Date: 20060817

Docket: IMM-7339-05

Citation: 2006 FC 992

Québec, Quebec, the 17th day of August 2006

PRESENT: THE HONOURABLE MR. JUSTICE BLAIS

 

BETWEEN:

AHCENE CHOUGUI

Applicant

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

 

REASONS FOR ORDER AND ORDER

 

[1]               This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Immigration and Refugee Board–Refugee Protection Division (the Board) dated November 16, 2005, which determined that Ahcene Chougui (the applicant) was not a Convention refugee or a person in need of protection under subparagraphs 1F(a) and 1F(c) of Article 1 of the United Nations Convention Relating to the Status of Refugees.

 

RELEVANT FACTS

 

[2]               The applicant is a citizen of Algeria. He alleged being persecuted in Algeria by security groups and by the Groupe islamique armée (GIA) [Armed Islamic Group] because he was a member and sympathizer of the Front islamique du salut (FIS) [Islamic Salvation Front].

 

[3]               The applicant alleged that he put up posters and wrote graffiti on the walls of his city to protest the cancellation of elections. He admitted having once been a member and sympathizer of the FIS. In January 1992, he was arrested for the first time and released six hours later. In the beginning of July 1993, his son was kidnapped and came home three days later.

 

[4]               In the beginning of August 1993, the applicant alleged having been arrested by the Algerian security forces. He was allegedly sent to the Cavaignac detention centre, where he was supposedly beaten unconscious. After being interrogated and tortured, the applicant admitted having been a member of the FIS. He was then allegedly sent to an internment camp in the southern part of the country, in Ouargla.

 

[5]               The applicant alleged having been contacted by the FIS in 1996, but he did not respond. Numerous threats were made against members of his family. He also allegedly had problems with military security forces at the end of 1996. He was interrogated by them on many occasions. In the beginning of 1997, his residence was allegedly broken into twice.

 

[6]               On January 15, 1997, the applicant left his country with a visa for the United States. He resided in the United States from January 15, 1997 to September 19, 2002, when he made a claim for refugee protection to the American authorities. On September 18, 2002, in Washington, the applicant had his passport renewed for a period of five years. The next day, the applicant arrived in Canada to claim refugee protection.

 

ISSUE

 

[7]   Did the Board err in determining that the applicant was not a Convention refugee?

 

ANALYSIS

[8]                Section 98 of the Act reads as follows:

 

[9]               Subparagraphs (a) and (c) of Article 1 of the Convention read as follows:

 

[10]           The standard of review applicable to the Board’s decision according to which certain acts are included in the definition of “crimes against humanity” is that of correctness (Mendez-Levya v. Canada (Minister of Citizenship and Immigration), 2001 FCT 523; Gonzalez v. Canada (Minister of Citizenship and Immigration) (1994), 24 Imm. L.R. (2d) 229). The standard of review applicable to the Board’s decision according to which certain acts were committed is that of patent unreasonableness. (Mugesera v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1292, 2003 FCA 325).

 

[11]           On many occasions, the Federal Court of Appeal has adopted the definition of crimes against humanity found in section 6 of the Charter of the International Military Tribunal. Section 6 includes:

Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

 

Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433; Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646; Sumaida v. Canada (Minister of Employment and Immigration), [2000] 3 F.C. 66.).

 

 

[12]           Under section 1(F) of the Convention, there must be “serious reasons for considering” that a person has committed a crime against humanity. In Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306, the Court stated that this standard of proof was less than the balance of probabilities. It is up to the government to adduce evidence which meets this standard (Srour v. Canada (Minister of Citizenship and Immigration.), [1995] F.C.J. No. 133).

 

[13]           Accomplices as well as principals actors can be considered to have committed international crimes. Complicity has been defined as personal and knowing participation or an association by which persons may be held liable for acts committed by others because of their close association with the principal actors. Complicity depends on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it (see Ramirez, supra; Sivakuma, supra). In Bazargan v. Canada (Minister of Citizenship and Immigration [1996] F.C.J. No. 1209, at paragraphs 11 and 12, the Federal Court of Appeal concluded that the determination of complicity is a question of fact:

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.

           

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 . . . ” .

 

 

[14]           In the present case, to be excluded from the application of the definition of a Convention refugee, it was necessary to show that crimes against humanity had been committed. In addition, to show that the applicant had been an accomplice to these crimes, it was necessary to prove that he knew of the crimes and shared a common purpose with those persons who committed them.

 

[15]           In its decision, the Board made a detailed analysis of the FIS and concluded that the group had committed crimes against humanity. At page 7 of its decision, the Board cited an excerpt from a report by Human Rights Watch:

Meanwhile, an underground Islamist movement, whose structure and links to the overt political leadership of the FIS remained nebulous, took up arms against the regime. Most of its operations consisted of hit-and-run ambushes targeting police and gendarmes, and acts of sabotage against state property. These attacks began to occur on an almost-daily basis in 1992 and intensified in 1993.

 

FIS leaders did, however, give their clear blessing to the armed struggle, even though the party did not claim responsibility for specific attacks. In an interview published on February 26, 1993 in the Paris-based daily Libération, exiled FIS leader Rabah Kebir said: “The violence stems from the dictatorship, which has left us no alternative to reciprocal violence.” Asked about the first killings of foreigners in Algeria by armed groups in September and October, Kebir told Radio France Internationale, “The FIS has no policy of killing foreigners, but there is a popular movement that is difficult to control.”

 

 

[16]     At page 4 of its decision, the Board mentioned that according to the documentary evidence, the FIS is “an Islamist movement that uses violence and has committed numerous brutal, cruel and inhuman acts”. The applicant alleged that the Board did not specify the documents it relied on in drawing this conclusion. Another reading of the decision shows that the sentence mentioned by the applicant is an introduction to what follows. As mentioned above, the Board cited an excerpt from a report by Human Rights Watch. The conclusions mentioned in the sentence invoked by the applicant are supported by the excerpt from the report.

 

[17]     The applicant submitted that at pages 7 and 10 of its decision, the Board did not cite any evidence in support of its conclusions. The paragraphs mentioned by the applicant and which are on pages 7 and 10 are summaries of the conclusions made on the basis of the documentary evidence already cited in the decision, that is to say, the abovementioned report from Human Rights Watch.

 

[18]     The applicant alleged that in its reasons, the Board did not mention any specific act of violence allegedly committed by the FIS. I do not agree with the applicant. The fact that there is a connection between the FIS and those who commit acts of violence is stated in the excerpt from the Human Rights Watch report, which mentions “hit-and-run ambushes targeting police and gendarmes, and acts of sabotage against state property”.

 

[19]     The applicant alleged that in its reasons, the Board did not specify the crimes he was supposed to have committed. I do not agree with the applicant. At page 10 of the decision the Board cited the following:

However, in the months and years that followed, and after the radicalization of the FIS movement and its armed wing in Algeria, the claimant continued his work in his community, trying to bring the people in his district to accept FIS ideology. As the panel mentioned above, both in the documentary evidence and according to the tribunal’s specialized knowledge, there were in many cases abuses of power where hundreds and thousands of people were killed in those clashes, so the panel is of the view that the claimant, by his actions from 1988 until 1994 at least, associated himself directly with the FIS . . . .

 

The panel is of the view that, during the many years when the claimant took part in activities associated with the FIS, he was at least complicit in the group’s actions.

 

 

[20]     The Board concluded that through his actions, the applicant showed a certain degree of complicity with the FIS. In El-Kachi v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 554, at paragraph 18, Mr. Justice Edmond P. Blanchard briefly reviewed the case law concerning complicity and exclusion from the definition of a Convention refugee:

The question of complicity was also considered by Reed J. in Penate v. Canada (Minister of Citizenship and Immigration), [1994] 2 F.C. 79. Following an analysis of Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.) and Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, Reed J. concluded at 84-85:

 

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. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation. [Emphasis added.]

 

[21]     I am satisfied the documentary evidence shows that crimes against humanity, within the meaning of the international instruments which have provisions concerning such crimes, have been committed. The evidence also shows that the applicant was aware of the fact that crimes against humanity had been committed. The applicant was an accomplice to these crimes against humanity because of a common purpose he shared with the perpetrators of those acts. Moreover, the applicant did not dissociate himself from the FIS at the first available opportunity. I am of the opinion that the Board’s decision to exclude the applicant from the definition of a Convention refugee was not unreasonable.

 

[22]     The applicant alleged that the Board erred in failing to confront him with the documentary evidence. I do not agree with the applicant’s argument and will adopt the reasoning of Mr. Justice Marc Noël in A.V. v. Canada (Minister of Citizenship and Immigration) [1995] F.C.J. No. 900, at paragraph 10:

I also reject the applicants’ argument that the panel should have confronted them with the documentary evidence used to diminish their credibility. The documents used by the panel were included among those submitted by the refugee hearing officer when the hearing began and were listed in the index to the file on the state of Israel received by the applicants before the hearing. The applicants adduced their own documentary evidence. Among this evidence, the panel was entitled to rely on that which it considered most consistent with reality. This is what it did.

 

 

[23]     The applicant alleged that the Board erred in failing to analyze all the documentary evidence. In Florea v. Canada (Minister of Citizenship and Immigration) [1993] F.C.J. No. 598, Mr. Justice James Hugessen wrote the following:

The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown.

 

[24]     There is a presumption to the effect that a tribunal has studied all the evidence before it. In addition, the Board is not required to comment on all the documentary evidence and testimony (Tameh v. Canada (Minister of Citizenship and Immigration [2003] F.C.J. No. 1859). The applicant has not succeeded in rebutting the presumption that the Board considered all the evidence submitted in this case; therefore, the Court’s intervention is unwarranted in the circumstances.

 

 

 

 

 

 

 

JUDGMENT

 

1.      The application for judicial review is dismissed;

2.      No question for certification.

 

 

 

 

 

“Pierre Blais”

 

 

 

Certified true translation

Michael Palles

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-7339-05

 

STYLE OF CAUSE:                          AHCENE CHOUGUI v. MCI

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      June 29, 2006

 

REASONS FOR ORDER AND

ORDER BY:                                      The Honourable Mr. justice Blais

 

DATED:                                             August 17, 2006

 

 

 

APPEARANCES:

 

Stéphane Handfield	FOR THE APPLICANT
Lisa Maziade	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Stéphane Handfield Montréal, Quebec Facsimile no.: (514) 845-5546	FOR THE APPLICANTS
John H. Sims, Q.C. Deputy Attorney General of Canada Facsimile no.: (514) 496-7876	FOR THE RESPONDENT