Date: 20090522
Docket: IMM-5170-08
Citation: 2009 FC 530
Ottawa, Ontario, May 22, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
IMEDA
LIQOKELI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (the
Board) dated November 4, 2008, where it found the Applicant to be
excluded from protection under Article 1F(a) of the United Nations
Convention Relating to the Status of Refugees (the Convention) and found,
in the alternative, that he was neither a Convention refugee nor a person in
need of protection.
Issues
[2]
This
application raises the following questions:
1.
Did the Board err in finding that the Applicant is excluded from
protection under Article 1F(a) of the Convention for being complicit in crimes
against humanity?
2.
Did the Board err in finding that the Applicant had failed to
demonstrate the inability of the state to provide adequate protection?
[3]
For
the following reasons, the application for judicial review shall be dismissed.
Factual Background
[4]
The
Applicant, a citizen of Georgia, was a police officer
from December 1989 until June 1994, when he and other officers were suspended
for allegedly helping some prisoners escape. The Applicant was exonerated and
returned to the police force in February 1996 where he worked until July 1998. He
then resigned because of the corruption and worked as a mini-bus driver. He
rejoined the force from December 2005 until August 2006 because the new
president said he was opposed to corruption.
[5]
When
the Applicant rejoined voluntarily the police force, he was assigned to work as
a special guard responsible for investigating police officers who were
smuggling contraband into the prison. On March 26, 2006, while he was working
at Tblisi Prison Number 5, he overheard the chief of his department discuss a
plan to have some of his police officers shoot themselves and claim they had
been shot by prisoners to allow an excessive use of force against the
prisoners.
[6]
The
chief bribed two officers to shoot themselves and then a rumour spread that
prisoners had shot the guards. Eight hundred armed officers were sent to the
prison and killed twelve prisoners and wounded many others. The Applicant and
other special officers were ordered to guard the morgue and not let reporters
or other unauthorized persons enter.
[7]
The
Applicant spoke out in support of the prisoners to his superior officer, but he
was ordered not to discuss the event or to speak to the press. During a Parliamentary
investigation into the killings, he did not disclose what he knew about the
planned riot.
[8]
In
May 2006, the Applicant spoke to a reporter and said that the truth would come
out one day. He was suspended on the ground that he had provided guns to
prisoners. He was interrogated at the National Security Office on June 26, 2007
and was beaten and detained overnight. The Applicant went into hiding until he
could arrange to leave the country on August 23, 2008. He came to Canada and claimed
asylum. The Applicant’s wife and father have received calls asking for his
whereabouts.
[9]
On
October 5, 2007, the Minister gave notice of his intention to participate on
the issue of exclusion. The Minister alleges that the Applicant may be subject
to the exclusionary clauses related to crimes against humanity pursuant to
Article 1F(a) and (c) of the Convention. An amended Notice to Participate
indicated that the Minister has serious reasons to believe that the Applicant
was complicit in crimes against humanity, against civilian population, pursuant
to Article 1F(a) of the Convention. However, the amended notice did not refer
to Article 1F(c).
Impugned Decision
[10]
The
Board found the Applicant to be excluded from protection under Article 1F(a) of
the Convention for being complicit in crimes against humanity. The Board
assessed the six factors set out in Ramirez v. Canada (Minister of
Employment and Immigration), [1992] 2 F.C. 306 (C.A.) to determine whether
the Applicant was complicit in the crimes against humanity that were committed
against the inmate population during the time he was there and concluded that
there were serious reasons for believing so. In the alternative, the Board
determined that even if the Applicant was not excluded from protection, he
would still not be a Convention refugee or a person in need of protection
because he failed to provide clear and convincing evidence of the inability of
the state to provide adequate protection.
Analysis
Standard of review
[11]
The
Applicant’s complicity in the riot on March 26, 2006 and his exclusion pursuant
to Article 1F (a) of the Convention constitutes a question of mixed fact and law
and the standard of review was reasonableness simpliciter (Mankoto v.
Canada (Minister of Citizenship and Immigration), 2005 FC 294, 149 A.C.W.S.
(3d) 1107 at para. 16; Harb v. Canada (Minister of Citizenship and
Immigration), 2003 CAF 39, 238 F.T.R. 194 at para. 14). Following the
Supreme Court of Canada decision in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, the new articulated standard is reasonableness.
According to the Court, the elements to consider are: justification of the
decision, its transparency and its intelligibility. The outcome must be
defensible in respect of the facts and the law (Dunsmuir, at para. 47).
[12]
The
question of state protection is one of mixed fact and law which is reviewable
on the standard of reasonableness (Chagoya c. Canada (Minister of
Citizenship and Immigration), 2008 FC 721, [2008] F.C.J. No. 908 (QL) at
para. 3; Dunsmuir, above at paras. 55, 57, 62 and 64), (Chaves
v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, 137
A.C.W.S. (3d) 392; Mendoza v. Canada (Minister of Citizenship and
Immigration), 2005 FC 634, 139 A.C.W.S. (3d) 151 at para. 16; B.R. v.
Canada (Minister of Citizenship and Immigration), 2006 FC 269, 146 A.C.W.S.
(3d) 530 at para. 17).
1. Did the Board
err in finding that the Applicant is excluded from protection under Article 1F(a)
of the Convention for being complicit in crimes against humanity?
[13]
At
the time of the attack, the Applicant alleges that he was working as a prison
guard and that the attacking unit was a special branch of the security services
and not prison soldiers or guards. The Applicant’s role during the riot and the
aftermath was to evacuate medical staff and guard bodies in the morgue. The
Applicant argues that the Board erred in a number of ways.
[14]
A
criminal act rises to the level of a crime against humanity when there is proof
of four elements: 1. An enumerated proscribed act was committed; 2. The act was
committed as part of a widespread or systematic attack; 3. The attack was
directed against any civilian population or any identifiable group of persons;
and 4. The person committing the proscribed act knew of the attack and knew or
took the risk that his or her act comprised a part of that attack (Mugesera
v. Canada (Minister of Citizenship and Immigration), 2003 FCA 325, [2004] 1
F.C.R. 3 at para. 119).
[15]
According
to the Applicant, the Board made a clear error in relation to the requirement
that the “act was committed as part of a widespread or systematic attack” as the
Board interpreted this as whether the attack was organized. The Board found
that the requirement was whether the act was committed in a systematic manner
and found that the requirement was satisfied because the riot was organized and
planned by the senior prison personnel. The Applicant submits that the Board
had to identify a pattern of attacks and that the Board erred in failing to
understand that the repression of the uprising had to be situated into “a
widespread or systematic attack” to be a crime against humanity.
[16]
The
Applicant argues that the Board erred in finding that the prisoners were a
civilian population or an identifiable group of persons because here, there is
no such group as defined in Mugesera.
[17]
The
Board found that the Applicant was complicit because he was a police officer,
but the attacks were committed by Special Forces. Numerous cases state that if
an organization is legitimate, the Applicant must be within the specific group
which commits crimes for him to be complicit (see for example Ardila v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1518, 143 A.C.W.S. (3d) 1072).
[18]
The
Minister argues that the Board found that prison guards engaged in torture, but
the Board did not find that the Applicant was complicit in torture, nor that
the organization was an organization equivalent to a secret police or terrorist
group, whose only object was criminal. The Board did not find that the
Applicant was excluded because of complicity in torture. The only ground was in
relation to the attack on the prisoners.
[19]
The
Applicant submits that he was not a member of the police force at the time of
the attack on the prison, which is the only event characterized as a crime
against humanity. The documentary evidence is clear that the actual prison
guards were not involved in the attack. The Applicant was not involved, nor
were any other prison guards, except that they were present at their posts when
the elite police squads descended on the prison. The Applicant testified that
he and his two colleagues had been officially blamed by the authorities and
that he did not have dealings with prisoners as part of his duties.
[20]
The
Board also erred in finding that the Applicant was complicit in crimes against
humanity because torture was widespread in various prisons in Georgia and the
police committed atrocities. The Applicant was a member of a legitimate
organization, he was not involved in human rights violations and he was not a
member of a unit involved in human rights violations. The fact that torture
occurred from time to time by a few people across the entire prison system,
does not lead to complicity in the commission of crimes against humanity (Vasquez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1302, 153 A.C.W.S. (3d) 186 at paras.
25-27).
[21]
There
is no allegation that the Applicant was personally involved in the riot. This
Court has held that the rough treatment of prisoners is not even persecution
let alone torture (Mahalingam v. Canada (Solicitor General), [1993] F.C.J.
No. 1140 (T.D.) (QL), 44 A.C.W.S. (3d) 571; Abouhalima v. Canada (Minister
of Citizenship and Immigration) (1998), 144 F.T.R. 240, 77 A.C.W.S. (3d)
615 (F.C.T.D.); Murugiah v. Canada (Minister of Employment and Immigration)
(1993), 63 F.T.R. 230, 40 A.C.W.S. (3d) 1141 (F.C.T.D.)) and the Board does not
state how this is torture or even a crime against humanity.
[22]
The
Respondent argues that whether the Applicant is complicit in one
atrocity or several, at one time or over a period of time, is irrelevant to the
determination that there are serious reasons for considering that the Applicant
has committed a crime against humanity. What is relevant to the application of
Article 1F(a) is that the Applicant belonged to an organization involved
repeatedly in the commission of crimes against humanity in a widespread or
systematic fashion (Ramirez, above; Sivakumar v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 433 (C.A.) at 442 and 444;
Suliman v. Canada (Minister of Citizenship and Immigration) (1997), 133
F.T.R. 178, 72 A.C.W.S. (3d) 343 (F.C.T.D.); Ledezma v. Canada (Minister of
Citizenship and Immigration) (1997), 76 A.C.W.S. (3d) 151, [1997] F.C.J.
No. 1664 (T.D.) (QL); Canada (Minister of Citizenship and Immigration) v.
Muto, 2002 FCT 256, 117 A.C.W.S. (3d) 463; Harb v. Canada (Minister of
Citizenship and Immigration), 2003 FCA 39, 238 F.T.R. 194 (F.C.A.)).
[23]
In
the case at bar, the documentary evidence establishes that the Georgian police
force was involved in the systematic commission of torture and human rights
abuses in the prison system to which the Applicant was assigned. The Board
noted that the prison officials were known to be human rights violators,
participating in torture and arbitrary detention and that the conditions of
detention in the prison to which the Applicant was assigned amounted to inhuman
and degrading treatment.
[24]
In
Ramirez, the Federal Court of Appeal interpreted the word “committed” in
Article 1F(a) of the Convention to include complicity by enunciating the
following principles:
a) mere
membership in an organization involved in international offences is not
sufficient for exclusion from refugee status;
b) personal and
knowing participation in persecutorial acts is required;
c) membership in
an organization which is directed to a limited, brutal purpose, such as secret
police activity, may by necessity point to personal and knowing participation;
d) mere presence
at the scene of persecutorial acts does not qualify as personal and knowing
participation;
e) presence
coupled with being an associate of the principal offenders amounts to personal
and knowing participation; and
f)
the
existence of a shared common purpose and the knowledge that all the parties
have of it is sufficient evidence of complicity.
[25]
The
principle of complicity states that active membership in an organization is not
required, but a person is complicit if they contribute, directly or indirectly,
remotely or immediately, while being aware of the activities of the
organization, or makes the organization’s activities possible. In the present
case, the Applicant admitted to voluntarily joining the police force assigned
to the prison system when he was aware of the human rights abuses being
committed in the prison system. He was also aware of the clandestine
instigation of the prison riot but remained silent as requested by his
superiors. The Applicant guarded the bodies in the morgue after the riot was
over and did not leave the organization until he was under investigation. The
Board found that the widespread systematic torture of prison inmates, which
included the riot which was organized and planned by senior prison personnel in
which prisoners were killed, rose to the level of crimes against humanity as
set out in Mugesera.
[26]
The
Applicant’s allegation that the Board erred in finding the inmate population in
Georgia to be a
civilian population is unfounded. The Respondent alleges that there was
no evidence before the Board to indicate that the prison population in Georgia
was not civilian (Sumaida v. Canada (Minister of
Citizenship and Immigration), [2000] 3 F.C. 66 (C.A.); Varela v. Canada (Minister of
Citizenship and Immigration), 2008 FC 436, 166 A.C.W.S. (3d) 1121). It
was therefore reasonably open to the Board to find that the Applicant was complicit
in crimes against humanity.
[27]
The
Court must first establish the criteria to be considered in identifying
complicity within the context of paragraph 1F(a) of the Convention. The Federal
Court of Appeal examined the issue in Ramirez at para. 16:
What degree of complicity, then, is
required to be an accomplice or abettor? A first conclusion I come to is that
mere membership in an organization which from time to time commits
international offences if not normally sufficient for exclusion from refugee
status.
…
It seems apparent, however, that where an
organization is principally directed to a limited, brutal purpose, such as a
secret police activity, mere membership may by necessity involve personal and
knowing participation in persecutorial acts.
[28]
Having
considered the Board’s reasons in light of the evidence before it, I do not
find that it was unreasonable or that the intervention of this Court is
warranted.
[29]
It
is a well established principle that a refugee claimant need not necessarily
have participated directly in the perpetration of human rights abuses and
crimes against humanity by the organization to which he belongs in order for
him to be found an accomplice to such acts (see Ramirez, above).
[30]
Considering
the documentary evidence referred to by the Board that the Georgian prison
guards had been involved in the abuse and torture of prisoners, it was not
unreasonable for the Board to find the Applicant’s explanation insufficient.
The analysis of the Ramirez factors demonstrates a serious probability
that the Applicant was complicit in the events surrounding the riot at Prison
No. 5 on March 26, 2006.
2.
Did the Board err in finding that the Applicant had failed to
demonstrate the inability of the state to provide adequate protection?
[31]
The
Applicant submits that if one aspect of his fear of persecution is not
assessed, the state protection finding cannot stand Ayad v. Canada (Minister
of Citizenship and Immigration) (1996), 117 F.T.R. 270, 63 A.C.W.S. (3d) 126
(F.C.T.D.) citing Torres v. Canada (Minister of Employment
and Immigration) (1994), 50 A.C.W.S. (3d) 865, [1994] F.C.J. No. 585 (C.A.) (QL).
The Board has not understood that it is not the state who found that the riots
were instigated by prison officials. The government’s position, despite having
conducted investigations into the riot, is that the riot was a response to a
dangerous situation because the government said that prisoners shot at the
police who then shot back at prisoners. The Board’s finding that the investigation
by the government translates into state protection constitutes mere
speculation.
[32]
The
Board accepted that the Applicant was beaten by police officials for speaking
to a reporter, therefore the Board’s finding that the Applicant could have
participated in the investigation is difficult to fathom. Moreover, the fact
that he was beaten by police officers means that the presumption of
state protection does not apply or at least, applies differently (Musorin v.
Canada (Minister of
Citizenship and Immigration), 2005 FC 408, 138 A.C.W.S. (3d) 348).
[33]
The
Applicant based his claim for refugee protection on a fear of persecution for
what he knows about the involvement of senior prison officials in the
organization of the riot at Prison No. 5 and on a fear of being blamed for
bringing guns into the prison, which would result in an eight year prison
sentence.
[34]
The
Board noted that according to the Applicant’s military record and testimony, he
was in the Penitentiary Department at the time of the riot. Based on the
documentary evidence, the Board found that the Applicant had failed to provide
clear and convincing evidence of the inability of the state to provide him with
adequate protection if he decided to reveal what he knows about the
orchestration of the prison riot.
[35]
The
Board is entitled to significant deference with respect to its findings on
whether an Applicant has rebutted the presumption of state protection.
[36]
In
the present case, it was entirely open to the Board under the circumstances to
conclude that the Applicant had failed to exhaust all avenues to seek
alternative avenues of redress sanctioned by the state. The Applicant did not
attempt to obtain assistance from any authority before deciding to flee to
Canada.
[37]
It
was not unreasonable also for the Board to infer from the documentary evidence
that no negative consequences to the Applicant would occur if he would report
what he knew about the riot which had been the object of an investigation
launched by the government.
[38]
The
parties did not suggest questions for certification and none arise.
JUDGMENT
THIS COURT ORDERS
that the application for judicial review be
dismissed. No question is certified.
“Michel Beaudry”
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