Docket: IMM-2767-17
Citation: 2018 FC 146
[ENGLISH TRANSLATION]
Ottawa, Ontario, February 8, 2018
PRESENT: The Honourable Madam Justice Roussel
| BETWEEN:
|
| EDER LUIS MOLINA DURANGO
|
| Applicant
|
| and
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| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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| Respondent
|
JUDGMENT AND REASONS
[1]
The applicant, Eder Luis Molina Durango, is a citizen of Colombia. From 2004 to 2008, the applicant worked as an analyst for the intelligence service of the Colombian National Police [PNC] (Seccional de intelligencia de la Policia, SIPOL; Police intelligence branch) in the Colombian department of Caquetá, in the context of the fight against the Revolutionary Armed Forces of Colombia [FARC].
[2]
On December 10, 2009, the applicant filed an application for permanent residence at the Canadian embassy in Colombia. This was rejected by a visa officer [the officer] on June 5, 2017, who found that there were reasonable grounds to believe that the applicant is inadmissible under paragraph 35(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA].
[3]
The applicant applies for judicial review of that decision. He maintains that the officer did not apply the tests set out by the Supreme Court of Canada in Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40 [Ezokola]. Although he acknowledges that the PNC committed crimes against humanity and other human rights violations, the applicant reproaches the officer for not reviewing the evidence that showed that he did not commit any crimes against humanity. In particular, the applicant had presented the officer with letters from various police and legal institutions in Colombia attesting that they had no records against the applicant, along with a letter from the applicant’s father-in-law. The latter explained that he had done research on the applicant before he could marry his daughter and did not discover any trace of crimes or human rights violations committed by the applicant while he was working for the PNC.
[4]
The question of knowing whether a person is inadmissible under paragraph 35(1)(a) of the IRPA is a mixed question of fact and law that must be reviewed according to reasonableness (Al Khayyat v Canada (Citizenship and Immigration), 2017 FC 175 at para 18 [Al Khayyat]; Khasria v Canada (Public Safety and Emergency Preparedness), 2016 FC 773 at para 16).
[5]
When the standard of reasonableness applies, the Court’s role is to determine whether the decision falls within the range of “possible, acceptable outcomes which are defensible in respect of facts and law”
. If “the process and outcome fit comfortably with the principles of justification, transparency, and intelligibility”
, it is not open to this Court to substitute its own view of a preferable outcome (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59).
[6]
According to paragraph 35(1)(a) of the IRPA, a person is inadmissible in Canada for human or international rights violations for committing an act outside of Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, SC 2000, c 24.
[7]
The applicant argues that he could not have committed crimes against humanity because he only held a subordinate position in the police and because he is not facing any criminal charges in Colombia.
[8]
With respect, the Supreme Court of Canada ruled in Ezokola that personal participation in a crime is not necessary. The individual can be an accomplice to a crime without being present at or physically contributing to it if it is shown that he voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose (Ezokola at para 8, 77; Talpur v Canada (Citizenship and Immigration), 2016 FC 822 at para 30 [Talpur]; Concepcion v Canada (Citizenship and Immigration), 2016 FC 544 at para 12 [Concepcion]; Mata Mazima v Canada (Citizenship and Immigration), 2016 FC 531 at paras 44–45 [Mata Mazima]). Although Ezokola deals with the scope of article 1F(a) of the United Nations’ Convention Relating to the Status of Refugees, the Federal Court of Appeal and this Court have recognized that the principles stated in this matter also apply to inadmissibility under paragraph 35(1)(a) of the IRPA (Kanagendren v Canada (Citizenship and Immigration), 2015 FCA 86 at paras 15–22 [Kanagendren]; Al Khayyat at paras 22–24; Talpur at para 20; Concepcion at para 10).
[9]
Each is a case a special case. Ezokola provides a non-exhaustive list of the factors that are used to determine whether or not an individual has voluntarily made a significant and knowing contribution to a crime or criminal purpose: (1) the size and nature of the organization; (2) the part of the organization with which the refugee claimant was most directly concerned; (3) the refugee claimant’s duties and activities within the organization; (4) the refugee claimant’s position or rank in the organization; (5) the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and (6) the method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization (Ezokola at para 91).
[10]
Lastly, the standard of evidence that applies to paragraph 35(1)(a) is specified under section 33 of the IRPA: the existence of “reasonable grounds to believe”
. That standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities (Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114).
[11]
In contrast to the applicant’s claims, the Court finds that the officer properly identified and applied the criteria stated by the Supreme Court of Canada in Ezokola. Upon reading the decision, we note that the officer proceeded to analyze each of the six (6) factors used to determine whether the applicant had voluntarily made a significant and knowing contribution to a crime or criminal purpose. After having carefully analyzed each of the factors, the officer found that there were reasonable grounds to believe that the applicant was inadmissible under paragraph 35(1)(a) of the IRPA.
[12]
That finding is supported by the following facts in particular. The applicant voluntarily joined the PNC in 2002 where he worked for four (4) years as an analyst for the PNC’s intelligence service. He only resigned from his position in 2008 because he had heard that his presence in the PNC might present a problem for receiving permanent residence in Canada. While the applicant was an analyst with SIPOL, the PNC worked in cooperation with other intelligence and security organizations during a period when the Colombian authorities were engaged in intense armed conflicts with the FARC and during which numerous crimes against humanity and other human rights violations were reported. The applicant admitted that as part of this cooperation, he attended meetings with Brigade 12 of the Colombian Army, an organization identified as having carried out acts of torture. In addition, the applicant acknowledged that he was involved in planning certain operations, that the intelligence that he gathered as part of his duties was used by paramilitary groups that were identified as being responsible for kidnappings, torture, enforced disappearances and murder, and that this intelligence led to the interrogation and arrest of individuals. The applicant admitted that he himself participated in those interrogations or, at the very least, was a witness in them. During his interview with the Canada Border Services Agency [CBSA], the applicant also acknowledged that he had heard rumours that human rights violations were being committed by government forces in the region where he was deployed with the PNC.
[13]
In this case, the Court must determine whether it was reasonable for the officer to find that there were reasonable grounds to believe that the applicant was an accomplice in crimes against humanity. Given the evidence that was at the officer’s disposal and considering the applicable standard of review, the Court finds that the officer’s decision is reasonable because it falls within the range of possible, acceptable outcomes which are defensible in respect of facts and law (Dunsmuir at para 47). It is not open to this Court of judicial review to substitute its own view of a preferable outcome (Talpur at para 28).
[14]
The Court recognizes that the officer did not make explicit reference to the term “significant”
when he discussed the applicant’s contribution. Even if it would have been preferable for the officer to have used that qualifier in his decision, the Court is satisfied that the officer used the right criteria to determine whether the applicant was an accomplice in the criminal acts of which he is accused. First, it appears in the file that the officer is supported by a CBSA report that clearly indicates what factors must be considered in order to determine whether the individual voluntarily made a significant and knowing contribution to a crime or criminal purpose. Second, the evidence on record supports such a finding. Third, the officer determined that the applicant sought to downplay his role and involvement in the operations that led to the arrest of FARC members. The Court finds that such a finding implies that the applicant’s contribution was significant or, inevitably, more than an infinitesimal contribution, as stated in Ezokola (Ezokola at paras 56–57; Mata Mazima at para 44).
[15]
The applicant also maintains that the officer erred by not ruling on the letter of support from the applicant’s father-in-law. The Court is of the view that the letter in question would not have influenced the officer’s finding, since inadmissibility does not consider the fact that a person committed crimes against humanity (Ezokola at paras 84–90).
[16]
In his factum, the applicant reproaches the officer for having set aside the evidence regarding the protection of the family unit and the best interests of his two (2) children who are living in Canada with their mother. At the hearing, however, the applicant did not insist on that argument, which he described as being secondary. The Court concurs with the respondent’s argument regarding inadmissibility under section 35 of the IRPA, in which there are no exceptions for humanitarian and compassionate considerations (Kanagendren at paras 26–27). Therefore, the officer was not required to review the humanitarian and compassionate considerations raised by the applicant.
[17]
In closing, the Court does not intend to address the preliminary methods raised by the respondent, given the finding that it has made on the application for judicial review.
[18]
As a result, the application for judicial review is dismissed. The parties did not propose any questions to be certified and the Court is of the view that this matter did not raise any.
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