: 2018 FC 50
[ENGLISH TRANSLATION]
Ottawa, Ontario, January 19, 2018
PRESENT: The Honourable Mr. Justice Locke
JUDGMENT AND REASONS
[1]
This is an application for judicial review by Emmanuel Musabyimana (the applicant) of the decision by the Immigration Appeal Division (IAD) dated June 15, 2017, whereby the IAD allowed the appeal by the respondent, the Minister of Public Safety and Emergency Preparedness (the Minister), of a decision by the Immigration Division (ID). The ID found that the applicant is inadmissible under paragraph 35(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c. 27 [the IRPA] because there are reasonable grounds to believe in his complicity in crimes against humanity that took place in Rwanda. A deportation order was issued against the applicant under paragraph 229(1)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the IRPR].
[2]
For the reasons that follow, it is my view that this application must be dismissed.
[3]
The applicant jointed the École supérieure militaire rwandaise in 1985 and completed military and science training. He then joined the Forces Armées Rwandaises (the FAR) in September 1989, which consisted of 5,000 soldiers at that time. All throughout that period, and until his exile to the Democratic Republic of the Congo in July 1994, the applicant held several different positions, including training officer, platoon leader (in charge of a group of 36 soldiers), and company commander. The applicant obtained the rank of second lieutenant, lieutenant, and even acting battalion commander from December 1993 to mid-March 1994, at which date the FAR had more than 40,000 soldiers. Aside from his military career with the FAR, the applicant has never held employment in Rwanda.
[4]
The applicant was also part of the staff reserve and was therefore deployed to combat the Rwandan Patriotic Front (the FPR) on various fronts. Due to his profile, the FPR attempted to recruit him on many occasions.
[5]
The applicant’s mother was Hutu, and his father was Tutsi. Due to this mixed profile, the applicant had to prove himself even more than the other soldiers in the army.
[6]
The applicant’s father was killed in April 1994 around the beginning of the genocide, during which more than 500,000 people (including 75% of the Tutsi population in Rwanda and thousands of moderate Hutus) were murdered over 13 weeks following April 6, 1994 (the genocide period).
[7]
His mother was beaten to death by the FPR in 1999 following a rumour that the applicant was in his home village to undertake meetings. During that same incident, all the village residents were arrested.
[8]
Before the genocide, the applicant had invested in Radio-télévision libre de Mille Collines (RTLM). RTLM broadcast inflammatory statements about Tutsis on the radio.
[9]
In an article by the Ligue des Droits de la personne dans la région des Grands Lacs dated January 22, 2009 (the press article), it was revealed that a former member of the FAR who was accused of genocide, Brigadier General Séraphin Bizimungu, indicating during his trial that the Tutsi victims had been killed following a military operation that sought people suspected of supporting the FPR rebellion, and that the applicant was among those who were responsible for the death of those people as the deputy commander of Major Rusigarira, leader of the 81st Battalion.
[10]
The applicant obtained landing in Canada on December 9, 2004, after having filled out the forms for Rwandan nationals who worked with the FAR, in which he disclosed relevant information about his career with the FAR.
[11]
On January 5, 2010, the applicant submitted a citizenship application to the Canadian authorities. On April 2, 2012, he was called for an interview by a representative of the Canada Border Services Agency (the CBSA officer), during which he opted to not answer the questions. On June 13, 2012, he received a letter that indicated that the CBSA officer believed that he was inadmissible under paragraphs 35(1)(a) and (b) of the IRPA, and that gave him the chance to submit additional information that would put an end to the removal order in question. An official report was finally issued to him on March 22, 2013, confirming that he is inadmissible due his affiliation with the FAR.
[12]
On March 26, 2013, the file was transferred for investigation before the ID. The hearing before the ID was held on February 4 and 5, 2014, without witnesses from the Minister. On April 24, 2014, the ID dismissed the Minister’s submissions and affirmed that the applicant was not referred to in paragraph 35(1)(a) of the IRPA, and that the Minister was unsuccessful in his allegation under paragraph 35(1)(b) of the IRPA.
[13]
On May 23, 2014, the Minister filed his notice of appeal before the IAD, indicating the following reasons:
- The accused was described in paragraph 35(1)(a) of the IRPA for having committed, outside Canada, an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
- The Member made a mistake of fact in not recognizing that the Rwandan Armed Forces (RAF) at the genocide period, i.e. from April to July 1994, was an organization with limited and brutal purposes; and
- The Member made a mistake of fact with respect to the application of Ryan.
[14]
The hearing for that appeal was held in Montréal on November 7 and 8, 2016. On June 15, 2017, the IAD allowed the Minister’s appeal and issued a deportation order under paragraph 229(1)(b) of the IRPR.
[15]
The IAD determined that the ID had conducted an informed analysis to determine whether the FAR had committed crimes against humanity. The IAD declared that there was no question that members of the FAR contributed to the Rwandan genocide, but agreed with the ID’s finding that some members of the FAR had not participated in the atrocities in question. The IAD nevertheless found that a significant number of FAR members played a role in the Rwandan genocide.
[16]
The IAD first proceeded to analyze the applicant’s profile and his role within the FAR to determine whether he was a mere anonymous soldier, as illustrated during his testimony. Among the facts discussed by the IAD in this regard, I highlight the following:
- The applicant joined the FAR before their numbers grew from 5,000 to 40,000 soldiers;
- He held several important positions in the FAR;
- Due to his mixed ethnicity, he had to prove himself more than the other soldiers;
- A rumour that he was present in his home village to undertake meetings led to a major reaction by the FPR, which resulted in his mother’s death;
- Important members of the FPR attempted to recruit him on several occasions;
- His investment in the RTLM station; and
- The mention of his name in the press article recounting the trial of General Bizimungu.
[17]
The IAD found that this profile did not correspond to that of a regular serviceman.
[18]
The IAD then focused on the question of whether the applicant’s profile corroborated a finding of complicity. The IAD addressed the subject by applying the tests set out by the Supreme Court in Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40 [Ezokola]. The IAD reproduced the arguments raised in its analysis of the applicant’s profile, noting some deficiencies in the applicant’s credibility, to arrive at a finding of complicity justifying that the applicant was inadmissible under paragraph 35(1)(a) of the IRPA.
[19]
The IAD therefore allowed the Minister’s appeal and issued a deportation order, finding that there were substantial grounds for believing that the applicant made a significant, voluntary and knowing contribution to the criminal purpose of the FAR during the genocide period.
[20]
The five questions to discuss in this case are as follows:
- Did the IAD overstep its jurisdiction by ruling on questions exceeding the framework of the grounds of appeal raised by the Minister?
- Did the IAD err in applying the wrong burden of proof or non-relevant test to its analysis?
- Did the IAD apply the legal tests set out in Ezokola in an appropriate way?
- Are the findings of fact drawn by the IAD erroneous or unreasonable?
- Did the IAD err in failing to assess the applicant’s credibility?
[21]
The parties agree on the fact that the review of a decision by the IAD regarding the issue of inadmissibility must be done using the standard of reasonableness. I concur: Al Khayyat v Canada (Citizenship and Immigration), 2017 FC 175 at paras 17–18; Parra v Canada (Citizenship and Immigration), 2016 FC 364 at paras 17–18.
[22]
As for the argument that the IAD allegedly applied the wrong legal test in its analysis, the applicant submits that the application of the correctness standard is required: Lauture v Canada (Citizenship and Immigration), 2015 FC 336 at para 17. In response, the Minister submits that the IAD did not err in the applicable legal test, but he does not challenge the fact that the correctness standard applies.
[23]
The applicant notes that the notice of appeal that was filed by the Minister before the IAD only alleges two errors by the ID. The first of the alleged mistakes was the failure to recognize that the FAR, at the genocide period, was an organization with limited and brutal purposes. The second alleged mistake regards the application of Ryan (R v Ryan, 2013 SCC 3) on the principle of the defence of duress. This second mistake was discussed further before me, because according to the applicant, it is an alternative argument.
[24]
The applicant accepts that the IAD was responsible for conducting a de novo analysis, and it was therefore not bound by the ID’s findings: Castellon Viera v Canada (Citizenship and Immigration), 2012 FC 1086 at paras 10–12 [Castellon Viera]. However, the applicant argues that the IAD was bound by the scope of the appeal filed by the Minister, and that the IAD overstepped its jurisdiction in ruling on issues beyond this framework.
[25]
The Minister responds that neither the relevant legislation (IRPA and IAD Rules) nor case law requires that a notice of appeal by the ID be comprehensive or that the IAD must limit itself to the scope of the appeal.
[26]
In my opinion, the fact that the appeal before the IAD is de novo suggests that the IAD is free to consider any relevant issues, and it does not have to limit itself to the scope of the notice of appeal to determine whether a person is inadmissible. In Castellon Viera at para 11, Chief Justice Paul Crampton indicates that:
[...] there is nothing in the IRPA or the jurisprudence which limits the exercise of de novo jurisdiction by the IAD to situations in which new evidence which was not before the Immigration Division has been adduced.
[27]
Further, in Mendoza v Canada (Public Safety and Emergency Preparedness), 2007 FC 934 at para 18, Justice Yves de Montigny affirms the “jurisdiction of the IAD, irrespective of the reasons for which the appeal is allowed”
.
[28]
I am satisfied that nothing limits the IAD’s jurisdiction to rule on the issues that go beyond the framework of grounds of appeal. I find that the IAD did not err in this matter.
[29]
The parties agree on the applicable burden of proof, i.e. the existence of reasonable grounds for believing that the applicant contributed in a significant, voluntary and knowing way to the commission of an offence referred to in paragraph 35(1)(a) of the IRPA. However, the applicant objects that the IAD considers his “profile”
in its analysis of complicity in the offence in question, particularly during the periods before and after the genocide period. The applicant submits that the IAD instead should have considered the evidence of actus reus personally committed by the applicant during the genocide period. The applicant adds that there is no such evidence. The applicant argues that by relying on the applicant’s profile outside the genocide period, the IAD unreasonably engaged in speculation.
[30]
The Minister notes that the IAD referred to the applicant’s profile to conclude in the unlikely and unbelievable nature of some aspects of his testimony. The Minister submits that this analysis was based on the evidence that establishes a link between the applicant’s contribution and the FAR’s criminal purpose, and it is therefore reasonable.
[31]
I concur with the Minister. The IAD did not engage in speculation. Its analysis of the applicant’s profile was permissible and reasonable.
[32]
The parties agree that Ezokola establishes the tests that are relevant for the complicity of a person in an offence referred to in paragraph 35(1)(a) of the IRPA. At paragraph 91 of its decision, the Supreme Court indicated the following:
[91] Whether there are serious reasons for considering that an individual has committed international crimes will depend on the facts of each case. Accordingly, to determine whether an individual’s conduct meets the actus reus and mens rea for complicity, several factors may be of assistance. The following list combines the factors considered by courts in Canada and the U.K., as well as by the ICC. It should serve as a guide in assessing whether an individual has voluntarily made a significant and knowing contribution to a crime or criminal purpose:
(i) the size and nature of the organization;
(ii) the part of the organization with which the refugee claimant was most directly concerned;
(iii) the refugee claimant’s duties and activities within the organization;
(iv) the refugee claimant’s position or rank in the organization;
(v) the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and
(vi) the method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization.
[33]
The IAD considered the relevance of Ezokola and analyzed the relevant tests. It should be recalled that this analysis was based on the IAD’s preliminary finding that a significant number of FAR members played a role in the Rwandan genocide. It should also be recalled that the threshold for inadmissibility set out in section 33 of the IRPA is not very high, and it consists of asking whether there are reasonable grounds for believing that the applicant committed an offence set out in paragraph 35(1)(a) of the IRPA. Therefore, the IAD’s analysis had to determine whether there were reasonable grounds for believing that the applicant was among the significant number of FAR members who played a role in the Rwandan genocide.
[34]
The applicant attacks several of the IAD’s findings in its analysis of the Ezokola tests, but it is clear that the IAD did not fail to consider these tests. For example, the applicant submits that since the FAR consisted of 40,000 members at the time of the genocide, and that it was a multifaceted and heterogeneous organization, it is impossible to find that he was complicit merely because he was a member of the FAR.
[35]
In my opinion, the analysis of the applicant’s profile to find that it did not correspond to that of a military serviceman was reasonable. I am also of the view that this analysis was relevant to the issue of his complicity. I share this opinion regarding the applicant’s other arguments about the analysis of the Ezokola tests. The IAD specified why it found that the applicant’s profile was relevant, and it reasonably considered the evidence in that regard.
[36]
Even for the findings that are not related to the applicant’s profile, I am not satisfied that the IAD erred in its analysis of the Ezokola tests. I see no flaws in logic, confusion or ignorance of the evidence in the IAD’s reasoning.
[37]
The applicant also argues that the IAD erred in finding that, during the genocide period, the FAR was an organization with limited and brutal purposes. The applicant notes that it is a finding of fact that is based on case law (instead of the evidence adduced at trial and before the IAD). The applicant also submits that it is contradictory and therefore unreasonable to find that a multifaceted and heterogeneous organization like the FAR could be legitimate at one moment and criminal the next.
[38]
I do not find any mistakes here either. It is difficult to deny the existence of the Rwandan genocide in 1994. It is also difficult to deny the involvement of the FAR members in that genocide. The case law cited by the IAD (Seyoboka v Canada (Citizenship and Immigration), 2009 FC 104 at para 17; Rutayisire v Canada (Citizenship and Immigration), 2010 FC 1168 at para 34; Seyoboka v Canada (Citizenship and Immigration), 2012 FC 1143 at para 43) is based on numerous elements of objective evidence that is public. Nothing suggests to me that this objective evidence or these findings are incorrect. I accept that the IAD’s finding that the FAR was an organization with limited and brutal purposes was reasonable. I would come to this conclusion even if the FAR was legitimate at one point before the genocide.
[39]
The applicant raises several mistakes by the IAD with respect to its findings of fact. I will not refer to all the alleged mistakes. It suffices to say that I am not satisfied that one of the IAD’s findings of fact is unreasonable.
[40]
I accept that two of these findings of fact are debatable, but they are not significant enough to have been able to change the outcome. First, the IAD stated that the applicant trained [translation] “thousands of new soldiers”
. Even if the number of new soldiers cannot be quantified in the thousands, I am satisfied that the IAD’s analysis in this regard is reasonable. The other debatable finding of fact concerns the indication that Major Habyarimana Emmanuel, who participated in efforts to recruit the applicant to the FPR, was a former Rwandan Minister of Defence. In fact, he is now a former Minister of Defence, but at the time, he was a future Minister of Defence. I do not find any mistakes in the IAD’s findings about the importance of people who tried to persuade the applicant to join the FPR.
[41]
The applicant also notes the IAD’s discussion regarding his admission that, due to his mixed ethnicity, he had to prove himself even more than the other soldiers in the army. He submits that the IAD could not reasonably find that he was complicit due to the mere fact of his determination to be a diligent member of a combat unit. I am satisfied that the IAD’s findings must be considered as a whole, and that the IAD did not come to any of these findings for that reason alone.
[42]
The applicant complains about the IAD’s discussion regarding the investment in the RTLM station, affirming that it was unreasonable to find that the applicant could have known the identity and future intentions of its founders (influential people from the government and the FAR). I am satisfied that the IAD did not err in finding that that investment was a relevant consideration. Furthermore, the IAD considered the evidence in that regard (including the context at the time of the applicant’s initial investment and his subsequent actions, namely his failure to withdraw his investments) and was right draw its main conclusion that it was unlikely that the applicant did not know the majority shareholders and ignored the station’s purpose.
[43]
The applicant also complains about the IAD’s reference in the press article regarding the trial of a former member of the FAR who was accused of genocide, and who names the applicant as being responsible for deaths. It is clear that the IAD did not place much weight on this evidence, recognizing that it is [translation] “highly circumstantial”
. It simply found that by considering other aspects, both before and after the genocide period regarding the profile of the accused, the fact that the applicant was mentioned in the press article is an additional aspect to consider about the question whether the applicant was a mere soldier among 40,000 others who had no knowledge or did not participate in the acts of genocide during the genocide period. In my opinion, this finding is reasonable.
[44]
The applicant complains that the IAD did not explicitly rule on the applicant’s credibility and that it cites some passages from the applicant’s testimony that are allegedly out of context.
[45]
In my opinion, in going through the Ezokola tests, the IAD reasonably indicated that it based its findings on the applicant’s lack of credibility and why. I am not satisfied that the IAD erred in this regard. Nor am I satisfied that the IAD cited the applicant’s testimony out of context.
[46]
I find that this application for judicial review should be dismissed.
[47]
The IAD appropriately established the existence of reasonable grounds for believing that the applicant made a significant, voluntary and knowing contribution to the criminal purpose of the FAR during the genocide period.
[48]
The applicant requests that I certify a serious question of general importance on the matter of the IAD’s jurisdiction to rule on issues that go beyond the framework of the grounds of appeal raised in the notice of appeal of the ID’s decision.
[49]
Considering the parties’ arguments, as well as the authorities cited in the analysis of this question above, I am of the view that there is nothing to support the applicant’s position. He does not cite any sections of the IRPA or any case law that contradicts the authorities cited above. Given the lack of a reason to believe that the applicant’s position might have merit, I find that the question proposed by the applicant is not serious.
Email this Content