Date: 20000608
Docket: IMM-3118-99
Between:
NELSON ANTONIO LINARES AGUILAR,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DENEAULT, J.
[1] This is an application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board (the "Refugee Division") holding that the applicant should be excluded from the definition of "Convention refugee" in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, owing to the panel's conclusion that it had serious reasons for considering that the applicant had committed serious non-political crimes.
[2] More specifically, the Refugee Division relied on paragraph (b) of article 1F of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 no. 6 (the "Convention") in order to exclude the applicant. This provision reads as follows:
| 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; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. R.S., 1985, c. 28 (4th Supp.), s. 34. |
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; b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; c) Qu'elles se sont rendues coupables d'agissements contraires aux buts et aux principes des Nations Unies. L.R. (1985), ch. 28 (4e suppl.), art. 34. |
[3] It appears from the evidence, as summarized by the Refugee Division in its decision, that the applicant, a citizen of El Salvador, was forcefully recruited by the guerrillas, the People's Liberation Forces ("PLF"), and that he participated in their activities between 1985 and 1992. After the signing of the peace accords between the guerrillas and the government authorities, the applicant in 1992 joined -- and this is denied by the applicant -- a group of extremists and criminal bandits (Los Maras Salvatruchas, or Los Maras), composed of former members of the guerrilla and the military. This group lived from crime, theft, harassment, persecution, taxation and confinement. The applicant allegedly witnessed a number of assaults on citizens committed by the Los Maras group, and was obliged on pain of death to participate in some of these assaults. He says he refused to get tattooed as a sign of membership in the group, despite the fact that he remained among Los Maras from 1992 to 1996. This refusal led to reprisals against him, acts of torture and mistreatment by members of the group.
[4] As an observer of street disturbances caused by the members of the Los Maras group, during which he witnessed the murder of a police officer by an individual connected with Los Maras, the applicant had received death threats. He therefore asked for police assistance, but without success. Later, in October 1996, the applicant was locked up and beaten for a month by Los Maras. After his release, he again tried, but without success, to obtain police assistance.
[5] After receiving new death threats from Los Maras, the applicant went into hiding in his father's family, in San Salvador. He fled the country on November 11, 1996, and after spending fourteen days in Guatemala, ten days in Mexico and fifteen days in the United States, he finally reached Canada at the end of December and claimed refugee status.
[6] After four sessions, in light of the documentary evidence on the terrorist groups to which the applicant had belonged and his statements at the port of entry, the Refugee Division concluded that the applicant was not entitled to refugee status because he was covered by the exclusion clause set out in paragraph 1F(b) of the Convention.
[7] In his memorandum in support of his application for judicial review, the applicant raises a number of grounds which, in his opinion, warrant the Court's intervention and the reversal of this decision by the Refugee Division. At the hearing, it seemed to me that one of these grounds -- non-compliance with a rule of procedural fairness -- did warrant the Court's intervention, without prejudice to the value of the other submissions. I will explain why, briefly.
[8] At the first hearing before the Refugee Division, the Minister's representative intervened to state his intention to raise against the claimant an exclusion clause under the Convention. It should be pointed out that no notice of intervention had been given by the Minister's representative, but, recognizing "[translation] that protocol or... courtesy requires that ... all parties be notified in advance", he therefore "[translation] disclosed the reasons for the exclusion, some reasons why the Minister could request the exclusion", namely, owing to "actions contrary to human rights and...war crimes or crimes against peace",1committed by the claimant. The Minister's representative also expressed the intention to "[translation] restate it formally on paper... at the earliest opportunity and... to all parties." Needless to say, the Minister's representative never formulated in writing the grounds of exclusion he intended to prove against the claimant. Given what he had stated at the hearing, however, the claimant could reasonably think that the Minister's representative intended to demonstrate that the panel should exclude him owing to some acts committed by him that constituted war crimes or crimes against peace set out in paragraph 1F(a) of the Convention.
[9] As the respondent's counsel rightly noted, the lack of notice of intervention by the Minister's representative, whether in writing or not, could not alone warrant the intervention of this Court. It has been trite law, since Arica v. Canada,2that the notice, if any, is intended only for the Board and that the Minister is not required to give notice to claimants of his intention to participate in the hearing. However, the limits of the Aricajudgment must be clearly understood. In this regard, I intend to show how the facts in this case warrant the Court's intervention notwithstanding the rule set down in that judgment of the Court of Appeal.
[10] In Arica, the appellant pleaded the insufficiency of the Minister's notice, which failed to indicate which of the three paragraphs in article 1F would be relied on. The Court of Appeal did not accept this argument, ruling that under subsection 69.1(5) the Minister was not required to give notice to claimants of his intention to participate in the hearing. The purpose of the notice, which is intended only for the Board, the Court said, was to enable the Minister to examine a claimant and other witnesses and to make submissions. But the Court clearly explained that the appellant's argument could not be adopted on the basis of the insufficiency of the Minister's notice and that the real issue was actually whether, during the hearing, the appellant and his counsel had been informed of the fact that paragraph 1F(a) was at issue and had acted accordingly. However, the appeal was dismissed, since the record indicated that the parties were apparently in agreement on the issue to be determined, namely, that there were serious reasons for considering that the appellant had committed crimes against humanity. In short, the parties were well aware of the terms of the debate. It should be explained, however, that in Aricathe appellant never expressed any concern about which paragraph of article 1F was at issue, and that it was apparent from the record that all of the parties proceeded on the basis that the crimes alleged against the appellant were those set out in paragraph (a) of article 1F.
[11] In the case at bar, the record discloses a quite different situation. At the initial hearing, held March 12, 1998, the claimant's counsel, noting the presence of the Minister's representative and the lack of notice concerning the exclusion request, objected3to the panel's proceeding forthwith and requested an adjournement, which was granted. The panel and counsel then agreed on the advantage of dealing during the hearing with both the factors related to the exclusion and those related to the inclusion, in so far as they were closely linked.4The Minister's representative also, at that point, indicated that the grounds of exclusion he intended to prove against the claimant were linked to some acts contrary [to the UN Convention], "[translation] to war crimes or crimes against peace...".5Obviously, the Minister's representative was referring to the exclusion clause contained in article 1F(a) of the Convention. Moreover, even at the end of the hearing, when he made his submissions, the Minister's representative pleaded that in this case it was article 1F(a) that ought to be applied.6
[12] Yet, contary to all expectations, and without ever indicating during the hearing that it might have serious reasons to consider the claimant had committed a serious non-political crime (1F(b)), and although the Minister's representative had announced that he could prove the claimant had committed crimes against peace or war crimes (1F(a)), the Refugee Division concluded:
[Translation] Having carefully examined the evidence in this case, the panel has decided to go directly on the exclusion and therefore to exclude the claimant under paragraph 1F(b) of the United Nations Convention Relating to the Status of Refugees....
The Refugee Division then recalled certain activities of the revolutionary terrorist groups the claimant had admitted belonging to from 1985 on to the end of the civil war in 1992 when the peace accords were signed, and his subsequent participation in a paramilitary group (Mara Salvatruchas), to again conclude:
[Translation] In light of the documentary evidence on the terrorist groups to which the claimant belonged and in light of his statements at the port of entry, the panel finds that this claimant should be excluded under paragraph 1F(b) of the Convention.
Further on, in response to the argument of the claimant, who had attempted to downplay his participation in crimes committed by the various extremist groups to which he had belonged, the Refugee Division, holding that he had been "[translation] a constant, conscious, active participant involved in the commission of non-political crimes in his country", also concluded:
[Translation] The panel finds that the applicant is an accomplice in the commission of non-political crimes in the groups in which he worked and that there are "serious reasons for considering" that the applicant has comitted non-political crimes.
And the Division adds:
[Translation] The panel decides, in accordance with the decision in Gonzalez v. Canada (M.E.I.), [1994] 3 F.C. 646 (F.C.A.), that there is no further need to proceed to examine the inclusion.
[13] In short, the Refugee Division treated all of the acts alleged against the applicant as serious non-political crimes (1F(b)) without ever asking itself whether some or all of those acts might be characterized as war crimes or crimes against peace (1F(a)). Furthermore, having decided to rule that the applicant was excluded under 1F(b), the panel did not ask itself whether the applicant might have been motivated by political considerations to commit these acts. Yet that is one of the criteria that had to be analyzed in this exclusion clause, according to the Court of Appeal.
[14] In Gil v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 508, the Court of Appeal was asked to apply and therefore interpret the exclusion clause addressed to a "serious non-political crime" under paragraph (b) of article 1F of the Convention. The Court considered in particular the political character which is clearly incidental to this exclusion clause. The judgment's headnote states the Court's position:
The first requirement of the test is that the alleged crimes must be committed in the course of and incidental to a violent political disturbance such as a war, revolution or rebellion. The "political offense" exception is thus applicable only when a certain level of violence exists and when those resorting to violence are seeking to accomplish a particular objective such as to bring about political change or to combat violent political opposition. The second branch of the test is focused on the need for a nexus between the crime and the alleged political objective. The nature and purpose of the offense require examination, including whether it was committed out of genuine political motives or merely for personal reasons or gain, whether it was directed towards a modification of the political organization or the very structure of the state, and whether there is a close and direct causal link between the crime committed and its alleged political purpose and object. The political element should in principle outweigh the common law character of the offence, which may not be the case if the acts committed are grossly disproportionate to the objective, or are of an atrocious or barbarous nature.
[15] In this case, is it necessary to recall, not only did the panel fail to make any effort to analyze whether the appellant had committed war crimes or crimes against peace, as the Minister's representative had argued, but it concluded that serious non-political crimes had been committed without considering the political character they might have, given the period during which they occurred. Although the record, oral or documentary, referred to criminal activities occurring both before and after the peace accords of 1992, the Refugee Division treated them alike.
[16] The Refugee Division's approach frustrated the applicant's right to procedural equity. Had he known before or during the hearing that the panel intended to hold this exclusion clause against him, he might have adequately prepared his defence to an allegation different from the one announced by the Minister's representative, and to have answered it.7
[17] There is a further reason for the Court's intervention. At the outset of the Refugee Division hearing, it had been agreed that some factors related to exclusion and inclusion, which were closely linked, should be dealt with at the same time.8As I explained earlier,9the panel instead "decided to go directly on the exclusion". In doing so, it erred in law, in my opinion. In Canada v. Mehmet,10the Court of Appeal held "that an exclusion is a negative aspect of refusal which has nothing to do with the positive aspects of the very definition of a refugee, and can only be treated separately at a second stage". The rule is as clear as can be. And practical considerations militate in this sense, as the Court of Appeal held in another judgment, Moreno v. Canada (Minister of Employment and Immigration).11
[18] For these reasons, the application for judicial review shall be allowed.
[19] At the very end of the hearing, and even after the case had been reserved, counsel for the parties informed me that the applicant had left Canada several months earlier under a removal order. It was reported that he had been sent back to the United States, where he would await the outcome of this proceeding. In the circumstances, the respondent's counsel argues that this application should be dismissed, since it is of no further practical interest, and she suggests accordingly that the Court certify the following serious question of general importance:
[Translation] Assuming that a decision of the Refugee Division of the Immigration and Refugee Board applying section F of article 1 of the United Nations Convention Relating to the Status of Refugeeswas vitiated by a violation of a rule of natural justice, may the Court reviewing this decision of the Refugee Division nevertheless refuse to intervene by reason of the fact that there would be no point in any case in sending the matter back to the panel as the decision is otherwise legally and factually justified.
[20] The mere filing of this application clearly illustrates the applicant's interest. That he is not at present on Canadian soil does not pertain to his choice but results from the execution of an administrative measure, the removal order. There is no indication that he lacks interest; on the contrary, according to his counsel, should the court rule in his favour on this application the applicant intends to appear at the Canadian border to assert his rights. Consequently, I think the matter should proceed.
[21] As to the question that the respondent's counsel would like to have certified, in view of the general conclusion I have reached, it would be inappropriate to certify it.
Judge
Ottawa, Ontario
June 8, 2000
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: IMM-3118-99 |
| STYLE: NELSON ANTONIO LINARES AGUILAR v. MCI |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: MAY 18, 200 |
REASONS FOR ORDER OF DENAULT J.
DATED: JUNE 8, 2000
APPEARANCES:
ISABELLE DESMARAIS FOR THE APPLICANT
MARIE NICOLE MOREAU FOR THE RESPONDENT
SOLICITORS OF RECORD:
ISABELLE DESMARAIS FOR THE APPLICANT
MORIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 Panel record (P.R.), hearing of November 12, 1998, p. 15.
2 [1995] F.C.J. no. 670 (A-153-92).
3 P.R. (12/11/98), p. 7.
4 P.R. (12/11/98), pp. 17 to 20.
5 P.R. (12/11/98), pp. 15-16.
6 P.R. (24/11/98), p. 644.
7 To the same effect, see Malouf v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 537, at p. 558.
8 See par. 11.
9 See par. 12.
10 [1992] 2 F.C. 598, at p. 606.
11 [1994] 1 F.C. 298, at pp. 326-27.