Ottawa, Ontario, December 16, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Manuel Joao, the Applicant, is a citizen of Angola who arrived in Canada from Portugalin May 2000 and filed a claim for protection. His claim is based on an alleged fear of persecution by reason of membership in a particular social group, namely military deserters. The Applicant alleges that if he were to return to Angola, the government would prosecute him or kill him for being a deserter.
[2] At his hearing, the Minister appeared and argued that the Applicant was excluded from claiming protection on the basis that there are serious reasons for considering that, as a member of the Angolan Army, he had committed crimes against humanity, within the meaning of Article 1(F) of the United Nations Convention Relating to the Status of Refugees, 28 July 1951, (the "Convention"), attached as Schedule 1 to the Immigration and Refugee Protection Act, R.S.C., 1985, c. I-2 ("IRPA").
[3] In a decision dated July 7, 2004, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") determined that the Applicant was: (a) neither a Convention refugee nor a person in need of protection; and (b) was excluded from protection by Article 1(F) of the Convention. The Applicant seeks judicial review of that decision.
Issues
[4] The Applicant does not question the Board's finding that he was not a person in need of protection. However, the Applicant raises the following issue with respect to the decision that he was excluded from protection pursuant to Article 1(F) of the Convention:
- Did the Board err in determining that the Angolan Army is an organization that is "principally directed to a limited, brutal purpose"?
Relevant Statutory Provisions
[5] The relevant statutory provisions dealing with the questions raised by this application are set out in Appendix A to these Reasons for Order and Order.
Analysis
(a) Should the application be dismissed due to the Applicant's failure to question the
inclusion decision?
[6] In its reasons, the Board reviewed the evidence presented by the Applicant related to his claims of military service and desertion and found, in general, that his claim lacked credibility. The Board states, in its conclusion, that:
Having considered all the evidence before it, the panel finds that there is not a serious possibility that the claimant will be persecuted for a Convention reason, if he returns to Angola. In addition, the panel finds that the claimant is not a person in need of protection in that his removal to Angola would not subject him personally to a risk to his life or to a risk of cruel or unusual punishment, and in that there are no substantial grounds to believe that his removal to Angola would subject him personally to a danger of torture.
[7] This conclusion (referred to as the "inclusion determination") was a distinct finding, separate from the conclusion that follows (referred to as the "exclusion determination") in the reasons that:
The panel also finds the claimant . . . to be a person upon whom section 1(F)(a) of the Refugee Convention applies and pursuant to section 98 of IRPA, he is therefore not a Convention refugee or a person in need of protection.
[8] Section 98 of the IRPA provides that a person referred to in section E or F of Article 1 of the Convention is not a Convention refugee or a person in need of protection. Thus, consideration of whether a claimant is excluded only needs to be undertaken by the Board if the Board concludes that a claimant would otherwise qualify for protection under section 96 or 97 of the IRPA. If the Board finds, as it did here, that a claimant is not a Convention refugee or a person in need of protection, there is, strictly speaking, no need for the Board to address the issue of whether he is excluded from admission to Canada by the operation of section 98 of IRPA and Article 1 of the Convention. It follows that, if there is no error in the Board's inclusion determination, any error in its exclusion determination is immaterial.
[9] In this case, the Applicant, in oral submissions, concedes that the inclusion determination is determinative of the claim. That is, at this stage, the outcome of this judicial review is not in question; the judicial review will be dismissed whether or not the Board erred in its exclusion determination. However, the Applicant asks this Court to analyze and rule on the exclusion determination. In the Applicant's view, this is important because of the consequences of the finding of exclusion by the Board on further immigration matters that might arise. For example, if this part of the Board's decision stands, the Applicant, upon application for a pre-removal risk assessment, would be subject to paragraph 112(3)(c) of the IRPA that provides that refugee protection is unavailable to a person whose claim was rejected on the basis of Section F of Article 1 of the Convention. Further, the Board's determination would confront him in any future admissibility hearings (subsection 35(1) of IRPA), such as would occur if he applied as part of the Spouse in Canada Class.
[10] The Respondent disputes the seriousness of the consequences flowing from the Board's exclusion determination and urges me not to hear argument or rule on this question as it is not determinative of the judicial review application.
[11] In general, I do not believe that this Court should engage in what might be considered to be an academic exercise. In this case, the application will be dismissed; this has been conceded by the Applicant. However, in the particular circumstances of this application and because of the serious consequences flowing from the exclusion determination, I believe that it is appropriate to consider the Applicant's arguments.
(b) Did the Board err in its exclusion determination?
[12] In concluding that the Applicant was excluded pursuant to the relevant Article of the Refugee Convention and section 98 of the IRPA, the Board reached two key conclusions:
- the Applicant served as an active member of the regular Angolan Armed forces; and
- the Angolan Army can be described as an organization "principally directed to a limited brutal purpose" (Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (F.C.A.)).
[13] The Applicant does not dispute the first of these findings. However, the Applicant submits that the Board erred in concluding that the Angolan Army is an organization "principally directed
to a limited brutal purpose". In the Applicant's submission, the Angolan Army is a national army with a legitimate mandate to provide military services to the citizens of Angola. The Applicant acknowledges that the army has committed crimes against humanity, but questions the conclusion of the Board that this was the army's "purpose".
[14] It is well-settled that mere membership in an organization that commits crimes against humanity is not sufficient to exclude a claimant (Ramirez, above; Moreno v. Canada (Minister of Employment and Immigration), (1993), 21 Imm. L.R. (2d) 221 (F.C.A.)). As stated in Yogo v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 655, at para. 19:
[W]here there is no evidence of the applicant's direct involvement in the commission of crimes against humanity, it is important to recognize the distinction between an organization where the commission of such crimes is a continuous and regular part of the operation and an organization having a single brutal purpose.
[15] However, where the organization has little or no purpose or function beyond a limited, brutal one, a reasonable inference is that any member of that organization commits crimes against humanity. This inference may, of course, be rebutted by the evidence of the particular role of the individual member. In this case, the Applicant does not dispute the Board's finding that he was an active member of the Angolan Army. Accordingly, if the Board did not err in its conclusion that the Angolan Army is principally directed to a limited, brutal purpose, the Board's result on the exclusion determination is not unreasonable.
[16] The Applicant refers to a number of decisions in support of his position. However, each of these can be distinguished on its facts and is of little assistance.
- While Justice McKeown, in Saridag v. Canada (Minister of Employment and Immigration) (1994), 85 F.T.R. 307 (T.D.), appears to claw back significantly at the presumption created in Ramirez, above, in my opinion, that case is limited to its particular facts, which involved a decision that a boy who served in a paramilitary group from the young age of 11 to 13 could not be said to be complicit in the crimes of that group via his membership. Justice McKeown put special emphasis on the age and mental capacity of the claimant (at para. 9).
- Balta v. Canada(Minister of Citizenship and Immigration) (1995), 91 F.T.R. 81 (T.D.) also appears to severely curtail, if not eliminate, the presumption from Ramirez, above. In Balta, Justice Wetston rejected the Board's finding that membership in the Bosnian Serb army was sufficient to conclude that the claimant supported the heinous actions of the army. However, Justice Wetston based this ruling on a complete lack of evidence before the Board "from which they could have reasonably concluded that the Applicant had sufficient knowledge or personal participation" (at para. 17). Significant evidence exists in this case that the Applicant should have had knowledge of the crimes committed by the Angolan Army, and although the Board did not draw the connecting lines between this evidence and his complicity, it is enough to distinguish Balta.
- In Yogo, above, Justice Hansen found that the Board did not identify evidence upon which it could find that the security forces the claimant belonged to had a "limited, brutal purpose." In the case before me, however, the Board cited extensive evidence upon which it could have decided that the Angolan Army had such a purpose, which was, among other things, a "scorched earth" type of campaign to destroy any and all opposition. Indeed, the Board noted that politically motivated violence involving the Army was indistinguishable from common criminal violence. The Army killed "indiscriminately."
[17] The Applicant suggests only one legitimate purpose for the Angolan Army during the time that he was a member; that of national defence. To support this argument, the Applicant points to two sentences in the voluminous documentary evidence that state that the role of the Angolan Army was responsible for protecting the country against external threats. However, there is ample documentary evidence that, during the period of civil war in which the Applicant served in the Army, the Angolan Army carried out activities directed at defeating the UNITA and terrorizing the citizens of Angola. Importantly, there is no documentary evidence that the Army engaged in any other activities whatsoever during the time in question.
[18] Based on the evidence cited by the Board, I am not convinced that it was unreasonable to describe the Angolan Army as having a "limited, brutal purpose." Therefore, it follows that the Board had "serious reasons for considering" that the Applicant was complicit in the crimes of the Army, by reason of his voluntary, continued membership in that organization and its paramilitary offshoots.
[19] Accordingly, the Board did not err in concluding that the Applicant should be excluded from protection pursuant to Article 1(F).
Conclusion
[20] For these reasons, the application will be dismissed. Neither party proposed a question for certification. None will be certified.
ORDER
THIS COURT ORDERS that:
- The application for judicial review is dismissed; and
- No question of general importance is certified.
Judge
APPENDIX "A"
to the Reasons for Order and Order dated December 16, 2005
in
MANUEL JOAO ANTONIO
and
THE SOLICITOR GENERAL OF CANADA
| Immigration and Refugee Protection Act, 2001, c. 27
35. (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; (b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or
... 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. ... 112(3) Refugee protection may not result from an application for protection if the person
... (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or ... Article 1 of the United Nations Convention relation 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;
(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.
|
|
Loi sur l'Immigration et la protection des réfugiés, 2001, ch. 27
35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants : a) commettre, hors du Canada, une des infractions visées aux articles 4 à 7 de la Loi sur les crimes contre l'humanité et les crimes de guerre; b) occuper un poste de rang supérieur -- au sens du règlement -- au sein d'un gouvernement qui, de l'avis du ministre, se livre ou s'est livré au terrorisme, à des violations graves ou répétées des droits de la personne ou commet ou a commis un génocide, un crime contre l'humanité ou un crime de guerre au sens des paragraphes 6(3) à (5) de la Loi sur les crimes contre l'humanité et les crimes de guerre; ... 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. ... 112(3) L'asile ne peut être conféré au demandeur dans les cas suivants :
... c) il a été débouté de sa demande d'asile au titre de la section F de l'article premier de la Convention sur les réfugiés;
... L'Article premier de la Convention des Nations unies relative au status 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; 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. |
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6490-04
STYLE OF CAUSE: MANUEL JOAO ANTONIO v. THE SOLICITOR
GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario.
DATE OF HEARING: December 13, 2005
REASONS FOR ORDER
AND ORDER: Snider, J.
DATED: December 16, 2005
APPEARANCES:
Michael Korman FOR THE APPLICANT
Lorne McClenaghan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Otis & Korman FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Department of Justice