Date: 20070914
Docket: IMM-4477-06
Citation: 2007 FC 911
Ottawa, Ontario, September 14, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
EMMANUEL MONOH HOWBOTT
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Mr. Howbott is
a citizen of Liberia who claims to be entitled to refugee protection. His
claim was heard by the Refugee Protection Division of the Immigration and
Refugee Board (RPD), which found him to be excluded from protection by
application of Article 1F(a) of the United Nations Convention Relating to the
Status of Refugees (Convention). That article excludes from protection those
for whom there are serious reasons for considering that they have committed a
crime against peace, a war crime, or a crime against humanity (all as defined
in certain international instruments).
[2] In
the present case, the RPD found that as a member, and as an informant, of the
National Patriotic Party (NPP) there were serious reasons for considering that
Mr. Howbott was complicit in a war crime and in crimes against humanity. The
specific war crime was found to be ensuring that child soldiers would be forced
to fight. No challenge is made by Mr. Howbott to this finding. While doubt
exists that a war crime can occur in the context of a civil war (See: Bermudez
v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 860 (T.D.)), I am satisfied that this finding was mere surplusage
and not material to the RPD’s decision which turned on the issue of complicity
in crimes against humanity. The specific crimes against humanity were found to
include murder, rape, and torture. Mr. Howbott does not challenge the RPD's
finding that the NPP committed acts of murder, rape, and torture that were
directed against the civilian population on a widespread and systematic basis.
[3] For
the reasons that follow, I have concluded that this application for judicial
review should be dismissed because the findings of fact made by the RPD were
not patently unreasonable, the RPD properly considered the extent of Mr.
Howbott's participation in the NPP, and the RPD properly considered whether Mr.
Howbott was a personal and knowing participant in the crimes against humanity
committed by the NPP.
[4] During
oral argument, it was submitted on Mr. Howbott's behalf that the RPD erred in
the following respects:
1. The RPD failed to find that on two occasions Mr. Howbott tried
to leave the NPP.
2. The RPD failed to consider that the NPP was not engaged in a
civil war in 1997 when Mr. Howbott became a member.
3. The RPD failed to consider what specific acts Mr. Howbott
committed and failed to consider the "good things" he had done for
his people.
4. The RPD provided an insufficient analysis for its conclusion
that Mr. Howbott was a knowing participant in the NPP - an organization that
was committing human rights abuses against civilians on a widespread and
systematic basis.
[5] Counsel
for Mr. Howbott advised that he was not pursuing the argument raised in his
written materials that the RPD erred by failing to consider whether Mr. Howbott
was a protected person but for the application of Article 1F(a). This was an
appropriate concession, given jurisprudence such as Xie v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 1142 at para.
38 (C.A.), and Gonzalez v. Canada (Minister of Employment and Immigration),
[1994] 3 F.C. 646 (C.A.).
[6] I
turn to each asserted error.
1. Did the RPD err by failing
to find that on two occasions Mr. Howbott tried to leave the NPP?
[7] In
his oral testimony, Mr. Howbott testified that he tried to leave the NPP in
1999 and again in 2000, but each time he stopped providing information he was
arrested and beaten. Mr. Howbott said he was afraid he would be tortured
if he stopped providing information to the NPP. The RPD rejected this
testimony for two reasons. First, Mr. Howbott had not mentioned any attempt to
leave the NPP when interviewed at the port of entry or when he completed his Personal
Information Form (PIF). In his PIF, Mr. Howbott simply said he left the
movement "in August 2003, when Charles Taylor was removed from power. I
felt that there was no future with this movement for me". Second, Mr.
Howbott testified that even after he was arrested he was still considered to be
a reliable informant. The RPD found it to be implausible that Mr. Howbott
would still be considered trustworthy after any attempt to leave the NPP. In
my view, neither inference can be said to be patently unreasonable. The RPD
was entitled to find that, if Mr. Howbott had truly made efforts to leave
the NPP, he would have mentioned this in his PIF or at the port of entry as
opposed to the information that he did provide, which indicated that he left after
concluding that there was no future for him with the movement.
[8] Mr.
Howbott argues that it was patently unreasonable for the RPD to reject his oral
testimony that he tried to leave the NPP when, in finding that he was aware of
the brutal nature of the NPP, it relied upon his stated fear of torture if he
quit. I agree that the RPD ought to have explained why it accepted the
truth of his stated fear of torture when it rejected his evidence about efforts
to leave the NPP. However, there was an abundance of evidence to support the
RPD's finding that Mr. Howbott was aware of the brutal nature of the NPP. In
this regard, Mr. Howbott testified that: his own mother had been tortured
by the National Patriotic Front of Liberia, the predecessor to the NPP; when he
joined the NPP, he knew that it had committed atrocities because he had
witnessed the commission of such atrocities; he knew that, after the NPP came
into power, it continued to commit human rights abuses; and he was aware that
lots of people were arrested and tortured by the NPP.
2. Did the RPD err by failing
to consider that the NPP was not engaged in a civil war in 1997 when Mr.
Howbott became a member?
[9] As
noted above, Mr. Howbott was unequivocal in his testimony that he knew when he
joined the NPP that it had committed atrocities because he had witnessed the
commission of such atrocities. In view of this evidence, it was not necessary
for the RPD to consider whether the NPP was engaged in a civil war in 1997.
3. Did the RPD fail to consider
what specific acts Mr. Howbott had committed and fail to consider the
"good things" he had done for his people?
[10] The
RPD did not fail to consider what specific acts Mr. Howbott had committed. It
made findings of fact that Mr. Howbott:
(i) was an informant for the NPP from 1999 to 2003. He gathered
information concerning anyone who posed a threat to the NPP and conveyed the
information either to another informant or to a military colonel;
(ii) worked as an adjutant, who assigned soldiers to work on the
border with the Ivory Coast, and he went to the front to defend against "the
enemies". He also took part in a gun battle;
(iii) gathered
information about soldiers that were harassing civilians and looting;
(iv) stayed at a checkpoint in order to ensure that soldiers did not
retreat and he informed on soldiers;
(v) provided “timely intelligence” to the NPP-controlled
government, and the information directly supported the security forces’ and the
NPP's efforts in the civil war; and
(vi) supervised
other informants.
[11] As
for his "good works", Mr. Howbott testified that he assisted in an
election campaign and encouraged people to vote for the NPP. He also testified
that, after he informed on soldiers who were looting, the looted goods were
returned to civilians. The RPD rejected the latter evidence because it
contradicted information Mr. Howbott himself had provided at the port of
entry. I am satisfied, however, that the RPD committed no reviewable error by failing
to dwell upon Mr. Howbott’s alleged "good works". The RPD
properly directed its attention to whether Mr. Howbott was complicit in
crimes against humanity.
4. Did the RPD provide
insufficient analysis for its conclusion that Mr. Howbott was a knowing
participant in the NPP - an organized nation that was committing human rights
abuses against civilians on a widespread and systematic basis?
[12] As
noted above, it was conceded that the NPP committed human rights abuses against
civilians on a widespread and systematic basis. The remaining issue is whether
the RPD provided sufficient analysis for its conclusion that Mr. Howbott was a
knowing participant. Mr. Howbott complains that the RPD failed to
consider whether the information he provided actually resulted in any human
rights abuse and says that there was insufficient evidence that he was present
at, or had any knowledge of, atrocities committed by the NPP.
[13] In
my view, there is no merit to either complaint. The Federal Court of Appeal
has held that it is not necessary to establish that the crimes against humanity
committed by an organization be necessarily and directly attributable to
specific acts or omissions of a refugee claimant. In the case of an informant,
the Court has written “[w]hen an informant such as the respondent has knowingly
directed those at the most violent point in the chain of command to their
victim, it hardly lies in his mouth to say ‘you can't prove anyone I informed
on was actually killed or tortured’”. See: Sumaida v. Canada (Minister of
Citizenship and Immigration), [2000] 3 F.C. 66 at paras 31, 36 (C.A.).
[14] As
to Mr. Howbott's knowledge of the atrocities committed by the NPP, his
admissions, as noted above, were unequivocal.
[15] As
to the adequacy of the RPD's analysis, I agree with counsel for the respondent
that the reasons of the RPD were poorly structured. As well, while the RPD
properly reviewed the evidence at length and made a number of findings of fact,
the analysis of the evidence, particularly the application of the facts to the
relevant law, was not as detailed as one would hope to see. However, I believe
that it is clear from a reading of the reasons as a whole that:
(i) the RPD
looked for more than mere membership in the NPP;
(ii) the RPD found that the NPP committed crimes against humanity,
including murder, rape and torture, against civilians on a widespread and
systematic basis;
(iii) the RPD found that Mr. Howbott clearly knew of the human
rights abuses committed by the NPP including the murder, rape, and torture of
civilians;
(iv) the RPD accepted that, as an informant, Mr. Howbott
facilitated the commission of murder, rape, or torture by identifying persons
including civilians who should be targeted by the NPP; and
(v) the RPD did not accept Mr. Howbott's evidence that he
attempted to disengage himself from the NPP. Rather, it found that he remained
a member until Charles Taylor lost power, and Mr. Howbott saw no continued
future with the movement.
[16] In
my view, as a matter of law, those findings justified the conclusion of the RPD
that Mr. Howbott was a person excluded from protection by Article 1F(a) of
the Convention because he was complicit in crimes against humanity.
[17] It
follows that the application for judicial review will be dismissed. Counsel
posed no question for certification, and I am satisfied that no question arises
on this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for
judicial review is dismissed.
“Eleanor R. Dawson”
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