Omar v. Canada (Minister of Citizenship and Immigration), 2004 FC 861

                                                                                                                                   Date: 20040617

                                                                                                                        Docket: IMM-2452-03

                                                                                                                          Citation: 2004 FC 861

BETWEEN:

                                IDLEH DJAMA OMAR, ZAHRA MOUSSA AHMED,

                          FATOUMA MERANEH YONIS, DEKA MOUSSA AHMED,

                                     ABDOULRAZAK DJAMA, LIBAN DJAMA and

                                        HODANE DJAMA, domiciled and residing at

                                   817 Dollard Avenue, Outremont, Quebec, H2V 3G8,

                                                                                                                                           Applicants

                                                                         - and -

MINISTER OF CITIZENSHIP

AND IMMIGRATION, c/o Department of Justice,

Guy Favreau Complex, 200 René-Lévesque West,

East Tower, 5th Floor, Montréal, Quebec, H2Z 1X4,

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

PINARD J.

[1]         This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated March 21, 2003, that the applicant and his dependants are not "Convention refugees" within the meaning of subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.

[2]         Idleh Djama Omar (the applicant) is acting as the principal applicant for his wife Deka Moussa Ahmed and for their three children, Abdoulrazak, Liban and Hodane, as well as for Fatouma Meraneh and Zahra Moussa. They are all citizens of the Republic of Djibouti and they allege that they have a well-founded fear of persecution if they were to return to Djibouti on the basis of their perceived political opinion, their membership in a particular social group, namely the family, as well as their nationality, namely their Issas-Fourlabas ethnicity.

[3]         The IRB determined that the applicants were not "Convention refugees" because their story was not credible. Further, the IRB determined that the principal applicant was excluded under paragraphs 1F(a) and (c) of the Convention because the panel had serious reason to believe that the applicant was guilty of acts contrary to the purposes and principles of the United Nations as a result of the duties that he performed at the Ministry of Foreign Affairs and International Cooperation (MFAIC) of the Republic of Djibouti.

[4]         In its decision, the IRB identified many inconsistencies and implausibilities in the applicant's story, leading it to determine that the applicant's well-founded fear of persecution was not credible. The IRB determined that the applicant had not been fired from his position as ambassador because of his membership in the Fourlabas clan, but rather because the term had ended for his position. Many letters in the record supported this determination. Moreover, the IRB did not err in its characterization of the events of December 7, 2000, since the applicant himself confirmed during his testimony that it had not been a coup d'état, but rather an "outburst of anger". Finally, it should be noted that the applicants lived in France for many years without ever making a refugee claim there. The applicants have not provided any reasonable explanation for this behaviour. The IRB could therefore reasonably hold this fact against the applicants.

[5]         Under the circumstances, therefore, the Court cannot substitute its own assessment of the facts for that of the IRB, which is a specialized tribunal, given that the applicants have failed to establish that the decision under review is based on a erroneous finding of fact made in a perverse or capricious manner or without regard for the evidence before it (see paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7, and Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)).

[6]         The panel's finding to the effect that there was no subjective basis for the applicants' fear is therefore upheld and that is sufficient basis to dismiss this application for judicial review.

[7]         However, I intend just the same to consider the issue of the applicant's exclusion under paragraphs 1F(a) and (c) of the Convention. On this point, the applicant submits that the IRB had no factual basis for finding that he was an accomplice by association with the crimes of the Djiboutian regime. The applicant submits that the IRB did not ask itself whether he and the government of Djibouti had a common purpose. I do not agree.

[8]         It is settled law that mere membership in an organization involved in international offences is not sufficient to exclude a claimant. Moreover, complicity between the applicant and the organization in question must be established (Ramirez v. Canada (M.E.I.), [1992] F.C.J. No. 109 (F.C.A.)). To establish this complicity, the claimant must have a shared common purpose with the organization to which he belongs and which is involved in the commission of international crimes; further, the applicant must have knowledge of these crimes and of these acts (Mukwaya v. Canada (M.C.I.), [2001] F.C.J. No. 972 (F.C.T.D.) and Murillo v. Canada (M.C.I.), [2003] 3 F.C. 287 (F.C.T.D.)). In Sungu v. Canada (M.C.I.), [2003] 3 F.C. 192, Blanchard J. gave an excellent overview of the caselaw on "complicity":

[31]          The question of complicity was also considered by Madam Justice Reed in Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.). Following an analysis of the decisions in Ramirez, supra, Moreno, supra, and Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), Reed J. concluded, at pages 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.

[32]          Likewise, in Sivakumar, supra, the Court of Appeal, following Ramirez, supra, explained that a person may be considered "an accomplice through association" and laid down the following principles:

- Complicity through association can mean that individuals may be rendered responsible for the acts of others because of their close association with the principal actors.

- Furthermore, the case for an individual's complicity in international crimes committed by his or her organization is stronger if the individual member in question holds a position of importance within the organization. The closer one is to being a leader rather than an ordinary member, the more likely it is that an inference will be drawn that one knew of the crime and shared the organization's purpose in committing that crime.

- In such circumstances, an important factor to consider is evidence that the individual protested against the crime or tried to stop its commission or attempted to withdraw from the organization.

- Association with an organization responsible for the perpetration of international crimes may constitute complicity if there is personal and knowing participation or toleration of the crimes.

[33]          Moreover, in Bazargan v. Canada (Minister of Citizenship and Immigration) (1996), 205 N.R. 282, the Federal Court of Appeal held that "personal and knowing participation" may be direct or indirect and does not require formal membership in the organization that is ultimately engaged in the condemned activities. It is not working within an organization that makes someone an accomplice to the organization's activities, but knowingly contributing to those activities in any way or making them possible, whether from within or from outside the organization. Those who become involved in an operation that is not theirs, but that they know will probably lead to the commission of an international offence, lay themselves open to the application of the exclusion clause in the same way as those who play a direct part in the operation.

[9]         In this case, the evidence clearly indicates that the Djibouti regime is engaged in the repression of human rights, the persecution and intimidation of the civilian population as well as in government corruption. The IRB found that the applicant was complicit in the Djibouti regime based on the confidential duties entrusted to him by the government at a time when the regime was engaged in activities characterized as crimes against humanity and activities against the purposes and principles of the United Nations. In effect, the applicant had been ambassador to Paris since 1997, occupying the highest office in the most important post outside Djibouti. Apart from this office, the applicant represented his country before the European Union and Mahgreb countries. He testified that he had knowledge of the crimes in which his government was engaged. The applicant who, because of his position in Paris, represented the party in power as well as the Djiboutian government, never tried to disengage himself from these crimes. The evidence indicates that since his recruitment by the MFAIC of Djibouti in 1988, the applicant has always demonstrated his ongoing, active and confident support to the regime. Under the circumstances, therefore, it is my opinion that the IRB assessed the situation reasonably well and that it correctly applied the exclusion clause against the applicant. Despite the skilful arguments of Mr. Bertrand, counsel for the applicants, the panel's finding regarding the applicant's exclusion must also be upheld.

[10]       For all of these reasons, the application for judicial review is dismissed.

                  "Yvon Pinard"                    

       JUDGE                           

OTTAWA, ONTARIO

June 17, 2004

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                                              FEDERAL COURT

                                                       SOLICITORS OF RECORD

DOCKET:                                                       IMM-2452-03

STYLE OF CAUSE:                            IDLEH DJAMA OMAR, ZAHRA MOUSSA AHMED, FATOUMA MERANEH YONIS, DEKA MOUSSA AHMED, ABDOULRAZAK DJAMA, LIBAN DJAMA and HODANE DJAMA v. MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                 Montréal, Quebec

DATE OF HEARING:                                    May 13, 2004

REASONS FOR ORDER:                             Pinard J.

DATE OF REASONS:                                    June 17, 2004

APPEARANCES:

Jean-François Bertrand                          FOR THE APPLICANTS

Michel Pépin                                                     FOR THE RESPONDENT

SOLICITORS OF RECORD:

BERTRAND, DESLAURIERS                         FOR THE APPLICANTS

Montréal, Quebec

Morris Rosenberg                                              FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario

                                                                                                                                     Date: 20040617

                                                                                                                         Docket: IMM-2452-03

Ottawa, Ontario, the 17th day of June 2004

PRESENT: THE HONOURABLE MR. JUSTICE PINARD

BETWEEN:

                                 IDLEH DJAMA OMAR, ZAHRA MOUSSA AHMED,

                           FATOUMA MERANEH YONIS, DEKA MOUSSA AHMED,

                                     ABDOULRAZAK DJAMA, LIBAN DJAMA and

                                         HODANE DJAMA, domiciled and residing at

                                    817 Dollard Avenue, Outremont, Quebec, H2V 3G8,

                                                                                                                                            Applicants

                                                                          - and -

MINISTER OF CITIZENSHIP

AND IMMIGRATION, c/o Department of Justice,

Guy Favreau Complex, 200 René-Lévesque West,

East Tower, 5th Floor, Montréal, Quebec, H2Z 1X4,

                                                                                                                                          Respondent

                                                                        ORDER

The application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board, dated March 21, 2003, that the applicant and his dependants are not Convention refugees within the meaning of subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, is dismissed.

                       "Yvon Pinard"                      

                              JUDGE

Certified true translation

Kelley A. Harvey, BA, BCL, LLB