Ottawa, Ontario, March 6, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is a judicial review of a finding by the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) that the Applicant should be excluded from entry into Canada on the basis that there were "serious reasons for considering" that he had committed a "crime against peace, a war crime, or a crime against humanity". Before such a grave finding can be made, there must be a rigorous review of the facts. This is even more so where the accused individual is alleged neither to be an active participant nor a member of an organization with a limited and brutal purpose, but rather is said to be somehow complicit by way of temporal and spatial proximity to the alleged crimes.
[2] In view of the Court's disposition to refer the matter back to the IRB, the Court will only comment on those aspects of the review related to the "exclusion" from refugee protection.
II. Background
[3] The Applicant (Hernando Corrales Murcia), a former captain in the Colombian Armed Forces, claimed to have a well-founded fear of persecution by the guerrilla group, Revolutionary Armed Forces of Colombia (FARC) and the paramilitary group, Auto Defense of Colombia (AUC) on the basis of his political opinion.
[4] Mr. Murcia was in the Colombian Armed Forces from 1969 to 1983. The important time frame is 1979-1982, a period during which, according to Amnesty International documents, war crimes were committed at the Cavalry School and La Remonta in Bogota, at the Army intelligence headquarters in Bogota, the Brigada de Institutos Militares (BIM) and at the Pichincha Battalion and 3rd Brigade in Cali.
[5] He left the Armed Forces for reasons unrelated to its conduct and worked for his brother on the family farm. He claims that he was threatened by FARC with kidnapping and death on several occasions. As a result, he left for the United Statesin May 1999 and sought refugee status in Canada in July 2002 - a three-year delay in seeking protection.
[6] The Applicant's claim was heard in two sessions by two different members of the IRB over a period of six months. The second session before the second Member included the reading-in of evidence from the first session, with the consent of the Applicant.
[7] The IRB's decision commenced with a consideration of whether the Applicant was excluded from refugee protection on the basis of Article 1F(a) of the 1952 Convention on Refugees incorporated into the Immigration and Refugee Protection Act through section 98.
| 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
Article 1F. 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; |
98. La personne visée aux sections E ou F de l'article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
L'Article 1F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser :
a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes; |
[8] Having concluded that the Applicant was excluded by virtue of Article 1F(a), the Member then went on to consider whether the Applicant would otherwise have qualified as a refugee or person in need of protection. The Member concluded that Mr. Murcia would not, on the basis of lack of credibility.
III. Analysis
[9] The Court has several concerns about the way in which this case was handled. The core of the decision involves an assessment of credibility both as to the extent to which the Applicant could be said to be complicit in war crimes and as to the legitimacy of his well-founded fear.
[10] As matters developed, the first Member was not able to complete the case before the term of appointment to the IRB expired. The second Member took over on the basis of the record to that date. The Applicant consented to this procedure and therefore, in and of itself, it would not be a basis for quashing the decision. Continuity in the examination of the principal witness is at the very least a significantly beneficial, if not an absolutely necessary, aspect of evaluations of credibility. As such, the Court has considerable discomfort with this process where the credibility assessment is bifurcated.
[11] The Court is also concerned with the process of analysis undertaken in this case, where the IRB dealt first with whether the Applicant should be "excluded" from refugee protection and then dealt with whether he should be "included" for refugee protection.
[12] The inclusion issue may well dispose of the matter without ever having to deal with the potentially more damaging finding of "war criminal". Moreover, there is a significant risk that exclusion evidence may taint the inclusion evidentiary analysis.
[13] While the statute does not necessarily dictate the order in which the analysis should be performed, in my view, it would be preferable and more logical to consider "inclusion" first. The whole matter of "inclusion" suggests that an applicant has been included into something and then may be excluded from it for some other reason.
[14] The IRB, having chosen to examine the exclusion issue first, embarked on an exercise to determine if the Applicant was complicit in these crimes, not by virtue of any participation, active or passive, but by reason of possible opportunity and association.
[15] There is considerable confusion in the evidence as to whether the Applicant was at the places at the times that the atrocities were committed. Since the burden of proof in this regard is on the Minister, I am not convinced that the evidence reached the level of certainty required to ground this finding.
[16] Because the Colombian Armed Forces was not found to be an organization "for a limited and brutal purpose", the Applicant's mere membership was not sufficient to implicate him in the alleged crimes perpetrated by other members of the Armed Forces. As such, the IRB examined the following six factors (drawn from the case law) to determine whether the Applicant's circumstances made him complicit in the alleged crimes: Nature of Organization, Method of Recruitment, Position/Rank, Length of Time in the Organization, Opportunity to Leave the Organization and Knowledge of Atrocities. The IRB seemed to place considerable emphasis on the time of the atrocities, 1979-1982, the location of these atrocities, the Applicant's time in the army and his rank.
[17] With respect to time in the army, the IRB seemed to hold his 14 years of service against the Applicant. It is difficult to see how the time served in itself is particularly relevant when the relevant period of atrocities was between 1979 and 1982.
[18] In Bitaraf v. Minister of Citizenship and Immigration, [2004] F.C.J. No. 1095 (not referred to in the IRB's decision), I set out a number of principles applicable to an Article 1F(a) analysis:
1. before the Board, the Minister bears the onus of proof in Article 1F(a);
2. with respect to the interpretation of Article 1F(a) of the Convention, the standard is correctness, but with respect to the application of the law to the facts, the standard is reasonableness;
3. the Board must give clear reasons in unmistakable terms which show a thorough consideration of the facts and relevant issues;
4. the requirement for reasons is greater where the consequences are potentially so dire as in this instance, where the applicant would be deported to Colombia where he faces persecution from the guerrillas. Moreover, he would be separated from his family, which the Board has found qualify as Convention refugees. Undoubtedly, the Board would have found that the applicant qualified as a Convention refugee had the Board not found that the applicant was excluded under Article 1F(a);
5. mere membership in an organization is insufficient to incur exclusion except where the organization is one of a limited brutal purpose;
6. the Board must focus on the specific acts of the person sought to be excluded, their nature, quality and the circumstances thereof in finding that the applicant was excluded; and
7. to find that the applicant was an accomplice the Board must address whether the applicant had a shared common purpose and whether there was personal and knowing participation in the organization which committed the crimes against humanity.
The IRB in its decision runs afoul of several of these principles and as a result cannot be considered reasonable by this Court.
[19] The six factors referred to in paragraph 16 are, in part, an aspect of the analysis of whether an accused had a shared common purpose and knowing and personal participation in the organization. It is important to pay attention to the "shared common purpose" and the "organization" where the organization itself does not have a limited brutal purpose. In those types of organizations with non-brutal purpose, it is relevant to consider which part of the organization is said to have committed the atrocities and the proximity of the accused to that part of the organization.
[20] It is also important to consider the nature and extent of knowledge an accused may have. The more direct and first-hand the knowledge, the closer an accused comes to "personal and knowing participation". In this instance, the Applicant had no first-hand knowledge. He was never a member of that part of the Colombian Armed Forces which carried out the atrocities. He was never in a supervisory position or other position where he could or should have done something about the atrocities.
[21] In Ardila v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1876, Justice Kelen dealt with a case almost squarely on all fours with this one. It involved an ex-Major in the Colombian Armed Forces who feared persecution from FARC. He had served for 12 years, he did not resign because of atrocities, and his knowledge of atrocities was second/third hand and general in nature. There was no evidence that any of the units in which Ardila served had committed any atrocities. Justice Kelen held that, in these circumstances, there was insufficient evidence to establish complicity.
[22] The IRB in the Applicant's application did not have the benefit of considering Justice Kelen's decision.
[23] It is difficult to see any material distinction between the circumstances of Messrs. Corrales Murcia and Ardila other than, in the relevant timeframe for Ardila, there was relative peace between the government and the so-called "revolutionary forces".
[24] Therefore, the Court is of the view that the decision should be quashed and the matter remitted back to be redetermined on all issues by a differently constituted panel.
[25] There is no question for certification.
JUDGMENT
IT IS ORDERED THAT:
1. The decision should be quashed and the matter remitted back to be redetermined on all issues by a differently constituted panel.
2. There is no question for certification.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1895-05
STYLE OF CAUSE: Hernando Corrales Murcia
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 1, 2006
REASONS FOR JUDGMENT: Phelan J.
APPEARANCES:
| Mr. Gregory J. Lyndon
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| Ms. Margherita Braccio
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SOLICITORS OF RECORD:
| Mr. Gregory J. Lyndon Barrister & Solicitor Toronto, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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