Date: 20060512
Docket: IMM-6085-05
Citation: 2006 FC 590
Ottawa, Ontario, May
12, 2006
PRESENT:
THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
JEAN LEONARD
TEGANYA
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review filed pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of the decision by
the Refugee Protection Division of the Immigration and Refugee Board (the
Board) dated September 6, 2005, that Jean Leonard Teganya (the applicant) did
not qualify as a Convention Refugee within the meaning of the United Nations
Convention Relating to the Status of Refugees (the Convention) or as a
person in need of protection under paragraphs 1F(a) and 1F(c) of
Article 1 of the Convention.
RELEVANT FACTS
[2]
The
applicant is a citizen of Rwanda who claims to be a survivor of the Rwandan
genocide of 1994 because of his Hutu ethnicity. The applicant is a native of
Gisenyi, where the majority of Hutu radicals belong to the Revolutionary
Movement for Development (MRND), the party in power at the time of the
genocide. He claims that he did not belong to this radical group, responsible
for the genocide of Tutsis and moderate Hutus.
[3]
During the
period of the massacres from April to June 1994, the applicant had the status
of a medical student and was interning at the Butare University hospital. He
allegedly left the hospital on June 17, 1994, and fled Rwanda for the former
Zaïre on July 17 of that same year. Then, he headed to Kenya and India before
taking the road to exile to Canada in November 1999.
[4]
A panel of
two members heard the applicant on December 10, 2001 and on
February 12, 2002. On March 15, 2002, the panel determined that the
applicant was not a Convention refugee and that he was excluded from the
application of the Convention under paragraphs 1F(a) and (c). The
Federal Court of Canada, Trial Division, set aside the decision in
February 2003.
[5]
A second
refugee claim was heard on February 7, 2005 and June 27, 2005.
ISSUE
[6]
Did
the Board err in excluding the applicant from the application of the definition
of “Convention refugee”?
ANALYSIS
[7]
Section 98
of the Act reads as follows:
|
98. A person referred to in
section E or F of Article 1 of the Refugee Convention is not a
Convention refugee or a person in need of protection.
|
|
[8]
Paragraphs
(a) and (c) of section F of Article 1 of the Convention read 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.
|
F. Les dispositions de cette Convention ne seront pas
applicables aux personnes dont on aura des raisons sérieuses de penser:
|
|
(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;
|
a)
Qu’elles ont commis un crime contre la paix, un crime de guerre ou un crime
contre l’humanité, au sens des instruments internationaux élaborés pour
prévoir des dispositions relatives à ces crimes;
|
|
(c) He has been guilty of acts contrary to the
purposes and principles of the United Nations.
|
c)
Qu’elles se sont rendues coupables d’agissements contraires aux buts et aux
principes des Nations Unies.
|
[9]
The
appropriate standard of review for the Board’s decision to the effect that
certain acts are included in the definition of “crimes against humanity” is the
standard of correctness (Mendez-Levya v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 523; Gonzalez v. Canada (Minister of Employment
and Immigration) (1994), 24 Imm. L.R. (2d) 229). The case law appears to
establish that the appropriate standard of review for the Board’s decision to
the effect that certain acts were committed is that of patent unreasonableness
(Mugesera v. Canada (Minister of Citizenship and Immigration),
[2003] F.C.J. No. 1292, 2003 FCA 325).
[10]
The
Federal Court of Appeal has repeatedly adopted the definition of crimes against
humanity found under article 6 of the Charter of the International
Military Tribunal. This includes:
Crimes against humanity. - namely,
murder, extermination, enslavement, deportation, and other inhumane acts
committed against any civilian population, before or during the war, or
persecutions on political, racial or religious grounds in execution of or in
connection with any crime within the jurisdiction of the Tribunal, whether or
not in violation of the domestic law of the country where perpetrated.
Sivakumar v. Canada (Minister of
Employment and Immigration),
[1994] 1 F.C. 433; Gonzalez v. Canada (Minister of Employment and
Immigration), [1994] 3 F.C. 646; Sumaida v. Canada (Minister of
Citizenship and Immigration), [2000] 3 F.C. 66.)
[11]
Paragraph
1(F) of the Convention requires that there be “serious reasons for considering”
that an individual has committed a crime against humanity. In Ramirez v.
Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306,
the Court stated that this standard was lower than the balance of
probabilities. The government had to adduce evidence meeting that standard (Srour
v. Canada (Minister of Citizenship and Immigration.), [1995] F.C.J. No.
133).
[12]
Accomplices
as well as principal actors may be considered to have committed international
crimes. The concept of complicity has been defined as a personal and knowing
participation or an association whereby individuals may be rendered responsible
for the acts of others because of their close association with the principal
actors. Complicity rests on the existence of a shared common purpose and the
knowledge that all of the parties may have of it (see Ramirez supra;
Sivakuma, supra).
[13]
In this
case, to be excluded from the definition of Convention refugee, it had to be
established that these crimes against humanity took place. Further, to
establish that the applicant was acting as an accomplice to these crimes, it
had to be established that the applicant had knowledge of these crimes and a
shared common purpose with those who committed those crimes.
[14]
The Board
noted that the documentary evidence submitted established that numerous crimes
against humanity had been committed at Butare Hospital during the Rwandan
genocide and that the applicant had knowledge of these crimes:
Moreover, the panel may conclude that
the claimant is himself admitting that he knew about the genocidal intentions
of the Hutu extremists when he writes, in Exhibit A-5, in reply to Question
37: [Translation] “The majority of radical Hutus were members of the MRND, the
party in power” at the time of the genocide. And when he adds, in paragraphs 6
and 7 of Exhibit P-14, that the army controlled the hospital and the military
sowed terror.
The documentary evidence
regarding the situation in the Butare hospital, where the claimant worked
during the period of the genocide, is quite clear:
According to Exhibit
AA-3 (Rwanda death, despair and defiance):
The readiness of some
senior medical practitioners to comply with the killings at Butare hospital has
been noted. Other doctors acceded to the requests of the interahamwe to expel
Tutsi patients who faced a certain death the moment they set foot outside the
hospital. Some doctors refused to treat Tutsis. Others actively encouraged
the murder of Tutsi patients, their Tutsi medical colleagues and workers at the
hospital lectures at the university as well as students.
[15]
I am
satisfied that the documentary evidence establishes that crimes against
humanity were committed within the meaning of the international instruments
drawn up to make provisions in respect of such crimes. The evidence also
establishes that the applicant was aware that these crimes against humanity
were committed. Indeed, the evidence establishes that in response to questions
asked at the hearing, the applicant admitted that he knew that the MRND had
committed crimes against humanity. The Board’s finding on that point is not
patently unreasonable.
At the hearing, the
claimant reiterated his admissions contained in Exhibit P-14, and asserted that
[Translation] “in addition to the military who lined the corridors of the
hospital, there were also individuals partly dressed in military uniform, who
sowed terror.” He was thus aware of what was going to happen there.
When questioned on this
point, the claimant maintained that he had to complete his internship in spite
of everything. He remained on the campus for two months and 12 days, from
April 5 to June 17, 1994. Throughout the hearing, he did not offer any other
justification or any defence of this continuing presence at the hospital during
that period. The panel rejects this answer about the claimant’s desire to
complete his internship; it its opinion, this justification is not reasonable
in the context of the Rwandan horror.
. . .
Although he claims that
he did not participate actively in the massacres, the panel is of the opinion
that he was a witness close to the extremists. The panel is entitled to ask
itself whether the claimant’s passivity in the face of the massacres is not
equivalent to endorsing the policies and methods of the party in power.
. . .
The targets of the Hutu
extremists at the Butare university hospital were thus Tutsis and moderate
Hutus. The panel is entitled to ask itself why the presence of the claimant on
the campus did not seem to concern the extremists, who pursued their dirty work
for several weeks. Is it not reasonable to think that the Hutu extremists, in
leaving alive the claimant, who is not a Tutsi, had every reason to believe
that the claimant was not a Hutu moderate and shared the same purpose, namely
to eliminate the Tutsis and the moderate Hutus?
In the panel’s opinion,
it is not unreasonable to think that the claimant owes his life to his
complicity with the extremists.
. . .
He would not have
survived in such an environment if he had not been perceived as sharing the
common purpose to kill Tutsis and moderate Hutus.
[17]
In El-Kachi
v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 554,
at paragraph 18, Mr. Justice Edmond P. Blanchard reviewed the case law relating
to complicity and exclusion from the definition of Convention refugee:
The question of complicity was also
considered by Reed J. in Penate v. Canada (Minister of Citizenship and
Immigration), [1994] 2 F.C. 79. Following an analysis of Ramirez v.
Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), Moreno
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.)
and Sivakumar v. Canada (Minister of Employment and Immigration), [1994]
1 F.C. 433, Reed J. concluded at 84-85:
As I understand the
jurisprudence, it is that a person who is a member of the persecuting group and
who has knowledge that activities are being committed by the group and
who neither takes steps to prevent them occurring (if he has the power to do
so) nor disengages himself from the group at the earliest opportunity
(consistent with safety for himself) but who lends his active support to the
group will be considered to be an accomplice. A shared common purpose will be
considered to exist. I note that the situation envisaged by this jurisprudence
is not one in which isolated incidents of international offences have occurred
but where the commission of such offences is a continuous and regular part of
the operation.
[Emphasis added.]
[18]
The
applicant did not disassociate himself from the MRND at the first opportunity.
To the contrary, he continued with his internship even when he was aware of the
crimes being committed around him. Further, he claims to be a moderate Hutu,
yet the documentary evidence shows that the moderate Hutus were killed at the
Butare Hospital. I think that the Board was correct to find that the applicant
was not an innocent spectator because he would not have survived in such a
setting unless it was perceived that he shared the common intention of killing
the Tutsis and Hutu moderates.
[19]
The
respondent claims that the Board’s decision was based on a connection between
the father’s political affiliations and the applicant’s possible involvement in
the massacre at the hospital. Even if the Commission took this into
consideration, it is not a determinative factor in the decision. In my opinion,
the evidence as a whole is sufficient to support a determination that there are
“serious reasons for considering” that the applicant was an accomplice in the
crimes against humanity committed by the MRND. The Commission therefore did not
err in regard to the applicant’s complicity.
[20]
The applicant
submitted the following question for certification:
In the absence of a finding that a
Refugee claimant was a member of, or was linked to, an organization that the
IRB-RPD has categorized as being one with a limited and brutal purpose, does
the IRB-RPD err in law if it finds the Refugee complicit in Crimes against
Humanity without identifying either acts or omissions on the refugee’s part
which would render that person complicit with specific crimes?
[21]
The
respondent filed written submissions challenging the question proposed for
certification.
[22]
I agree
with the reasons proposed by the respondent. In fact, the Federal Court of
Appeal has already settled the issue of complicity and over the years several
decisions have set out the applicable parameters.
[23]
In the
matter before us, the Refugee Protection Division determined that the applicant
was an accomplice in crimes committed by the military, the Interahamwe militia
and other members of the medical personnel.
[24]
As pointed
out by the respondent, the Court of Appeal has already determined that it is
not necessary to connect the claimant with specific crimes to find there was
complicity. In Sumaida v. Canada (Minister of Citizenship and Immigration),
[2000] 3 F.C. 66, [2000] F.C.J. No. 10, and confirmed by Harb v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 103, the
Court of Appeal states:
Our Court never required in that case
that a claimant be linked to specific crimes as the actual perpetrator or that
the crimes against humanity committed by an organization be necessarily and
directly attributable to specific acts or omissions of a claimant.
Indeed, short of that
kind of direct involvement and of evidence supporting it, our Court accepted
the notion of complicity defined as a personal and knowing participation in
Ramirez (see page 438 of the Sivakumar decision) as well as complicity through
association whereby individuals may be rendered responsible for the acts of
others because of their close association with the principal actors (see pages
439-440 of the Sivakumar decision).
[25]
It was
necessary for the decision-maker to decide whether the applicant had knowledge
or involvement such that he could be considered to have personally and
knowingly participated in the crimes committed. The decision-maker made a
determination to that effect.
[26]
In my
opinion, this is not a question of general importance; therefore it will not be
certified.
JUDGMENT
- The application for judicial review
is dismissed;
- No question shall be certified.
“Pierre Blais”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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