Ottawa, Ontario, November 9th, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Protection Board (the Board) dated November 17, 2004 which found the applicant not to be a Convention refugee or person in need of protection because he was excluded from protection under Article 1F(a) of the United Nations Convention Relating to the Status of Refugees (Convention).
FACTS
[2] The applicant claims a well-founded fear of persecution by insurgent elements of the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, FARC) who would kill him because of his links to the Colombian armed forces (army).
[3] The applicant served in the army for 12 years and two months from 1988 until 2001. Before the Board, the applicant conceded that some members of the army had committed crimes against humanity but denied that he had personally committed such crimes or was remotely connected to such crimes.
[4] The applicant testified that he and his family received phone calls threatening their lives in January and March of 2001 and that the applicant had become a target for reprisals by FARC because of his service in the military. Specifically:
i. by 1996, the applicant's identity as a soldier became known to FARC guerrillas, and he became a target for reprisals;
ii. while carrying on military operations in Antioquia in 1996, a detainee was found to be carrying a note with a written order to kill the applicant;
iii. in January and March 2001, the applicant's family received telephone calls threatening their lives. The callers stated they knew of the applicant's work against guerrilla forces, of his position in the army, and they declared him and his family to be military targets;
iv. after the threatening call of January 2001, the applicant sought protection for his family. His superiors informed him they were unable to give such protection by reason of lack of resources; and
v. on March 6, 2001 the applicant's wife received a "suffragio", a condolence letter or death notice.
[5] After the threats in March 2001, the applicant and his family fled Colombia to seek international protection. They arrived in the United States on March 20, 2001 and entered Canada on March 26, 2001.
THE BOARD'S DECISION
[6] The Board accepted the refugee protection claims of the applicant's spouse, minor child, and mother-in-law. The Board rejected the applicant's refugee claim by reason of finding the applicant excluded from Convention protection because of "complicity" by association with crimes against humanity committed by the Colombian army within the meaning of Article 1F(a) of the Convention. The Board found the applicant's oral testimony that he had no knowledge of the army committing widespread of crimes against humanity implausible. The Board found that the applicant's responses establish that he had some awareness of atrocities committed by army personnel, and that he was involved in the planning and implementation of army operations, thereby contributing to the furtherance of the organization's activities. The Board found that the applicant's service in the army was voluntary and that he chose to remain serving that organization which he knew to have committed atrocities.
RELEVANT LEGISLATION
[7] The relevant legislation is as follows:
Section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) provides:
| 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention Refugee or person in need of protection.
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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.
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Article 1F(a) of the United Nations Convention Relating to the Status of Refugees provides:
| 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 les 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.
[Je souligne] |
ISSUE
[8] Whether the Board erred in concluding that the applicant was excluded from refugee protection by operation of Article 1F(a) of the Convention.
ANALYSIS
[9] In analysing the Board's decision in this case, it is important to bear in mind a number of principles:
1. before the Board, the Minister bears the onus of proof in Article 1F(a);
2. with respect to the interpretation of Article 1F(a) of the Convention, the standard is correctness, but with respect to the application of the law to the facts, the standard is reasonableness;
3. the Board must give clear reasons in unmistakable terms which show a thorough consideration of the facts and relevant issues;
4. the requirement for reasons is greater where the consequences are potentially so dire as in this instance, where the applicant would be deported to Columbia where he faces persecution from the guerrillas. Moreover, he would be separated from his family, which the Board has found qualify as Convention refugees. Undoubtedly, the Board would have found that the applicant qualified as a Convention refugee had the Board not found that the applicant was excluded under Article 1F(a);
5. mere membership in an organization is insufficient to incur exclusion except where the organization is one of a limited brutal purpose;
6. the Board must focus on the specific acts of the person sought to be excluded, their nature, quality and the circumstances thereof in finding that the applicant was excluded; and
7. to find that the applicant was an accomplice the Board must address whether the applicant had a shared common purpose and whether there was personal and knowing participation in the organization which committed the crimes against humanity.
See Bitaraf v. Minister of Citizenship and Immigration 2004 FC 898 per Phelan J. at paragraphs 17 to 30.
[10] The applicant was a member of the Columbian army for 12 years. This army has 270,000 persons and has been fighting a civil war against the guerrilla movement. However, the applicant spent six and a half years of this time as a member of the Equestrian School of the army, which is the reason he joined the army. He also spent 21 months taking courses in the army including courses on human rights. Accordingly, the applicant spent eight of his 12 years in the army either riding horses or as a student. For the four years when he was an active commander in the army, neither the applicant nor the unit for which he was responsible, committed any crimes against humanity. The applicant did state that he had some knowledge of notorious crimes against humanity committed by some members of the army in Rio Frio in 1993, but that he had not heard of other major incidents which were pointed out by the Hearings Officer. The applicant testified that the information he received about the army committing crimes against humanity were isolated incidents, and not representative of general conduct by the army. The Board found at page 15 of its reasons:
Even if the principal claimant did not commit atrocities while being a soldier, he admits he had some knowledge of some of the stated atrocities, and he did not disengage himself from the armed forces at his earliest opportunity. Therefore he is complicit.
[11] With respect, the Board has misapplied the test for complicity. Justice Hughes in Bedoya v. Canada(Minister of Citizenship and Immigration) 2005 FC 1092 recently considered the law to be applied when determining whether a person is complicit in crimes against humanity. In that case it was crimes against humanity committed by a unit of the Columbian army. Justice Hughes applied the six criteria which are necessary in law to determine whether a person is complicit in a crime against humanity. They are:
1. The Nature of the Organization
2. The Method of Recruitment
3. Position/rank within the Organization
4. Length of time in the Organization
5. The Opportunity to Leave the Organization
6. Knowledge of the Organization's Atrocities.
1. The Nature of the Organization
[12] In this case the organization is the Columbian army, which has 270,000 members. The army has a legitimate primary function. It is unreasonable to find that every member of the army is complicit in crimes against humanity because of a few isolated incidents. Accordingly, the application of this criteria does not support a finding that the applicant is complicit.
2. The Method of Recruitment
[13] The Board did not consider this criterion. The evidence is that the applicant joined the army to be a member of the equestrian team and this is what he did for a large part of his army career.
3. The Position/rank within the Organization
[14] The applicant rose to the position of Captain, and then Major but only in the last year and a half of his career. The evidence was that there was a peace between the guerrillas and the army between 1999 and 2002, which was the time when the applicant had achieved the rank of Captain and then Major. At that point, the applicant voluntarily left the army. The applicant was mostly a junior officer and not of such a high position or rank that he would be found to be responsible for crimes against humanity committed by persons under his command. Moreover, there was no evidence that any persons under his command were involved in crimes against humanity.
4. Length of time in the Organization
[15] There is no basis for finding that the 12 years that the applicant was in the army, of which eight were either as a student or as a member of the equestrian team, supports a complicity finding.
5. Opportunity to leave the Organization
[16] The applicant did resign from the army. However, the applicant did not resign because he had knowledge of crimes against humanity. The evidence is that his knowledge was that these crimes against humanity were isolated incidents and he did not know that they were widespread, if in fact they were.
6. Knowledge of the Organization's Atrocities
[17] The Board found at page 16 of its reasons that the applicant had heard of the massacres in Rio Frio in October 1993 where human rights violations were committed by the army. The applicant said that this was nationwide knowledge. The applicant also testified that he had heard about the violations committed by the 20th Brigade, and these violations caused the 20th Brigade to be disbanded by the army. The applicant said that he was not aware of the other notorious massacres which were presented by the hearings officer. However, the Board found at page 16:
... it is not plausible that he would not have knowledge of the reports connected to these incidents.
I agree with counsel for the applicant that this implausibility finding is not enough to find that the applicant was complicit. The applicant testified that he had heard of crimes against humanity committed by the army but that these were isolated incidents. The Board does not give any reasons for its implausibility finding, and this finding is not enough to support a finding that the applicant was complicit. As the Board stated at page 16:
The claimant states that, as far as he was concerned, the Columbian army paid keen attention to operating as an army and avoiding human rights violations. He argued that individual violations by some delinquent personnel cannot indicate that the Columbian army was geared to a single brutal purpose. He stated that according to the polls in Columbia, the Columbian army was the second most respected entity, after the Catholic Church.
I find the applicant's explanation reasonable, and it is not reasonable for the Board to find the applicant's evidence in this regard not plausible without the Board giving reasons.
[18] There was no evidence that the applicant's mobile brigade committed human rights abuses or any other crimes against humanity. To exclude the applicant, there must be a specific reference to the crimes against humanity for which the applicant is alleged to be complicit. Otherwise mere membership in a 270,000 person army would exclude everyone.
[19] For these reasons, I have concluded that the Board's finding that the applicant was complicit in the crimes against humanity committed by some members of the Columbian army does not withstand a probing examination and the Board's decision must be set aside.
CERTIFIED QUESTION
[20] Both parties agreed that this case turns on questions of fact and that it does not pose any question which should be certified. The Court agrees so that no question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed, the Board's decision dated November 17, 2004 is set aside and the matter remitted to another panel of the Board for redetermination.
"Michael A. Kelen"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10337-04
STYLE OF CAUSE: IVAN DARIO ORTIZ ARDILA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 2, 2005
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES:
| Mr. Clifford Luyt
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| Mr. Marcel Larouche
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SOLICITORS OF RECORD:
| Waldman & Associates Toronto, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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