Date: 20061027
Docket: IMM-7285-05
Citation: 2006 FC 1302
OTTAWA, ONTARIO, October 27, 2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
HUGO
FERNANDO BONILLA VASQUEZ
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of a member of the
Immigration and Refugee Board of Canada, Refugee Protection Division, dated
November 29, 2005, wherein it was determined that the Applicant was not a
convention refugee and not a person in need of protection, thereby rejecting
the Applicant’s claims for refugee status in Canada.
[2]
The
Applicant is an adult male, Columbian citizen. He claims to have a well
founded fear of persecution in Columbia at the hands of the
FARC (the Revolutionary Armed Forces of Columbia) by reason of his perceived
political opinion, as he was a career Officer in the Columbian army who failed
to comply with the FARC’s extortion demands. This issue before the Board was
whether the Applicant was a convention refugee or person in need of protection
having regard to the provisions of Section 98 of the Immigration and Refugee
Protection Act (IRPA), S.C. 2001, c.27 which excludes a person as defined
in Article 1 (F)(a) of the Refugee Convention [the Convention] as being someone
who 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.
[3]
The
Member of the Board, in a lengthy decision concluded:
Due to the claimant’s rank
when he retired, the leadership role he played in operations that committed
human rights abuses, the protracted time he remained in the army and the
knowledge he must have had of the abuses, I find that he had a shared, common
purpose with the Colombian army. For these reasons I find that he was an
accomplice in crimes against humanity.
I find that the Minister’s
representative has met the burden of establishing that there are serious
reasons for considering that the claimant has committed a crime against
humanity within the meaning of Article 1(F)(a). Therefore the Refugee
Protection Division determines that Hugo Fernando Bonilla-Vasquez is excluded
from the Convention refugee definition and from being a person in need of
protection.
[4]
The
Applicant seeks judicial review of this decision alleging a number of errors.
The essential issue however, concerns the conclusion by the Member that the
Applicant was complicit in or shared a common purpose with those who committed crimes
against humanity, thus is excluded from claiming refugee status in Canada.
[5]
In
Bedoya v. Canada (Minister of Citizenship and Immigration), 2005 FC
1092 [Bedoya], I
considered the complex lens through which decisions such as the one under
review, must be reviewed. To summarize:
1.
The
Minister bears the burden of proof in establishing that the Applicant falls
under the provisions of Article 1(F)(a) however the burden is less than the
balance of probabilities.
2.
Factual
findings by the Member are to be reviewed upon a standard of patent unreasonableness.
3.
Legal
findings by the Member are to be reviewed upon a standard of correctness.
[6]
Further,
in Bedoya I reviewed the concept of “committing” an act as set out in
Article 1(F)(a) of the Convention which can involve not only the actual doing
of the act, but also personal knowledge and knowing participation, or that of
an accomplice or abettor, or being in close association with the principal
actors or having a shared common purpose.
[7]
The
basic facts are not contested. The Applicant joined the Columbian army as a
volunteer in 1989. he left the army in 2004 by which time he had achieved the
rank of Major. In May 2004, he sought refugee status in Canada. By the
time of the hearing, his parents had been allowed to claim refugee status in Canada.
[8]
During
his fifteen years in the Columbian army, the Applicant rose through the ranks,
moving from Cadet to Sub-Lieutenant, to Sergeant, to Lieutenant, to Captain in
1996 and Major in 2001. He applied to leave the army in December 2003,
because, he says, he was receiving threats and demands to pay money. In March
2004, he was honourably discharged from the army and quickly made his way to Canada.
[9]
The
Applicant spent some time as an instructor and in logistical support during his
career with the army. Important to the issues of this case, he was part of a
group that created four battalions of which Mobile Brigade Number Two was part
(the inverse is correct – “He was part of a group, Mobile Brigade
Number Two, which was comprised of four battalions."
He
joined Mobile Brigade Number Two as a Lieutenant in March 1991, at which time
he was assigned in Bogota to distribute supplies. Subsequently, he moved
with all personnel to Santandar province, where he started to train soldiers
who largely comprised persons who had finished compulsory military service and
had returned to civilian life. The mission of this brigade was to provide
security in a populated area when and wherever necessary. The Applicant says
that he commanded a platoon of between thirty-six to forty men, but that
platoon was a reserve unit that remained in barracks doing administration and
logistics. Occasionally, the platoon would do security operations in the
vicinity of the barracks. This platoon would be moved from time to time to
different areas, according to the Applicant, to do similar duties, acting as a
reserve.
[10]
The
Applicant says that he has no knowledge as to the activities carried on by
other platoons or members of Mobile Brigade Number Two. He says that he has no
knowledge as to killing of civilians although he remembers a case where the air
force dropped shells in an area where civilians were living. He also remembers
that certain paramilitary commanders were in charge of areas before he arrived
and that these commanders were subsequently detained.
[11]
In
1995 and 1996 the Applicant was taking courses in administration and at one
time during this period was in charge of about one thousand men. In March
1999, the Applicant was in charge of a security platoon in reserve when their
barracks, where he was located, were attacked by guerrillas. The Applicant was
wounded in the leg. After recuperating from his wounds, the Applicant assumed
command of other platoons, including those within the Columbia Battalion.
[12]
During
cross-examination before the Board several incidents involving members of
Mobile Brigade Number Two and the Columbia Battalion were put to the
Applicant. The Applicant denied any involvement in or knowledge of such incidents
at the time. The Applicant repeatedly stated that he had no contact with
guerrillas nor was he involved in any conflict with civilians. He says that
only since about the year 2000 when the Internet became established in Columbia, did he
become aware of incidents between some members of the army, including the
Mobile Brigades, and citizens.
[13]
The
documentary material before the Board contains many references to activities of
Mobile Brigade Number Two and the Columbia Battalion. Typical of such references
is the following:
The Procuraduria Office of
Special Investigations was flooded with complaints about Mobile Brigade 2 in 1992,
particularly from Antioquia. 29 Often, people were not detained during
operations but at roadblocks soldiers set up to limit traffic in surrounded
areas. There, documents are checked, packages searched, and food and medical
supplies sometimes seized as suspected guerrilla provisions. On October 24,
1992, Alonso de Jesus Lujan was detained by soldiers from Mobile Brigade 2 near
Segoyia (Antioquia) for not having his military service card (libreta
militar). In both the Zaragoza and El Bagre military bases,
he says he was beaten, tortured, and threatened with being thrown out of an
air-borne helicopter. For approximately eight hours, he was kept blindfolded
and bound in a grave by members of the B-2 (military intelligence). Finally,
he was taken out to the woods by men who stabbed him and left him for dead. 30
[14]
The
Member considered the evidence and concluded that the Applicant’s evidence was
not credible or plausible. At page 8 of the Reasons the Member says:
I agree with the Minister’s
analysis and I do not accept as credible or plausible the claimant’s position
that he was unaware of the widespread and systematic crimes against humanity
committed by the army. The documentary evidence, as analyzed below, sharply
contradicts the claimant’s evidence. I accept the documentary evidence as
authoritative and therefore find that there are serious reasons to believe that
the claimant had to be aware of the widespread abuses taking place in his
immediate surroundings in the army while he was in leadership positions. In
other words, as a career soldier who had significant leadership
responsibilities, I do not believe it to be plausible that he was unaware of
the atrocities described in the documentary evidence that literally appeared to
be going on around him. If he was unaware, he was in serious denial; in other
words, he chose to be “wilfully blind” to his surroundings. I find that if
this is the case, his choice to detach himself from the atrocities does not
excuse him from complicity. On the contrary, for this claimant, in his
position of authority, choosing to ignore the crimes, to remain silent, and to
carry on as though they were not occurring, constitutes complicity.
[15]
In
brief, the Member found that there were crimes against humanity committed by
the army, that the Applicant was aware of those crimes or wilfully blind to
them, he chose to ignore them and remain silent, he was in a leadership
position and thus was complicit in those crimes against humanity. This finding
was summed up at page 4 of the Member’s Reasons:
I find that while it has not
been established that the claimant personally committed crimes against humanity,
he has been complicit in these crimes. I find that while the claimant claimed
to be unaware of the widespread and systematic human rights violations that
were going on around him, that due to his high rank, his leadership position
and his long-term service in the armed forces, that he had to be aware of
operations that were undeniably perpetrating crimes against civilians. I find
that through this service with the armed forces, he lent his support and
“knowing participation” to these crimes.
[16]
The
findings of fact by the Member that cannot be said to be patently unreasonable
are:
1.
The
claimant (Applicant) did not personally commit crimes against humanity.
2.
The
claimant (Applicant) had to be aware of the operations that were undeniably
perpetrating crimes against civilians.
[17]
The
factual determination that is unclear is what “operations” were committing
these crimes. At page 3 of the Reasons the Member says three times that it was
the Columbian army. At page four, the Member says that it was the armed forces
of Columbia. At page
five, the Member makes mention of three Brigades, including Mobile Brigade
Number Two, four Battalions and one Division. The Member finds that “some of
these Brigades” were responsible for serious human rights violations.
[18]
At
page six, the Member finds that the claimant (Applicant) travelled with Mobile
Brigade Number Two to certain areas where widespread human rights violations
were committed by “security forces and paramilitaries”. At page seven, the
Member reverts to saying human rights abuses by “Columbian armed forces” and
“the army”. At page eight, “the army” is again implicated. At pages nine, ten
and eleven, “the Mobile Brigade” and “Mobile Brigades” are identified. At page
twelve, Mobile Brigade Number Two is specifically identified but the Member
states that the claimant (Applicant) stated that he was with a different
platoon in a different place at the time. The Member found however, that the
Applicant shared a common purpose and supported operations that committed crimes
against humanity.
[19]
Commencing
at page thirteen to page seventeen, the Member references many Battalions and
Brigades where the Applicant served concluding that it was not plausible that
he was unaware of the true nature of one of them, the Columbia Battalion, and
that “many of the Brigades” were involved in widespread human rights abuses.
[20]
At
page nineteen of the Reasons, the Member reverts to “the army” in concluding
that the Applicant showed a common purpose from which he did not disengage
himself.
[21]
What
is noteworthy is that there is no finding that the Applicant himself engaged in
any particular abuse or abuses. Those abuses are variously attributed to the
army, some Battalions, Mobile Brigade Number Two or “some members” of the
Brigade.
[22]
At
this point, the law must be considered. The Member correctly stated that what
was required, in the absence of a finding of direct involvement, was whether
the Applicant was “complicit” in crimes against humanity. However, the Member
does not clearly state the legal test for complicity. The Member states at
page four of the Reasons, that the Applicant’s high rank, leadership positions
and long-term service meant that he had to be aware of operations perpetrated
against civilians. The Member then details findings as to the Nature of the
Organization, Position/Rank in the Organization, Knowledge of Atrocities; Method
of Recruitment; Length of Time in the Organization and Opportunity to Leave
before stating the conclusion. While these are all factors to be considered,
the Member has not clearly stated what the law is as to “complicity” nor has
that law been followed.
[23]
This
law was thoroughly reviewed by the Federal Court of Appeal in Ramirez v. Canada (Minister of
Employment and Immigration), [1992] 2 F.C. 306, 135 N.R. 390 [Ramirez]
and succinctly summarized at paragraph 18 of the Reasons of that Court:
“At bottom, complicity rests in such
cases, I believe, on the existence of a shared common purpose and the knowledge
that all parties may have of it”.
[24]
Thus,
the test, in law, is twofold: (1) a shared common purpose and (2) knowledge.
[25]
The
“shared common purpose” must constitute a crime against humanity. Such crime
was discussed by the Supreme Court of Canada in Mugusera v. Canada (Minister
of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 [Mugusera]
particularly at paragraph 151 of the Reasons where it is stated that acts will
become crimes against humanity if they are committed as part of a widespread or
systematic attack directed against any civilian, population or any identifiable
group. A “widespread attack” the Court defines in paragraph 154 of the Reasons
as massive, frequent, large-scale carried out collectively with considerable seriousness
and directed against a multiplicity of victims. At paragraph 155 of the
Reasons, that Court says that, a “systematic attack” is one that is thoroughly
organized and follows a regular pattern on the basis of a common policy
involving substantial public or private resources. At paragraph 156, the Court
reiterates that the attack need be only one of widespread or systematic.
[26]
At
paragraph 161 of Mugusera, supra, the Supreme Court makes it clear that
a systematic attack must be directed against a civilian population; the
civilian population cannot be merely a collateral victim.
[27]
The
issue is the law with respect to complicity. It can be seen that the Member’s
Reasons fail to demonstrate any reasonable examination as to whether the
Applicant shared a common purpose with persons who are said to have committed
atrocities and whether the actions of such person could be said to constitute a
widespread or systematic attack directed against a civilian populations, not
just that civilians are collateral victims. The Member did identify incidents
of abuses, but did not identify any shared common purpose with the Applicant,
nor were such abuses found to be widespread or systematic attacks directed
against a civilian population. The Member concentrated findings essentially
only on the second element.
[28]
I
find therefore, that the Member did not correctly state the law, nor apply it.
As such, the matter was must be returned to the Board for reconsideration by a
different Member.
[29]
The
parties have asked that they be given an opportunity to make submissions as to
certification of a question and I will allow ten (10) days from the date of
these Reasons for the parties to make submissions in that regard.
JUDGMENT
FOR THE REASONS STATED
ABOVE:
THIS COURT ADJUDES THAT:
1.
This
application is allowed;
2.
This
matter is sent back to the Refugee Protection Division of the Immigration and
Refugee Board for redetermination by a different Member;
3.
No
Order as to costs; and
4.
The
parties may make submissions as to the certification of a question within ten
(10) days hereof.
"Roger
T. Hughes"
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