Date: 20050407
Docket: IMM-3749-04
Citation: 2005 FC 464
Toronto, Ontario, April 7th, 2005
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
RASMUSSEN TORRES HERRERA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an Application for judicial review of adecision of the Refugee Protection Division ("RPD") dated March 30, 2004, wherein the Applicant's claim for refugee protection under s.96 and s.97 of the Immigration and Refugee Protection Act (the "IRPA") was rejected.
[2] The Applicant, who is a 31-year-old male citizen of Colombia, fears persecution on account of his political opinion; he fears persecution at the hands of the Fuerzas Armadas Revolucionarias de Colombia (Revolutionary Armed Forces of Colombia) ("FARC").
[3] The RPD found that the Applicant was excludable under Article 1F(a) of the United Nations Convention Relating to the Status of Refugees ("the Refugee Convention") as an accomplice to the commission of crimes against humanity. An important issue advanced by the Applicant is whether the exclusion order is based on a reviewable error of law or fact.
[4] The following facts are not contested. After serving his compulsory one year basic military service, the Applicant was selected as one of the twelve best soldiers in his group that were being made reservists. He rose to the rank of sub-lieutenant in the army reserve, and worked on a voluntary basis as a recruitment officer with the 4th Brigade Recruiting Office in Medellin. From 1993 to 1996, the Applicant participated in two recruitment terms, and one more drive in December 1999 or January 2000, in which he interviewed and helped to select the best and most qualified candidates for recruitment into the army. The Applicant's recruitment drives required his attention some twelve weeks a year. It is also not contested that members of the Columbian Army committed crimes against humanity during the time that the Applicant acted as a recruitment officer.
[5] In reaching its decision, the RPD relied on its understanding ofRamirez v. M.E.I., [1992] 2 F.C. 306 (C.A.), and on key findings of fact with respect to the Applicant's knowledge of the crimes committed. In respect of each of these elements of the RPD's decision, I accept the Applicant's argument that manifest errors were made.
[6] With respect to the finding of law, the RPD made the following statement which includes a purported quote from Ramirez as follows:
... mere membership in an organization which from time to time commits international offenses will be sufficient for exclusion from refugee status where the organization is principally directed to a limited, brutal purpose, which may, by necessity, involve personal and knowing participation in persecutorial acts.... someone who is an associate of the principal offender can never be said to be a mere onlooker...
[Emphasis added]
(Decision, p.5)
Indeed, this quotation is not found in Ramirez. The quotation appears to be some form of "summary" of paragraphs 16 to 18 of Ramirez which read as follows:
¶ 16 What degree of complicity, then, is required to be an
accomplice or abettor? A first conclusion I come to is that mere
membership in an organization which from time to time commits
international offences is not normally sufficient for exclusion from
refugee status. Indeed, this is in accord with the intention of the
signatory states, as is apparent from the post-war International
Military Tribunal already referred to. Grahl-Madsen, supra, at page 277,
states:
It is important to note that the International Military Tribunal
excluded from the collective responsibility 'persons who had no
knowledge of the criminal purposes or acts of the organization and those
who were drafted by the State for membership, unless they were
personally implicated in the commission of acts declared criminal by
Article 6 of the Charter as members of the organization. Membership
alone is not enough to come within the scope of these declarations'
[International Military Tribunal, I. 256].
It seems apparent, however, that where an organization is principally
directed to a limited, brutal purpose, such as a secret police activity,
mere membership may by necessity involve personal and knowing
participation in persecutorial acts.
¶ 17 Similarly, mere presence at the scene of an offence is not
enough to qualify as personal and knowing participation (nor would it
amount to liability under section 21 of the Canadian Criminal Code),
though, again, presence coupled with additional facts may well lead to a
conclusion of such involvement. In my view, mere on-looking, such as
occurs at public executions, where the on-lookers are simply by-standers
with no intrinsic connection with the persecuting group, can never
amount to personal involvement, however humanly repugnant it might be.
However, someone who is an associate of the principal offenders can
never, in my view, be said to be a mere on-looker. Members of a
participating group may be rightly considered to be personal and knowing
participants, depending on the facts.
¶ 18 At bottom, complicity rests in such cases, I believe, on the
existence of a shared common purpose and the knowledge that all of the
parties in question may have of it [shared common purpose]. Such a principle
reflects domestic law (e.g., subsection 21(2) of the Criminal Code), and I believe is the best interpretation of international law.
[7] Thus, Ramirez distinguishes how to judge principally directed organizations as opposed to those that commit international offences from time to time, while the "summary" does not. It is agreed that, with respect to the present case, the Columbian army is not an organization that is principally directed to a limited, brutal purpose, and, thus, I find it should not have been considered as such by the RPD. It is unclear as to what was in the mind of the RPD about this issue when it judged the Columbian army and, as a consequence, the Applicant's conduct. As a result, I find that the use of the "summary" by the RPD constitutes a serious and potentially damaging error in law.
[8] With respect to defining errors in the findings of fact, I can do no better than quote the following passage from Counsel for the Applicant's Supplemental Memorandum of Argument, the accuracy of which is not contested:
3. The Board, in determining that it was not plausible that the applicant was not aware of (and therefore was complicit in) army sponsored human rights violations, relied on the following:
· The Board noted that "When he was further asked, what did he hear of the Colombian army, he responded that he heard that the Colombian army had been involved in human rights violations; he hard and saw it on TV, but it involved other Brigades. He said that he doubted it at the time because his experience at the 4th brigade was that they were decent people and that what he saw on the TV related to activity in combat zones."
Reasons for Decision, Application Record, Tab 2, page 18
· The Board noted that there was direct dialogue with Commanders of the 4th brigade army, whose office was next door to the recruiting office.
Reasons for Decision, Application Record, Tab 2, page 19
· The Board noted that the applicant admitted that he was aware of reports of incidents such as the San Rafeal, San Carlos and El Aro massacres and admitted that the crimes of General Ospina were very much in the news.
Reasons for Decision, Application Record, Tab 2, page 20
4. First a review of the Tribunal record reveals that the applicant did was not asked "what did you hear about the Colombian army" and answer "that they had been involved in human rights violations." Rather, the applicant was asked what had he heard with respect to human rights violations regarding the Colombian army and initially answered that he had heard that far away brigades in combat zones had been involved in human rights violations but that there was much speculation and that the applicant doubted this to be true given the professionalism of the Fourth Brigade, with which he was associated.
Tribunal Record at pages 634-635.
5. Later, however, the applicant clarified his statement by indicating that the criticisms leveled against the army were that they didn't respond quickly or were not in the places they were supposed to have been when massacres had taken place.
Tribunal Record at pages 690
6. With respect to point about there having been direct dialogue with Commanders of the 4th Brigade army, a review of the Tribunal Record indicates that the applicant was a part-time (6-12 weeks per year) reservist with the Colombian army who was not assigned to a battalion but rather to a recruiting office, who helped in the army's recruiting process, who was not involved in operations or intelligence, who never went into the headquarters of the Brigade, who had no supervisory capacity whatsoever and who (at most) had mundane dealings with low level officers in the course of helping to select recruits. In response to the question of whether or not he ever had contact with combat soldiers the applicant answered "Yes, I remember when we were doing our recruiting for regular soldiers, the ones that were eventually be assigned for combat units, the commander and two or three soldiers from those units, they used to come to the recruiting day to give a second opinion and at the end their final opinion of who was going to be recruited for that particular unit. So, I talked, a few times I talked to the officer and the soldiers that were with them. Not really deep chats, but, you know, you spend a day with that people and you end up having a conversation".
Tribunal Record at pages 620-632, 640, 644, 650, 663, 665 and 720
7. Finally, the Board erred in stating that the applicant testified that he had knowledge of incidents such as the San Rafael, San Carlos and El Aro massacres. In fact the applicant in his testimony indicated that he had no knowledge of the San Carlos massacre, or El Aro massacre and a review of the Tribunal Record casts doubt on whether or not he had heard of the San Rafaell incident. Finally, with reference to General Ospina that applicant indicated that he had not heard of the General being linked to human rights abuses or working with paramilitary death squads.
Tribunal Record at pages 673 (San Carlos), 668 (El Aro) 671-672 (San Rafael), and 669 (General Ospina)
8. The above are examples of the Board making erroneous findings of facts, are examples of the Board ignoring the applicant's evidence or are examples of the Board coming to a perverse conclusion (in determining that the applicant had complicity in the crimes committed by the Colombian army because he had occasional informal 'chats' with commanding officers in the course of helping with the recruiting process). Each of these are reviewable errors.
[9] Given the significance of the damning effect on the Applicant of the RPD's conclusion with respect to Article 1F(a) of the Refugee Convention, and given the errors of law and fact found which are crucial to reaching the conclusion, I find that the RPD's decision was made in reviewable error.
ORDER
Accordingly, I set aside the RPD's decision and refer the Applicant's claim for refugee protection to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: IMM-3749-04
STYLE OF CAUSE: RASMUSSEN TORRES HERRERA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: APRIL 5, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: APRIL 7, 2005
APPEARANCES BY:
David Orman FOR THE APPLICANT
Bernard Assan FOR THE RESPONDENT
SOLICITORS OF RECORD:
David Orman
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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