Date: 20050224
Docket: IMM-233-04
Citation: 2005 FC 286
BETWEEN:
IVAN ANTONIO BERMUDEZ
ANA PETRONA BERMUDEZ
IVAN BERMUDEZ
GRETHELL BERMUDEZ
BRYAN BERMUDEZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
OVERVIEW
[1] There is a long history and several judicial reviews respecting the claims of the Applicants. The claims were first initiated in 1996 and relate to the involvement of Antonio Bermudez Maltez and Ana Petrona Bermudez with the Sandinista government in Nicaragua in the 1970's and 1980's. It is because of this lengthy background that the Court is reluctant to refer the matter back to the Refugee Protection Division of the Immigration and Refugee Board (RPD) for a redetermination.
BACKGROUND
[2] The Applicants had both worked for the Sandinistas. The male Applicant had voluntarily joined the Police Force when he was 16 years old and later transferred to Department Four, where political dissidents were held and questioned. The treatment of these persons and the male Applicant's role in their treatment is the central issue in the claim for protection.
[3] The female Applicant also worked with the Sandinistas. She was employed in the Ministry of the Interior, Police General Direction Department assigned to the Department of Public Security.
[4] The Applicants had previously been held not to be Convention refugees; the male Applicant was determined to be excluded by virtue of Schedule IF Article (a) of the Schedule to the Immigration Act. The remaining family members were found to face no more than a mere possibility of persecution and therefore were not Convention refugees.
[5] These decisions were overturned on the basis that the RPD had erred in assessing the evidence in light of the definition of "war crime" rather than as a "crime against humanity".
[6] The matter was referred back to the RPD to be determined by a differently constituted panel. For a number of reasons this new panel reached the same conclusion.
[7] The male Applicant alleges, amongst other matters, that the RPD did not consider his defence of duress and that he was acting under superior orders. In essence, he contends that he would have suffered equally proportionate punishment to that of dissidents, if he had failed to comply with his superior's orders.
ANALYSIS
[8] The Respondent concedes that the RPD failed to consider the defence of duress. The Respondent further concedes that duress is a relevant factor in respect of Schedule I, Article F(a) which reads:
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1F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(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; . . . .
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1F. Les dispositions de cette Convention ne seront pas applicables aux personnes don't on aura des raisons sérieuses de penser :
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; . . . .
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[9] The Respondent's response to this error on the part of the RPD is to contend that a referral back to the RPD is futile because the RPD will inevitably come to the same conclusion as past panels have. The Respondent relies on Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202.
[10] The Mobil Oil case simply stands for the proposition that, in extraordinary cases where there had been a breach of natural justice, if the result of reconsideration is that, by law, the result must be the same as the original decision, a court will not quash that decision.
[11] In this present case, the error is not one of procedure but of substance. The failure to consider the defence of duress is a failure to consider a relevant matter and is an error of law.
[12] It would be erroneous, in principle and practice, to conclude that the result of a consideration of the defence of duress is inevitable. The record discloses no such inevitability.
[13] Therefore this application for judicial review will be granted. In my view this is a matter which can be referred back to the same panel (if possible) to allow it to reconsider this case and in particular the defence of duress based upon the record to date, supplemented by with whatever evidence and submissions on this issue may be appropriate.
[14] In the event that the referral back to the same panel is not possible, the parties and the RPD may obtain directions from this Court.
[15] Given the result and until the RPD has ruled finally on all aspects of this case, it would not be appropriate to consider whether a question should be certified.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-233-04
STYLE OF CAUSE: IVAN ANTONIO BERMUDEZ, ANA PETRONA BERMUDEZ, IVAN BERMUDEZ, GRETHELL BERMUDEZ, BRYAN BERMUDEZ v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 8, 2004
REASONS FOR ORDER: Phelan J.
DATED: February 24, 2005
APPEARANCES:
Mr. Michael Crane FOR THE APPLICANTS
Mr. Martin Anderson FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Michael Crane
Toronto, Ontario FOR THE APPLICANTS
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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