Date: 19990205
Docket: IMM-1447-98
OTTAWA, ONTARIO, THE 5TH DAY OF FEBRUARY, 1999
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
Between
JOSE GREGORIO QUINTERO MORENO,
MARIELA JOSEFINA PENA QUINTERO,
DIEGO ALBERTO QUINTERO PENA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
O R D E R
The application for judicial review is dismissed.
Certified true translation
Bernard Olivier
Date: 19990205
Docket: IMM-1447-98
Between
JOSE GREGORIO QUINTERO MORENO,
MARIELA JOSEFINA PENA QUINTERO,
DIEGO ALBERTO QUINTERO PENA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review of a decision of the Refugee Division holding that Jose Gregorio Quintero Moreno (the "male applicant") is excluded from Convention refugee status pursuant to Article 1F(b) of the Convention and that he is not a Convention refugee. The decision also held that his wife Mariela Josefina Pena Quintero (the "female applicant") and his son Diego Alberto Quintero Pena are not Convention refugees.
THE FACTS
[2] The applicants are citizens of Venezuela. In August 1990, the male applicant joined a far-left political movement named Bandera Roja. On two occasions, on February 4 and November 27, 1992, the male applicant participated as a member of Bandera Roja in attempted coups d"état perpetrated in Venezuela.
[3] In the first attempt, the male applicant loaded a van with weapons to deliver them to the Bandera Roja fighters. Following the initial arms delivery, the applicant and his group were to try to take control of a radio station to enable the movement to broadcast its messages.
[4] In the second attempted coup, the group tried to seize a television station. However, when the male applicant arrived with the weapons, the fighting had already begun. He assisted the people who were wounded in the fighting.
[5] The applicants claimed refugee status on July 13, 1995 on the ground of a well-founded fear of persecution in their country because of the male applicant"s political opinions.
ISSUES
| 1. Did the panel err when it found that the political situation in Venezuela was not sufficiently oppressive to justify the male applicant"s actions? |
| 2. Did the male applicant"s participation in the activities of Bandera Roja during the coup attempts constitute an act included in Article 1F(b)? |
| 3. Was the panel right in excluding the applicant from the Convention under Article 1F(b) or did it have a duty to consider the seriousness of the offences and compare it with the possibility of persecution that the applicant might face should he return to Venezuela? |
| 4. Did the panel err in refusing to grant refugee status to the female applicant? |
ANALYSIS
[6] Article 1F(b) of the Convention states:
1F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(b) he has committed a serious non-political crime outside the country or refuge prior to his admission to that country as a refugee.
1F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser :
b) Qu"elles ont commis un crime grave de droit commun en dehors du pays d"accueil avant d"y être admises comme réfugié.
Proportionality between the crime and the political situation
[7] In Gil v. M.E.I.,1 the Federal Court of Appeal held that there are two branches to the test used to determine whether a crime is "a serious non-political crime". First, the panel must determine whether the actions were committed for a clearly identifiable political purpose, and not for personal reasons. Second, an analysis must be made of the proportionality between the seriousness of the crime and the situation against which the person was fighting. On the first branch, the panel held that in view of the political instability existing at the time of the attempted coups, there existed a political context in which the decisions of a government confronted with a major economic crisis were of questionable legitimacy. Accordingly, the panel was satisfied that the first branch of the test was met.
[8] As to the second branch, the panel found that the situation did not justify the male applicant"s actions:
| |
[Translation] It is impossible, in these circumstances, to conclude that the coup was a justified method of changing the situation in the country in 1992, and that this method that was in fact used, which resulted in the death of many persons, was proportionate to the problems then being experienced by Venezuela. |
|
[9] The panel noted that:
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[Translation] Venezuela was not headed by a dictatorship in which no political parties were permitted, no elections were organized and no expression of dissenting opinion was tolerated. Presidential elections had been held for many years. The 1961 constitution provided for a Senate and a federal Congress as well as legislative assemblies in each of the country"s states for which elections are held. The governors and mayors were likewise chosen in general elections. A large number of parties existed in 1992 and could run candidates in the elections. |
|
[10] Given the situation that existed in Venezuela, it was reasonable for the panel to find that participating in a coup d"état resulting in the death of many people was not a method that was proportional and appropriate to the political situation in Venezuela.
The male applicant as leader or as participant
[11] The applicant alleges that he was not a leader of the Bandera Roja movement, that he was not armed and did not participate "personally and knowingly in persecutorial acts".
[12] However, he admits to being familiar with and generally subscribing to the ideology and methods used by Bandera Roja in order to achieve their objectives.
[13] In the Ramirez case,2 MacGuigan J.A. explained that taking part in the execution of a plan or conspiracy sufficed to establish liability for all of the acts committed by the persons executing that plan. Thus accomplices are treated similarly to the "leaders" or principal actors.
[14] "At bottom", said MacGuigan J.A., "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."
[15] In the case at bar, the male applicant had clearly expressed his common purpose with the Bandera Roja movement. As the panel states:
| |
[Translation] The claimant clearly expressed his political opinions to the effect that the use of violence was necessary in order to carry out the intentions of the movement to which he belonged. His group"s participation in the coups was fully consistent with their ideological line. The claimant shared that opinion and reaffirmed it before the panel.... Furthermore, the claimant very clearly established his intention to participate and his participation in two attempts to overthrow the government. [Emphasis added].3 |
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[16] He was responsible for delivering weapons, knowing that they would be used in an armed combat. The applicant demonstrated the requisite degree of participation to be an accomplice.
Consideration of refugee status after determining that Article 1F(b) applies
[17] The male applicant also submits that the panel should determine whether he is a refugee before considering Article 1F(b).
[18] The Federal Court of Appeal"s decision in Gonzalez v. Canada (M.E.I.)4 indicates that the panel is not obliged to proceed in some specific order, and that if it has determined that the claimant is excluded under 1F, it may terminate the assessment:
| |
In both Ramirez v. Canada (Minister of Employment and Immigration) and Sivakumar v. Canada (Minister of Employment and Immigration) the claimant had been found by the Refugee Division to have established a well-founded fear of persecution for a Convention reason should he return to his own country. In Moreno v. Canada (Minister of Employment and Immigration), the tribunal had not found it necessary to address that issue having found the exclusion of Article 1F(a) to apply. ... |
|
| |
The exclusion of Article 1F(a) is, by statute, integral to the definition. Whatever merit there might otherwise be to the claim, if the exclusion applies, the claimant simply cannot be a Convention refugee. |
|
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In my opinion, there is no error in law in either approach but there is a practical reason for the Refugee Division to deal with all elements of a claim in its decision. |
|
[19] The Refugee Division did not err, therefore, in failing to continue the assessment of the claim once it had determined that the applicant was excluded from the Convention under paragraph 1F(b).
Balancing the male applicant"s activities against the possibility of persecution
[20] The applicant submits that the panel should have balanced the nature of the crimes against the possibility of persecution that he might experience if he were to return to Venezuela. In Gonzalez, the Federal Court of Appeal held that such an exercise is not permissible.
| |
I find nothing in the Act that would permit the Refugee Division to weigh the severity of potential persecution against the gravity of the conduct which has led it to conclude that what was done was an Article 1F(a) crime.6 |
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[21] In Gil, Hugessen J.A. likewise rejected this approach, extending the principle to Article 1F(b):
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One final point. Another panel of this Court has already rejected the suggestion made by a number of authors that Article 1F(a) requires a kind of proportionality test which would weigh the persecution likely to be suffered by the refugee claimant against the gravity of his crime. Whether or not such a test may be appropriate for Article 1F(b) seems to me to be even more problematical.7 |
|
The female applicant
[22] In regard to the female applicant, the record indicates that all of the persons involved in the coups have been amnestied. It was therefore reasonable to conclude that if she were to return to Venezuela, she would have no further reason to fear persecution because of her husband"s activities.
[23] For these reasons, the application for judicial review is dismissed.
[24] There is no question to certify submitted by counsel.
OTTAWA, ONTARIO
February 5, 1999.
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: Jose Gregorio Quintero Moreno et al. v. Minister of Citizenship and Immigration |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: February 3, 1999 |
REASONS FOR ORDER OF TREMBLAY-LAMER J.:
APPEARANCES:
Denis De Rome FOR THE APPLICANTS
Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Denis De Rome FOR THE APPLICANTS
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General
of Canada
__________________
1 [1995] 1 F.C. 508 (F.C.A.).
2 Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (F.C.A.).
3 Reasons of the panel, at p. 6.
4 [1994] 3 F.C. 646 (F.C.A.).
5 Ibid. at pp. 655 and 657.
6 Ibid.
7 Supra note 1, at 534.
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