Date: 20070924
Docket: IMM-527-07
Citation:
2007 FC 910
Ottawa,
Ontario, September 24, 2007
Present:
The Honourable Mr. Justice Beaudry
BETWEEN:
ANA
YOLANDA MARTINEZ DE QUIJANO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision by the
Immigration and Refugee Board, Refugee Protection Division (the panel) dated
January 9, 2007. The panel determined that the applicant was excluded from the
refugee protection system.
ISSUE
[2]
Did the
tribunal err so as to warrant this Court’s intervention?
[3]
For the
following reasons, the answer to this question is in the negative, and this
application for judicial review will be dismissed.
FACTUAL CONTEXT
[4]
The
applicant is a citizen of El Salvador and was born in San Salvador on
September 17, 1960.
[5]
In 1978,
she joined the Revolutionary Brigade of Students (BRES), the student wing of a
political-military movement affiliated with the Farabundo Marti National
Liberation Front (FMLN), which was known for its armed guerrilla struggles
before the movement became a legal political party in 1992.
[6]
The
applicant collaborated with the FMLN from 1978 to 1994, supported the
revolutionary ideology and worked for many years as a volunteer in the
movement. She helped the FMLN organize protest marches and meetings. She
handled the funds and the accounting, took attendance at meetings and
distributed the minutes, coffee, pens and paper.
[7]
She became
involved again with this organization in January 2003. She was responsible for
auditing and monitoring election campaign funds. It was then she discovered
that funds were being misappropriated to secretly purchase weapons. Given the
risks to her if she revealed that information to anyone, the applicant resigned
a month later.
[8]
She began
receiving death threats in the form of telephone calls and anonymous letters.
She was subsequently harassed and some of her property was destroyed. In March
2004, she was threatened at gunpoint, and on July 29th of that year she was
raped. On August 5, 2004, she fled to the United States and then to Canada
where she requested refugee protection the day she arrived, i.e. August 18,
2004.
IMPUGNED DECISION
[9]
The panel
considered the issue of exclusion under sections 1F(a) and 1F(c) of Article 1
of the Convention. The Minister’s representative contended that the applicant
was complicit in human rights violations because of her membership in the FMLN,
a party guilty of committing crimes against peace, war
crimes, crimes against humanity and acts contrary to the principles and
purposes of the United Nations. The request for exclusion was based on the
following facts:
(a)
She
voluntarily joined the FMLN;
(b)
She
participated in the movement for 16 years and returned to work with them in
January 2003;
(c)
She was a
member of the party’s elite;
(d)
She had
knowledge of the nature of the organization and the abuses committed as shown by
Exhibit M-4 (United States Institute of Peace Library, Truth Commissions:
Reports: El Salvador (pages 46 to 77 of the applicant’s record); and
(e)
She never
disassociated herself from the ideology of the group.
[10]
The
applicant had an opportunity to be heard and to file documents at the three
hearings held on April 20, September 14 and October 20, 2006. The panel found
that the two factors on which complicity is based, knowledge and shared common
purpose, were present in this case.
[11]
The panel
was satisfied that the applicant was indeed complicit by association in the
commission of crimes against humanity by the FLMN. The applicant’s voluntary
participation in this movement (as she herself admitted) and her knowledge of
the organization’s goals and the methods used to achieve them were central to
the decision-maker’s analysis.
[12]
Furthermore,
the applicant’s position gave her access to privileged information. She
admitted knowing about the FMLN’s abuses, crimes and political violence but
said that, in spite of everything, she was a pacifist. Last, the panel did not
accept the applicant’s claim that she feared reprisals since she never sought
asylum in the United States despite several visits throughout those years.
[13]
On the
issue of a shared common purpose, the panel ruled that the requirements for
complicity were present: the applicant’s personal and direct involvement for 16
years in a revolutionary and insurgent movement known for its acts of violence,
and her knowledge of atrocities that occurred not only during the Salvadorean
civil war but also after the peace agreement was signed in 1991.
[14]
Although
the applicant never personally took part in acts of violence, it is clear that
the FMLN leaders had great confidence in her, allowing her to prepare leaflets
for protest marches, draft agendas for meetings and access secret financial
documents. The decision-maker believed that the applicant shared the FMLN
ideology.
RELEVANT
LEGISLATION
[15]
Section 98
of the Act excludes a person referred to in section F of Article 1 of the
Convention and reads as follows:
|
Exclusion
— Refugee Convention
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.
|
Exclusion
par application de la Convention sur les réfugiés
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.
|
[16]
Section F
of Article 1 of the Convention, and in particular paragraphs 1F (a) and 1F (c),
deal with exclusion. These passages read as follows:
|
SCHEDULE
(Subsection
2(1))
SECTIONS
E AND F OF ARTICLE 1 OF THE UNITED NATIONS CONVENTION RELATING TO THE STATUS
OF REFUGEES
. .
.
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;
. .
.
(c)
he has been guilty of acts contrary to the purposes and principles of the
United Nations.
|
ANNEXE
(paragraphe
2(1))
SECTIONS
E ET F DE L’ARTICLE PREMIER DE LA CONVENTION DES NATIONS UNIES RELATIVE AU
STATUT DES RÉFUGIÉS
[.
. .]
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 crime
contre l’humanité, au sens des instruments internationaux élaborés pour
prévoir des dispositions relatives à ces crimes;
[.
. .]
c)
Qu’elles se sont rendues coupables d’agissements contraires aux buts et aux
principes des Nations Unies.
|
AnalysIS
Standard of review
[17]
I
reiterate here the analysis in Canada (Citizenship and Immigration)
v. Molebe, 2007 FC 137, [2007] F.C.J. No. 187 (QL), which deals with
exclusion under paragraphs 1F(a) and 1F(c) of Article 1 of the Convention. The
case before us involves findings of fact based on all the evidence. To succeed,
the applicant must establish that the panel’s decision is patently
unreasonable.
Is the Court’s intervention warranted?
[18]
With
respect, I do not believe that the intervention of the Court is warranted. The
applicant criticizes the panel for failing to sufficiently explain his decision
with respect to the FMLN as an organization known to have committed crimes
against humanity. She adds that the panel erred in drawing an unreasonable
inference from the evidence that she had knowledge and a shared common
intention. She disputes the panel’s finding that she was complicit in the
violent acts committed by the FMLN.
[19]
After
analyzing all the evidence and the parties’ written and oral representations, I
am satisfied that the panel’s decision does not meet the test of patent
unreasonableness. For 16 years, according to the panel (but 25 years according
to the evidence), the applicant freely and actively participated in an
organization known for its anti-human rights activities and did not denounce
the organization although she knew that it was guilty of abuses and crimes.
[20]
The
panel’s analysis of the facts that led to a finding of complicity cannot be
characterized as patently unreasonable. Even if the applicant were not one of
the leaders of the organization, she enjoyed the confidence of the movement, as
shown by her access to confidential documents, namely, those dealing with
financial management and distribution of information.
[21]
The
parties did not submit a question for certification, and there is none in the
docket.
JUDGMENT
THE COURT
ORDERS that:
1.
The
application for judicial review be dismissed.
2.
There
is no question for certification.
“Michel Beaudry”
Mary
Jo Egan, LLB
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