Neutral Citation: 2001 FCT 650
BETWEEN:
ROBERT MUKWAYA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] For some eight months prior to March 1997 when he fled Uganda, his country of citizenship, the applicant Robert Mukwaya supported the rebel Allied Democratic Front forces opposed to the government of President Yoweri Museveni. The Convention Refugee Determination Division found that Mr. Mukwaya, through his involvement with the A.D.F., was complicit in war crimes and crimes against humanity. Accordingly, he was excluded from consideration for Convention refugee status under Article 1F(a) of the Convention relating to the Status of Refugees. The applicant now seeks judicial review of this decision.
[2] The tribunal accepted the refugee claim of the applicant's spouse. In addition, the panel members found that the applicant also had a well-founded fear of persecution because of his activities with the A.D.F. and would have determined that he was a Convention refugee were it not for their finding that he was excluded under Article 1F(a).
[3] The facts are straightforward and substantially not in dispute.
[4] Since 1992, Mr. Mukwaya was self-employed as a merchant selling foodstuffs and other household products in the south-west region of Uganda. His wife practised dentistry.
[5] In August 1996, the applicant became involved with the recently formed Allied Democratic Front.
[6] The applicant readily admitted his support for the A.D.F. He supplied the opposition with foodstuffs and used his influence in business to encourage other people to support the political objectives of the A.D.F.
[7] The applicant recognized that, in his view, there was no peaceful way to bring about democratic government in Uganda. While he acknowledged that force, violence and military activities would be required to overthrow the Museveni government, he insisted that he never envisaged this would involve the atrocities since attributed to the A.D.F. He testified that he never participated in any of the training or other military activities of the A.D.F.
[8] He delivered foodstuffs to the A.D.F. on four occasions: three times in September and October 1996 and once in late January 1997.
[9] In mid-November 1996, according to the documentary evidence, the A.D.F. invaded the Kasese region in south-western Uganda and abducted hundreds of civilians. It is also reported that a number of abductees, including at least seven government officials, were murdered.
[10] Mr. Mukwaya testified that he learned from government media reports that civilians had been taken behind rebel lines during the November 1996 incursion. He added that it was difficult to assess how much of the information concerning the alleged atrocities was accurate because of the source of the reports. However, based on the documentary evidence, the tribunal concluded that the applicant must have been aware of the atrocities.
[11] On January 2, 1997, the applicant was arrested, detained and tortured by government army forces. He was released some two weeks later.
[12] Subsequent to his release, the applicant continued his support of the A.D.F. but in a more discrete fashion. He reduced his recruitment activity.
[13] In late January 1997, he made his fourth and final delivery of foodstuffs, his only assistance to the A.D.F. subsequent to the killings in November 1996.
[14] In February 1997, government soldiers raided his residence when he was travelling on business and beat his spouse who was pregnant. The applicant and his spouse subsequently went into hiding and left Uganda for Canada in March 1997.
[15] The A.D.F.'s military activities continued throughout 1997 and 1998. The organization increasingly targeted civilians. The documentary evidence includes reports of extra-judicial killings, forced recruitment, mass relocation and deadly assaults on civilians, including women and children.
[16] In its analysis of the commission of war crimes or crimes against humanity in 1997, the tribunal carefully considered which of these activities, if any, occurred while Mr. Mukwaya was still in Uganda:
The documentary evidence before the panel at the hearing on April 22, 1999, indicated that the ADF had attacked civilians during 1997, but was not precise as to whether any of these attacks had occurred before May 1997, and/or in connection with the November 1996 incursion across the Zairean border. For example, as noted above, the U.S. Uganda Country Report on Human Rights Practices for 1996 states:
Another rebel group, the Allied Democratic Forces (ADF) invaded the Kasese region from Zaire in November. Before being driven out by the UPDF, the ADF abducted hundreds of civilians from the locality. A number of abductees, including at least seven government officials, were subsequently murdered.
The U.S. Country Report gives no details as to when the murders occurred. The 1997 U.S. Country Report refers to "wide-scale abuse of civilians, including killing, rape and abduction" by the ADF during 1997, but provides information only on incidents occurring in June, September and October 1997. An "Information Request" entered by the Minister indicates that
The ADF engaged in wide-scale abuse of civilians, including extrajudicial killings (more than 1,000 from November 1996 to October 1997), rape, looting and abduction (they abduct civilians, force them to carry their loot and afterwards train them as troops). [footnoted: the United States Department of Stated, Uganda Country Report on Human Rights Practices for 1997, pp. 364-369].
The supporting references, however, were all to events in the second half of 1997. According to the "Information Request," additional references could be found in a "bibliography attached to this report" which was not entered into evidence.
The panel directed the Minister's representative to obtain this bibliography. It was submitted on May 7, 1999, but contained no references to specific atrocities against civilians committed while the principal claimant was still in Uganda. [Footnotes omitted and emphasis added.]
[17] However, the tribunal concluded that the A.D.F. operations in south-western Uganda in November 1996 did constitute war crimes and crimes against humanity:
... Having considered the totality of the evidence before it, the panel finds that during the November 1996 incursion, the ADF abducted civilians, rather than took them into a form of protective custody; that civilians feared abduction and when they were taken, attempted to escape; that many civilian abductees were kept to be trained as labourers or fighters; and that some abductees identified with the government were killed after being taken captive.
The panel accordingly finds that, even during the early days of the conflict between the ADF and the Ugandan government, the ADF killed captives and abducted and forcibly recruited civilians. While the evidence shows that the level of atrocities increased later in 1997, the panel finds that the acts committed by the ADF in late 1996 constitute war crimes and crimes against humanity.
It was open to the tribunal to reach this conclusion on my review of the record.
[18] The tribunal found it was not plausible that the applicant would have been unaware of media reports concerning the civilian abductions and deaths during the November 1996 incident. Otherwise, the tribunal noted that the applicant was forthright in his testimony. There is no negative finding of credibility concerning his evidence.
[19] Before considering further the tribunal's decision, it is useful to review the guiding principles concerning the burden of proof in demonstrating that a refugee claimant can be said to be complicit in international crimes attributed against an organization.
[20] The definition of "Convention refugee" in the Immigration Act refers to the exclusion provisions in the Convention Relating to the Status of Refugees. One of the exclusions is under Article 1F(a) of the Convention, relating to war crimes or crimes against humanity:
| 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 ; [Emphasis added.] |
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 ; |
|
[21] In Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), Justice MacGuigan, writing for the unanimous panel of the Court of Appeal, considered the culpability of "accomplices" for war crimes and crimes against humanity committed by another.
[22] Justice MacGuigan first noted that the Minister bore the onus to establish the refugee claimant came within one of the Convention's exclusion clauses (at page 314):
There was no issue between the parties as to which party bore the onus. Both agreed that the burden of establishing serious reasons for considering that international offences had been committed rested on the party asserting the existence of such reasons, i.e., the respondent. Aside from avoiding the proving of a negation by a claimant, this also squares with the onus under paragraph 19(1)(j) of the Act, according to which it is the Government that must establish that it has reasonable grounds for excluding claimants. For all of these reasons, the Canadian approach requires that the burden of proof be on the Government, as well as being on a basis of less than the balance of probabilities.
[23] Justice MacGuigan then stated that the Convention's use of the word "committed" implied a mental element. He characterized this mental element as follows (at page 316):
... From the premise that a mens rea interpretation is required, I find that the standard of "some personal activity involving persecution," understood as implying a mental element or knowledge, is a useful specification of mens rea in this context. Clearly no one can "commit" international crimes without personal and knowing participation.
[24] Having determined that "a mental element or knowledge" of the claimant must be established, Justice MacGuigan then concluded that "mere membership" in an organization, without more, did not constitute "personal and knowing participation" in war crimes or crimes against humanity committed by other members of that organization. In his words (at page 317):
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. [Emphasis added.]
[25] After noting that mere presence and on-looking, absent any other facts, are not sufficient to constitute "personal and knowing participation", Justice MacGuigan stated that an associate of the principal can be characterized as an accomplice where the evidence establishes (at page 318) "the existence of a shared common purpose and the knowledge that all of the parties in question may have of it."
[26] In Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), Justice Robertson confirmed that "mere membership" did not constitute personal and knowing participation (at page 321):
It is well settled that mere membership in an organization involved in international offences is not sufficient basis on which to invoke the exclusion clause; ... An exception to this general rule arises where the organization is one whose very existence is premised on achieving political or social ends by any means deemed necessary. Membership in a secret police force may be deemed sufficient grounds for invoking the exclusion clause; ... Membership in a military organization involved in armed conflict with guerrilla forces comes within the ambit of the general rule and not the exception. [Citations omitted and emphasis added.]
While he does not use the phrase, I understand Justice Robertson to be referring to the "limited, brutal purpose" proviso in Ramirez when he refers to the exception to the general rule.
[27] In Saridag v. Canada (Minister of Employment and Immigration) (1994), 85 F.T.R. 307 (T.D.), Justice McKeown commented on the "limited, brutal purpose" exception (at paragraph 8):
The Court of Appeal seems to be saying that normally, mere membership in a terrorist organization is insufficient to bring a claimant into the excluded class. In some limited cases, however, where the organization is "primarily directed to a limited brutal purpose", the Board may exercise discretion in determining whether or not, by necessary implication, the claimant engaged in "personal and knowing participation".
[28] Justice McKeown regarded this approach as giving rise to an evidentiary presumption of complicity, one which is rebuttable, where the group has the "sole intent and purpose of violently and brutally bringing about a course of events" (at paragraph 11):
... Clearly, where such a group exists, it can generally be assumed that its members intentionally and voluntarily joined and remained in the group for the common purpose of actively adding their personal efforts to the group's cause. This assumption gives rise to a presumption of complicity on the part of any refugee claimant who was found to be a member of such a group. This presumption of complicity is clearly rebuttable. Justice MacGuigan never stated in Ramirez that mere membership in terrorist or secret police types of organizations automatically resulted in exclusion. He merely stated that such membership might, by necessary implication, give rise to a finding of complicity. [Emphasis added.]
[29] As I understand Justice McKeown's comments, refugee claimants may have the evidentiary burden of explaining why their "personal and knowing participation" should not be inferred from their membership in an organization "principally directly to a limited, brutal purpose". In the end, however, when all of the evidence is to be assessed by the tribunal, the Minister still has the legal burden of establishing complicity in the commission of the international crimes. See J. Sopinka, S.N. Lederman & A.W. Bryant, The Law of Evidence in Canada (Toronto and Vancouver: Butterworths, 1999) at pages 55-64.
[30] In Canada (Minister of Citizenship and Immigration) v. Hajialikhani, [1999] 1 F.C. 181 (T.D.), Justice Reed considered the standard of proof in determining that an organization is one with a "limited, brutal purpose" (at paragraph 24):
... It is important in this context to scrutinize labels carefully. Labels can block analysis. If one is going to conclude that membership in, or close association with, a group automatically leads to a conclusion of complicity in crimes against humanity committed by members of that group, the evidence concerning the characterization of the organization must be free from doubt. In addition, in the case of an organization, which changes over time, it is important to assess its characterization during the time or times when the individual in question was associated with it. [Emphasis added.]
[31] In my opinion, on the basis of this case law, the following principles should direct a tribunal where the Minister seeks the claimant's exclusion from consideration for Convention refugee status on the basis of that person's role as an accomplice to the principal entity guilty of war crimes or crimes against humanity:
· the Minister always has the legal burden of establishing that the refugee claimant is complicit in the commission of the international crimes;
· complicity requires the refugee claimant's "personal and knowing participation" in the commission of the international crimes;
· as a general rule, "mere membership" in an organization involved in international crimes does not establish personal and knowing participation;
· an exception to this general rule may arise when the tribunal is "free from doubt" that the Minister has established the organization is "principally directed to a limited, brutal purpose";
· where the exception applies, mere membership in such an organization may place on the refugee claimant the evidentiary burden of showing that they had no personal and knowing participation in the commission of the organization's international crimes; and
· "mere membership" in an organization "principally directed to a limited, brutal purpose" may allow the tribunal to infer the refugee claimant's personal and knowing participation in the international crimes in the absence of any reliable evidence proffered by that person to explain otherwise their role in the organization.
In suggesting this approach, I choose not to refer to a rebuttable presumption of complicity. The Minister's onus of establishing complicity is never displaced. Where the exception applies, the claimant may be required to explain why the inference of "personal and knowing participation" should not by necessity be implied from membership in an organization "principally directed to a limited, brutal purpose".
[32] In its decision of October 25, 1999, the tribunal characterized the activities of the A.D.F. as follows: "It is clear from the documentary evidence before the panel that brutal attacks against civilians are, and have been for some time, an integral and prominent part of the modus operandi of the ADF in their efforts to overthrow the current government of Uganda."
[33] This finding is based on evidence of A.D.F. operations, most of which occurred after Mr. Mukwaya's departure from Uganda in early 1997. While it was urged to do so in the written submissions of the Minister's representative, the tribunal's reasons do not disclose any finding that the A.D.F. was "principally directed to a limited, brutal purpose", at least not for the period prior to Mr. Mukwaya's departure from Uganda.
[34] However, the tribunal went on to make a specific finding concerning Mr. Mukwaya's involvement with the A.D.F. which, in its view, triggered a rebuttable presumption of complicity:
The panel finds that the principal claimant did, in the words of Saridag, intentionally and voluntarily join and remain in the group for the common purpose of actively adding his personal efforts to the group's cause.
The principal claimant's rebuttal to the presumption of complicity is based on two points:
· he belonged to the political wing, not the military wing, of the ADF; and
· to the best of his knowledge, the ADF did not commit atrocities during the period in which he was an active member.
[35] In these statements, the tribunal erred in law. The tribunal made no finding that the A.D.F. was an organization "principally directed to a limited, brutal purpose". In the absence of such a finding, the tribunal could not infer that Mr. Mukwaya had a "personal and knowing participation" in the international crimes attributed to the A.D.F., let alone suggest that he had to rebut a presumption of complicity.
[36] On my review of the record, no properly instructed panel of the Refugee Division could conclude that the A.D.F. was "principally directed to a limited, brutal purpose" while Mr. Mukwaya was still in Uganda nor that he could have known that the A.D.F. had such a purpose.
[37] In summary, Mr. Mukwaya was a member and supporter of the A.D.F. He assisted by recruiting support for the organization and providing foodstuffs for its members. It was open to the tribunal to conclude that he would have learned about crimes committed during the November 1996 incident after they occurred on the basis of media reports. In January 1997, Mr. Mukwaya was detained and tortured by government authorities for some two weeks. In late January, he made a further delivery of food products to A.D.F. members. He then went underground for a period of time before leaving Uganda for Canada in late March 1997.
[38] There is no evidence that Mr. Mukwaya participated in the crimes committed in the course of the November 1996 invasion. His knowledge of those crimes after they occurred cannot make him complicit in their commission. He could have had no mens rea or "personal and knowing participation" concerning those incidents. His continued support for the A.D.F. after November 1996 and prior to his fleeing Uganda does not, in and of itself, make him complicit in the subsequent atrocities attributed to the A.D.F. There is no evidence directly implicating Mr. Mukwaya in any of these atrocities.
[39] Because the tribunal erred in law concerning the burden of proof, it did not properly consider whether the Minister had established that the evidence of Mr. Mukwaya's activities in support of the A.D.F. after the November 1996 rebel incursion and prior to his departure from Uganda brought him within the exclusion of Article 1F(a).
[40] Accordingly, the decision that the applicant is excluded from consideration for Convention refugee status under Article 1F(a) will be set aside and the matter remitted to a differently constituted panel which will be charged with the determination of whether the respondent can meet her burden of proof in establishing Mr. Mukwaya's personal and knowing participation in the war crimes or crimes against humanity attributed to the A.D.F. between November 1996 and his departure for Canada. There are no special reasons to award costs.
[41] In view of my findings in paragraphs 33 and 36, I do not propose to certify the serious question suggested by the respondent in her written submissions shortly following the hearing. If counsel wish to make representations concerning the certification of a serious question upon review of these reasons for decision, they may do so in writing within the next seven days.
"Allan Lutfy"
A.C.J.
June 13, 2001
Ottawa, Ontario