Date: 20060125
Docket: IMM-2818-05
Citation: 2006 FC 39
BETWEEN:
ROSMERY IVONNE HERNANDEZ HERNANDEZ
OSCAR NAVARRO
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated April 13, 2005, ruling that the applicant is not a “Convention refugee” or a “person in need of protection” under the definitions provided in sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Oscar Navarro (the male applicant) and his common-law spouse, Rosmery Ivonne Hernandez Hernandez (the female applicant) are citizens of El Salvador who claim that they were verbally threatened by an armed gang.
[3] In respect of the male applicant, the IRB simply addressed the issue of exclusion and found that there were reasons to believe in his participation and complicity in the commission of crimes against humanity, in view of:
- his testimony about his voluntary membership in the National Guard starting in July 1982, at a time when this police force was already engaged in the perpetration of inhuman acts on a large scale;
- his promotions to the ranks of corporal and deputy sergeant;
- his knowledge of serious and systematic violations of human rights which were being committed by this police force, violations of which he could not have been unaware, given his many years of service within the National Guard and the duties he had held; and
- the fact that he had never contemplated resigning.
[4] In respect of the female applicant, the IRB rejected her refugee claim as it had not identified any credible element in support of her claim, and refused in particular to believe that she had been attacked by criminal elements, as the male applicant alleged.
[5] Concerning the male applicant Oscar Navarro, first, he argues that the IRB erred in finding that there were serious reasons for considering that he has committed a crime against humanity. The applicant says he belonged to the National Guard from 1982 to 1994, but he maintains that the National Guard, as a national institution, was not dedicated to repression but was responsible for protecting civilians.
[6] Moreover, he says, there is nothing in the evidence put before the IRB that would indicate that he participated directly or indirectly in massacres, violations of human rights or crimes against humanity.
[7] The characterization of acts as international crimes against humanity is a question of law. An act must satisfy the legal tests laid down in the Criminal Code and in international law if it is to be considered a crime against humanity.
[8] As the Supreme Court of Canada held in Mugesera v. Minister of Citizenship and Immigration, 2005 SCC 40:
[170] . . . the criminal act requirement for crimes against humanity in ss. 7(3.76) and 7(3.77) [of the Criminal Code] is made up of three essential elements: (1) a proscribed act is carried out; (2) the act occurs as part of a widespread or systematic attack; and (3) the attack is directed against any civilian population. . . .
[9] The documentary evidence enabled the IRB to find that the National Guard devoted itself systematically to widespread torture, kidnapping and murder of men, women and children in the civilian population. The documentary evidence also enabled the IRB to find that the attacks by the National Guard were committed as part of widespread and systematic attacks. In my opinion, these findings of the IRB are correct.
[10] As to the second issue, the applicant’s participation, the cases are clear concerning the onus, which was on the Minister in terms of exclusion, “serious reasons for considering”, namely, a lesser onus than the balance of probabilities. To apply the exclusion clause, the IRB simply had to be satisfied, to a lesser degree than a balance of probabilities, that the applicant had been an accomplice in the crimes against humanity which the National Guard had perpetrated (see Sivakumar v. Canada (M.E.I.), [1994] 1 F.C. 433, leave to appeal to the Supreme Court of Canada, No. 23962, denied on June 2, 1994, and Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306 (C.A.)). More than a doubt or speculation is required, but there need not be a balance of probabilities.
[11] From the facts, the IRB was able to find (to have “serious reasons for considering”) that the applicant was an accomplice in the crimes committed by the National Guard during the years in which he had served in its ranks, years that coincided exactly with the period in which the National Guard had systematically engaged in widespread torture, kidnapping and murder.
[12] The principles of complicity were summarized as follows by Madam Justice Reed in Penate v. Canada (M.E.I.), [1994] 2 F.C. 79, at page 84:
As I understand the jurisprudence, it is that a person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and who neither takes steps to prevent them occurring (if he has the power to do so) nor disengages himself from the group at the earliest opportunity (consistent with safety for himself) but who lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. . . .
[13] In Harb v. Canada (M.C.I.), [2003] F.C.J. No. 108 (F.C.A.) (QL), Mr. Justice Décary explained the notion of complicity by association in these words:
[11] . . . It is not the nature of the crimes with which the appellant was charged that led to his exclusion, but that of the crimes alleged against the organizations with which he was supposed to be associated. Once those organizations have committed crimes against humanity and the appellant meets the requirements for membership in the group, knowledge, participation or complicity imposed by precedent, . . . the exclusion applies even if the specific acts committed by the appellant himself are not crimes against humanity as such. . . .
[14] In my opinion, the IRB correctly applied the jurisprudential principles when it made a finding of complicity by the applicant with the National Guard. The evidence revealed that it was highly probable that anyone who was a member of the National Guard in 1982 and 1983 was not only aware of the criminal activities of this police force but participated in them. Furthermore, the applicant did not dissociate himself from the group.
[15] Finally, concerning the female applicant Rosmery Ivonne Hernandez Hernandez, she argues that the IRB erred in criticizing her for not complaining to the police in El Salvador about her problems with the armed gang. The documentary evidence, she says, demonstrates the ineffectiveness of the police authorities.
[16] However, the applicant does not support this contention by affidavit, did not file any documentary evidence and did not refer to some pages of documents previously filed at the IRB.
[17] The female applicant says the IRB also erred in criticizing her for not answering question 31 in her Personal Information Form (PIF) about the steps she had taken to obtain protection in her country. The applicant maintains that her file was linked with that of her common-law husband and that this question had been answered in his PIF.
[18] The female applicant further alleges that the IRB erred in criticizing her for not having made a refugee claim in Mexico and the United States, because she has family only in Canada and El Salvador. The applicant submits that she does not consider the sister of her husband to be a member of her direct family.
[19] However, the applicant filed no affidavit in support of this explanation. What is more, she herself stated in her PIF that she has a brother in “L.A., USA”, which directly contradicts her submissions.
[20] In my opinion, it was entirely reasonable for the IRB to conclude that, if the female applicant had really fled her country in fear, she would probably have requested international protection if not in Mexico, at least in the United States (see Hafez v. Minister of Citizenship and Immigration (November 17, 1994), IMM-3127-93, Huerta v. Minister of Employment and Immigration (March 17, 1993), A-448-91 and Ilie v. Minister of Citizenship and Immigration (November 22, 1994), IMM-462-94).
[21] This Court may intervene only if the negative inference drawn from a claimant’s conduct is unreasonable, absurd or arbitrary (Huerta, supra).
[22] The applicants’ arguments on inclusion in fact bail down to an effort to get the Court to assess differently the evidence that was available to the IRB. However, it is trite law that this may not be done (Zrig v. Canada (M.C.I.), [2003] F.C.J. No. 565 (F.C.A.) (QL).
[23] In my opinion, the IRB did not err in finding that the female applicant is not a refugee or a person in need of protection.
[24] For all of these reasons, the application for judicial review is dismissed in its entirety.
___________________________________
JUDGE
OTTAWA, ONTARIO
January 25, 2006
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2818-05
STYLE OF CAUSE: ROSMERY IVONNE HERNANDEZ HERNANDEZ, OSCAR NAVARRO v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 14, 2005
REASONS FOR ORDER: Pinard J.
DATED: January 25, 2006
APPEARANCES:
Odette Desjardins FOR THE APPLICANTS
Marie-Nicole Moreau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Odette Desjardins FOR THE APPLICANTS
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada