Date:
20120928
Docket:
IMM-2674-12
Citation:
2012 FC 1145
Ottawa, Ontario,
September 28, 2012
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
|
|
DZANI JASAREVSKI
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review involves an individual who was excluded from his refugee claim
by operation of Article 1F(a) of the Convention Relating to the Status of
Refugees, 1951, Can TS 1969 No 6 – serious reasons for considering that he
has committed a crime against peace, a war crime, or a crime against humanity.
[2]
There
are two issues in this judicial review:
1. Did
the Immigration and Refugee Board member [the Member] apply the wrong legal
test for exclusion?
2. Did
the Member make credibility findings that led to inferences about the
Applicant’s involvement in such crimes and thereby reverse the onus regarding
exclusion?
II. FACTS
[3]
The
Applicant is a Croatian, a Roma, and a Muslim. He spent his year of conscripted
service (1984-85) in the Yugoslavian Army as a military policeman.
[4]
He
was later conscripted in 1991 into the Croatian National Army as a military
policeman where he claims to have remained for two years – beyond the
conscription period required for all males over 18 years.
[5]
The
Applicant claimed that he left the Croatian military in 1993 because of their
actions against Muslims.
[6]
During
his second period of military service the Applicant was stationed in and around
Zagreb. It is well-documented that during this period the Croatian army
forcefully evacuated from their residences, beat and sometimes killed Serbs.
This was during the height of the wars in the former Yugoslavia which pitted
Croatians against Serbs (as well as wars with Bosnians and Kosovars).
[7]
The
Applicant claimed that his duties as a military policeman were solely to take
care of drunken soldiers.
[8]
The
Member in his decision outlined the relevant case law including Ezokola v
Canada (Minister of Citizenship and Immigration), 2011 FCA 224, leave to
appeal to SCC granted, 2012 CarswellNat 1173 (SCC) [Ezokola], which
confirmed the test for complicity as the “personal and knowing participation”
rather than “personal and knowing awareness”, which was the test applied by the
Federal Court in Ezokola.
[9]
There
was no issue that the Applicant had not committed any of the crimes specified
in Article 1F(a):
1.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;
[10]
The
Member then turned to the factors mandated to be examined in a complicity case:
·
method
of recruitment;
·
nature
of the organization;
·
position
in the organization;
·
knowledge
of atrocities;
·
length
of time as a member; and
·
opportunity
to leave the organization.
[11]
The
Member’s conclusion is summarized at paragraph 47 of the decision:
Considering the evidence before me, I find the
claimant voluntarily associated with the Croatian Military Police longer than
required to [sic] as required by conscription laws. On a balance of
probabilities, I find that he was aware of atrocities being committed by the
Croatian Military Police against the Serbian civilian population and persons
deprived of their freedom, whether civilian or hors de combat militants,
in Zagreb and throughout Croatia. I conclude that the Croatian Military Policy
contributed to the Croatian Army’s goal of “cleansing” Croatia of ethnic Serbs. As part of a unit in charge of the “Defense of Zagreb” and given his role
of patrolling the streets, I do not find credible that his role was restricted
only to bringing drunken soldiers back to the barracks. As such, I find that
there are serious reasons for considering that the claimant was also involved
in military operations. I therefore find that there are serious reasons for
considering that the claimant facilitated the commission of those crimes and
that he is complicit in crimes against humanity and therefore excluded under
Convention article 1F(a).
III. ANALYSIS
A. Standard of Review
[12]
With
regard to the standard of review, the standard of correctness applies to the
question of the test for complicity (Esokola at para 38).
[13]
Correctness
also applies to the analytical framework for the use of credibility findings. Both
in La Hoz v Canada (Minister of Citizenship and Immigration), 2005 FC
762, 278 FTR 229, and in Ventocilla v Canada (Minister of Citizenship and
Immigration), 2007 FC 575, 314 FTR 102, this Court has made clear that it
is the Minister who bears the burden of establishing the “serious reasons for
considering” and that negative credibility findings cannot be used to infer
that an individual is complicit where the burden has not been met in the first
place.
[14]
The
proper analytical framework is to require the Minister to meet the burden.
Credibility may be looked at where the individual attempts to explain away what
on the face meets that burden.
[15]
As
to whether the facts meet the applicable legal tests is examined on a standard
of reasonableness (Esokola, above).
B. Legal Test
[16]
It
is important to bear in mind that the test is “serious reasons for
considering”, a threshold which is lower than that of the balance of
probabilities.
[17]
The
Applicant criticizes the decision by arguing that the Member used the word
“awareness” rather than “knowledge” (or “knowing”). This occurs at paragraph 38
of the decision under the heading “Knowledge of Atrocities” and in paragraph 47
as previously quoted. The Applicant argues that this word usage indicates the
same issue as Ezokola, where the Federal Court relied on a “knowing and
personal awareness” test, rather than the correct “knowing and personal
participation” test.
[18]
The
Federal Court of Appeal has said that test for complicity is “personal and
knowing participation” rather than simply “personal awareness”. It is a
precondition to “participation” that the person knows or is aware of the
offending actions. In this case, the Member used the term “awareness” as
synonymous with knowledge or knowing in the sense that “one knows” is the same
as “one is aware”.
[19]
The
term “participation” in the context of complicity does not mean actual
commission of the crime by the individual, but participation in the general
activities of an organization. In this case, an organization “with a limited
and brutal purpose” with the knowledge that the organization was involved in
such crimes.
[20]
The
Member did make an unreasonable finding when she found that the Applicant must
have been an officer because he could not be both a “private” and a “military
police officer”. The term police officer does not suggest or even imply that
such person was an officer – a person holding command responsibility. This
finding, however, was not crucial to the finding of complicity. The Applicant’s
complicity did not arise by virtue of his status as an officer but from his
knowing participation in an organization with a limited and brutal purpose. The
Applicant does not contest that finding in regard to the Croatian Military
Police. The Member understood and applied the correct legal test.
C. Credibility Findings
[21]
It
was open to the Member to make a negative credibility finding as to the actual
role the Applicant played as a military policeman. The Minister established
that:
(a) the
Applicant stayed in military police longer than required; a fact admitted.
(b) he
was aware of the atrocities committed by the Croatian military police; again, a
fact he acknowledged that he knew because these abuses were reported in the
media.
(c) the
military police contributed to the Croatian Army’s goal of ethnic cleansing
including in Zagreb; a fact which the documents established.
(d) the
Applicant was involved in street patrols in Zagreb; a fact admitted.
(e) his
role was not simply that of bringing soldiers back to barracks; a fact denied.
[22]
The
last fact engages the adverse credibility finding. Given the finding that the
Croatian Army and its military police functioned with a limited and brutal
purpose of cleansing ethnic Serbs from Croatia and given the other findings, it
was reasonable to conclude that the Minister had met its burden.
[23]
The
Applicant opened the credibility issue by attempting to diminish his role. It
was open to the Member to accept or reject his evidence. It is arguable (but I
need not decide it) that even if his role was taking care of drunken soldiers,
he had sufficient “personal and knowing participation” to be complicit given
the nature of the organization.
[24]
The
Member’s credibility findings were properly open to her.
IV. CONCLUSION
[25]
Considering
the decision as a whole, I find no reason for the Court to intervene.
[26]
This
judicial review will be dismissed. The parties agree that there is no question
for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Michael L. Phelan”
Email this Content