Date: 20050530
Docket: IMM-5239-04
Citation: 2005 FC 762
Ottawa, Ontario, May 30, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
CARMEN MARIA ZOEGER LA HOZ
ALESSIA MARIA CONTRERAS ZOEGER
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Docket: IMM-5240-04
BETWEEN:
MIGUEL LUIS CONTRERAS MAGAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application for judicial review of a negative decision made on May 10, 2004, by Member Bana Barazi of the Refugee Protection Division of the Immigration and Refugee Board (the Board).
[2] The Court is being asked to set aside the decision, in which the applicants were not granted refugee or protected person status, to order a new hearing before a differently constituted panel and to stay all removal orders for the duration of the proceedings.
BACKGROUND
[3] Miguel Luis Contreras Magan (the male applicant) is applying for judicial review of the Board's decision in IMM-5240-04. His wife, Carmen Maria Zoeger La Hoz (the female applicant), and their daughter, Alessia Maria Contreras Zoeger, are applying for judicial review of the same decision in IMM-5239-04. The Board provided its reasons for the three applicants' claims in a single decision. The applications for judicial review, IMM-5239-04 and IMM-5240-04, were heard on February 15, 2005, and, for the sake of convenience, are the subject of a single decision.
FACTS
[4] The applicants are Peruvian citizens. The male applicant was a member of the Peruvian armed forces from 1987 to 2002 as a military pilot. Around November and December 2001, he discovered a drug trafficking operation involving officers of the Peruvian army. After reporting it, he was asked to retire. He left the army on January 28, 2002.
[5] He found work as a pilot with a private company. On May 28, 2002, he was abducted and beaten by two individuals. The next day, his wife was threatened with retaliation if her husband went public with his report.
[6] Following these incidents, the family left Peru around June 17, 2002. When they arrived at the Canadian border on June 18, 2002, the applicants claimed refugee status in Canada.
[7] Hearings before the Board were held on February 16 and March 2, 2004. The Board handed down a negative decision on May 10, 2004. On November 17, 2004, leave was granted to file the present applications for judicial review.
IMPUGNED DECISION
[8] The Board concluded that the applicants were not refugees within the meaning of section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the Act) or persons in need of protection within the meaning of subsection 97(1) of the Act.
[9] In addition, the Board excluded the male applicant under paragraphs 1F(a) and (c) of the Convention on the grounds that he participated in human rights violations committed by the Peruvian army and that, during his military career, he was complicit in crimes against peace, war crimes and crimes against humanity, henceforth referred to as crimes against humanity.
[10] The Board had the following evidence: personal information forms (PIFs), testimony, personal documents and documentary evidence on socio-political conditions in Peru.
[11] First of all, the Board found that the male applicant's testimony was not credible and excluded him from application of the Convention. The Board did not believe his submission that his counter-espionage and intelligence duties were purely administrative. The Board found the claimant was evasive in his testimony, concluding that, in light of his rank, promotions and responsibilities, he could not have been unaware of the torture and abuses perpetrated against civilians or played a passive role in the Peruvian armed forces.
[12] Second, the Board could not see a nexus between the applicants' fear and the Convention grounds alleged, that is, their perceived political opinion and membership in a particular social group, namely, the family.
[13] Emphasizing the applicants' lack of credibility and the implausibility of their story and submissions, the Board found that the male applicant's alleged fear of two Peruvian officers, whom he discovered were involved in drug trafficking, could not be linked to any Convention grounds. The applicants could not claim refugee or protected person status. The refugee claim was rejected.
ISSUES
[14] In my view, the issues in this judicial review application are the following:
1. Did the Board err in excluding the male applicant from application of the Convention?
2. Did the Board err in deciding that there was no nexus between the applicants' fear and the grounds in the definition of Convention refugee under section 96 of the Act, that is, political opinion and membership in a particular social group, namely, the family?
3. Did the Board err in deciding that the applicants were not persons in need of protection under subsection 97(1) of the Act?
ANALYSIS
1) Did the Board err in excluding the male applicant from application of the Convention?
[15] 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.
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98. La personne visée aux sections E ou F de l'article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
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[16] Paragraphs (a) and (c) of section 1F of the Convention stipulate:
| F. 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;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
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F. Les dispositions de cette Convntion ne seront pas applicables aux personnes dont 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;
c) qu'elles se sont rendues coupables d'agissements contraires aux buts et aux principes des Nations Unies.
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[17] Relying on the Federal Court of Appeal decision in Ramirez v. Canada (Minister of Citizenship and Immigration), [1992] 2 F.C. 306, the Board excluded the male applicant from application of the Convention, as it believed he had participated in the perpetration of violations and abuses and been complicit in crimes against humanity during his career in the Peruvian armed forces.
[18] The Board did not believe the male applicant's testimony, stating it was evasive in the extreme, vague and unclear, and included answers that could not be taken seriously. The Board found that the following elements of the male applicant's story were not credible:
- That he was unaware that the armed forces used torture and committed abuses against the civilian population;
- That he was unaware of the hostage-taking at the Japanese embassy, where the army ended the siege in a bloodbath;
- That he was unaware of abuses committed against civilians in villages where Shining Path members were operating, whereas the army was fighting them, and he had counter-espionage and intelligence duties;
- That he was unaware that there was a prison at the Callao base where he lived for six years, while his wife was able to provide explanations about this.
[19] The standard of proof to be applied in these cases consists in determining whether the Crown, on whom the burden rests, has proven that there are "serious reasons for considering" that the male applicant committed crimes against humanity: Ramirez, supra; Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298; Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433. This standard requires more than mere suspicion or conjecture but less than the civil standard of proof on a balance of probabilities: Sivakumar, supra.
[20] According to the Federal Court of Appeal in Ramirez, supra, a court that is asked to review a decision of the Board must determine whether, in spite of the tribunal's errors, no properly instructed tribunal could have come to a different conclusion on the basis of the correct approach. The standard of correctness should be applied to questions of law, and the standard of patent unreasonableness to questions of fact: Mugesera v. Canada (Minister of Citizenship and Immigration), [2004] 1 F.C.R. 3; 2003 FCA 325.
[21] In my view, the Board's decision to exclude the male applicant from application of the Convention cannot be upheld because it found he lacked credibility. The burden, however, is on the Crown to establish that there are "serious reasons for considering" that the male applicant committed acts described in section 1F. In this case, the Board seems to have concluded that the male applicant should be excluded because he did not provide convincing evidence that he did not commit these acts. This burden is not on the male applicant. The Board's reasoning on this matter is erroneous and warrants the intervention of this Court, since it erred in law.
[22] In cases of exclusion, once the relevant facts have been established, the Board is to determine whether the acts are crimes against humanity within the meaning of section 1F. This determination is a question of law: Ramirez, supra; Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646; Moreno, supra; Zrig v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 761; Mugesera, supra.
[23] The evidence must show that there are serious reasons for considering that the male applicant committed crimes against humanity. The Board did not address this issue. It did not establish which war crimes the male applicant allegedly committed. It simply referred to war crimes in broad terms and found that the Peruvian army frequently uses torture and commits acts of violence against civilians in areas where Tupac Amaru and Shining Path rebels are found. Since it ruled that the male applicant's testimony was not credible, the Board concluded that, because he was a member of the Peruvian army, he was responsible for these crimes. In my view, these reasons are not sufficient to establish that the male applicant committed crimes against humanity.
[24] The second step in assessing exclusion is determining the extent of the male applicant's involvement. The various degrees of involvement in perpetrating crimes against humanity have been clearly set out by the Federal Court of Appeal in Sivakumar, supra. Depending on the facts, an individual can be:
- directly involved
- complicit
- complicit through association
[25] In determining the validity of exclusion on grounds of complicity or complicity through association, it must be established that the refugee claimant personally and knowingly participated in acts of persecution: Ramirez, supra. As the Federal Court of Appeal has stated at paragraph 39 of its decision in Moreno, supra, complicity rests also on the existence of common intent of the perpetrator and accomplice.
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.
[26] In my view, the Board found, without providing sufficient reasons, that the male applicant was responsible for perpetrating the acts listed in paragraphs (a) and (c) of section 1F of the Convention simply because he had been a member of the Peruvian army, which, according to documentation on current conditions in Peru, has members that have committed these acts. My review of the entire record leads me to conclude that the Board did not consider whether it had been proven that the male applicant personally and knowingly participated in the perpetration of these crimes.
[27] I will rely on case law of this Court, according to which merely belonging to an organization that, as the male applicant argues, is a legal entity responsible for defending Peruvian territory and is recognized by the Peruvian constitution is insufficient to establish complicity or complicity through association, unless the organization is principally directed to a limited, brutal purpose, such as a secret police: Ramirez, supra; Sivakumar, supra. At the hearing, it was agreed that the Peruvian army is not such an organization.
[28] In his affidavit and testimony, the male applicant stated that he did not hold a strategic position in the Peruvian army in the early years of his military service. When he became a pilot, he had no decision-making powers and flew reconnaissance, not combat, aircraft. As chief of the intelligence section, he had to prevent drug traffickers from infiltrating the battalion and protect the base from terrorist attacks. He argues that he never had a post in the insurgent areas where, according to the documentary evidence, the Peruvian army has committed acts of repression. He maintains that he was not aware of the army's plans concerning the intervention at the Japanese embassy during the hostage-taking incident.
[29] The Board must express its factual conclusions in support of its decision to exclude refugee claimants under the Convention, as the Federal Court of Appeal found at page 449 in Sivakumar,supra. Providing insufficient findings of fact constitutes an error of law.
The importance of providing findings of fact as to specific crimes against humanity which the refugee claimant is alleged to have committed cannot be underestimated. . . . Given the seriousness of the possible consequences of the denial of the appellant's claim on the basis of section F(a) of Article 1 of the Convention to the appellant and the relatively low standard of proof required of the Minister, it is crucial that the Refugee Division set out in its reasons those crimes against humanity for which there are serious reasons to consider that a claimant has committed them. In failing to make the required findings of fact, I believe that the Refugee Division can be said to have made an error of law.
[30] Case law clearly illustrates what kind of findings the Board can make. For example, in Moreno, supra, the male applicant was a soldier of the Salvadoran army who stood guard outside a cell while two lieutenants interrogated and tortured a prisoner inside. Also, in Gutierrez, supra, the male applicant, a member of the armed forces transferred to the Ministry of the Interior, had to transport injured detainees to secret detention centres. He even said he had to transport the corpse of a detainee who had been killed by the police.
[31] No such specific findings were made in this case. Procedural fairness requires that specific findings be made regarding crimes the Board feels have been committed by a claimant. In my view, the Board limited itself to drawing inferences without clearly establishing the crimes the male applicant participated in. It simply laid responsibility on him for crimes committed by the Peruvian army, that is, acts of torture and abuses against the civilian population, based on documentary evidence on Peru. The Board did not establish the male applicant's complicity in the perpetration of these acts. Since it found the male applicant was not credible, the Board concluded that he had been involved in the commission of broadly defined crimes. The Court cannot uphold this conclusion. Since this omission is an error of law, I find that the Board's decision is incorrect and that intervention is warranted in this case with respect to the finding of the male applicant's exclusion.
2. Did the Board err in deciding that there was no nexus between the applicants' fear and the grounds in the definition of Convention refugee under section 96 of the Act, that is, political opinion and membership in a particular social group, namely, the family?
[32] To establish refugee status, there must be a clear nexus between the refugee claimant and the alleged persecution on one of the Convention grounds, that is, race, religion, nationality, membership in a particular social group or political opinion: Pour-Shariati v. Canada (Minister of Employment and Immigration), [1997] F.C.J. No. 810, online: QL.
Standard of review
[33] A pragmatic and functional analysis should be carried out to identify the appropriate standard of review in this case. This method has been established by the Supreme Court of Canada in Pushpanathan v. Canada, [1998] 1 S.C.R. 982 and Dr Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226.
[34] The following factors must be taken into account in the pragmatic and functional approach:
(a) The nature of the appeal or review mechanism
(b) The expertise of the tribunal relative to that of the Court
(c) The purpose of the legislation
(d) The nature of the question
(a) The nature of the appeal or review mechanism
[35] This first factor is neutral in this case. The Act does not provide for a right to appeal the Board's decision or a privative clause. Instead, it provides for a review mechanism under section 72 of the Act: judicial review by this Court. Exercising this right is commenced by making an application for leave (subsection 72(1) of the Act). A decision on an application for leave cannot be appealed (paragraph 72(2)(e) of the Act). I therefore conclude that the legislative framework provides for a certain degree of deference.
(b) The expertise of the tribunal relative to that of the Court
[36] Comparing the expertise of the tribunal with that of the Court requires a review of three factors. The Court must:
1. Characterize the expertise of the tribunal
2. Consider its own expertise relative to that of the tribunal
3. Identify the nature of the specific issue before the tribunal relative to this expertise
[37] The Refugee Protection Division of the Immigration and Refugee Board is an administrative tribunal that has specialized knowledge of immigration and refugee protection matters. The members of the Refugee Protection Division are appointed by the Governor in Council (paragraph 153(1)(a) of the Act). They need not be career civil servants and do not necessarily have extensive expertise or knowledge. The Board, however, does have institutional expertise, since it is a specialized tribunal that deals with immigration and refugee protection matters every day.
[38] I note, however, that under subsection 153(4) only 10% of members must be members in good standing at the bar of a province or the Chambre des notaires du Québec. Therefore, in spite of the fact that it has exclusive jurisdiction under subsection 162(1), Board tribunals have limited expertise relative to this Court, which, in my view, allows for less deference in the case of questions of law.
(c) The purpose of the legislation
[39] The provisions of the Act dealing with refugee protection are clearly not of a criminal or tax-related nature. They do, however, put individuals and the state in adversarial positions to some extent. In fact, individuals claiming refugee protection in Canada stand alone against the state, which decides whether protection is to be granted or not. The same provisions of the Act also include a measure of polycentricity, since they are intended to reconcile issues relating to contradictory political objectives and the interests of different groups, as clearly indicated by subsection 3(2) of the Act, which sets out legislative objectives concerning refugees. These include saving lives and offering protection to the displaced and persecuted (paragraph 3(2)(a)), fulfilling Canada's international legal obligations (paragraph 3(2)(b)) and granting, as a fundamental expression of Canada's humanitarian ideals, fair consideration to those who come to Canada claiming persecution (subsection 3(2)(c)). Therefore, I feel that the Court must show some, but not complete, deference.
(d) The nature of the question
[40] The contentious issue in this case is whether, under the circumstances, the applicants can be deemed Convention refugees under section 96 of the Act, which sets out specific persecution grounds, namely race, religion, nationality, membership in a particular social group and political opinion. The Refugee Protection Division is to examine the facts in the record and determine whether, in law, claimants have been persecuted on one of the grounds. Determining whether there is a nexus between the facts in the record and the persecution grounds described in section 96 of the Act clearly involves questions of mixed fact and law.
[41] Admittedly, the tribunal does have more expertise with respect to factual issues than this Court and is in direct contact with claimants. It is in a better position to assess the evidence and make findings of fact. For legal issues, however, the tribunal does not have any particular expertise, and this Court is in a better position to deal with these issues.
[42] According to the Supreme Court of Canada in Dr. Q., supra, at paragraph 34, the standard to be applied to questions of mixed fact and law largely depends on the question, i.e., whether it is more of a factual nature or of a legal nature.
When the finding being reviewed is one of pure fact, this factor will militate in favour of showing more deference towards the tribunal's decision. Conversely, an issue of pure law counsels in favour of a more searching review. This is particularly so where the decision will be one of general importance or great precedential value: Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3">2002 SCC 3, at para. 23. Finally, with respect to questions of mixed fact and law, this factor will call for more deference if the question is fact-intensive, and less deference if it is law-intensive.
[43] In the case at bar, the Board had to determine whether the Convention applies under the circumstances-the male applicant's duties in the Peruvian armed forces, the fact that he reported a drug trafficking operation involving other soldiers, the threats he received-because of the nexus between these facts and the persecution grounds described in section 96 of the Act. In my view, the question is neither fact-intensive nor law-intensive; rather, it is a question of mixed fact and law.
[44] After reviewing the criteria of the pragmatic and functional analysis, I find that, with respect to determining whether there is a nexus between a refugee claim and the persecution grounds under section 96 of the Act, the appropriate standard of review is reasonableness simpliciter. This was Gibson J.'s finding in Jayesekara v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1014.
[45] First of all, in applying this standard of review to the impugned decision, I cannot find that the Board made an unreasonable decision in ruling that there is no nexus between the male applicant's fear of losing his life at the hands of two officers, Rivas and Guevara, whom he discovered were trafficking drugs in the army, and the ground of political opinion. The evidence does not provide any indication that the male applicant's actions, reporting that two officers were trafficking drugs, had a political basis or could have been perceived as such by the persecutors.
[46] To base a claim on this ground, the persecution the male applicant fears must stem from his political opinion as manifested by his act: Ward v. Canada (Attorney General), [1993] 2 S.C.R. 689. The evidence in the record does not indicate that the male applicant's political convictions have been established by his act of reporting the drug trafficking operation. The evidence also does not lead me to find that the persecutors, the two officers, could have ascribed a political opinion to him. Essentially, the evidence in the record indicates that the male applicant acted within the boundaries of his duties in the army. It does not show that his actions were based on his political beliefs.
[47] Second, I cannot find that the Board's decision on the lack of a nexus with the ground of membership in a particular social group, namely, the family, is unreasonable. To make a claim as member of a particular social group under the Convention, there has to be a clear nexus between alleged persecution of a family member and what is taking place against the other family members: Casetellanos v. Canada (Minister of Citizenship and Immigration), [1995] 2 F.C. 190. In addition, the evidence must show that the persecution is against the family as a social group, not as just a family unit: Casetellanos, supra; Rafizade v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 359, online: QL.
[48] In this case, the male applicant's fear is based on the fear of being persecuted by two soldiers involved in drug trafficking, which the male applicant reported. Since the female applicant's allegation that high-ranked individuals were involved and used their official positions to persecute the applicants has not been established by the evidence, I feel it was reasonable for the Board to find that there was no nexus between the applicants' fear and the Convention grounds. As stated by the respondent, victims of criminal acts are not a social group under the Convention: Montchak v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 111, online: QL; Klinko v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 327.
[49] I therefore feel that the Court should not intervene in the Board's decision with respect to inclusion under section 96 of the Act.
3. Did the Board err in deciding that the applicants were not persons in need of protection under subsection 97(1) of the Act?
[50] It was conceded at the hearing that the Board's determination with respect to the application of subsection 97(1) of the Act rests on its assessment of the applicants' credibility.
[51] The Board found the following elements of the applicants' testimony to be implausible:
- That the male applicant could not explain why the original copy of his report and discharge papers were not entered into evidence, whereas they were at his mother's home;
- That their persecutors waited four months to order them not to disclose the report;
- That the male applicant is still a threat to the army even though he is no longer a member;
- That they claim they lived in hiding, whereas the male applicant openly worked as a pilot;
- That the male applicant allegedly never spoke about his problems with his wife;
- That they waited until June 17, 2002, to leave Peru, whereas the male applicant's US visa had been ready since August 24, 2001, and his wife's since November 9, 2001;
- That the male applicant did not lodge a complaint with the police after he was tortured by individuals he says he recognized, whereas the female applicant reported the threats she received to the police;
- That the applicants left their country two weeks after the female applicant lodged a complaint with the police, without waiting for the results of the investigation.
[52] It is settled law that, in judicial review, the standard of review applicable to credibility is patent unreasonableness: Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732, online: QL; R.K.L. v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116.
[53] The applicants argue that the Board did not consider some important elements of their testimony. The male applicant maintains that the Board ignored the fact that he tried to report the corruption, which led high-ranked officials using state means for their personal ends to persecute him and his wife. In addition, the applicants submit that the male applicant did not lodge a complaint with the police because he was in hospital. In their view, the Board ignored this, as well as the fact that he had to work to see to the needs of his family, even though they lived in hiding.
[54] I reviewed the hearing transcripts and the evidence in the record, and I cannot dismiss the Board's finding. In my view, based on the evidence as a whole, the Board's assessment of the applicants' credibility is not patently unreasonable. The finding is based on the evidence.
[55] Assessing credibility is within the Board's expertise, as it is in the best position to evaluate it: Aguebor,supra. This Court must show great deference to these determinations and should intervene only in cases where a decision is patently unreasonable. The Board's findings, in my view, are not patently unreasonable and do not require the Court's intervention.
[56] Let me add that, as the respondent has indicated, the applicants did not refute the presumption of state protection by providing clear and convincing evidence of Peru's inability to protect them: Ward, supra. The fact remains that the male applicant did not lodge a complaint with the police, and the family left Peru without even waiting for the outcome of the police investigation. I therefore cannot find that the Board erred in ruling that the applicants are not persons in need of protection within the meaning of subsection 97(1) of the Act.
CONCLUSION
[57] I feel that the Board's finding regarding the male applicant's exclusion from application of the Convention is erroneous and must be set aside. I do believe, however, that there is no basis for intervention in judicial review with respect to the Board's finding on the application of section 96 and subsection 97(1) of the Act in this case. The application for judicial review is therefore dismissed.
[58] The parties did not submit a serious question of general importance, as provided for by paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. No serious question of general importance will be certified.
ORDER
THE COURT ORDERS THAT:
1. The application for judicial review is allowed in part.
2. The application for judicial review of the Board's decision that the applicants are not refugees or persons in need of protection within the meaning of section 96 and subsection 97(1), respectively, of the Immigration and Refugee Protection Act is dismissed.
3. The application for judicial review of the Board's decision on the male applicant's exclusion from application of the Convention is allowed. The Board's decision on this issue is set aside. The matter is referred back for a new hearing before a differently constituted panel, solely on the exclusion issue.
4. No serious question of general importance is certified.
"Edmond P. Blanchard"
Certified true translation
Jason Oettel
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