Judgments

[1994] 1 F.C. 625

A-1133-92

Mohamed Bihi Aden (Applicant)

v.

The Minister of Employment and Immigration (Respondent)

Indexed as: Aden v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Gibson J.—Ottawa, September 7 and November 9, 1993.

Citizenship and Immigration — Status in Canada — Convention refugees — Application for judicial review of CRDD decision applicant excluded from definition of Convention refugee as serious reason to believe accomplice in Somalian government’s crimes against humanity — Applicant holding administrative military positions — Aware of atrocities and human rights abuses, but echoing government’s line of denial — Neither resigning position, nor speaking out against government — Application allowed — Ramirez v. Canada (Minister of Employment and Immigration) setting out test for degree of complicitiy required to be accomplice — Applicant’s actions not disclosing personal and knowing participation in persecutorial acts — Positions held remote from scene of persecutorial acts, decision-making resulting therein — Unnecessary to resign commission, leave military, flee country or speak out publicly to insulate from complicity.

Constitutional law — Charter of Rights — Life, liberty and security — Application for judicial review of CRDD decision applicant not Convention refugee although life would be in grave jeopardy if returned to Somalia because excluded from application of Convention as person whom serious reasons to believe committed crime against humanity — Argument contravention of Charter, ss. 7, 12 rejected as proceeding not dealing with execution of deportation order.

This was an application for judicial review of a decision of the Convention Refugee Determination Division that the applicant was not a Convention refugee. The applicant is a citizen of Somalia and a member of the Marihan tribe and Darod sub-tribe. He arrived in Canada in 1991 claiming to have a well-founded fear of persecution by reason of his race and membership in a particular social group. The applicant had joined the Somalian military in 1972 to gain access to post-secondary education. His career in the military was entirely in administration. He rose to a high rank. Somalia has been in a state of civil war since mid-1988. The Barre regime engaged in severe repressive measures, amounting to genocide in the case of one tribe that opposed the regime. The applicant returned to Somalia from studies abroad in August, 1988 and stayed there until late in the summer of 1989. He was aware of atrocities and human rights abuses committed by the military, but echoed the government’s line which was to deny the abuses. The CRDD found that the claimant’s life would be in grave jeopardy should he be returned to Somalia but, as there were serious reasons to consider that he had been an accomplice in the commission of “crimes against humanity”, he was excluded from the provisions of the Convention. The definition of “Convention refugee” in the Immigration Act excludes any person to whom the Convention does not apply pursuant to section E or F of Article 1. Section F provides that the Convention shall not apply to any person with respect to whom there are serious reasons to believe that he has committed a crime against humanity.

The applicant argued that the CRDD wrongly applied the FCA decision in Ramirez v. Canada (Minister of Employment and Immigration); and that deportation to a country where there is clear evidence that an applicant faces torture and possibly death contravenes Charter, sections 7 and 12.

Held, the application should be allowed and the matter returned to the CRDD for redetermination.

The CRDD erred in the application of the conclusion set out in Ramirez and in so doing erred in law. Ramirez dealt with the degree of complicity that is required to be an accomplice. The question to be drawn from Ramirez is whether, on the facts, there was personal and knowing participation in persecutorial acts by the applicant. The applicant’s roles as Director of Finance and as Director of Foreign Relations and the Office of Military Cooperation were remote from the scene of persecutorial acts and from the councils of war where decisions resulting in the persecutorial acts were taken. The applicant’s actions did not disclose personal and knowing participation in the persecutorial acts of the Barre regime within Somalia. He was not within the Article 1(F) exclusion. The applicant could have resigned his commission, left the military and government, or fled the country without risk to himself, but speaking out publicly against the regime might have involved significant personal risk. It was unnecessary for him to have done so to insulate himself from complicity.

The applicant could not succeed on the ground that his deportation to Somalia would amount to a contravention of Charter, section 7 or 12. This proceeding did not deal with execution of a deportation order, but rather judicial review of a CRDD decision that the applicant was not a Convention refugee. What would flow from that decision had it been upheld, would be for consideration in another forum.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 12.

Immigration Act, R.S.C., 1985, c. I-2, s. 2(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1).

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1, ss. E, F.

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.); Mahendran v. Canada (Minister of Employment & Immigration) (1991), 14 Imm. L.R. (2d) 30; 134 N.R. 316 (F.C.A.).

CONSIDERED:

Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696; (1993), 100 D.L.R. (4th) 151; 14 C.R.R. (2d) 146; 18 Imm. L.R. (2d) 165; 151 N.R. 69 (C.A.).

REFERRED TO:

Naredo and Arduengo v. Minister of Employment and Immigration (1990), 37 F.T.R. 161; 11 Imm. L.R. (2d) 92 (F.C.T.D.); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.); Barrera v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 3; (1992), 99 D.L.R. (4th) 264; 18 Imm. L.R. (2d) 81; 151 N.R. 28 (C.A.).

APPLICATION FOR JUDICIAL REVIEW of the CRDD decision (Re E. (M.G.), [1992] C.R.D.D. No. 268 (QL)) that there were serious reasons to believe that the applicant was an accomplice to the Somalian government’s crimes against humanity, and fell within the article 1(F) exclusion from the definition of Convention refugee. Application allowed.

COUNSEL:

M. S. Shaikh for applicant.

Brian Tittemore for respondent.

SOLICITORS:

M. S. Shaikh, Ottawa, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Gibson J.: This is an application for judicial review of a decision of the Convention Refugee Determination Division (the “CRDD”) of the Immigration and Refugee Board whereby the CRDD determined that the applicant is not a Convention refugee within the meaning of the Immigration Act.[1] The decision of the CRDD is dated the 6th day of May, 1992 [[1992] C.R.D.D. No. 268 (QL)].

The definition “Convention refugee” is set out in subsection 2(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1] of the Immigration Act and reads as follows:

2. (1) ….

“Convention refugee” means any person who

(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i) is outside the country of the person’s nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or

(ii) not having a country of nationality, is outside the country of the person’s former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

(b) has not ceased to be a Convention refugee by virtue of subsection (2),

but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the Schedule to this Act;

Sections E and F of Article 1 of the Convention (United Nations Convention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6]), as set out in the Schedule to the Act [as enacted idem, s. 34], read as follows:

E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

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;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

The relevant portion of Article 1 of the Convention for the purpose of this matter is section F.

In reaching its conclusion that the applicant was not a Convention refugee, the CRDD arrived at the following two preliminary conclusions:

Inclusion—the claimant was entirely credible and forthright in his responses. This tribunal deems that, according to the claimant’s testimony and the documentary evidence, due to his tribal affiliation, and his former posts in the Siad Barré regime, the claimant’s life would be in grave jeopardy should he be made to return to Somalia. Therefore, the claimant would be a refugee under the Canadian Immigration Act.

Exclusion—yet, nevertheless, the claimant is excluded as there are serious reasons for considering that the claimant, as an accomplice, committed “crimes against humanity” by aiding and abetting in those crimes and that the claimant, as an accomplice, aided and abetted in committing acts “contrary to the principles and purposes of the United Nations”: (Sections, article 1F(a ) and 1F(c) of the Refugee Convention respectively).

The facts are not in dispute although the conclusions to be drawn from those facts are central to the principle issue that was argued before me. The facts may be summarized as follows: The applicant is a citizen of Somalia and a member of the Marihan tribe and Darod sub-tribe. He arrived in Canada in June of 1991 claiming to have a well-founded fear of persecution by reason of his race and his membership in a particular social group. He is well-educated.

The applicant joined the Somalian military in 1972 as a means, according to his testimony, to gain access to post-secondary education outside of Somalia. There was no university in Somalia. The military was respected in the country. The applicant regarded it as an accomplishment to gain access to the military which effectively ruled the country. The country was then stable politically and the economy was relatively strong.

The applicant’s career in the military and in the Department of Defence was entirely in administration. In career terms and in terms of his educational ambitions, he was successful. He rose to a high rank in the officer corps. He became Director of Finance and senior financial consultant to the Minister of Defence. He successfully completed a course of studies at the Italian Military Academy in or about August, 1988.

During the leadership of Siad Barre, a member of the same tribe and sub-tribe as the applicant, war broke out between Somalia and Ethiopia in 1977. From that time until 1988, and obviously since that time as well, the applicant described Somalia as being in chaos. Certain of the Somalian tribes fought along side the Ethiopians against the Somalian military. In mid-1988, a settlement was reached between the two governments but the conflict continued within Somalia in the form of a civil war. The Barre regime engaged in severe repressive measures against certain of the Somalian tribes which opposed it, amounting in the case of the Isaaq tribe in northern Somalia, to genocide.

Upon the applicant’s return to Mogadishu from his studies in Italy in August 1988, he assumed the responsibility of Director of Foreign Relations and the Office of Military Cooperation. He continued in this role until sometime in the Spring of 1989. In this role he acted as a spokesperson for the Minister of Defence, the Department of Defence and the military in relationships with military attachés and other diplomatic personnel in Somalia. He accompanied five military attachés on a brief visit to Hargeysa in northern Somalia some six months after military action in the city had ceased. He witnessed the devastation first-hand. He was, to a greater or lesser extent, aware of atrocities and human rights abuses being perpetrated by the military. He continued to echo the government’s line which was to deny the abuses.

Late in the summer of 1989, he went to the United States to pursue further studies.

Three issues were argued before me.

They were to the following effect:

1. the decision of the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration)[2] was wrongly applied by the CRDD on the facts of this case;

2. deportation of an individual such as the applicant to a country where there is clear evidence that he or she may face torture and possibly even death amounts to a contravention of sections 7 and 12 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]; and

3. natural justice and procedural fairness were not afforded to the applicant during a portion of his hearing. In the absence of a refugee hearing officer, members of the CRDD charged with the responsibility of reaching a decision on the applicant’s claim themselves engaged in “unreasonably aggressive questioning” thus raising a reasonable apprehension of bias on their part against the applicant.

I will deal with the three issues in order.

In Ramirez, MacGuigan J.A., speaking for the Court, stated as follows, at page 317:

What degree of complicity, then, is required to be an accomplice or abettor? A first conclusion I come to is that mere membership in an organization which from time to time commits international offences is not normally sufficient for exclusion from refugee status. Indeed, this is in accord with the intention of the signatory states, as is apparent from the post-war International Military Tribunal already referred to. Grahl-Madsen, supra, at page 277, states:

It is important to note that the International Military Tribunal excluded from the collective responsibility persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the State for membership, unless they were personally implicated in the commission of acts declared criminal by Article 6 of the Charter as members of the organization. Membership alone is not enough to come within the scope of these declarations [International Military Tribunal, i. 256].

It seems apparent, however, that where an organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts.

He went on, at page 318:

At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it. Such a principle reflects domestic law (e.g., subsection 21(2) of the Criminal Code), and I believe is the best interpretation of international law.

and concluded in response to the question he himself had posed and that is quoted above at the opening of the extract from page 317, in the following terms, at page 320:

In my view, it is undesirable to go beyond the criterion of personal and knowing participation in persecutorial acts in establishing a general principle. The rest should be decided in relation to the particular facts.

Both Ramirez and Naredo and Arduengo v. Minister of Employment and Immigration[3] which is referred to by Mr. Justice MacGuigan, involved fact situations of conflict internal to a country as in this case, but in each case the individual whose possible complicity was being reviewed was much more physically proximate to the atrocities than was the applicant in this case.

In its analysis of the fact situation before it, the CRDD stated as follows:

The claimant, according to his own testimony, admitted that he had lied to representatives of the international community. “I was telling a lie; I knew I did not feel good about it”, yet never did the claimant express his feelings to anyone in authority, nor did he stop his activities during the time that he was in that post, as he himself stated. The claimant, found out, in July and August of 1988, about the true situation in the North of the country, and by November of that same year, he became more aware of the “excessive bombing” and the “human rights abuses” and “bloodshed” perpetrated by government forces for whom he was the official spokesman, as the director of foreign relations and military cooperation. The claimant stated that he received the Amnesty Report from the United States delegate, had read it, and was fully aware of the situation which he had admitted could have been settled in a “civilized way”, which it was not. He described the suffering and also spoke of the devastation which he had seen at first hand, after having flown into Hargeisa, which he described as a “ghost town”. The claimant spoke of the “excessive bombings by the air force instead of using the infantry”. The claimant also stated that the government used excessive force, although it could have avoided much killing and bloodshed, which he described as useless. He saw the situation at first hand, and was the official spokesman to delegates of foreign countries, having taken them to that specific area; and he admitted to towing the official government line and denying “on behalf of the Minister” what government forces had done.

The claimant knew of the activity of government forces and admitted to denying them and lying “on behalf of the Minister of Defence” and the government.

The claimant stated that he did not even consider defecting, that had he resigned he could not have worked in a government ministry, but that he would have been able to work as a businessman, which does not need any sophistication or have any prestige in his country.

The claimant’s life would not have been in peril, he would not have lost his liberty; the claimant would have lost a prestigious position in the government and would have had to have been a businessman. There is no defence on his part that he could use with regard to peril to himself; the claimant readily admitted that he had never considered defecting. Before going to the United States, and further to studying there, he thought that the situation would change and that he would return to his country when the situation would become normal again.

The claimant’s situation has to be examined in a different light in order to see whether, in fact, he should or should not be excluded. The decision was made by this tribunal to exclude the claimant. It compares his situation to that of a spokesman for a mafia-front company, or a criminal entity, where the claimant or someone like the claimant would have first served as the Chief Financial Advisor advising on the budget, and later as the spokesman for the company in question. This, in fact, would be considered aiding and abetting in committing fraud, if it was a question of working for such a company, and also the person would be considered an accomplice to the fraud, as well as to loss of life if this company was, in fact, engaged in activities which included murder. The government of Somalia, in fact, was involved in outright human rights abuses and genocide of the Isaac tribe in the North of the country, and the claimant admitted that he did lie and did cover up the situation for the benefit of the government, and on behalf of the Minister. The claimant recognized that the government had committed human rights abuses by excessively bombing with the air force, rather than using the infantry. The claimant stated that due to this, useless, bloodshed had occurred.

I have quoted from the decision of the CRDD at some length because, with great respect, I have concluded that in deciding on the basis of the foregoing facts and analysis that the applicant falls within the four corners of the exclusion from the definition “Convention refugee” in that there are serious reasons for considering[4] that he committed or knowingly participated in crimes against humanity or acts contrary to the purposes and principles of the United Nations, the CRDD erred in the application of the conclusion set out in Ramirez and in so doing erred in law.

The question to be drawn from Ramirez is whether, on the facts of this case, there was personal and knowing participation in persecutorial acts by the applicant. In both his role as Director of Finance and senior financial consultant to the Minister of Finance and as Director of Foreign Relations and the Office of Military Cooperation, he was at all relevant times remote from the scene of persecutorial acts and, by his own testimony which was found by the CRDD to be credible, from the councils of war where decisions resulting in the persecutorial acts were taken. It would appear to be true that, without risk to himself or his family, he could have resigned his commission, left the military and government or fled the country other than for purposes of study. He could have spoken out publicly but the latter course might have involved significant personal risk. Mr. Justice MacGuigan counsels in Ramirez [at page 320] that “Usually, law does not function at the level of heroism.”

I have concluded that the applicant’s actions as disclosed by a full reading of the transcript of his testimony before the CRDD, do not disclose, on his part, personal and knowing participation in the persecutorial acts of the Barre regime within Somalia. Thus, he is not a person with respect to whom there are serious reasons for concluding that he has committed a crime against humanity or has been guilty of acts contrary to the purposes and principles of the United Nations. Further, I conclude that it follows that it was unnecessary for the applicant to have resigned his commission, left the military and government, fled the country or spoken out publicly to insulate himself from complicity.

Before closing on this issue, I should note that I have had the advantage of reading the reasons for judgment of Robertson J.A. in Moreno v. Canada (Minister of Employment and Immigration)[5] that were issued shortly after this matter was heard before me, and the very recently issued reasons by Linden J.A. in Sivakumar v. Canada (Minister of Employment and Immigration).[6] Since counsel were unable to refer to those reasons in making their arguments before me, I have neither referred to them in these reasons other than in this paragraph or taken them into account in reaching my conclusions.

Turning then to the second issue argued before me, I conclude that the applicant cannot succeed on the ground that his deportation to Somalia would amount to a contravention of sections 7 and 12 of the Canadian Charter of Rights and Freedoms. We are not here dealing with the execution of a deportation order but rather with judicial review of a decision of the CRDD to the effect that the applicant is not a Convention refugee. What would flow from that decision if it were upheld, and I have determined that it should not be, is for consideration in another forum. Reference should be made to an opinion expressed by Marceau J.A. in Nguyen v. Canada (Minister of Employment and Immigration)[7] where he stated at pages 708-709 of his reasons:

It would be my opinion, however, that the Minister would act in direct violation of the Charter if he purported to execute a deportation order by forcing the individual concerned back to a country where, on the evidence, torture and possibly death will be inflicted. It would be, it seems to me, a participation in a cruel and unusual treatment within the meaning of section 12 of the Charter, or, at the very least, an outrage to public standards of decency, in violation of the principles of fundamental justice under section 7 of the Charter. There are means to enjoin the Minister not to commit an act in violation of the Charter.

The same conclusion would appear to have been reached in Barrera v. Canada (Minister of Employment and Immigration).[8]

On the third question, after a full review of the transcript of the applicant’s testimony before the CRDD, I find nothing in the questioning of the applicant by members of the CRDD that would raise a reasonable apprehension of bias on their part against the applicant on the basis of the test adopted by the Federal Court of Appeal in Mahendran v. Canada (Minister of Employment& Immigration).[9] The test therein adopted is in the following terms:

[W]hat would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the Tribunal here], whether consciously or unconsciously, would not decide fairly?

I note that the applicant herein was represented by counsel before the CRDD and that no objection as to the questioning by CRDD members was there recorded.

For the foregoing reasons, I have set aside the decision of the CRDD herein and referred the matter back to it for rehearing and redetermination in accordance with these reasons.

There remains the issue of certification of a question. Counsel for the applicant urges that I certify a question in the following terms:

In the context of a civil war, where both the government and the tribal forces, in the area of hostilities, have been accused of human rights violations and atrocities against each other;

What is the position of persons working at the headquarters in the Ministry of Defence, in more or less civilian or semi-civilian functions, such as preparation of budgets and accounts, or doing protocol duties for foreign visiting dignitaries, though technically enjoying a military rank:

Who have not played a combat role or directly or indirectly participated in or witnessed any violations of human rights or commission of atrocities;

Who by reason of vast distances between the areas of hostilities and the Ministry, and the fact that the dictator in power kept a tight lid on dissemination of news, had no credible information;

And who in a one man dictatorial rule had no decision making authority and power to change the events.

Does the net of Article 1F extend to such persons?

Counsel for the respondent takes the position that there is not a serious question of general importance to be certified in this case and, I think quite properly, objects to the form of the question proposed on behalf of the applicant. In light of the decision I have reached and the position taken by counsel for the respondent, no question is certified.

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