Date:
20120606
Docket:
IMM-2851-11
Citation:
2012 FC 698
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 6, 2012
PRESENT: The Honourable Mr. Justice Montigny
BETWEEN:
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EUGENE MWALUMBA MATA
MAZIMA
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision
of the Refugee Protection Division of the Immigration and Refugee Board of
Canada (the panel) dated April 8, 2011. The panel determined that the
applicant was not a Convention refugee or a person in need of protection, under
section 98 of the Act and Article 1F(a) of the United Nations
Convention Relating to the Status of Refugees (the Convention). For the
reasons that follow, this application should be dismissed.
I. Facts
[2]
The
applicant, Eugene Mwalumba Mata Mazima, was born on March 1, 1977, in
Kinshasa, Democratic Republic of Congo (CRC). In 2001, when he completed his
university studies, he obtained a position in charge of computer services in
the Congolese armed forces (FAC) with the help of his cousin, Admiral Baudoin
Liwanga Mata Nyamunyobo (Admiral Liwanga), Chief of Staff in the FAC. In his
interview with the Security and War Crimes Unit on November 13, 2008, he
stated that his job consisted, more specifically, of creating a local computer
network to connect the office with the other departments of the army so they
would have the same database, and that he entered reports, managed computer
tools to ensure that the equipment functioned, and sometimes replied to certain
[translation] “regular” emails
from Admiral Liwanga. He did not have access to secret emails, and he had
no one under him. He also stated that he had never participated directly in
army operations. As well, he stated that he was aware of the fact that the
Congolese army had committed human rights violations, but he had never
witnessed violations of that nature.
[3]
In
2004, he had to leave his job with the FAC when Admiral Liwanga was dismissed.
After briefly returning to school, he obtained a position as a new technology research
officer for the Ministry of Foreign Affairs in Kinshasa. His job at that time
was to create a computer tool to connect the office and the transmission
department of the Ministry of Foreign Affairs, which was in charge of
correspondence between the office and Congolese embassies abroad.
[4]
When
the government that was installed for a transitional period, after a new
constitution was adopted in December 2005, was replaced following the
legislative and presidential elections held in 2006, the applicant was
relocated to the Embassy of the DRC in Algeria as second secretary. He was in
charge of administration and Congolese scholarship students in Algeria.
[5]
In
July 2007, the chargé d’affaires at the Embassy began to suspect that the
applicant was a member of the Alliance des patriotes pour la refondation du
Congo, an opposition party, because of the favours he was doing for certain
non-scholarship students from that party. In August 2007, the applicant learned
of a letter sent to the chargé d’affaires at the Embassy by the government of
the DRC directing that he be repatriated
to his country to be interrogated by the intelligence service.
[6]
The
applicant’s already precarious position with his government worsened when his
half‑brother, Veron Mwalumba, physically assaulted Francis Kalombo, a
close associate of President Joseph Kabila, at the 62nd General Assembly of the
United Nations in New York.
[7]
The
applicant therefore decided to leave Algeria, and on November 27, 2007, he
travelled to New York with his wife and two children. On November 29,
2007, they travelled by bus to the Canadian border, where they claimed refugee
status.
II. Impugned
Decision
[8]
It
is important to note, first, that the Minister’s representative did not assert
that the applicant had personally committed a crime against peace, a war crime,
or a crime against humanity, or that he was guilty of acts contrary to the
purposes and principles of the United Nations, as those offences are described
in Article 1F, paragraphs (a) and (c), of the Convention.
Accordingly, the panel reviewed the case law relating to complicity, and stated
that it was of the opinion that the five following factors must be considered
in order to determine whether an individual is complicit in a crime against
humanity: (1) the methods of recruitment; (2) the nature of the
organization; (3) the applicant’s rank and length of time in the
organization; (4) his knowledge of the organization’s atrocities; and
(5) his opportunity to leave the organization.
[9]
The
panel then examined each of those factors in detail. It noted, first, that the
applicant was not forcibly recruited into the army, and on the contrary, got
his position through his cousin, Admiral Liwanga, who was at that time one
of the most powerful men in the country, as Chief of Staff in the FAC.
[10]
Second,
the panel noted that the documentary evidence referred to a violent civil war
that had raged in the DRC between 2001 and 2005. That war was marked by extreme
violence and human rights violations committed by both the rebel factions and
military troops. The panel agreed that it would be incorrect to conclude that
the entire Congolese army was directed to a limited and brutal purpose, but
nonetheless, certain battalions had committed human rights violations. In the
circumstances, the panel found that there were serious reasons for considering
that Admiral Liwanga, as the Chief of Staff, had approved the acts
committed by those battalions and the alliances that the government made with crooked
militias and warlords who had also committed crimes of that nature.
[11]
The
panel believed that the applicant had facilitated communication between
Admiral Liwanga and the various battalions and armed militias that were
committing acts of violence against the civilian population. He had therefore
been a [translation] “link in the chain”
and actively participated in that savage civil war.
[12]
In
addition, the panel stressed the fact that the applicant was aware of the acts
of violence committed by the FAC. In his Personal Information Form (PIF), the
applicant wrote: [translation] “Having
worked for over a year with the highest authorities of our army, I know very
well how our intelligence services proceed, both civil and military, to obtain
confessions from someone who is accused of treason; they do not hesitate to use
torture and other degrading methods” (Decision of the panel, Applicant’s Record,
p. 15).
[13]
In
spite of that knowledge, the applicant continued to work for the Chief of
Staff. He did not leave that position with the army for moral or political
reasons; he did so solely after succeeding in a competition to work in the
Ministry of Foreign Affairs as a research officer for the Minister. He
therefore left the Chief of Staff to go and work elsewhere for the same
government, which turned a blind eye to the abuses committed by its army.
[14]
The
panel therefore concluded that there were serious reasons to consider that the
applicant was complicit in crimes against humanity or war crimes committed by
factions of the FAC and was excluded under Article 1F(a) of the
Convention.
[15]
On
the other hand, the applicant’s wife and children established a well-founded
fear of persecution, given that the wife is the daughter of an important member
of the opposition and that her brother, who is also involved in the opposition,
was allegedly a victim of the secret police. Obviously, this application for
judicial review is not intended to reopen that portion of the decision.
III. Issues
[16]
Two
questions must be decided in disposing of the application made by the applicant:
- Did the panel err in law by
misinterpreting the concept of complicity in the context of Article 1F(a)
of the Convention?
- Did the panel make an erroneous
finding of fact when it found that the applicant had been complicit in crimes
committed by his government?
IV. Analysis
[17]
The
first question is plainly a legal one. In the case of that type of question,
the panel may not err, because different interpretations of the concept of
complicity, in applying the exclusion clause, would not be permissible.
Accordingly, the standard that must be applied is correctness (see, inter
alia, Ezokola v Canada (Minister of Citizenship and Immigration),
2010 FC 662 at paragraphs 54‑59, [2011] 3 FCR 377 (Ezokola #1)
aff’d 2011 FCA 224 at paragraph 39, [2011] 3 FCR 417 (Ezokola #2)).
[18]
In
addition, the second question involves considerations of mixed fact and law.
Accordingly, it must be analyzed by applying the reasonableness standard. As
the Supreme Court stated in Dunsmuir v New Brunswick, 2009 SCC 9 at paragraph
47, [2008] 1 S.C.R. 190, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process, and also with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
(A) Did the panel err in law by
misinterpreting the concept of complicity in the context of Article 1F(a)
of the Convention?
[19]
Section 98
of the Act provides that a person referred to in Article 1F(a) of the
Convention is not considered to be a refugee or a person in need of protection,
and accordingly may not be granted the protections afforded by the Convention
and the Act. Those provisions read as follows:
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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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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;
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F.
Les dispositions de cette Convention 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 rime contre
l'humanité, au sens des instruments internationaux élaborés pour prévoir des
dispositions relatives à ces crimes;
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[20]
In
this case, the Minister did not attempt to prove that the applicant had
personally committed one of those crimes. However, it is settled law that
complicity is just as reprehensible as the commission of the act itself. As the
Federal Court of Appeal wrote in Canada (Minister of Citizenship and
Immigration) v Bazargan (1996), 205 NR 282 at paragraph 11, 67 ACWS (3d)
132 (Bazargan): “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.” The culpability of an accomplice is accordingly no less than that
of the individual who committed the crime. The question is therefore whether
the panel correctly interpreted the concept of complicity, having regard to the
abundant case law of this Court and the Federal Court of Appeal on the subject.
[21]
This
question was recently the subject of exhaustive examination in Ezokola #2,
above. After reviewing its leading decisions on this subject (Ramirez v
Canada (Minister of Employment and Immigration), [1992] 2 FC 306 (available
on QL) (Ramirez); Moreno v Canada (Minister of Employment and
Immigration), [1994] 1 FC 298 (available on QL); Sivakumar v Canada (Minister
of Employment and Immigration), [1996] 2 FC 872 (available on QL); Bazargan,
above; Sumaida v Canada (Minister of Citizenship and Immigration), [2000]
3 FC 66 (available on QL); Harb v Canada (Minister of Citizenship and
Immigration), 2003 FCA 39, 238 FTR 194), the Court of Appeal reiterated the
criterion of “personal and knowing participation” developed by Justice MacGuigan in
Ramirez, above. Justice Noël. summarized that decision as follows:
In Ramirez, MacGuigan J.A. states that an
individual cannot have committed crimes under Article 1F(a) of the
Convention—including crimes against humanity—“without personal and knowing
participation” (pp. 316, 317). He adds that mere membership in an organization
which from time to time commits international offences is not normally
sufficient for exclusion from refugee status. This is not the case, however,
where an organization is principally directed to a limited, brutal purpose (p.
317). MacGuigan J.A. adds that members of an organization may, depending on the
facts, be considered to be personal and knowing participants. In such cases,
“complicity rests . . . on the existence of a shared common
purpose and the knowledge that all of the parties in question may have of it”
(pp. 317, 318). He also states that it is undesirable to go beyond the
criterion of “personal and knowing participation” in persecutorial acts in
establishing a general principle; the rest should be decided in relation to the
particular facts of each case (p. 320).
Ezokola
#2, above, at paragraph 52.
[22]
Having
regard to the criterion of personal and knowing participation, the Court of
Appeal concluded that the applications judge had applied too narrow a test in
requiring personal participation by the individual in the crimes alleged,
whether by carrying them out personally or facilitating their commission in the
manner described. On the other hand, the Court of Appeal also held that the panel
had erred in applying a “personal and knowing awareness” test and confusing
“awareness” with “participation”. As noted by the Court of Appeal, personal
knowledge is certainly one of the elements required for personal and knowing
participation, but it is not sufficient in itself.
[23]
A
careful reading of the panel’s reasons does not disclose any error in terms of
the test adopted for assessing the applicant’s complicity. At the hearing,
counsel for the applicant did not in fact question the analytical process used
by the panel, although she cited the decision of the Federal Court in Ezokola
#1, above, in arguing that the applicant could not be considered to be
complicit in the crimes committed by his government simply because he had
knowledge of those crimes and worked in that government.
[24]
In
fact, the panel applied the standard of proof correctly in finding that the
Minister had established that there were “serious reasons for considering” that
the claimant had engaged in the acts alleged against him. Obviously, that
standard is considerably lower than the standard that applies in criminal law
(“beyond a reasonable doubt”) or even in civil law (“on a balance of
probabilities”). The reason for this is simply that the panel is required to
determine not whether the person concerned is criminally responsible, but only
whether they may claim refugee protection in Canada (Ramirez, above,
at pages 311‑312; Sivakumar v Canada (Minister of Employment and
Immigration), [1994] 1 FC 433 at page 445 (available on QL) (FCA); Bazargan,
above, at paragraph 12; Kaburundi v Canada (Minister of Citizenship and
Immigration), 2006 FC 361 at paragraph 18, 155 ACWS (3d) 915).
[25]
Although
it is not disputed that the FAC committed crimes against humanity
between 2001 and 2004, the panel acknowledged that the FAC could not
be considered to be an organization directed to a limited and brutal purpose. Accordingly,
the applicant could not be presumed to have participated in crimes against
humanity simply because of his membership in his country’s armed forces.
Accordingly, the Minister had the onus of proving, according to the applicable
standard of proof, that he participated in his government’s crimes.
[26]
It
is settled law that personal and knowing participation does not require
physical presence on the scene of the crime and may be proved by showing the
existence of a common intention. That is precisely what the panel sought by
examining the following factors: (1) the methods of recruitment;
(2) the nature of the organization; (3) the applicant’s rank and
length of time in the organization; (4) his knowledge of the
organization’s atrocities; and (5) his opportunity to leave the
organization. Those factors are all consistent with the decisions of this Court
(see, inter alia, Petrov v Canada (Minister of Citizenship and
Immigration), 2007 FC 465 at paragraphs 53, 57 ACWS (3d) 599; Fabela
v Canada (Minister of Citizenship and Immigration), 2005 FC 1028 at paragraph
24, 277 FTR 20; Kathiripillai v Canada (Minister of Citizenship and
Immigration), 2011 FC 1172 at paragraph 19, 398 FTR 178; Rutayisire v
Canada (Minister of Citizenship and Immigration), 2010 FC 1168 at paragraph
11, 379 FTR 44).
[27]
In
short, I am of the opinion that the panel stated the legal principles that are
applicable to complicity correctly. It now remains to determine whether it
applied them correctly.
(B) Did the panel make an
erroneous finding of fact when it found that the applicant had been complicit
in crimes committed by his government?
[28]
In
this case, the applicant did not challenge the panel’s decision that he was
never forced to hold the position of person in charge of computer services in
the FAC, or that he had knowledge of the atrocities committed by certain
members of the FAC before accepting the position in question, or that he left
that job voluntarily, or following the dismissal of Admiral Liwanga,
according to his testimony at the hearing, and not at the first available
opportunity.
[29]
In
fact, the issue between the parties relates to the panel’s finding that the
applicant had held an important position in the FAC that enabled the commission
of crimes against humanity. Where the applicant minimizes the effects of his functions,
the respondent is of the opinion that through the position he held, the
applicant facilitated or encouraged the commission of the crimes alleged
against the FAC.
[30]
The
applicant contended that he had performed relatively unimportant functions in
his government, which were limited to computer logistics and non-military administration,
that he had never worked in places where military operations were taking place,
that he was not in charge of anyone, and that he had no decision-making power
and could not have influenced the decisions made by his government. In the same
vein, the applicant argued that his subsequent positions in the Ministry of
Foreign Affairs and at the Embassy of the RDC in Algeria were not such as would
have enabled him to commit, encourage or conceal the crimes alleged against his
government, or to participate in them.
[31]
However,
that is not the test applied for determining whether an applicant was complicit
in war crimes or crimes against humanity, as we saw earlier. The question is
not so much whether the applicant was directly involved in crimes of that
nature, but whether he knowingly facilitated, encouraged or collaborated in the
commission of crimes of that nature.
[32]
The
applicant admitted that he had worked for one of the most powerful men in the
RDC for three years, and in question 31 of his PIF, he admitted that he
was aware of the acts of violence committed by the FAC and the militias funded
by the FAC against the population of his country. At the hearing before the
panel, he did attempt to minimize the impact of that admission by saying that
he been informed of the FAC’s excesses only because his brother-in-law had been
tortured, but that explanation is not very credible, given the extent of the
violence committed or encouraged by the army during the period and the fact
that it was common knowledge.
[33]
By
creating and maintaining a computer network to connect the office of the Chief
of Staff with the other units of the army throughout the country, the applicant
was not a mere spectator; he was contributing to the conduct of the military
operations. Even if the panel did not have direct evidence of it, it was not
unreasonable to conclude that the applicant had put his shoulder to the wheel
and knowingly participated in the crimes against humanity and war crimes
committed by the FAC in the course of its military operations.
[34]
The
applicant could have left his job at any time and put an end to his involvement
in the acts of violence committed by the FAC. He did not do that, and left his
position only after Admiral Liwanga was dismissed.
[35]
In
an application for judicial review, the role of this Court is not to decide
whether the applicant participated personally and knowingly in the crimes
committed by the FAC, it is to determine whether it was reasonable for the
panel to draw that conclusion. In light of the evidence in the record, and for
the reasons stated in these reasons for decision, I am of the opinion that the
panel could have reached that conclusion, and this Court should therefore not
intervene. The application for judicial review is accordingly dismissed.
[36]
Counsel
for the applicant proposed that the following question be certified:
[translation]
What degree of personal and knowing participation (mens rea) is required
for a person to be complicit in a crime against humanity?
[37]
Counsel
for the respondent objected to certification of the question, on the ground
that it did not meet the test laid down in the case law for applying
paragraph 74(d) of the Act. I agree.
[38]
The
legal principles surrounding the concept of complicity have been examined on
numerous occasions by this Court and the Federal Court of Appeal. A number of
those decisions have been referred to in these reasons. The Court of Appeal
considered this question again in Ezokola #2, above, which was decided
less than a year ago. Although the Supreme Court has granted leave to appeal
from that decision, it would not be in the interests of justice to reserve
decision in this case until Ezokola #2 has been decided by the highest
court in the land, given the time that this could take.
JUDGMENT
THE COURT ORDERS
AND ADJUDGES that the application for judicial review of
the decision of the Refugee Protection Division of the Immigration and Refugee
Board dated April 8, 2011, is dismissed.
“Yves
de Montigny”
Certified
true translation
Monica
F. Chamberlain
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