IMM-1020-01
2002 FCT 1207
Adrien Dambana Sungu and Mimie Likandja Mikembi (Applicants)
v.
Minister of Citizenship and Immigration (Respondent)
Indexed as: Sungu v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Blanchard J.--Montréal, June 18; Ottawa, November 22, 2002.
Citizenship and Immigration -- Status in Canada -- Convention Refugees -- Applicants alleging well-founded fear of persecution in country of origin based on political opinions, membership in particular social group -- Male applicant excluded from definition of refugee under U.N. Refugee Convention, s. 1F(a) as considered party to crimes against humanity -- Principles governing exclusion, complicity reviewed -- IRB, Refugee Division erred in not considering evidence as to whether applicant's fear of persecution reasonable -- Applying inappropriate principle to determine complicity.
Administrative Law -- Judicial Review -- Certiorari -- Immigration and Refugee Board, Refugee Division finding applicants unable to show well-founded fear of persecution should they return to country of origin -- Erred in concluding applicants lacked credibility -- Evidence as to reasonable fear of persecution, exclusion of male applicant not considered -- Refugee Division applying wrong legal test in excluding applicant from protection of Convention -- Conclusion no marital relationship between applicants patently unreasonable.
This was an application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board determining that the applicants had not demonstrated a well-founded fear of persecution and were not refugees within the meaning of the United Nations Convention Relating to the Status of Refugees. The applicants, who are citizens of the Democratic Republic of the Congo (DRC), alleged a well-founded fear of persecution in their country because of their political opinions and their membership in a particular social group, the family of Mobutu, the former president. From 1982 to 1987, the male applicant was an elected official for the city of Kinshasa. Thereafter he continued to serve the regime. After his brother married the president's daughter, he worked as an analyst in the president's political strategy planning office. In 1990, he proposed a reform movement, which President Mobutu's inner circle did not appreciate. As a result, he was politically isolated and placed under house arrest for 72 hours. During that period, the applicant worked to rally the marginalized working population of Ubangi to organize themselves politically. When Kabila came to power in 1997, the applicant was arrested for having undermined the internal security of the State as a member of the Mouvement Populaire de la Révolution (MPR). Once released, he was prohibited from leaving the city of Kinshasa and from having any contact with the family plantation he directed. In May 1999, he was arrested and detained for four months during which he was mentally tortured. After being released and once again arrested and released, the applicant left the country with his wife. In rejecting the male applicant's claim, the Refugee Division concluded that he had not demonstrated a well-founded fear of persecution should he return to the DRC. It also held that the applicants' testimony lacked credibility on the basis of certain contradictions and inconsistencies and that the male applicant could not obtain refugee status under paragraph 1F(a) of the Refugee Convention because of his complicity with the Mobutu regime and "crimes against humanity" committed by that regime. Four questions were raised: (1) did the Refugee Division err in concluding that the applicants lacked credibility? (2) did it take into account evidence at its disposal before considering that the applicants had not demonstrated a well-founded fear of persecution? (3) did it apply the appropriate principles of law in determining that the male applicant was excluded from the definition of Convention refugee? (4) did it take into account evidence at its disposal before finding that the applicant was excluded?
Held, the application should be allowed.
(1) On the evidence, it was unreasonable for the Refugee Division to have concluded that the male applicant said that he was unaware of the acts of torture under the Mobutu regime. Therefore, it erred in concluding that the applicant lacked credibility in that regard. The Refugee Division did not accept the applicant's explanations that some pages were missing from his old passports because of faulty manufacture, but relied on specialists who said that the pages had been removed. Even if the Refugee Division was entitled to conclude that the passports had been deliberately altered, this determination, by itself, could not justify the rejection of the applicant's claim. It was only one factor to be considered and not a decisive one. The male applicant did not contradict himself in his testimony when he said he was not close to Mobutu, while in his Personal Information Form (PIF), he wrote that he had met Mobutu. According to his testimony, the applicant never said he was a close associate of Mobutu. In concluding that the applicant contradicted himself in this regard, the Refugee Division erred in its assessment of the evidence. Its conclusion that the applicant lacked credibility was patently unreasonable.
(2) The male applicant submitted that he was persecuted by the new regime because he was a member of the MPR under the old regime, and because he continued to work within this party notwithstanding the prohibition of political activities decreed by the new regime. He also argued that some members of his party, ethnic group or province of origin had participated in a rebellion against the new regime. In his PIF, he stated that he was harrassed for three months by the authorities of the new regime once it came to power. The Refugee Division conducted no analysis of this evidence and drew no conclusion as to whether the applicant's fear of persecution was reasonable in these circumstances. It was essential to consider the evidence and the applicant's claims regarding his reasonable fear of persecution under the Kabila regime, which was not done. This was a reviewable error that warranted the intervention of the Court.
(3) In Ramirez v. Canada (Minister of Employment and Immigration), the Federal Court of Appeal held that the Minister had the burden of establishing that the claimant was covered by one of the exclusion clauses under the Convention. The Court also laid down the applicable principles where the Minister is seeking to exclude a party from the protection of the Convention, pursuant to paragraph 1F(a) of the Convention. The general rule is that mere membership in an organization involved in the perpetration of international crimes is not enough to trigger the exclusion provision. The exception to this general rule is when the very existence of the organization in question is primarily intended for a limited, brutal purpose, in which case there is a rebuttable presumption of complicity. Before acting on this presumption of complicity, it is important to characterize the organization with irrefutable evidence. The applicant was excluded from the protection of the Convention because he was a so-called "close relation of Mobutu" and therefore guilty by association. Even if the record demonstrated (which it did not) that the applicant was "close" to Mobutu, this was not a reason that might in itself justify the applicant's exclusion from the protection of the Convention. The Refugee Division applied an inappropriate principle in order to determine the applicant's complicity, that is, of being "a man sufficiently close to Mobutu to make him an accomplice". It committed a reviewable error in concluding that the applicant should be excluded without regard for the material before it and in applying the wrong legal test for determining complicity by association.
(4) The Refugee Division determined that the male applicant could not be accorded refugee status under paragraph 1F(a) of the Convention because he had been an accomplice in crimes against humanity. It was accepted that the Mobutu regime practised torture and was responsible for "international crimes" and that the organization was not one with a limited brutal purpose. In order to reach its conclusion of complicity through association, the Refugee Division had to be satisfied by the evidence that "the individual's participation must be personal and knowing". Complicity in an offence rests on a shared common purpose. The record established that the male applicant was aware of the international crimes and atrocities of the Mobutu regime. The decisive point on the question of complicity was whether the applicant had personally and knowingly participated in these "international crimes" and whether there was a shared common purpose. The lack of decision-making power is only one factor among others to be considered in relation to complicity. It is also necessary to consider the other factors concerning the actions and activities of the applicant and the role he allegedly played at the time within the regime. There was no evidence that the applicant, as a deputy, participated in the promotion or preparation of laws supporting the criminal objectives of the Mobutu regime. Rather, his testimony pointed to some evidence which did not demonstrate that he shared a "common purpose" with the Mobutu regime in the perpetration of crimes against humanity. This evidence went beyond the personal association of the applicant with Mobutu. It should have been expressly analysed by the Refugee Division in its reasons instead of being rejected on the basis of a mistaken determination of non-credibility.
The Refugee Division determined that the female applicant had not presented reliable evidence in support of her claim and concluded she had not established a well-founded fear of persecution. It did not explain its determination not to assign any probative value to the applicant's testimony concerning her marriage in 1998. It did not accept the applicant's explanation that the marriage certificate, dated 1988, contained a typing mistake, but this explanation was reasonable given the applicant's age (12) at the time. The Refugee Division therefore erred in saying that the female applicant presented no trustworthy evidence. Two of the female applicant's four inconsistencies noted by the Refugee Division--the typing error concerning the date on the marriage certificate and the error attributable to the change of address in the DRC--led the Refugee Division to patently unreasonable conclusions, in view of the explanations given by the applicant. The Refugee Division's conclusion that there was no marital relationship between the applicants was also patently unreasonable. The inconsistencies cited by the Refugee Division did not affect the fundamental aspects of the female applicant's claim, namely, her well-founded fear of persecution in her country because of her political opinions and her membership in a particular social group, the family.
statutes and regulations judicially
considered
Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, s. 6(3),(4),(5).
| Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(l) (as am. by S.C. 1992, c. 49, s. 11), (1.1) (as enacted idem). |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 35(1)(b), 74(d), 190. |
| Immigration and Refugee Protection Regulations, SOR/2002-227, s. 16. |
| United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a). |
cases judicially considered
applied:
Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306; (1992), 89 D.L.R. (4th) 173; 135 N.R. 390 (C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433; (1993), 163 N.R. 197 (C.A.).
considered:
Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79; (1993), 71 F.T.R. 171 (T.D.); Bazargan v. Canada (Minister of Citizenship and Immigration) (1996), 205 N.R. 282 (F.C.A.).
referred to:
Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680; (1989), 57 D.L.R. (4th) 153 (C.A.); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298; (1993), 107 D.L.R. (4th) 424; 21 Imm. L.R. (2d) 221; 159 N.R. 210 (C.A.); Saridag v. Canada (Minister of Employment and Immigration) (1994), 85 F.T.R. 307 (F.C.T.D.); Gutierrez v. Canada (Minister of Employment and Immigration) (1994), 30 Imm. L.R. (2d) 106; 84 F.T.R. 227 (F.C.T.D.); Cardenas v. Canada (Minister of Employment and Immigration) (1994), 74 F.T.R. 214; 23 Imm. L.R. (2d) 244 (F.C.T.D.); Hilo v. Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d) 199; 130 N.R. 236 (F.C.A.).
APPLICATION for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board that the applicants had not demonstrated a well-founded fear of persecution and were not refugees within the meaning of the United Nations Convention Relating to the Status of Refugees. Application allowed.
appearances:
Jean-Michel Montbriand for applicants.
François Joyal for respondent.
solicitors of record:
Doyon, Guertin, Montbriand & Plamondon, Montréal, for applicants.
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for order and order rendered by
[1]Blanchard J.: Adrien Dambana (the male applicant) and his wife Mimie Likandja (the female applicant) are citizens of the Democratic Republic of the Congo and they allege that they have a well-founded fear of persecution in their country because of their political opinions and their membership in a particular social group, the family. Ms. Likandja based her claim on that of her husband Mr. Dambana. They are seeking judicial review of the decision of the Refugee Division of the Immigration and Refugee Board (the Refugee Division) delivered on February 6, 2001 [C.R.B. (Re), [2001] C.R.D.D. No. 356 (QL)].
[2]In this decision, it was determined that the applicants had not demonstrated a well-founded fear of persecution and were not refugees within the meaning of the United Nations Convention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6] (the Convention). The Refugee Division based this determination on the fact that the applicants were not credible. The Division further held that the male applicant was excluded from the definition of refugee under paragraph 1F(a) of the Convention, since in its opinion he had committed crimes against humanity as a party to such crimes.
[3]It is worth reproducing the relevant part of paragraph F of article 1 of the Convention:
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; |
FACTS
[4]The male applicant was born on April 25, 1956, and the female applicant on May 2, 1976, in Kinshasa. He says he was an elected deputy, or member of parliament, for the city of Kinshasa from 1982 to 1987. In 1987 he ran again but was not re-elected. From 1987 to 1990 he remained an active but unpaid cadre within the Mouvement Populaire de la Révolution (MPR).
[5]After his election defeat, the applicant continued to serve the regime. As an "honorary" deputy and member of a political-judicial committee, he participated in foreign missions to Brussels, France and Portugal. Also, while he was a deputy, he participated in a subcommission on national defence and security.
[6]In his Personal Information Form (PIF), the applicant states that after the marriage of his brother Jean-Jacques Dambana Azuda to the daughter of President Mobutu, on April 14, 1990 (hence his membership in the particular group, the family of Mobutu, the former president), he was assigned to the political strategy planning office of the president as an analyst. His work consisted of reporting on what was going on nationally. He remained in this position until December 1992. The applicant was also a "Commander of the Order of Léopold", an honorary title awarded by President Mobutu for special contributions to the State. The applicant says all deputies were automatically members of the Order of Léopold.
[7]When Mobutu announced a return to a democratic political process, on April 24, 1990, the applicant alleges that he had the idea of [translation] "launching a reformist current based on alternance through a radical change that would manage public affairs through adversarial debate, liberal and independent expression". Mobutu's closest collaborators did not appreciate this idea, he says, and he was politically isolated and placed under house arrest for 72 hours by the Service national d'intelligence et de protection.
[8]During this period of isolation, the applicant writes in his PIF, he [translation] "devoted [himself] to educating and promoting awareness among the marginalized labouring population of Ubangi as a whole to help it organize politically in order to achieve its aspirations. This population is estimated to number two million souls in the province of Équateur." He also participated, he says, in the activities of the Red Cross and was heavily involved in the administration of family plantation during this period.
[9]In 1996, when the Mobutu government was experiencing some difficulties, the applicant was invited by the president to a major political meeting to present his views on reform. Other reformers had also been invited. At this meeting, the applicant alleges, he had the courage to denounce certain undemocratic practices by the party and, among other things, to suggest that certain generals in the Armed Forces be retired and the Army reformed by keeping only the colonels and the new generation of soldiers trained abroad. The applicant states that President Mobutu was open to his idea, but that nothing was done because Mobutu was stricken by cancer and treated in Europe for several months.
[10]When Mobutu returned to the country, the reformers, including the applicant, proposed to the President that he resign and [translation] "ask the people to forgive him for the evil under his rule".
[11]When Kabila came to power in 1997, the applicant says, he was arrested by the Département de la sûreté extérieure for having undermined the internal security of the State as a member of the MPR. Once released, he was summoned by the 50th Brigade of Camp Luano de Joli-Parc and the Agence nationale de renseignement. He was prohibited from leaving the city of Kinshasa and having any contact with the family plantation he directed in Budsala. In 1998, the plantation was looted by Kabila's forces.
[12]The applicant argues that he nonetheless continued his political struggle within his party.
[13]On May 17, 1999, the applicant's residence was encircled by the emergency intervention police for political reasons. The house was searched and looted. Later, the applicant was arrested and transferred to the Headquarters, Bruza/Pigeon IPN division at the Litho Moboti residence, and he spent four months in a room in this villa. During this detention, the applicants says, he was mentally tortured.
[14]The applicant says he was released on September 20, 1999, re-arrested on October 5, 1999, and re-released on October 30, 1999. After these incidents, he and his wife decided to leave the Democratic Republic of the Congo. They left the country on March 20, 2000, and arrived in Canada on March 22, 2000. The applicants claimed refugee status on March 22, 2000.
DECISION OF THE REFUGEE DIVISION
[15]In rejecting the male applicant's claim, the Refugee Division concluded that he had not demonstrated that he had a well-founded fear of persecution should he return to the Democratic Republic of the Congo. It also determined that the applicants' testimony lacked credibility on the basis of certain contradictions and inconsistencies. The panel further held that in any event the male applicant could not obtain refugee status pursuant to paragraph 1F(a) of the Convention because of his complicity with the Mobutu regime and "crimes against humanity" that were committed by that regime.
[16]In regard to the female applicant, the Refugee Division, having determined that her testimony lacked credibility, concluded that she had not presented any trustworthy evidence in support of her claim and that she had [translation] "not established a well-founded fear of persecution within the meaning of the Adjei decision" (Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.)).
ISSUES
[17]There are four questions of importance to be considered in this judicial review. First, did the Refugee Division err in concluding that the applicants lacked credibility? Second, did the Refugee Division take into account some evidence at its disposal before considering that the applicants had not demonstrated a well-founded fear of persecution? Third, did the Refugee Division apply the appropriate principles of law in determining that the male applicant was excluded from the definition of Convention refugee? And four, did the Refugee Division take into account some evidence at its disposal before finding that the applicant was excluded?
ANALYSIS
| Credibility of male applicant and inclusion |
[18]The Refugee Division determined that the male applicant lacked credibility in regard to his knowledge of acts of torture and his testimony concerning the pages torn from his diplomatic passports.
[19]The Refugee Division stated that the male applicant had claimed he was unaware that persons had been tortured under the Mobutu regime. In my opinion, there is no basis for this finding in the record. The hearing transcript discloses that the applicant first said he had never witnessed any case of torture. He then went on to testify that he had heard of such cases in the international press and on Radio France Internationale. I reproduce the relevant extracts from the transcript, at pages 676 to 679:
[translation]
| A. But, there. . . |
| Q. . . . that were being committed by that government? |
| A. Yes, there were. |
. . .
BY THE REFUGEE CLAIM OFFICER (to the person concerned No. 1):
| Q. What exactly happened to these opponents, when they were arrested, Sir, to your knowledge? |
| A. Ah, but I knew, most of them were jailed. |
| Q. What happened to them in prison, Sir, to your knowledge? |
| A. That I could not fully say. I knew they were arrested. There were even some who left the country at that time, everyone knew that. |
| - It was also known to everyone, Sir, that they were tortured. |
| Q. But you didn't know it, Sir, considering the. . . |
| A. That, I cannot say. . . |
| Q. . . . position you had? |
| A. . . . something that I did not see, but I at least know that the opposi. . . the opponents were arrested. |
. . .
| Q. If I correctly understood, Sir, before you became a deputy of the MPR, you knew, you were aware that there were some atrocities? What exactly does this mean, Sir? |
| A. But there were, there were. |
| Q. What does it mean exactly, atrocities, Sir? Explain to us. |
| A. Atrocities? |
| - Yes and so, they were simply arrested, and those people were put in detention, that's all. |
| A. I don't know, they were arrested. Everyone knew that, yes. |
BY THE MINISTER'S REPRESENTATIVE (to the person concerned No. 1):
| - You knew that people were arrested, put in prison. |
| Q. But you did not know what went on in the prisons? |
| A. That I don't know. |
| Q. You heard of what was going on in the prisons, at that time? |
| A. But, I don't know. |
BY THE REFUGEE CLAIM OFFICER (to the person concerned No. 1):
| Q. Was it known in the community, Sir, what was happening in prison? |
| A. Pardon? |
| Q. In the general population, to your knowledge, was it known what was going on in prison? |
| A. Well of course, from (inaudible), from members. If there were some members of the family who were arrested. But I, to my knowledge, I can't say something (inaudible). |
| Q. Were you ever curious to know what happened to these people who were arrested? |
| A. Curiosity as such, not at all, but we found out through the press of the commu. . . the international press. |
BY THE MINISTER'S REPRESENTATIVE (to the person concerned No. 1):
| Q. What did you learn through the international press? |
| A. (Inaudible) tortures, atrocities by the Mobutu regime, we learned about it through the international press. [Emphasis added.] |
[20]In view of this evidence, and notwithstanding the acknowledgement of a certain reticence on the part of the male applicant in his testimony, I am of the opinion that it was unreasonable for the Refugee Division to conclude that the applicant said he was unaware of the acts of torture under the Mobutu regime. The Refugee Division erred, therefore, in concluding that the applicant lacked credibility in this regard.
[21]The Refugee Division did not accept the applicant's explanations that some pages were missing from his old passports because of faulty manufacture. Rather, it relied on the expertise of specialists who said the pages had been removed. And it found that this part of the applicant's testimony seriously undermined his credibility.
[22]I note that the old passports are dated 1986 and 1992 respectively. The applicant's claim is essentially based on events that occurred between 1997 and 1999. So, even if I were to find that the Refugee Division was entitled to conclude that the passports had been deliberately altered, this determination, by itself, could not justify the rejection of the claim. It is only one factor to be considered and certainly not a decisive one.
[23]The Refugee Division also criticized the male applicant for contradicting himself in his testimony when he said he was not close to Mobutu, while in his PIF he wrote that he had met Mobutu. The fact that he had a discussion with Mobutu along with other reformers does not necessarily lead to the conclusion that the applicant is a "close associate of Mobutu". I do not see any contradiction in this. In my opinion, there is no basis in the evidence for this finding of a contradiction by the Refugee Division. According to his testimony, the applicant never said he was a close associate of Mobutu. The Refugee Division inferred as much, from the evidence as a whole. Even if this were regarded as a reasonable inference by the Division, I do not see how it could be concluded that the applicant contradicted himself in this regard. In my opinion, the Refugee Division erred in its assessment of the evidence in drawing this conclusion.
[24]I therefore find, for these reasons, that the Refugee Division's conclusion that the male applicant lacked credibility is patently unreasonable.
[25]The male applicant further submits that he was persecuted by the new so-called Kabila regime because he was a member of the MPR under the old regime, and because he continued to work within this party notwithstanding the prohibition of political activities decreed by this new regime. The applicant also argues that some members of his party or his ethnic group or his province of origin had participated from August 1998 on in a rebellion against the new Kabila regime. In his PIF, the applicant states that once the new Kabila regime came to power he was harassed for three months by the authorities of the new regime. He was called in repeatedly and prohibited from leaving the city of Kinshasa or having any contact with the family plantation of which he was the director. In 1998, this plantation was looted by the Kabila forces. And he was detained in the residence of Litho Moboti, where he alleges he was "mentally tortured". The Refugee Division conducted no analysis of this evidence and drew no conclusion as to whether the applicant's fear of persecution was reasonable in these circumstances.
[26]In view of my subsequent determination in these reasons that the Refugee Division erred in ruling that the male applicant should be excluded, I am of the opinion that it was essential to consider the evidence and the applicant's claims regarding his reasonable fear of persecution under the Kabila regime, and this was not done. In my opinion, this is a reviewable error that warrants the intervention of this Court.
| Exclusion--The Act |
[27]In Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), Mr. Justice MacGuigan commented, at page 314, that the Minister had the burden of establishing that the claimant was covered by one of the exclusion clauses under the Convention:
There was no issue between the parties as to which party bore the onus. Both agreed that the burden of establishing serious reasons for considering that international offences had been committed rested on the party asserting the existence of such reasons, i.e., the respondent. Aside from avoiding the proving of a negation by a claimant, this also squares with the onus under paragraph 19(1)(j) of the Act, according to which it is the Government that must establish that it has reasonable grounds for excluding claimants. For all of these reasons, the Canadian approach requires that the burden of proof be on the Government, as well as being on a basis of less than the balance of probabilities.
[28]MacGuigan J.A. then stated that the Convention's use of the word "committed" implied a mental element. He characterized this mental element as follows, at pages 316-317:
From the premise that a mens rea interpretation is required, I find that the standard of "some personal activity involving persecution," understood as implying a mental element or knowledge, is a useful specification of mens rea in this context. Clearly no one can "commit" international crimes without personal and knowing participation.
[29]Also in the Ramirez decision, supra, the Federal Court of Appeal laid down the applicable principles where the Minister is seeking to exclude a party from the protection of the Convention, pursuant to paragraph 1F(a) of the Convention. The following principles are applicable in this case:
(a) the Minister always has the burden of legally establishing that the claimant is an accomplice in international crimes;
(b) the burden of proof is less than the balance of probabilities;
(c) as a general rule, "mere membership" in an organization involved in the perpetration of international crimes is not sufficient to exclude the interested party (other than where it is established that the very existence of the organization in question is primarily intended for limited, brutal purposes);
(d) complicity requires the "personal and knowing participation" of the claimant in the perpetration of international crimes; and
(e) complicity is based on the existence of a shared common purpose and knowledge that all the parties in question have of it.
[30]The general rule, as it is recognized by the decisions of this Court (Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.)), is that mere membership in an organization involved in the perpetration of international crimes is not enough to trigger the exclusion provision. However, there is an exception to the general rule when the very existence of the organization in question is primarily intended for a limited, brutal purpose. Then there is a rebuttable presumption of complicity (Saridag v. Canada (Minister of Employment and Immigration) (1994), 85 F.T.R. 307 (F.C.T.D.). That is why, in such circumstances, it is important, before acting on this presumption of complicity, to characterize the organization with irrefutable evidence.
[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. 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.
[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:
- 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.
- 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.
- 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.
- 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.
[33]Moreover, in Bazargan v. Canada (Minister of Citizenship and Immigration) (1996), 205 N.R. 282, the Federal Court of Appeal held that "personal and knowing participation" may 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. 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.
| Exclusion |
[34]In the case at bar, the Refugee Division determined that the male applicant could not be accorded refugee status pursuant to paragraph 1F(a) of the Convention. In its opinion, he had been an accomplice in crimes against humanity. It relied in particular on the conclusion that the applicant was sufficiently close to Mobutu, the former president, to make him an accomplice of Mobutu's regime.
[35]Before analyzing this aspect of the decision, it is important to make two observations. First, it is not disputed that the Mobutu regime practised torture and was responsible for "international crimes". These acts of torture are covered by the definition of crimes against humanity as an "inhumane act or omission that is committed against any civilian population or any identifiable group" within the meaning of subsections 6(3) to 6(5) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24. (Paragraph 35(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).) I am satisfied, therefore, that the Refugee Division could reasonably reach this conclusion on the basis of the documentary evidence that was before it.
[36]Secondly, the organization in this case, the Mobutu regime, has not been characterized as an "organization pursuing a limited, brutal purpose". So it is inappropriate to apply the presumption that would exclude the applicant solely by virtue of his membership in such an organization. In the instant case, the characterization of the association was not made by the Refugee Division and in my opinion is not essential in the circumstances.
[37]In order to reach its conclusion of complicity through association, then, the Refugee Division had to be satisfied by the evidence that "the individual's participation must be personal and knowing". Complicity in an offence rests on a shared common purpose. (Penate, supra, at page 84.)
[38]In its reasons, the Refugee Division determined that [translation] "The claimant had personal and knowing awareness of these acts (international crimes); by his position, he could not have been ignorant or unconscious of the actions committed by the regime to which he belonged."
[39]The record clearly establishes that the male applicant was aware of the international crimes and atrocities of the Mobutu regime. I reproduce his examination at the hearing of August 11, 2000, at pages 679-680:
[translation]
| Q. What did you learn through the international press? |
| A. (Inaudible) tortures, atrocities by the Mobutu regime, we learned about it through the international press. |
BY THE REFUGEE CLAIM OFFICER (to the person concerned No. 1):
| Q. When did you learn that, Sir? |
| A. But while, while, while our legislature, we were following it through the. . . we followed it through the RFI. |
| Q. When exactly, Sir? When? |
| A. While Mobutu was there until at least 90, before the proclamation of the democratic process in April 90. |
| Q. So, you knew. . . |
| A. I can't say exactly, but it was going on. |
| Q. While you were a deputy did you read in the international press that there was torture, which was being practised by? |
| A. Yes, by those who held power, in particular the army, the security service. |
| Q. So, you were aware? |
| A. Yes. |
| - Thank you. |
[40]So, in the case at bar, the decisive point on the question of complicity that is said to justify exclusion is whether the applicant had personally and knowingly participated in these "international crimes" and whether there was a shared common purpose.
[41]The applicant submits that he was nothing but a mere deputy with no decision-making power as a member of the legislative component of the government. In this regard, the respondent notes that the documentary evidence establishes that the deputies were first elected by the MPR and then put forward for popular approval. The Minister maintains that in matters of complicity, the applicable test is that of personal and knowing participation. Lack of decision-making power is but one factor among others to be weighed. The respondent argues, moreover, that the notion of complicity was developed precisely in order to cover the case of persons who do not have decision-making power but who, because of their association with those who do, may nevertheless be considered guilty, quotes Gutierrez v. Canada (Minister of Employment and Immigration) (1994), 30 Imm. L.R. (2d) 106 (F.C.T.D.), at paragraph 30:
Although Sivakumar and Penate dealt with situations in which the person had served the organization in various positions of leadership, a person in a low-ranking position may also be found to have shared a common purpose with the organization if he continues in the organization after becoming aware that international offenses are being committed by those involved in it, and does not take the earliest opportunity to leave the organization.
[42]I agree with the respondent's submissions that the lack of decision-making power is only one factor among others to be considered in relation to complicity. In my opinion, it is also necessary to consider the other factors concerning the actions and activities of the applicant and the role he allegedly played at the time within the regime.
[43]The record shows that after losing his elections, the applicant agreed to serve in the office of the president of the republic as an analyst responsible for reviewing presidential political strategies. This assignment occurred at a time when the applicant was aware of the criminal acts committed by the Mobutu regime. He was personally appointed by President Mobutu. We note as well that 10 days after this assignment, the regime announced the return to a democratic political process. According to the applicant, he was the instigator of this process, which earned him political isolation and possibly the loss of his position.
[44]The applicant submits that the legislative component and persons who are members of a political party are not generally targeted by the exclusion clause since they do not participate in the decision-making processes involved in the commission of crimes against humanity. This reality, he says, is reflected in the Act, in particular in paragraph 19(1)(l) [as am. by S.C. 1992, c. 49, s. 11] and subsection 19(1.1) [as enacted idem] of the former Immigration Act, R.S.C., 1985, c. I-2, which under section 190 of the Immigration and Refugee Protection Act are essentially reproduced in paragraph 35(1)(b) of the latter Act and section 16 of the Regulations thereunder [Immigration and Refugee Protection Regulations, SOR/2002-227], which I reproduce below:
Immigration and Refugee Protection Act
35. (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
. . .
(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or
Immigration and Refugee Protection Regulations
16. For the purposes of paragraph 35(1)(b) of the Act, a prescribed senior official in the service of a government is a person who, by virtue of the position they hold or held, is or was able to exert significant influence on the exercise of government power or is or was able to benefit from their position, and includes
(a) heads of state or government;
(b) members of the cabinet or governing council;
(c) senior advisors to persons described in paragraph (a) or (b);
(d) senior members of the public service;
(e) senior members of the military and of the intelligence and internal security services;
(f) ambassadors and senior diplomatic officials; and
(g) members of the judiciary.
[45]In the case at bar, the position held by the male applicant at the time, that of deputy or member of parliament, is not listed in section 16 of the Regulations. It may therefore be concluded that deputies are not persons who, by virtue of the position they hold or held, are or were necessarily persons able to exert significant influence on the exercise of governmental power. This does not exclude a situation in which such influence could be established in light of the evidence, where appropriate.
[46]The male applicant, in his oral evidence, described the governmental structure of the Democratic Republic of the Congo at the time when he was a deputy. He testified that, as a deputy, he did not participate in any way within the sphere of authority. At pages 630-631 and 664 of the hearing transcript, he said:
[translation] I want to clarify something. What I am saying, and I can't be blamed for this, is that I evolved in the party's legislative organ. I was not a part of the executive organ. In any case, by executive, I mean the government, the duties of the governor, of the provinces, that is, the people who, who, who. . . who had to assume the executive duties I have just cited and if they were to blame for something -- and this is simply normal in the interests of their security -- they left the country.
. . .
This is because the legislative power was not the executive power. The executive power was the government, it is the executive power that was responsible for implementing the good laws that were made at the time. But the govern . . . the executive council did not do this.
Although he sat on a legal and national defence subcommittee, the applicant says he had no relationship to and played no role with the security forces. He also testified that in his capacity as a deputy and member of the subcommittee of the interior and national defence he was mandated to travel throughout the country and to prepare reports that could be submitted to the Parliament. These reports, he says, in addition to dealing with day-to-day problems of health and transportation, also dealt with problems pertaining to the security of property and the safety of individuals. He also testified, at page 675 of the hearing transcript:
[translation] The reports were the change in conduct toward public officers, so they would not commit atrocities against the civilian population.
[47]Moreover, there is no evidence to show that the applicant, as a deputy, participated in the promotion or preparation of laws supporting the criminal objectives of the Mobutu regime. Rather, the applicant's testimony points to some evidence which, in my opinion, does not demonstrate that the applicant shared a "common purpose" with the Mobutu regime in regard to the perpetration of crimes against humanity, for example:
(a) the applicant was elected deputy in 1982 and sat with no decision-making or executive authority;
(b) as a member of parliamentary committees, he prepared reports with a view to improving the everyday life of the people, including reports affecting police officers and atrocities against the civilian population;
(c) soon after being appointed an analyst in the office of the President, he launched the idea of a reform current within the party, an idea that was welcomed by the regime;
(d) this movement was not appreciated by Mobutu's close collaborators and the applicant, as a result, was intimidated, threatened, politically isolated and even placed under house arrest, eventually losing his position in the office of the president in December 1992;
(e) subsequently, while continuing to advocate the appropriateness of reform, he devoted his efforts to the Red Cross and the administration of his family's plantation, among other things;
(f) in 1996, the Mobutu regime was clearly heading toward defeat if it did not change, and the applicant was invited to describe his proposed reforms to the President. On that occasion, he denounced the undemocratic practices of the regime;
(g) there was no follow-up to these discussions with the country's leaders, given the cancer that then affected Mobutu;
(h) in December 1996, after the return of Mobutu, who had been abroad for treatment, and while the country was being attacked by Kabila's rebels (who eventually triumphed in May 1997), the group of reformers, including the applicant, suggested to Mobutu that he resign in order to find a solution to this rebellion, which made his overthrow the principal ideological objective of the reformers.
[48]This evidence in no way attributes to the applicant a "shared common purpose" with the Mobutu regime in the perpetration of crimes against humanity. For one thing, the evidence established that the applicant was denouncing the regime's undemocratic practices, and there was also undisputed evidence that the applicant had been deprived of his position in the office of the president and had been isolated because of his reform ideas.
[49]The Refugee Division rejected much of this evidence, citing certain inconsistencies and erroneous contradictions noted earlier in its reasons. In my opinion, the evidence referred to above goes beyond the personal association of the applicant with Mobutu. It could pertain to the exclusion issue and particularly to the issue of whether the applicant had a shared common purpose with the totalitarian regime responsible for these "crimes against humanity" and whether he actively supported the acts committed by the regime. This evidence should have been expressly analysed by the Refugee Division in its reasons instead of being rejected on the basis of a mistaken determination of non-credibility.
[50]Although the Refugee Division alluded to this evidence in its reasons, it would appear that what really lay behind the Division's conclusion that the applicant was excluded was its determination that the applicant was [translation] "a man sufficiently close to Mobutu to make him an accomplice of this regime responsible for `crimes against humanity'". It is worth reproducing the reasoning of the Refugee Division as it relates to this determination, at paragraphs 17-21:
In his PIF, the applicant stated:
[translation] "Mobutu invited me to Gemana . . . for a large-scale policy meeting during which I worked up the courage to denounce some of the antidemocratic practices of the conservatives in our party."
Further on in his PIF, he stated that in December 1996:
[translation] "We the reformists called for President Mobutu's resignation and suggested that he seek the people's forgiveness for the wrongs committed under his leadership."
When questioned about the fact that the reformists wanted Mobutu to resign and seek forgiveness, he stated that he was behind this move. The panel pointed out to him that he must have been close to Mobutu to make this request. The claimant said that he was not close to Mobutu, but that certain members of the party had signed a memo to this effect, which is not what appears in his PIF where he states that he had met Mobutu.
The panel rejects these allegations, which it finds lacking in credibility, because the claimant has always made himself out to be close to Mobutu--in fact, his own brother is married to Mobutu's daughter.
The panel finds the claimant was sufficiently close to Mobutu to make him an accomplice of Mobutu's regime, and as the regime is responsible for "crimes against humanity" within the meaning of paragraph 1(F)(a), the claimant is excluded from the refugee definition.
[51]From my reading of these reasons, it is my opinion that the applicant was excluded from the protection of the Convention because he was a so-called "close relation of Mobutu" and therefore guilty by association. Even if the record demonstrated (which it does not) that the applicant was "close" to Mobutu, this is definitely not a reason that might in itself justify the applicant's exclusion from the protection of the Convention (Cardenas v. Canada (Minister of Employment and Immigration) (1994), 74 F.T.R. 214 (F.C.T.D.)).
[52]It follows from this conclusion of the Refugee Division that it applied an inappropriate principle in order to determine his complicity, that is, of being "a man sufficiently close to Mobutu to make him an accomplice". In formulating its conclusion in this way, the Refugee Division committed a reviewable error.
[53]I am of the opinion that the Refugee Division committed a reviewable error in concluding that the applicant should be excluded without regard for the material before it, and in applying the wrong legal test for determining complicity by association.
[54]For these reasons, the application of the male applicant for judicial review will be allowed.
| Female applicant |
[55]The Refugee Division determined that the female applicant had not presented any reliable evidence in support of her claim and concluded that she had not established a well-founded fear of persecution. The Division based its conclusion on some inconsistencies in her testimony which, it said, put in question the very idea that the applicants might have lived together previously. The Refugee Division cited the following inconsistences:
(a) The female applicant stated in her oral testimony that she was married on May 9, 1998, while her marriage certificate indicates that she was married in 1988. She explains that this was a typing error. The Refugee Division seems to accept the date in her marriage certificate, 1988, and rejects the applicant's testimony and her explanation (an explanation that I consider plausible given that the applicant was only 12 years old in 1988).
(b) The applicant was unable to explain when she was living with the male applicant at the same address. She stated December 1998 and when it was remarked to her that she had not begun to live with the male applicant until after their marriage, she stated that she had been living with the male applicant since 1997.
(c) She also had some difficulty recalling when she had first made the male applicant's acquaintance. She stated December 25, 1998, then altered this to December 19, 1998 and ultimately said December 25, 1997. She was unable to explain why she had some difficulty recalling this date.
(d) She stated that her address in the Democratic Republic of the Congo (DRC) was 86, Ring Ma Campapa Ngalience. At the point of entry, she said her address was 3678, Ring Ma Campapa Ngalience. The Refugee Division did not accept her explanation that the number had been changed with the coming to power of the new regime in May 1997. It concluded, without giving reasons for its conclusion, that it seemed to them [translation] "unlikely that she would mistake her street number for the reasons she cited".
[56]The Refugee Division assigned no probative value, therefore, to the female applicant's testimony or to the applicants' marriage certificate. The Division does not explain its determination not to assign any probative value to the applicant's testimony concerning her marriage in 1998. She testified that she had married on May 9, 1998. The Division seems to have rejected this testimony in favour of her "marriage certificate", a document indicating that the applicant married in 1988, at the age of 12. The Division did not accept the applicant's explanation that the marriage certificate contained a typing mistake, an explanation that I consider completely reasonable given the applicant's age at the time.
[57]If the rejection of the female applicant's testimony is based on the fact that the marriage certificate indicates a date of marriage different than the one affirmed by the applicant, I am of the opinion, given the explanation provided by the applicant [translation] "that this was a typing mistake", that it was patently unreasonable to reject this evidence for this reason. The Refugee Division did not provide any further explanation for the rejection of this evidence. So it is false to say that the female applicant presented no trustworthy evidence. The Refugee Division therefore erred in reaching that conclusion.
[58]The female applicant, in her testimony, explained that her address in the Democratic Republic of the Congo was indeed the address stated at the point of entry, and that there was a change in number when the new regime came into power in May 1997. I do not see this as an inconsistency, since it is the same address as the one stipulated at the point of entry. The Refugee Division determined that the explanation lacked credibility because [translation] "it seems to us unlikely that she would mistake her street number for the reasons she cited." In the first place, the record does not indicate that the applicant was mistaken about her street number since she testified that the number had changed. Furthermore, the Refugee Division provides no further explanation for its conclusion of improbability, thereby breaching its duty to give clear and precise reasons for its conclusions (Hilo v. Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.)). The Refugee Division therefore erred in reaching this conclusion.
[59]Two of the female applicant's four inconsistencies noted by the Refugee Division--the typing error concerning the date on the marriage certificate and the error attributable to the change of address in the DRC--led the Refugee Division to conclusions that are in my opinion patently unreasonable, in view of the explanations given by the applicant.
[60]The other two inconsistencies concern certain difficulties the female applicant allegedly had in remembering specific dates. In my opinion, these inconsistencies are not of sufficiently appreciable scope to justify the rejection of the claim.
[61]In this case the female applicant bases her claim on that of the male applicant. She alleges that if she is to be returned to her country, she will be persecuted because of her marital relationship with the male applicant. Her claim turns on the existence of this marital relationship. In my opinion, the Refugee Division's conclusion that there was no marital relationship between the applicants is patently unreasonable.
[62]Furthermore, I note that the inconsistencies cited by the Refugee Division do not affect in any way the fundamental aspects of the female applicant's claim, namely, her well-founded fear of persecution in her country because of her political opinions and her membership in a particular social group, the family.
[63]For these reasons, I find that the Refugee Division erred in dismissing the female applicant's claim. Consequently, her application for judicial review will be allowed.
QUESTION TO CERTIFY
[64]Having considered the written submissions of the parties, I am of the opinion that the question and sub-questions cited by the applicants are questions of fact that are of no interest beyond this case. In my opinion, the points of law raised in these questions have already been decided by the Federal Court of Appeal. So I am not disposed to certify the proposed questions. I do not, therefore, propose to certify any serious question of general importance as contemplated by paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
ORDER
THE COURT ORDERS:
1. The application for judicial review of the applicants, Adrien Dambana Sungu and Mimie Likandja Mikembi, of the decision delivered February 6, 2001 by the Refugee Division of the Immigration and Refugee Board, is allowed and the applicants' claim is sent back for reconsideration by a differently constituted panel of the Immigration and Refugee Board.