BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT
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 “Board”) dated November 15, 2005, wherein the Board determined that the applicant was not a Convention refugee or a person in need of protection by reason that he was excluded from protection pursuant to section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) under Article 1F(a) for complicity in crimes against humanity.
[2] Jose Pedro Justino (the “applicant”) is a 41-year-old citizen of Angola. He is married and has four children, including two step-children. The applicant claims to have a fear of persecution on the Convention ground of a perceived political opinion.
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[3] By decision dated November 15, 2005, the Board found that the applicant was complicit in the commission of crimes against humanity for the following reasons:
- The applicant joined the Angolan Ministry of the Interior (“MOI”) voluntarily and worked there for three years;
- The MOI can be described as an organization resorting to human rights abuses as a regular part of its operations;
- The applicant was a senior economist with a responsibility of planning logistical supplies to other parts of the organization;
- The applicant admitted that he had knowledge of the human rights abuses perpetrated by parts of the MOI; and
- The applicant had opportunities to leave the MOI.
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[4] Paragraph 1(F)(a) of the Convention Relating to the Status of Refugees states:
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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; |
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : |
Section 98 of the Act reads as follows:
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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.
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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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[5] In order to properly conclude that an applicant is complicit in crimes against humanity, the officer must have serious reasons for considering that the individual committed or was complicit in crimes against humanity. This burden or standard of proof is less than the civil standard of a balance of probabilities (Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306 (C.A.)).
[6] The applicable standard of review to questions of fact is patent unreasonableness, while legal findings are subject to the correctness standard of review (see Bedoya v. Minister of Citizenship and Immigration, 2005 FC 1092, Harb v. Minister of Citizenship and Immigration, 2003 FCA 39, and Mugesera v. Minister of Citizenship and Immigration, 2005 SCC 40). The determination of an applicant’s membership and role in an organization, for example, is a question of fact and therefore subject to the most deferential standard of review, while a determination of whether these facts meet the requirements of a crime against humanity is a question of law.
[7] Here, the Board concluded that the applicant was complicit in crimes against humanity because it determined that he had met the following six factors relevant to analyzing complicity:
- Nature of the organization;
- Method of recruitment;
- Position/rank in the organization;
- Knowledge of organization’s atrocities;
- Length of time in the organization;
- Opportunity to leave the organization.
In analyzing the position/rank factor, the Board concluded:
But his duties as a senior economist brought him squarely into the realm of strategic support services to persons and operations that were carrying out human rights abuses.
[8] According to the applicant, his testimony and the evidence before the Board make it clear that the Board erred in characterizing him as a senior economist who supported those who perpetrated human rights abuses. This was an erroneous finding of fact, upon which the Board, in part, based its decision.
[9] However, the jurisprudence is clear that the rank that the person had in the impugned organization is not determinative of whether the person can be found to be complicit in crimes against humanity. It is one of a number of factors to be taken in account.
[10] A person’s rank within an organization, among other things, speaks to the likelihood of that person’s knowledge and involvement in the organization’s bad acts. However, one need not be in a leading position in order to be found complicit. Mr. Justice Barnes, in J.A.O. v. Minister of Citizenship and Immigration, 2006 FC 178, cited with approval Mr. Justice Blanchard in Sungu v. Canada (M.C.I.), [2003] 3 F.C. 192, wherein he held:
[31] The question of complicity was also considered by Madam Justice Reed in Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.). Following an analysis of the decisions in Ramirez, supra, Moreno, supra, and Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), Reed J. concluded, at pages 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. […]
[32] Likewise, in Sivakumar, supra, the Court of Appeal, following Ramirez, supra, explained that a person may be considered “an accomplice through association” and laid down the following principles:
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- Complicity through association can mean that individuals may be rendered responsible for the acts of others because of their close association with the principal actors. |
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- Furthermore, the case for an individual’s complicity in international crimes committed by his or her organization is stronger if the individual member in question holds a position of importance within the organization. The closer one is to being a leader rather than an ordinary member, the more likely it is that an inference will be drawn that one knew of the crime and shared the organization’s purpose in committing that crime. |
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- In such circumstances, an important factor to consider is evidence that the individual protested
against the crime or tried to stop its commission or attempted to withdraw from the organization. |
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- Association with an organization responsible for the perpetration of international crimes may constitute complicity if there is personal and knowing participation or toleration of the crimes.
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[11] Regardless of whether the applicant was a “low-mid level economist” or a “senior economist”, it is clear that the applicant shared a common purpose with the organization. The Board found that the applicant could not have done his job properly concerning materials distribution, financial and logistical support for the MOI if he had not analysed intelligence reports. Therefore, the applicant was aware, or should have been aware, that his duties provided logistical support for the MOI’s security forces’ operations against the separatist UNITA rebels, and that during that period of time the MOI committed numerous human rights abuses. The applicant also stated that he knew of the human rights abuses of the MOI before he joined the organization. The applicant did not disassociate himself from the organization at his first opportunity.
[12] It is my opinion that even if the Board had erred with regard to its characterization of the applicant’s position/rank, and he were only a “low-mid level economist”, this would not alter the Board’s conclusion with regard to the applicant’s complicity.
[13] The applicant further submits that there was insufficient evidence before the Board for it to conclude that he had sufficient personal and knowing participation for a finding of complicity. I do not agree.
[14] A refugee claimant may be excluded from receiving protection if the claimant is found to be complicit in committing crimes against peace, war crimes or crimes against humanity. In order to be found to be complicit, a person must have been a knowing and personal participant in the crimes committed. This Court, echoing the words of Décary J.A. in Bazargan v. Canada (M.E.I.) (1996), 205 N.R. 282, stated, in Rai v. Canada (M.C.I.), 2001 FCT 784:
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.
[15] The evidence is clear that the applicant was an economist with the Angolan MOI, which was responsible for internal security in the country and thus responsible for the human rights abuses committed. The applicant chose to remain in the employ of the MOI for three years despite his knowledge of the Ministry’s bad acts.
[16] If an organization is not directed for a brutal and limited purpose and the commission of crimes against humanity is not its main function but incidental to its mandate, there are six factors which must be considered. The Board clearly directed its mind to the applicant’s activities and his link to the organization, taking into account the six factors:
In summary, the claimant in my view has met the test of the six factors identified in analyzing complicity [Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306 (C.A.)]. In terms of Method of Recruitment, he joined the Ministry voluntarily. The Nature of the Organization is clearly one that can be described as resorting to human rights abuses as a regular part of its operation. The Position/Rank of the claimant reflect that he was a senior economist with a strategic responsibility of planning logistical supplies to other parts of the organization. He had by his own admission Knowledge of the Atrocities perpetrated by segments of the organization; he had in my view or could have availed himself of Opportunities to Leave the organization and the Length of Time spent in the organization was three years – a long time indeed to be constantly aware of what was going on and to attempt to leave the organization.
[17] The evidence was compelling and credible that the security apparatus of the MOI, during the relevant time, committed crimes against humanity. The U.S. Department of State Report for Angola for 2000 (released February 2001) stated:
The Ministry of Interior is responsible for internal security, a function that it exercises through the Angolan National Police (ANP), the Rapid Intervention Police (PIR), which was created in 1992 as an elite paramilitary force, and other organs of state security. The Armed Forces of Angola (FAA) are responsible for protecting the State against external threats and have intervened in regional conflicts every year since 1996. The FAA claimed that it had integrated more than 10,000 UNITA soldiers since the 1999 fall offensive. With the resumption of localized hostilities within the country, the FAA became involved in counterinsurgency operations against UNITA. The FAA also is involved is similar operations, although on a smaller-scale, against the Front for the Liberation of the Enclave of Cabinda-Armed Forces of Cabinda (FLEC-FAC). The Government’s security forces remain firmly under civilian leadership. Security forces committed numerous, serious human rights abuses.
[18] There is no question that the applicant was a voluntary employee of the MOI for three years, and that he attained the position of an economist in the Department of Plannification and Studies. The Board made a finding of fact that the applicant’s own evidence indicated that he knew about the Ministry’s human rights abuses even before he joined and that he was aware that his work was being used as logistic support for the MOI in their efforts to fight against UNITA rebels.
[19] The applicant argues that the Board erred because there was no evidence that linked his duties as a low-mid level economist to the perpetration of human rights abuses by some elements of the police. However, the law has never required direct evidence to satisfy the threshold of “serious reasons for considering”. As the Federal Court of Appeal, discussing its holding in Sivakumar ([1994] 1 F.C. 433) said in Sumaida v. Canada (M.C.I.), [2000] 3 F.C. 66:
[31] Our Court never required in that case that a claimant be linked to specific crimes as the actual perpetrator or that crimes against humanity committed by an organization be necessarily and directly attributable to specific acts or omissions of a claimant.
[32] Indeed, short of that kind of direct involvement and of evidence supporting it, our Court accepted the notion of complicity defined as a personal and knowing participation in Ramirez (see page 438 of the Sivakumar decision) as well as complicity through association . . .
[20] The applicant further argues that the funds he distributed could have been directed to paying the salaries of civil servants and/or police officers who carried out legitimate functions. That may be so. However, it is clear that the applicant used his expertise to provide logistic support to the fight against UNITA. He stated:
I would pick up the information and I would refer to my Director that the certain province informed that in certain locality, there was concentration of the enemy, and the enemy was considered UNITA.
[21] It is my opinion that the evidence in this case satisfies the requirements of complicity in crimes against humanity as established in the jurisprudence (Osagie v. Canada (M.C.I.), [2000] F.C.J. No. 1133 (T.D.) (QL), Osayande v. Minister of Citizenship and Immigration, 2002 FCT 368, Ariri v. Minister of Citizenship and Immigration, 2002 FCT 251, Sivakumar, supra, and Ramirez, supra).
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[22] In my opinion, the Board drew reasonable inferences from the evidence in reaching its conclusion about his complicity in crimes against humanity. The applicant has failed to show that these findings were perverse or capricious or not open to the Board based on the evidence. Consequently, the intervention of this Court is not warranted and the application for judicial review is dismissed.
Ottawa, Ontario
September 29, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7347-05
STYLE OF CAUSE: JOSE PEDRO JUSTINO v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 6, 2006
REASONS FOR JUDGMENT: Pinard J.
DATED: September 29, 2006
APPEARANCES:
Mr Michael Korman FOR THE APPLICANT
Mr. Michael Butterfield FOR THE RESPONDENT
SOLICITORS OF RECORD:
Otis & Korman FOR THE APPLICANT
Barristers and Solicitors
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada