Date: 20020403
Docket: IMM-6593-00
Montréal, Quebec, April 3, 2002
Present: The Honourable Mr. Justice Nadon
BETWEEN:
HOUCINE ALLEL
LAHOUARIA ABDOU
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
ORDER
The applicants' application for judicial review of a decision of the Immigration and Refugee Board, dated December 6, 2000, is dismissed.
"Marc Nadon"
Judge
Certified true translation
Sophie Debbané, LLB
Date: 20020403
Docket: IMM-6593-00
Neutral Citation: 2002 FCT 370
BETWEEN:
Houcine ALLEL
Lahouaria ABDOU
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
NADONJ.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (the "Refugee Division") dated December 6, 2000. The Refugee Division found that the applicants lacked credibility and therefore it dismissed their claims for refugee status. The Refugee Division also determined that Houcine Allel (the principal applicant) was excluded from the Convention under article 1F(a), since it believed that there were serious reasons for considering that the principal applicant had been complicit in the commission of crimes against humanity. Article 1F(a) of the Convention 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;
...
[2] The fact that there was no evidence in the record that the principal applicant had been the author of crimes against humanity is not disputed. The Refugee Division considered only the principal applicant's complicity.
[3] The applicants, husband and wife, are citizens of Algeria. Mr. Allel, born on July 10, 1963, in Oran, worked as a police officer in his country from 1989 to 1996. After an 11-month training period at the police academy of Hydra, in the suburbs of Algiers, he was assigned to the police equipment barracks in Oran, where he worked as a mechanic and later as a desk officer.
[4] He held this position in Oran for five years and was subsequently transferred, in January 1995, to the position of chauffeur at the police forensic laboratory in Oran. The principal applicant worked as a chauffeur for the chief commissioner of the police laboratory. According to the principal applicant, this laboratory was [TRANSLATION] "connected to the Chateauneuf police station in Oran."
[5] Several months after his transfer, the principal applicant discovered that the prisoners detained at Chateauneuf in Oran were being tortured. As an example, he mentioned the situation of one of his colleagues who was arrested on suspicion of terrorism. The applicant said that his colleague had died as a result of the mistreatment he suffered in 1995 or 1996.
[6] The principial applicant testified that he then asked a fellow police officer how he could resign. He was told that he could not resign without endangering his life.
[7] From that day on, the applicant was determined to leave Algeria. He left his country on August 24, 1996, and arrived in Canada on May 31, 2000, after spending two days in Spain, 15 days in France, and three and a half years in the United States.
[8] The second applicant is Lahouaria Abdou, born on September 20, 1974, in Oran, Algeria. She left her country in November 1999 and arrived in New York on November 20. She married the principal applicant in New Jersey and later entered Canada with her husband on May 31, 2000.
[9] The two applicants claimed refugee status when they arrived in Canada on May 31, 2000. It should be noted that Ms. Abdou did not claim refugee status in the United States, even though she stayed there for almost six months. The principal applicant did not claim refugee status while passing through Spain and France, but in December 1997, he claimed refugee status unsuccessfully in the United States.
[10] The Refugee Division first concluded that the applicants lacked credibility and accordingly, that they had failed to establish that they had a well-founded fear of persecution in Algeria. As for the principal applicant, the Refugee Division stated the following, at page 6 of its reasons:
We must therefore conclude that the principal claimant lacks credibility in his claim of fearing persecution. His actions are difficult to reconcile with the conduct of a person who fears for his life. He worked for the law enforcement authorities, became a chauffeur for the chief commissioner, travelled to Tunisia in an initial effort to carry out his plan, but then returned to Algeria and resumed his duties, only to go back to Tunisia to obtain an American visa, before finally travelling through two European countries without seeking protection. The arguments he provided for failing to claim refugee status are not convincing, and, further, they are contradictory.
[11] After carefully reviewing all of the evidence, I have no hesitation in concluding that the Refugee Division's finding was not at all unreasonable. In my opinion, the Refugee Division could reasonably conclude that the principal applicant's explanations concerning his failure to claim refugee status while passing through Spain and France were not credible.
[12] With respect to Ms. Abdou, the Refugee Division stated, also at page 6 of its reasons:
Testimony of Ms. Lahouaria Abdou:
Ms. Abdou told the panel that she did not want to be victimized in Algeria, pointing out that in July 1999, an elderly woman, who regularly denounced terrorists, had been found strangled to death in her apartment. The claimant also stated that she had been particularly scared of false roadblocks and, as a result of this fear, had moved to Arzew with her mother in late August 1999 in order to be closer to her place of work. She stated that she had decided to leave the country in August 1999. This is the same date given by the principal claimant, who pointed out that the mothers of both claimants had planned their marriage in August 1999. Her move therefore coincided with the promise of marriage. The fact that she arrived in New York on November 20, 1999, but did not claim refugee status at that location, preferring to come to Canada, seems to indicate that the claimant relied on her future husband, who decided to proceed in this manner.
As the principal claimant admitted, the marriage is one of convenience. The claimants know each other only through their mothers' friendship. The principal claimant indicated that the claimant had been engaged to him for a number of months.
We share the view of the principal claimant that the marriage is one of convenience. Accordingly, we can only conclude that her request for protection is neither justified nor well founded.
[13] Later, at page 10 of its reasons, the Refugee Division added:
The claim of Ms. Abdou:
Ms. Abdou alleged in her statement that she was basing herself on her husband's story but added information about a neighbour who had been strangled to death and the fact that she feared roadblocks, which had led her to move closer to her work.
Had it not been for the possibility of a marriage in North America, the claimant would still be living in Algeria. The principal claimant stated that the mothers of the two claimants had arranged the marriage. In light of these facts, the panel can only conclude that the marriage was one of convenience as, according to the principal claimant's admission, they had only met in the fall of 1999. There is no need to elaborate any further.
[14] It is clear that the Refugee Division did not believe the explanations Ms. Abdou gave concerning the alleged reasons why she had left Algeria. The Refugee Division was of the opinion that the real reason she left was the marriage that her mother and the principal applicant's mother had planned. Again, after carefully considering the evidence, I have no hesitation in finding that the conclusion drawn by the Refugee Division was by no means unreasonable.
[15] The second aspect of the Refugee Division's decision concerned the exclusion of the principal applicant from the benefit of the protection afforded by the Convention, as a result of article lF(a) of the Convention.
[16] The principal applicant's first argument raised an issue of natural justice, i.e. that the Minister's representative, Louis Dubé, had not demonstrated that he was authorized to act on the Minister's behalf. The principal applicant's argument is found at paragraphs 6 to 9 of his amended memorandum:
[TRANSLATION]
6. In December 2000, Mr. Dubé intervened as the Minister's representative in a case before the IRB in which Sylvio Houle was counsel for the claimant. Mr. Dubé cited the same clauses, 1F(a) and 1F(c). Mr. Houle asked him to demonstrate that he was the Minister's designated representative and that he was no longer a hearing officer as before. According to Mr. Houle, Mr. Dubé was unable to prove, either at the hearing or since then, that he was also authorized to act as the Minister's representative.
7. Under section 69(5) [sic s. 69.1(5)] of the Immigration Act, the Minister can intervene in a claim. When the claim involves section F of Article 1 of the Convention, the Minister may present evidence and question witnesses.
8. Mr. Dubé, who was not duly authorized by the Minister to act as her designated representative, could not legally intervene at the applicants' hearing or raise the exclusion clauses F(a) and F(c).
9. Mr. Dubé's false representation is so significant that it vitiates the entire hearing and comprises the proper administration of justice since there is abuse of process in this case.
[17] The evidence in support of the applicant's arguments is found in the affidavit dated February 5, 2001, of Rachel Benaroch, the former solicitor for the applicants (Ms. Benaroch represented the applicants before the Refugee Division and she is the one who filed this application for judicial review). Ms. Benaroch asserted the following:
[TRANSLATION]
1. I am counsel for the applicants.
2. All of the allegations in the applicants' memorandum regarding Mr. Dubé were brought directly to my attention by Sylvio Houle. According to Mr. Houle, Mr. Dubéwas to present evidence to the IRB that he was in fact the Minister's representative.
3. Mr. Houle recently informed me that since December 2000, he has not received any evidence to that effect nor has the IRB, it would appear.
[18] In reviewing the affidavit of Ms. Benaroch, it is clear that she had no personal knowledge of the facts she related. In any event, even if she had had personal knowledge of them, the facts contained in her affidavit were, in my opinion, insufficient to show that Mr. Dubé was not authorized to act as the Minister's representative, pursuant to the notice of intervention that he filed with the Refugee Division.
[19] The first argument, in my opinion, is without merit and will be rejected.
[20] As a second argument concerning his exclusion, the principal applicant submitted that the Refugee Division made a number of errors concerning the facts it relied on to exclude him from the protection of the Convention. He also submitted that the Refugee Division made several errors of law.
[21] The respondent argued that the Refugee Division did not make any errors of fact and that, in any case, even if errors had been made, they were not at all decisive. The respondent was further of the opinion that the Refugee Division had not erred in law.
[22] I will begin with the errors of fact. The principal applicant submitted that they were as follows:
1. That he was the personal chauffeur of the chief commissioner of police.
2. That he had completed his police training at an academy known as the "École supérieure de torture."
3. That he had been to the morgue where bodies were piled up.
[23] At pages 1 and 2 of its reasons, the Refugee Division merely stated that the principal applicant had undergone a training period and that he was assigned to Oran afterwards. Moreover, at page 9 of its reasons, the Refugee Division stated as follows:
. . . He worked in Oran, where he received his training at the Chateauneuf police college-a place the documentary evidence also refers to as the École Supérieure de Torture . . . .
[24] I agree with the principal applicant that there was no evidence establishing that he had completed his training at a place known as the "École supérieure de torture."
[25] At page 2 of its reasons, the Refugee Division stated that as of January 1995, the principal applicant was the chauffeur for the chief commissioner of the police laboratory at Chateauneuf, in Oran. Moreover, the Refugee Division indicated, at page 3, that the principal applicant had worked as a chauffeur for the chief commissioner, presumably the chief commissioner of the Chateauneuf police station in Oran, which the Refugee Division referred to as the "École supérieure de torture." At page 9 of its reasons, the Refugee Division stated once again that the principal applicant was the personal chauffeur for the chief commissioner.
[26] The third error of fact raised by the principal applicant involved the statement made by the Refugee Division, at page 10 of its reasons, that the principal applicant had been to the morgue "where all the bodies were taken." The applicant's testimony, relied on by the Refugee Division, is found at pages 85 and 86 of the transcript of October 19, 2000 (Panel Record, pages 434 and 435): [TRANSLATION]
Q. Did you witness interrogations other than the one of the person whom you heard being tortured there?
A. No, I never did.
Q. Did you . . . ?
A. I was once at Amor (phonetic), I saw terrorists thrown on the ground; I couldn't sleep.
Q. How did you know they were terrorists?
A. My friends, I'm not sure, they saw the results of an autopsy and told me that these were terrorists and that they had been shot by antiterrorist groups. I didn't sleep that night.
Q. But who told you that . . . did other police officers tell you that terrorists were involved?
A. My friends did, my co-workers at the laboratory. We went to the morgue itself.
- Hum, hum.
A. At the hospital.
Q. How can you identify a pile of dead bodies and determine that they are terrorists?
A. They do it, it's their job. I went in, I stayed for a second and left. I didn't eat or sleep that day.
[27] After reading the transcript, it is not clear, in my opinion, that the Refugee Division made an error by asserting that the principal applicant had been to the morgue "where all the bodies were taken." The Refugee Division did not express itself as accurately as it should have, but based on the principal applicant's testimony, which the Refugee Division relied on, when the principal applicant went to the morgue, he saw a certain number of dead bodies "on the ground." When the Refugee Division asked him how he was able to identify "a pile of dead bodies" he replied that it was not his job, but the job of some of his colleagues at the laboratory. In any case, I am satisfied that if the Refugee Division erred, the error was not decisive.
[28] With respect to whether the errors made by the Refugee Division concerning the employer of the principal applicant and the location where he completed his training were decisive, I will address those issues later in my reasons.
[29] The principal applicant raised a total of six errors of law. In my opinion, it is not necessary to examine each error separately, given that the principal applicant ultimately criticized the Refugee Division for not properly understanding and construing the principles set out by the Federal Court of Appeal relating to the exclusion of a person who is a party to crimes against humanity.
[30] In my opinion, any discussion on that point must begin with the decision of the Federal Court of Appeal in Bazargan v. M.E.I. (1996), 205 N.R. 282, in which Décary J.A., after carefully reviewing the relevant case law, including the decisions of the Court of Appeal in Ramirez v. M.E.I., [1992] 2 F.C. 306, and Moreno and Sanchez v. M.E.I., [1994] 1 F.C. 298, explained the principles that are applicable in the following words, at paragraphs 7 to 12:
[7] From what MacKay J. said in Gutierrez et al. v. Minister of Employment and Immigration, the motions judge derived the principle that there cannot be complicity in the commission of an international offence unless the following three conditions are met: (1) membership in an organization that commits such offences as a continuous and regular part of its operation; (2) personal and knowing participation; and (3) failure to disassociate from the organization at the earliest safe opportunity.
[8} We do not think that such an interpretation is possible in light of the context in which MacKay J.'s remarks were made and, in any event, it would give this Court's judgments in Ramirez, Moreno and Sivakumar a scope that they do not and cannot have.
[9] First of all, those three cases involved claimants who were members of the implicated organization. The issue of the complicity of a non-member therefore did not arise.
[10] Moreover, in light of MacGuigan J.A.'s comments in Ramirez, supra, it is clear that the Court expressly refused to make formal membership in an organization a condition for the exclusion clause to apply. At p. 320 of his reasons, MacGuigan J.A. took care to specify that it was
"undesirable to go beyond the criterion of personal and knowing participation in persecutorial acts in establishing a general principle. The rest should be decided in relation to the particular facts."
It is true that among "the particular facts" of the case with which MacGuigan J.A. went on to deal in his reasons was the fact that Ramirez was actually an active member of the organization that committed the atrocities (the Salvadoran army) and the fact that he was very late in showing remorse, but those were facts that helped determine whether the condition of personal and knowing participation had been met; they were not additional conditions. Membership in the organization will, of course, lessen the burden of proof resting on the Minister because it will make it easier to find that there was "personal and knowing participation". However, it is important not to turn what is actually a mere factual presumption into a legal condition.
[11] In our view, it goes without saying that "personal and knowing participation" can be direct or indirect and does not require formal membership in the organization that is ultimately engaged in the condemned activities. It is not working within an organization that makes someone an accomplice to the organization's activities, but knowingly contributing to those activities in any way or making them possible, whether from within or from outside the organization. At p. 318, MacGuigan J.A. said that "[a]t bottom, complicity rests . . . on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it". Those who become involved in an operation that is not theirs, but that they know will probably lead to the commission of an international offence, lay themselves open to the application of the exclusion clause in the same way as those who play a direct part in the operation.
[12] That being said, everything becomes a question of fact. The Minister does not have to prove the respondent's guilt. He merely has to show - and the burden of proof resting on him is "less than the balance of probabilities" - that there are serious reasons for considering that the respondent is guilty... (Emphasis added)
[31] At this stage, therefore, it is essential to summarize briefly the facts that led the Refugee Division to exclude the principal applicant.
[32] The Refugee Division began its analysis by examining the documentation regarding the human rights violations by the Algerian authorities and, in particular, by the Algerian police. The Refugee Division first referred to Exhibits M-7, M-9, M-10 and M-14, and more specifically to the following excerpts it quoted on page 8 of its reasons:
[TRANSLATION] The death toll is estimated to be more than 50,000. The horrible crimes and random attacks of armed Islamic groups have been succeeded by extrajudicial executions perpetrated by the law enforcers. . . Massacres and disappearances are growing in number. Torture has become a systematic practice in police stations, detention centres and prisons.
. . .
[TRANSLATION] The police and military find that legal proceedings are far too complex and do not mete out justice effectively and, therefore, they prefer to administer their own justice by arresting suspected civilians, interrogating and torturing them and, when in doubt, executing them.
. . .
[TRANSLATION] Hundreds of testimonies received from exiled Algerians and from Algerian civilians travelling in Europe, who have no political affiliations, and even testimonies obtained in the country from families of victims and human rights advocates clearly reveal that the forces fighting terrorist activity have executed persons suspected of being members or supporters of armed groups. The IFHR has in its possession hundreds of names of persons who have allegedly been killed in such circumstances by regular forces.
. . . .
[TRANSLATION] On the other hand, security forces have been implicated in torture, forced "disappearances" arbitrary killings and extrajudicial executions on a scale that can only be characterized as systematic.
[33] Based on those excerpts, the Refugee Division concluded that the Algerian police were clearly and consistently involved in human rights violations. On that issue, the Refugee Division noted that the principal applicant had admitted hearing screams and wails coming from the Chateauneuf station in Oran. The Refugee Division also noted that the principal applicant knew that the prisoners there were being tortured. To finish its thought with respect to the knowledge of the principal applicant, the Refugee Division stated the following at page 8 of its reasons:
. . . He attempted to play down the matter, stating that although he had had knowledge of what was going on, he had been unaware of the gravity of the atrocities. His confession to having personal knowledge and his reluctance throughout the hearing to understand the real meaning of what the panel called violations of human rights damaged his credibility.
[34] The Refugee Division also stated that the principal applicant was the chief commissioner's personal chauffeur and that he must have had access to privileged information. I note that the Refugee Division did not specify whether the principal applicant was the personal chauffeur of the chief commissioner of the Chateauneuf station in Oran or of the chief commissioner of the scientific laboratory. I will address that point later on.
[35] The Refugee Division concluded that, as a result of the position held by the principal applicant, he was surely "a loyal and discreet man, a man devoted to his employer who held an important position in an organization which did not respect human rights." Again, it is not clear, whether the Refugee Division was referring to the chief commissioner of the Chateauneuf police station in Oran or to the chief commissioner of the scientific laboratory.
[36] The Refugee Division also observed that the principal applicant was working in Oran, where he was trained. That is clearly an error since the principal applicant testified that he had completed his training at the police academy in Hydra, a suburb of Algiers.
[37] The Refugee Division also noted that the Chateauneuf police station in Oran was referred to as the "École supérieure de torture." In my view, that was also an error since, as was mentioned earlier, there was no evidence to support that. Rather, it seems that it is the police academy of Chateauneuf in Algiers that is known as the "École supérieure de torture."
[38] The Refugee Division also determined that the assignment of the applicant in 1995 as chauffeur was a promotion since he had admitted that he wanted to increase his income and have a better work schedule.
[39] The Refugee Division also noted that the documentary evidence showed that the use of torture was common in Oran, where the principal applicant was working.
[40] At page 9 of its reasons, the Refugee Division concluded its analysis regarding the exclusion of the principal applicant as follows:
In view of these facts, how can we find that the claimant did not share a common purpose with the organization for which he worked for several years? How can we not interpret the fact that he remained in the service of the police force during those years as consent to the torture and killings carried on by his colleagues?
He stated that sometimes police officers were forced to resort to such a system, adding that some went too far. He then mentioned that he had been to the morgue, where all the bodies were taken. The fact that he went to the location where the bodies were placed and that he emphasized the points set out earlier, without stating any objection, is tantamount to involvement in an operation that he knew would probably lead to the continuing commission of similar crimes. Through his work and his knowledge of the abuses committed by the police force, the claimant became complicit in these acts.
[41] In my opinion, even though the Refugee Division seems to have confused the chief commissioner of the police laboratory with the chief commissioner of the police station, that error was not of decisive importance, having regard to the evidence in its entirety. I also conclude that the error made by the Refugee Division with respect to the location of the principal applicant's training was not critical.
[42] In my opinion, the confusion regarding the police laboratory and the police station resulted, in part, in the principal applicant's confused testimony. First, in paragraph 9 of his Personal Information Form (his PIF), the principal applicant wrote that he was working as the chauffeur of the chief commissioner of the police laboratory that was "connected to the Chateauneuf Police Station in Oran." After testifying that he heard there was a position at the "Chateauneuf Laboratory," the principal applicant told the Refugee Division that [TRANSLATION] "Chateauneuf is a big police station that oversees all the smaller stations . . . " (p. 54 of the transcript). He then said that Chateauneuf could be considered as the police headquarters in Oran.
[43] The principal applicant also explained that he was working at the regional laboratory in Oran and not at Chateauneuf, [TRANSLATION] "because it was not the same department." He further explained that the laboratory and the police station had their own employees, and that there was a street that divided the laboratory from the Chateauneuf station. He added that the laboratory and the police station were located within the same enclosure and that the employees used the same entrance for their vehicles. It appears from the principal applicant's testimony that each department had its own building.
[44] The principal applicant admitted that he knew that people were tortured at Chateauneuf in Oran. He had even heard screams and wails coming from that area. I note that that part of the testimony is rather surprising since the principal applicant testified that the laboratory was located in a building completely separate from the building of the Chateauneuf station in Oran. He moreover testified that he felt he was a party to what was going on and that he hated [TRANSLATION] "his job as a police officer." That is why he wanted to leave Algeria as soon as possible.
[45] It is also important to note that the principal applicant testified that, since 1992-1993, he had known that police officers were torturing individuals at the police stations. I have no choice but to acknowledge that, by his own account, he did not take any steps to resign before 1996. At paragraph 11 of his PIF, the principal applicant stated that [TRANSLATION] "when I came to realize what was going on at Chateauneuf, I didn't want to work for the police any longer."
[46] In my opinion, the errors made by the Refugee Division are therefore not critical. It is clear, in reviewing the evidence, that the principal applicant, a police officer since 1989, knew a great many things concerning the use of torture by the police forces in Algeria, and more particularly, by the police forces located in Oran. At paragraph 10 of his PIF, he cited the plight of one of his co-workers [TRANSLATION] "at the station" as an example of torture. The applicant himself did not seem to distinguish between the station and the laboratory.
[47] When he testified before the Refugee Division, the applicant did not distinguish between the different departments of the Algerian police. He never testified that special police units were those that mistreated and tortured the prisoners. On the contrary, his testimony was to the effect that the police forces, of which he was a member, were responsible for mistreating the prisoners. In my opinion, that is why he testified that his conscience was troubling him. At page 92 of the transcript, he said:
[TRANSLATION] Yes, I felt as though . . . as though my conscience, as though I were an accomplice.
[48] The principal applicant criticized the Refugee Division for failing to characterize the nature of the organization for which he worked. In the opinion of the principal applicant, that error was crucial and vitiated all of the Refugee Division's reasoning concerning his exclusion.
[49] In the opinion of the principal applicant, it was important to characterize the organization because [TRANSLATION] "the applicant's work was connected to police operations that were completely regular and normal, as they are known in Canada, and were not connected in any way with the commission of crimes against humanity nor were they contrary to the United Nations." The principal applicant submitted that the mere knowledge of the commission of crimes against humanity could not make him a party to those crimes. He argued that a personal participation and a common intent are the essential elements in establishing his complicity. He contended that those elements had not been demonstrated at all by the Minister's representative.
[50] As the respondent submitted at paragraph 42 of his memorandum, there can be no doubt that Canadian law recognizes the concept of complicity by association in which a person, who himself or herself has not committed any crime against humanity, can nevertheless be held responsible for those crimes [TRANSLATION] "by reason of his or her close and voluntary association with an organization the purpose of which is to commit acts of persecution, and by the person's knowledge of the commission of those crimes by that organization."
[51] The evidence is clear. The principal applicant had full knowledge that some of his co-workers, who were police officers, were involved in torturing prisoners, and more specifically, prisoners detained at Chateauneuf in Oran. As I mentioned earlier, the principal applicant testified that since 1992-1993, he had known that the torture of prisoners in the police stations was a common practice. At page 81 of the transcript, the Refugee Division examined the principal applicant concerning his knowledge of torture:
[TRANSLATION]
Q. But what I am asking you, Sir, is that since 92, 93, 94, it has been known . . . .
A. Hum, hum.
Q. . . . that the police are systematically practicing torture in practically all of the police stations. In reaction to terrorism, the only approach that they found was to systematically arrest and torture everyone...
A. Yes.
[52] It is important to note that in 1989, the principal applicant joined the Algerian police as a recruit, and that it was only in 1996 that he resigned.
[53] The Refugee Division also concluded that the documentary evidence showed that the police and the Algerian army were involved in torturing prisoners. After reviewing the documentary evidence, I am of the opinion that the conclusion drawn by the Refugee Division cannot be considered unreasonable.
[54] Having regard to all of the evidence, I am therefore of the opinion that the Refugee Division's failure to characterize the nature of the organization for which the principal applicant was working was not an error that could warrant this Court's intervention in any way. Even though the principal applicant, by his own account, was merely the chauffeur of the chief commissioner of the police laboratory in Oran, in my opinion, the evidence was sufficient for the Refugee Division to conclude that the applicant had personally and knowingly participated. In view of that conclusion, it was open to the Refugee Division to find that there were serious reasons to believe that the principal applicant had been a party to the commission of crimes against humanity.
[55] It should be noted that, in concluding as it did, the Refugee Division considered the fact that the principal applicant had been reluctant throughout his examination to answer clear questions concerning the practice of torture in Algeria. As a result of the principal applicant's reluctance to answer its questions, the Refugee Division found that he was not credible. In Bazargan, supra, Décary J.A. carefully explained that presumptions of fact or questions of fact cannot be turned into questions of law. In the opinion of Décary J.A. "everything becomes a question of fact." In my opinion, the facts before the Refugee Division do not allow me to conclude in any way that the Refugee Division made an error that could justify this Court's
intervention.
[56] For these reasons, the applicants' application for judicial review will be dismissed.
"Marc Nadon"
Judge
Montréal, Quebec
April 3, 2002
Certified true translation
Sophie Debbané, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020403
Docket: IMM-6593-00
Between:
Houcine ALLEL
Lahouaria ABDOU
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
COURT FILE NO.: IMM-6593-00
STYLE OF CAUSE: Houcine ALLEL
Lahouaria ABDOU
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 4, 2001
REASONS FOR ORDER OF THE HONOURABLE NADON J.
DATED: April 3, 2002
APPEARANCES:
|
Johanne Doyon |
FOR THE APPLICANTS |
|
Martine Valois |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
DOYON, GUERTIN, MONTBRIAND & PLAMONDON Montréal, Quebec |
FOR THE APPLICANTS |
|
Morris Rosenberg Deputy Attorney General of Canada Montréal, Quebec |
FOR THE RESPONDENT |