Date: 20080128
Docket: IMM-1460-07
Citation: 2008 FC 103
Ottawa, Ontario, January 28,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
JOHN
WILLIAM RIVERA PENA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
Mr.
Rivera Pena (Rivera) was an officer in the Colombian National Police (CNP). The
Immigration and Refugee Board (Board) found that he had a basis for a
refugee-protection claim but that he was inadmissible because there were
“serious reasons for considering” that he was complicit in crimes against
humanity.
II. BACKGROUND
[2]
The
Board accepted that given his assignment to an area of guerrilla activity and
his knowledge of police informants in the area, he had an objectively
well-founded fear of the FARC. The Board also found that there was no state
protection or internal flight alternative available to him.
[3]
However,
the Board also found that during the Applicant’s period of service, the CNP
engaged in crimes against humanity (for example, murder, torture, and/or
inhumane acts against detainees, demonstrators, peasants, union leaders,
indigenous leaders and minors). These activities were serious, widespread and
systemic. The Applicant, while not a principal actor, was an accomplice because
there existed a shared common purpose and knowledge on his part regarding these
activities.
[4]
In
rendering its decision, the Board considered the Applicant’s direct involvement
in arrests and detentions and his assistance to those directly involved in
torture and murder. The Board carefully canvassed such issues as the
Applicant’s knowledge of crimes against humanity, the shared common purpose as
encompassed by consideration of the nature of the CNP, methods of its
recruitment, the Applicant’s position/rank in the CNP, his time of service and
his opportunity to leave the organization.
[5]
The
Board found that there were grounds to believe that Rivera had personally and
knowingly participated in crimes against humanity and that he shared this
common purpose with the CNP.
[6]
Although
Rivera had counsel at the Board hearing, for purposes of the Leave Application,
he chose to represent himself.
III. ANALYSIS
[7]
The
Applicant seemed to be at pains to challenge the Board’s conclusion that, in
respect of knowledge of crimes against humanity, he was not forthcoming nor
candid. He made frequent references to the transcript of the Board’s hearing in
an effort to establish that the conclusion was not justified.
[8]
As
this was an attack on a credibility finding, the standard of review has
generally been accepted as patent unreasonableness. Whether it is
reasonableness or patent unreasonableness is of no consequence.
[9]
The
Board heard the witness, and it was in a far better position than the Court to
assess the credibility of this witness. A transcript is a “dry stick” devoid of
much that leads to credibility findings based on the manner in which a person
testifies. Given the fair and balanced manner in which the Board addressed the
documentary evidence, there is no basis for the Court to conclude that the
assessment of personal credibility was in any way different.
[10]
As
to the documentary evidence, Rivera challenged the Board’s reliance on reports
and documents published after he had left the CNP. As counsel for the
Respondent helpfully pointed out, there was more than sufficient documentary
evidence from the period of service upon which the Board could rely.
[11]
Further,
documentary evidence after Rivera left the CNP was relevant in that they
address issues of systemic abuse which included the period of his service and
beyond.
[12]
The
Applicant’s argument that complaints against the CNP about inhumane treatment,
murder and torture declined from time to time and that the army was worse than
the police is disingenuous and irrelevant. This is not an exercise in
competitive crimes against humanity.
[13]
While
there may have been minor discrepancies in the evidence and findings, they do
not affect the weight of the evidence or the fairness of the process. The
Board’s decision is detailed, thorough and balanced. It addresses all the
relevant legal principles and applies them to clear and supported factual
findings. There is no basis for criticizing and “nit-picking” this decision or
justifying Court review.
IV. CONCLUSION
[14]
Therefore,
this application for judicial review will be dismissed. There is no question
for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review will be dismissed.
“Michael
L. Phelan”
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