OTTAWA, ONTARIO, October 27, 2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of a member of the Immigration and Refugee Board of Canada, Refugee Protection Division, dated November 29, 2005, wherein it was determined that the Applicant was not a convention refugee and not a person in need of protection, thereby rejecting the Applicant’s claims for refugee status in Canada.
[2] The Applicant is an adult male, Columbian citizen. He claims to have a well founded fear of persecution in Columbia at the hands of the FARC (the Revolutionary Armed Forces of Columbia) by reason of his perceived political opinion, as he was a career Officer in the Columbian army who failed to comply with the FARC’s extortion demands. This issue before the Board was whether the Applicant was a convention refugee or person in need of protection having regard to the provisions of Section 98 of the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27 which excludes a person as defined in Article 1 (F)(a) of the Refugee Convention [the Convention] as being someone who 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.
[3] The Member of the Board, in a lengthy decision concluded:
Due to the claimant’s rank when he retired, the leadership role he played in operations that committed human rights abuses, the protracted time he remained in the army and the knowledge he must have had of the abuses, I find that he had a shared, common purpose with the Colombian army. For these reasons I find that he was an accomplice in crimes against humanity.
I find that the Minister’s representative has met the burden of establishing that there are serious reasons for considering that the claimant has committed a crime against humanity within the meaning of Article 1(F)(a). Therefore the Refugee Protection Division determines that Hugo Fernando Bonilla-Vasquez is excluded from the Convention refugee definition and from being a person in need of protection.
[4] The Applicant seeks judicial review of this decision alleging a number of errors. The essential issue however, concerns the conclusion by the Member that the Applicant was complicit in or shared a common purpose with those who committed crimes against humanity, thus is excluded from claiming refugee status in Canada.
[5] In Bedoya v. Canada (Minister of Citizenship and Immigration), 2005 FC 1092 [Bedoya], I considered the complex lens through which decisions such as the one under review, must be reviewed. To summarize:
1. The Minister bears the burden of proof in establishing that the Applicant falls under the provisions of Article 1(F)(a) however the burden is less than the balance of probabilities.
2. Factual findings by the Member are to be reviewed upon a standard of patent unreasonableness.
3. Legal findings by the Member are to be reviewed upon a standard of correctness.
[6] Further, in Bedoya I reviewed the concept of “committing” an act as set out in Article 1(F)(a) of the Convention which can involve not only the actual doing of the act, but also personal knowledge and knowing participation, or that of an accomplice or abettor, or being in close association with the principal actors or having a shared common purpose.
[7] The basic facts are not contested. The Applicant joined the Columbian army as a volunteer in 1989. he left the army in 2004 by which time he had achieved the rank of Major. In May 2004, he sought refugee status in Canada. By the time of the hearing, his parents had been allowed to claim refugee status in Canada.
[8] During his fifteen years in the Columbian army, the Applicant rose through the ranks, moving from Cadet to Sub-Lieutenant, to Sergeant, to Lieutenant, to Captain in 1996 and Major in 2001. He applied to leave the army in December 2003, because, he says, he was receiving threats and demands to pay money. In March 2004, he was honourably discharged from the army and quickly made his way to Canada.
[9] The Applicant spent some time as an instructor and in logistical support during his career with the army. Important to the issues of this case, he was part of a group that created four battalions of which Mobile Brigade Number Two was part (the inverse is correct – “He was part of a group, Mobile Brigade Number Two, which was comprised of four battalions." He joined Mobile Brigade Number Two as a Lieutenant in March 1991, at which time he was assigned in Bogota to distribute supplies. Subsequently, he moved with all personnel to Santandar province, where he started to train soldiers who largely comprised persons who had finished compulsory military service and had returned to civilian life. The mission of this brigade was to provide security in a populated area when and wherever necessary. The Applicant says that he commanded a platoon of between thirty-six to forty men, but that platoon was a reserve unit that remained in barracks doing administration and logistics. Occasionally, the platoon would do security operations in the vicinity of the barracks. This platoon would be moved from time to time to different areas, according to the Applicant, to do similar duties, acting as a reserve.
[10] The Applicant says that he has no knowledge as to the activities carried on by other platoons or members of Mobile Brigade Number Two. He says that he has no knowledge as to killing of civilians although he remembers a case where the air force dropped shells in an area where civilians were living. He also remembers that certain paramilitary commanders were in charge of areas before he arrived and that these commanders were subsequently detained.
[11] In 1995 and 1996 the Applicant was taking courses in administration and at one time during this period was in charge of about one thousand men. In March 1999, the Applicant was in charge of a security platoon in reserve when their barracks, where he was located, were attacked by guerrillas. The Applicant was wounded in the leg. After recuperating from his wounds, the Applicant assumed command of other platoons, including those within the Columbia Battalion.
[12] During cross-examination before the Board several incidents involving members of Mobile Brigade Number Two and the Columbia Battalion were put to the Applicant. The Applicant denied any involvement in or knowledge of such incidents at the time. The Applicant repeatedly stated that he had no contact with guerrillas nor was he involved in any conflict with civilians. He says that only since about the year 2000 when the Internet became established in Columbia, did he become aware of incidents between some members of the army, including the Mobile Brigades, and citizens.
[13] The documentary material before the Board contains many references to activities of Mobile Brigade Number Two and the Columbia Battalion. Typical of such references is the following:
The Procuraduria Office of Special Investigations was flooded with complaints about Mobile Brigade 2 in 1992, particularly from Antioquia. 29 Often, people were not detained during operations but at roadblocks soldiers set up to limit traffic in surrounded areas. There, documents are checked, packages searched, and food and medical supplies sometimes seized as suspected guerrilla provisions. On October 24, 1992, Alonso de Jesus Lujan was detained by soldiers from Mobile Brigade 2 near Segoyia (Antioquia) for not having his military service card (libreta militar). In both the Zaragoza and El Bagre military bases, he says he was beaten, tortured, and threatened with being thrown out of an air-borne helicopter. For approximately eight hours, he was kept blindfolded and bound in a grave by members of the B-2 (military intelligence). Finally, he was taken out to the woods by men who stabbed him and left him for dead. 30
[14] The Member considered the evidence and concluded that the Applicant’s evidence was not credible or plausible. At page 8 of the Reasons the Member says:
I agree with the Minister’s analysis and I do not accept as credible or plausible the claimant’s position that he was unaware of the widespread and systematic crimes against humanity committed by the army. The documentary evidence, as analyzed below, sharply contradicts the claimant’s evidence. I accept the documentary evidence as authoritative and therefore find that there are serious reasons to believe that the claimant had to be aware of the widespread abuses taking place in his immediate surroundings in the army while he was in leadership positions. In other words, as a career soldier who had significant leadership responsibilities, I do not believe it to be plausible that he was unaware of the atrocities described in the documentary evidence that literally appeared to be going on around him. If he was unaware, he was in serious denial; in other words, he chose to be “wilfully blind” to his surroundings. I find that if this is the case, his choice to detach himself from the atrocities does not excuse him from complicity. On the contrary, for this claimant, in his position of authority, choosing to ignore the crimes, to remain silent, and to carry on as though they were not occurring, constitutes complicity.
[15] In brief, the Member found that there were crimes against humanity committed by the army, that the Applicant was aware of those crimes or wilfully blind to them, he chose to ignore them and remain silent, he was in a leadership position and thus was complicit in those crimes against humanity. This finding was summed up at page 4 of the Member’s Reasons:
I find that while it has not been established that the claimant personally committed crimes against humanity, he has been complicit in these crimes. I find that while the claimant claimed to be unaware of the widespread and systematic human rights violations that were going on around him, that due to his high rank, his leadership position and his long-term service in the armed forces, that he had to be aware of operations that were undeniably perpetrating crimes against civilians. I find that through this service with the armed forces, he lent his support and “knowing participation” to these crimes.
[16] The findings of fact by the Member that cannot be said to be patently unreasonable are:
1. The claimant (Applicant) did not personally commit crimes against humanity.
2. The claimant (Applicant) had to be aware of the operations that were undeniably perpetrating crimes against civilians.
[17] The factual determination that is unclear is what “operations” were committing these crimes. At page 3 of the Reasons the Member says three times that it was the Columbian army. At page four, the Member says that it was the armed forces of Columbia. At page five, the Member makes mention of three Brigades, including Mobile Brigade Number Two, four Battalions and one Division. The Member finds that “some of these Brigades” were responsible for serious human rights violations.
[18] At page six, the Member finds that the claimant (Applicant) travelled with Mobile Brigade Number Two to certain areas where widespread human rights violations were committed by “security forces and paramilitaries”. At page seven, the Member reverts to saying human rights abuses by “Columbian armed forces” and “the army”. At page eight, “the army” is again implicated. At pages nine, ten and eleven, “the Mobile Brigade” and “Mobile Brigades” are identified. At page twelve, Mobile Brigade Number Two is specifically identified but the Member states that the claimant (Applicant) stated that he was with a different platoon in a different place at the time. The Member found however, that the Applicant shared a common purpose and supported operations that committed crimes against humanity.
[19] Commencing at page thirteen to page seventeen, the Member references many Battalions and Brigades where the Applicant served concluding that it was not plausible that he was unaware of the true nature of one of them, the Columbia Battalion, and that “many of the Brigades” were involved in widespread human rights abuses.
[20] At page nineteen of the Reasons, the Member reverts to “the army” in concluding that the Applicant showed a common purpose from which he did not disengage himself.
[21] What is noteworthy is that there is no finding that the Applicant himself engaged in any particular abuse or abuses. Those abuses are variously attributed to the army, some Battalions, Mobile Brigade Number Two or “some members” of the Brigade.
[22] At this point, the law must be considered. The Member correctly stated that what was required, in the absence of a finding of direct involvement, was whether the Applicant was “complicit” in crimes against humanity. However, the Member does not clearly state the legal test for complicity. The Member states at page four of the Reasons, that the Applicant’s high rank, leadership positions and long-term service meant that he had to be aware of operations perpetrated against civilians. The Member then details findings as to the Nature of the Organization, Position/Rank in the Organization, Knowledge of Atrocities; Method of Recruitment; Length of Time in the Organization and Opportunity to Leave before stating the conclusion. While these are all factors to be considered, the Member has not clearly stated what the law is as to “complicity” nor has that law been followed.
[23] This law was thoroughly reviewed by the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306, 135 N.R. 390 [Ramirez] and succinctly summarized at paragraph 18 of the Reasons of that Court:
“At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all parties may have of it”.
[24] Thus, the test, in law, is twofold: (1) a shared common purpose and (2) knowledge.
[25] The “shared common purpose” must constitute a crime against humanity. Such crime was discussed by the Supreme Court of Canada in Mugusera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 [Mugusera] particularly at paragraph 151 of the Reasons where it is stated that acts will become crimes against humanity if they are committed as part of a widespread or systematic attack directed against any civilian, population or any identifiable group. A “widespread attack” the Court defines in paragraph 154 of the Reasons as massive, frequent, large-scale carried out collectively with considerable seriousness and directed against a multiplicity of victims. At paragraph 155 of the Reasons, that Court says that, a “systematic attack” is one that is thoroughly organized and follows a regular pattern on the basis of a common policy involving substantial public or private resources. At paragraph 156, the Court reiterates that the attack need be only one of widespread or systematic.
[26] At paragraph 161 of Mugusera, supra, the Supreme Court makes it clear that a systematic attack must be directed against a civilian population; the civilian population cannot be merely a collateral victim.
[27] The issue is the law with respect to complicity. It can be seen that the Member’s Reasons fail to demonstrate any reasonable examination as to whether the Applicant shared a common purpose with persons who are said to have committed atrocities and whether the actions of such person could be said to constitute a widespread or systematic attack directed against a civilian populations, not just that civilians are collateral victims. The Member did identify incidents of abuses, but did not identify any shared common purpose with the Applicant, nor were such abuses found to be widespread or systematic attacks directed against a civilian population. The Member concentrated findings essentially only on the second element.
[28] I find therefore, that the Member did not correctly state the law, nor apply it. As such, the matter was must be returned to the Board for reconsideration by a different Member.
[29] The parties have asked that they be given an opportunity to make submissions as to certification of a question and I will allow ten (10) days from the date of these Reasons for the parties to make submissions in that regard.
JUDGMENT
FOR THE REASONS STATED ABOVE:
THIS COURT ADJUDES THAT:
1. This application is allowed;
2. This matter is sent back to the Refugee Protection Division of the Immigration and Refugee Board for redetermination by a different Member;
3. No Order as to costs; and
4. The parties may make submissions as to the certification of a question within ten (10) days hereof.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7285-05
STYLE OF CAUSE: Hugo Fernando Bonilla Vasquez
v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 24, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: HUGHES, J.
DATED: October 27, 2006
APPEARANCES:
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Michael Crane |
FOR THE APPLICANT |
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Angela Marinos |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Michael Crane |
FOR THE APPLICANT |
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John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |