PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Blanco, his wife, and daughter are citizens of Colombia. They applied for refugee protection in Canada on the basis of a well-founded fear of persecution by the Revolutionary Armed Forces of Colombia (FARC) because of Mr. Blanco's perceived political opinion as an officer in the Colombian Navy. The Refugee Protection Division (RPD) of the Immigration and Refugee Board concluded that they "are Convention refugees or persons in need of protection as defined in sections 96 and 97 of the Immigration and Refugee Protection Act", S.C. 2001, c. 27 (IRPA). However, Mr. Blanco "is excluded from entitlement to protection pursuant to section 98 of the IRPA". Section 98 of the IRPA provides that a person referred to in section E or F of Article 1 of the United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (the Refugee Convention), is not a Convention refugee or a person in need of protection. Mr. Blanco seeks judicial review of the exclusion finding. I have concluded that his application should succeed.
I. Background
[2] The Minister elected to participate in the refugee hearing. On the basis that the Colombian Armed Forces were known to perpetrate war crimes and crimes against humanity, during the period of time that Mr. Blanco was an active member of the Colombian Navy, the Minister took the position that there were serious reasons to believe that Mr. Blanco was complicit in war crimes and/or crimes against humanity (international crimes).
[3] On this application, only the exclusion finding is in issue. Accordingly, only the facts pertinent to that issue will be mentioned. The RPD found Mr. Blanco to be a credible witness who presented evidence in a straightforward, trustworthy manner. Any discrepancies between his oral testimony and his personal information form (PIF) were explained to the satisfaction of the RPD.
[4] Mr. Blanco's evidence can be summarily stated. Colombia's military is divided into three branches: army, navy and air force. He voluntarily enlisted in Navy School in Barranquilla in July, 1980. He was employed as a maintenance and repair technician for submarine control systems at the naval base in Cartagena until 1991. From January 1992, until December 1993, he studied electronics at the Navy Private School in Bogotá. In 1994, he began working in naval intelligence where his function was to detect and eavesdrop on radio communications of the FARC. The garnered information was forwarded to his superior officers.
[5] By 1998, Mr. Blanco had moved through the ranks from Cadet to Chief Petty Officer. He was a navy intelligence non-commissioned officer (NCO) from 1994 until 2001. He became the highest-ranking person performing hands-on intelligence work with his unit in Bogatá. In 2000, he was transferred to a military hospital where he supervised an intelligence unit of seven people. He left Colombiain April 2001.
[6] In relation to knowledge of international crimes, Mr. Blanco testified that he was aware of newspaper reports of military involvement in killings, disappearances, and torture. He was also aware of reports from the Procurator General, the main administrative agency with a human rights monitoring and investigative role in the public Ministry, regarding human rights problems in Colombia. He acknowledged that there were news reports regarding human rights abuses, disappearances and executions in the navy intelligence network in Barrancabermeja (the Barrancabermeja incident) and that the commander of the navy released a communication saying that there was an investigation in process. He disavowed any knowledge of navy intelligence collaboration with paramilitaries.
II. Common Ground
[7] There is no dispute that:
(a) the Colombian navy was not found to be an organization with a limited brutal purpose;
(b) there is no evidence that Mr. Blanco personally committed international crimes;
(c) there is no evidence that Mr. Blanco was employed in locations, or near locations, where international crimes were committed.
III. The Minister's Position
[8] The Minister contends that since the Colombian navy is not dedicated to a limited brutal purpose, mere membership is not sufficient to establish a shared common purpose. Therefore, it is necessary to evaluate whether Mr. Blanco's particular circumstances render him complicit. This inquiry requires an analysis of various factors, specifically: the nature of the organization; the method of recruitment; Mr. Blanco's level of involvement and responsibility in the organization; the length of his participation; his knowledge of atrocities; and his opportunity to leave the organization.
[9] According to the Minister, the documentary evidence reveals specific incidents confirming that the Colombian military, navy, and naval intelligence have been directly implicated in murders and enforced disappearances. During the time of Mr. Blanco's involvement in naval intelligence, the evidence suggests that the Colombian armed forces, including the navy and naval intelligence, regularly committed crimes against humanity, including torture.
[10] The Minister notes that Mr. Blanco voluntarily enlisted in the navy, willingly served as a naval intelligence NCO from 1994 to 2001, and attained a significant rank. The jurisprudence, it is said, supports an inference of shared common purpose in this organization's crimes.
[11] In the Minister's view, Mr. Blanco's length of service clearly lends itself to a finding of knowing participation, shared common purpose, and complicity. His evidence (noted earlier) points to awareness of the commission of international crimes. Given his rank and his length of service, he had to have been aware of the atrocities. The Minister asserts that Mr. Blanco participated in a personal and knowing manner with the Colombian military intelligence system. His claim that he was not aware of naval intelligence collaboration with paramilitaries is not credible, given that it was notorious.
[12] Mr. Blanco had the freedom to leave the organization at any time. The Minister claims that his ultimate departure was a purely administrative process that took only three months. The failure to leave supports complicity. Further, says the Minister, an individual may be an accomplice to international crimes if, having knowledge of the crimes, he fails to take steps to prevent occurrences or to disengage himself from the offending organization at the earliest opportunity consistent with his own safety.
[13] The Minister submits that Mr. Blanco was an active integral part of the Colombian military enterprise which, at the relevant time, produced terrible moments of collective, deliberate inhumanity. He shared in the fearful common purpose of the Colombian military. This participation, no matter how remote, clearly constituted complicity.
[14] In sum, the Minister claims to have submitted voluminous material at the hearing in support of the proposition that the commission of international crimes by the Colombian military was widespread and systematic. Substantial documentation in support of a finding that the Colombian navy, in particular its intelligence wing, was involved in crimes against humanity was before the RPD. Moreover, the crimes against humanity were not limited to the one episode in Barrancabermeja where the navy's intelligence was found to be responsible for dozens of extrajudicial executions.
IV. Relevant Statutory Provisions
| Article 1 of the United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150
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;
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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. |
Article 1 de la convention des Nations Unies relative au statut 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;
Loi sur l'immigration et la protection des réfugiés, L.C. 2001, ch. 27
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. |
V. The Decision
[15] The RPD concluded that the Minister met the burden of proof that there were "serious reasons for considering" that Mr. Blanco was complicit in crimes against humanity, particularly crimes of torture, practised on a widespread or systematic basis as set out in Article 7 of the Rome Statute of the International Criminal Court (the Rome Statute). It then evaluated Mr. Blanco's individual circumstances and determined that they rendered him complicit. The RPD's findings in this respect are set out below.
A. Nature of the Organization
[16] Because it will be important later, it is useful to set out precisely what the RPD had to say about the nature of the organization.
The Minister provides specific examples of documentary reports confirming that the Colombian military, Navy and Navy intelligence have been directly implicated in murder and enforced disappearance not only of guerrillas but also of citizens with political, journalistic, unionist or human rights profiles. Also, collaboration between military and paramilitary forces was documented during the period that the claimant served as cited above. The panel finds that the Minister's submissions, in a careful and thorough manner, provide numerous citations in the documentation which support a finding that the Colombian military was committing human rights abuses and colluding with paramilitary forces. The panel finds that the Colombian Armed Forces, including the Navy and Navy Intelligence, committed gross human rights abuses amounting to crimes against humanity during the period of time that the claimant was a serviceman.
B. Method of Recruitment
[17] The RPD found that Mr. Blanco's voluntary enlistment, his rank, and his responsibility supported an inference of a shared common purpose in his organization's crimes.
C. Length of time in the organization
[18] Mr. Blanco served an extensive period of time, from 1980 until 2001, that would lend itself to a finding of personal and knowing participation, shared common purpose, and complicity.
D. Opportunity to leave the organization
[19] The RPD determined that there was no evidence indicating that Mr. Blanco was compelled to continue serving against his will. His decision to resign was a result of threats against him and his family. He had the freedom to leave the Colombian navy and his failure to do so supports a finding of complicity.
E. Awareness of atrocities
[20] The RPD noted Mr. Blanco's evidence (referred to earlier in these reasons at paragraph 6). It concurred with the Minister's counsel that during the period of his assignment as a navy intelligence NCO, Mr. Blanco had considerable knowledge of the involvement of the military, navy intelligence, the police, and paramilitaries in crimes against humanity. Because of his rank, he had to have been aware of these crimes. While he described specific intelligence operations and stated that his job ended when he passed on the information, the RPD opined that it is a reasonable conclusion that some of the civilians arrested as a result of Mr. Blanco's intelligence activities were killed, disappeared, or tortured. It rejected, as not credible, Mr. Blanco's claim that he was not aware of navy intelligence collaboration with paramilitaries because it was notorious.
[21] In the end, the RPD concluded that Mr. Blanco is a member of the persecuting group with knowledge of human rights abuses. He supported navy intelligence, an organization that has committed widespread and systematic human rights abuses against civilians, during the period of his service. Thus, there are serious reasons for believing that Mr. Blanco was complicit in crimes against humanity and is therefore not deserving of protection in Canada.
VI. The Standard of Review
[22] In relation to a finding of exclusion, findings of fact are reviewed on a standard of patent unreasonableness and findings that apply the facts to the law are reviewed on a standard of reasonableness: Harb v. Canada(Minister of Citizenship and Immigration)(2003), 302 N.R. 178 (F.C.A.)
VII. The Issues
[23] Mr. Blanco asserts five separate errors by the RPD. I am satisfied that the identified allegations of error are subsumed in the following questions:
(a) Did the RPD err in concluding that the Colombian navy and naval intelligence are organizations implicated in international crimes? If the answer is yes,
(b) Did the RPD err in concluding that Mr. Blanco was complicit?
VIII. Analysis
[24] Much time and effort has been devoted to the question of whether Mr. Blanco was complicit in international crimes. A trilogy of cases of the Federal Court of Appeal provides the foundation upon which the jurisprudence regarding complicity rests: Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.) (Ramirez); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.) (Moreno); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.) (Sivakumar).
[25] However, it is premature to speak of complicity until such time as it has been determined that the organization in question is implicated in international crimes. The RPD found that the Colombian armed forces, including the navy and navy intelligence, committed gross human rights abuses amounting to crimes against humanity during the period of time that Mr. Blanco was a serviceman. I regard that finding as one of fact, subject to review on a standard of patent unreasonableness.
[26] In concluding as it did, the RPD stated that the Minister had provided specific examples of documentary reports confirming that the Colombian military, navy, and navy intelligence had been "directly implicated in murder and enforced disappearance not only of guerillas but also of citizens with political, journalistic, unionist or human rights profiles". It also concluded that there was collaboration between the navy and the military.
[27] There is no question that the documentary evidence is replete with references to the Colombian military's implication in crimes against humanity (certified tribunal record at pp. 404, 410, 472, and 512). However, the evidence, in the main, speaks of the Colombian military (in the context of the army) or the armed forces. When detailing specific events or incidents, it refers to the army and to particular units and brigades within the army. In fact, the footnoted references in the RPD's decision − relied upon to establish that the navy and naval intelligence are known to have committed such offences − deal with the military. (The pages of the certified tribunal record do not appear to be numbered as they were before the RPD. The passages referred to by the RPD are found in the certified tribunal record at either pp. 391, 403, 404 or at pp. 713,725,726. In either case, they refer to the military or the armed forces).
[28] There is little mention of the navy or naval intelligence in the more than 700 pages of documentary evidence contained in the certified tribunal record. There is reference, indeed there are several, to the Barrancabermeja incident. Repeated mention of a single incident does not convert it to something more than single incident.
[29] The documentary evidence in the certified tribunal record relates almost exclusively to human rights violations, in generic terms, on the part of the military, armed forces, or the army. Where particular examples of persecutory actions are furnished (other than the Barrancabermeja incident), they, too, refer to the army.
[30] Indeed, in the documentary evidence that was before the RPD and is now before me, aside from the Barrancabermeja incident, I have been able to locate only two fleeting references to the navy. One of these references mentions a witness who recounted that naval units near Chengue looked the other way when paramilitaries travelled past to a village where civilians were later massacred (certified tribunal record at p. 489). The other reference relates to a navy commander advising, when a call for assistance was made to him, that he had no jurisdiction over the Llorente area (certified tribunal record at p.802). While the content of these incidents is not to be minimized, the point is that they are the only references that I have uncovered in more than 700 pages of reports.
[31] The dilemma is, in my view, evident. Crimes against humanity must be committed in a widespread, systematic fashion against any civilian population or any identifiable group of persons: Sivakumar; Mugesera v. Canada(Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100. The noted evidence, insofar as the navy or navy intelligence is concerned, refers to three incidents which occurred over a period encompassing more than 20 years. It does not support a finding that international crimes were committed in a widespread systematic fashion by the navy, or the navy intelligence.
[32] I do not know whether the Colombian navy or the navy intelligence engaged in the commission of international crimes. Nor do I know if the navy or navy intelligence colluded with the Colombian military, the armed forces, or the army in the commission of international crimes. Courts have little knowledge of such matters. But, of this, I am certain: no such conclusion is possible on the basis of the documentary evidence contained in the certified tribunal record in this matter. For the RPD to conclude otherwise, on this record, is contrary to the law enunciated in the cited jurisprudence. Its finding in this respect is patently unreasonable and cannot be sustained. In view of this conclusion, the issue of complicity does not arise.
[33] Mr. Blanco requested, if he were successful, that in setting aside the decision of the RPD, I also direct it to declare him to be a Convention refugee. I am not persuaded, in view of Xie v. Canada(Minister of Citizenship and Immigration), [2005] 1 F.C.R. 304 (C.A.), that such a direction is appropriate and I decline to make it.
[34] For the foregoing reasons, the application for judicial review will be allowed. Counsel did not suggest a question for certification and none arises
JUDGMENT
THIS COURT ORDERS AND ADJUDGES THAT the application for judicial review is allowed and the matter is remitted to a differently constituted RPD for determination
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4587-05
STYLE OF CAUSE: NELSON HUMBERTO RUIZ BLANCO
v.
MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 19, 2006
AND JUDGMENT: Layden-Stevenson J.
APPEARANCES:
| Mr. Peter Shen
|
|
| Ms. Kristina Dragaitis |
SOLICITORS OF RECORD:
| Peter Shen Hamilton, Ont.
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |