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 December 8, 2005, wherein the Board found that the applicant is excluded from entitlement to protection pursuant to section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) as set out in Article 1F(a) of the Convention Relating to the Status of Refugees, which reads:
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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 : |
[2] Javier Ivan Torres Rubianes (the “applicant”), a citizen of Colombia, claims to have a well-founded fear of persecution by the guerrilla groups known as the National Liberation Army (ELN) and the Revolutionary Armed Forces of Colombia (FARC) because of his perceived political opinion. In addition, he claims to be at risk of losing his life or being subjected to cruel and unusual treatment or punishment in Colombia.
1. Burden of proof, standard of proof and standard of review
[3] The burden of proof before the Board was on the Minister’s representative to demonstrate that there are “serious reasons for considering” that a claimant is excluded from claiming refugee status (Ardila v. Minister of Citizenship and Immigration, 2005 FC 1518; Ali v. Solicitor General, 2005 FC 1306). To find “serious reasons for considering” that a claimant is excluded, the Board must be satisfied that the evidence demonstrates “something more than suspicion or conjecture, but something less than proof on a balance of probabilities.” This lower than usual standard of proof reflects Canada’s and the international community’s resolve to ensure that war criminals are denied safe havens (Sivakumar v. Canada (M.E.I.), [1994] 1 F.C. 433 (C.A.); Liang v. Minister of Citizenship and Immigration, 2003 FC 1501).
[4] The standard of review in exclusion findings on questions of law is correctness, on questions of fact is patent unreasonableness, and on the application of the law to the facts is reasonableness simpliciter (Harb v. Minister of Citizenship and Immigration, 2003 FCA 39).
2. Test for complicity
[5] The Board accepted that, given that the Colombian Army is not an organization with a “limited, brutal purpose”, the mere fact that the applicant was a member of that army was insufficient to demonstrate that there are serious reasons for believing that he was complicit in crimes against humanity (Ardila v. Minister of Citizenship and Immigration, 2005 FC 1518; Valère v. Minister of Citizenship and Immigration, 2005 FC 524). Therefore, evidence of knowing participation was required to determine whether the applicant was complicit.
[6] To determine whether there were “serious reasons to believe” that the applicant was complicit in crimes against humanity, the Board then proceeded to consider the six relevant factors of the test for complicity:
- Nature of the organization;
- Method of recruitment;
- Position/rank in the organization;
- Length of time in the organization;
- Opportunity to leave the organization; and
- Knowledge of organization’s atrocities.
- Nature of the organization
[7] The Board stated the following in its reasons:
The panel finds that not only did the Colombian Armed Forces commit gross human rights abuses amounting to crimes against humanity during the period of time that the claimant was a serviceman, but these crimes were particularly committed by Mobile Brigade 1 in Meta at a time when the principal claimant was stationed there as sub-lieutenant.
[8] According to the applicant, the documentary evidence sets out alleged human rights abuses by the Colombian Army’s Mobile Brigades, but there is no evidence that his unit, Mobile Brigade 1, committed any crimes against humanity between May – August 1993 when the applicant was a member. Thus, the Board made an erroneous finding of fact.
[9] There was, however, considerable evidence documenting the atrocities committed by both the Colombian Army as a whole, and Mobile Brigade 1 in particular. In the December 1994 “Visit to Colombia Joint report”, the United Nations indicated that the recorded number of homicides was increasing, that the military was thought to be responsible for half of such killings, and that it was believed that the military responsibility for such deaths was increasing (Tribunal Record, at pages 529 to 532). The United Nations was particularly concerned with the role of the Mobile Brigades in perpetrating such abuses (page 532):
. . . These brigades (Mobile Brigades 1 and 2) are reported to patrol the country during extended periods, without having a permanent base, and the battalions which normally operate in the region do not consider themselves responsible for their activities. Members of mobile brigades are said to be accountable for a high number of enforced disappearances, torture and extrajudicial, summary or arbitrary executions. . . .
[10] This concern was echoed by other human rights organizations. The 1993 Human Rights Watch report, “Political Violence and Counterinsurgency in Colombia”, contains a 40-page analysis of the role of Mobile Brigades in the commission of crimes against humanity (Tribunal Record, at pages 470 to 472, 480, 485 and 487). General observations on the activities of Mobile Brigades 1 and 2 include:
· Ordering indiscriminate air strikes prior to Mobile Brigade units moving in to comb an area;
· Having as a specific goal the terrorizing of civilians;
· Failing to distinguish between civilian non-combatants and guerrillas;
· Defining the “enemy” as not only guerrillas, but local leaders;
· Not wearing uniforms or insignia to avoid identification; and
· Threatening persons who tried to complain about military abuses.
[11] Specific, dated examples of atrocities committed by the Mobile Brigades are provided in the evidence, from the bombing, “disappearing”, torture, robbery and threatening of the La Uribe villagers in February 1992, to the torture of civilians in March 1993, to further disappearances in October 1993 (Tribunal Record, pages 481-482, 484 and 637).
[12] The applicant was stationed with Mobile Brigade 1 from May to August 1993. The Board considered the documentary evidence and determined that gross human rights abuses were committed by Mobile Brigade 1 in February 1992 and that such abuse “continued and increased during 1993.” The Board then concluded that Mobile Brigade 1 committed crimes against humanity while the applicant was stationed there. In my opinion, it was not patently unreasonable for the Board to conclude on a balance of probabilities that the Colombian Army, and more specifically Mobile Brigade 1, committed crimes against humanity while the applicant was stationed there.
- Method of recruitment
[13] The Board noted that the applicant voluntarily joined the Army after his compulsory year of service, completing officer training as well as specialized courses in military intelligence and guerrilla tactics. The applicant does not dispute this finding.
- Position/rank in the organization
[14] The applicant submits that when he was a member of Mobile Brigade 1, he was a sub-lieutenant receiving intelligence on the FARC guerrillas gathered by other members of the Brigade, classifying this information, and passing it on to his superiors. A sub-lieutenant working as an intelligence receiver and classifier has a low rank. It is bizarre that the Board equated him with the applicant in the Sivakumar case, who was the Chief of Intelligence for the Liberation Tigers of Tamil Eelam.
[15] The respondent concedes that the Board erred in finding that the applicant had the rank of sub-lieutenant for four of six years of service. Rather, the applicant’s uncontested evidence is that he did not obtain this rank until he graduated from military school in December 1991, and has therefore served as a sub-lieutenant for twenty months (Tribunal Record, pages 18, 29 and 184).
[16] However, in my opinion, this error is not determinative, as the Board did not make any particular finding regarding the applicant’s complicity based on the length of time he held this rank. Rather, the Board held that the applicant’s rank, specialized intelligence training, and responsibilities in the areas of intelligence and as a leader of a platoon all supported the inference of a shared common purpose with the activities of Mobile Brigade 1.
- Length of time in the organization
[17] The Board noted that the applicant served in the Colombian military for six years. There is no indication that the Board based its conclusion that there are serious reasons to believe the applicant was complicit in crimes against humanity on this one factor (Bedoya v. Minister of Citizenship and Immigration, 2005 FC 1092).
- Opportunity to leave the organization
[18] The applicant does not dispute the fact that he only resigned from the military in 1993, after he started receiving threats from guerrillas. It was not unreasonable for the Board to find that the applicant’s failure to leave the Army when the opportunity existed, and only leaving when he felt his life was in danger, supported a finding of complicity.
- Knowledge of organization’s atrocities
[19] The applicant testified that though the goal of the Brigade was to capture guerrillas and bring them in for “interviews”, he never participated in such interviews, never personally witnessed any abuse, and thought that such abuses were isolated and that perpetrators were punished. The applicant submits that he therefore did not have the requisite mens rea to be found complicit.
[20] However, a simple denial of knowledge, even if credible, “cannot suffice to negate the presence of a common purpose. A plaintiff’s actions can be more revealing than his testimony and the circumstances may be such that it can be inferred that a person shares the objectives of those with whom he is collaborating” (Harb v. Canada (M.C.I.) (2003), 302 N.R. 178 (F.C.A.); see also Shakarabi v. Canada (M.C.I.), [1998] F.C.J. No. 444; and Ali, supra).
[21] In my opinion, the Board was entitled to find that the applicant’s testimony was simply not credible on this point. As the Board noted, it is because of the applicant’s rank and specific intelligence training that it found it implausible that he would not be aware of the atrocities that this Brigade was well-known for committing. Further, given the clear documentary evidence that the Mobile Brigade 1 was involved in widespread human rights abuses, it was not unreasonable for the Board to find the applicant’s alleged ignorance of these facts implausible (Akramov v. Minister of Citizenship and Immigration, 2006 FC 122).
[22] Similarly, the evidence clearly indicates that perpetrators of human rights abuses were not punished in either the military or civilian legal system, as alleged by the applicant (Tribunal Record, pages 508, 510, 512, 517, 520, 544, 610 and 627).
- Reasonableness of the Board’s conclusion
[23] The applicant finally submits that the conclusion of the Board is unreasonable. I do not agree.
[24] As noted above, the Board considered the widespread and systematic abuses by the military during the years the applicant was in the Army, and found that the applicant:
- Was in a position of authority over other soldiers as leader of a counter-guerrilla platoon;
- Also did intelligence work;
- Joined voluntarily and remained with the army over six years when crimes against humanity are well-documented and known to have occurred;
- Further was placed with a notorious Mobile Brigade and quit only because he personally started receiving threats from guerrilla groups; and
- Was reasonably imputed to have knowledge of the atrocities that were occurring, but did nothing to stop them and continued his work within the Mobile Brigade.
[25] The Supreme Court of Canada has determined that, when determining whether or not a decision is unreasonable, “a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole” (see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, paragraph 56).
[26] The Board considered the evidence relevant to each of the factors listed by the Federal Court of Appeal in Sivakumar, supra, before determining that there were serious reasons to believe that the applicant was complicit in crimes against humanity. In my opinion, the Board’s determination as to whether the circumstances of this case supported an inference of complicity is not unreasonable.
3. Conclusion
[27] For all the above reasons, the intervention of this Court is unwarranted and the application for judicial review is dismissed.
Ottawa, Ontario
September 29, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7245-05
STYLE OF CAUSE: Javier Ivan TORRES RUBIANES v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 7, 2006
REASONS FOR JUDGMENT: Pinard J.
DATED: September 29, 2006
APPEARANCES:
Mr. Peter M. Shen FOR THE APPLICANT
Mr. John Provart FOR THE RESPONDENT
SOLICITORS OF RECORD:
Peter M. Shen FOR THE APPLICANT
Hamilton, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Date: 20060929
Docket: IMM-7245-05
Ottawa, Ontario, the 29th day of September 2006
Present: The Honourable Mr. Justice Pinard
BETWEEN:
Javier Ivan TORRES RUBIANES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
JUDGMENT
The application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board dated December 8, 2005, wherein the Board found that the applicant is excluded from entitlement to protection pursuant to section 98 of the Immigration and Refugee Protection Act as set out in Article 1F(a) of the Convention Relating to the Status of Refugees, is dismissed.
“Yvon Pinard”
Judge