Ottawa, Ontario, March 20, 2006
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a June 9, 2005 decision by Ms. Ruth Delisle of the Refugee Protection Division of the Immigration and Refugee Board (the Panel) excluding the applicant under section 98 of the Act and Article 1F(a) of the Convention from the protection provided to refugees and other persons in need of protection because there were serious reasons for considering that he had been involved in the commission of crimes against humanity and war crimes.
ISSUES
[2] The applicant raises the following issues:
1. Did the Panel err in law in considering the issue of the applicant’s exclusion from the status of a refugee or person in need of protection?
2. Did the Panel make its decision without regard for the relevant material before it?
3. Did the Panel err in failing to rule on the merits of the applicant’s application and on his potential inclusion in the Convention refugee definitions?
[3] For the following reasons, the answers to these three questions are negative, and this application for judicial review is dismissed.
FACTS
[4] The applicant is a citizen of Burundi, of Tutsi ethnicity. His wife, Sophie Ndamama, is of Hutu ethnicity, and they have four children. The Panel determined that the applicant’s wife and children were Convention refugees and allowed their claim for refugee protection. That decision is the subject-matter of a separate application for judicial review brought by the respondent, in docket number IMM-3929-05.
[5] Between 1979 and 1992, the applicant worked at the central committee of the party in power in Burundi, UPRONA (Unité pour le progrès national). He was also a member of that party.
[6] From 1988 to 1993, the applicant studied business management.
[7] Between 1993 and 1994, the applicant worked in the private sector, but joined the public service in 1996 after failing to find work.
[8] From 1996 on, the applicant held various positions related to financial management and development assistance in the foreign affairs department.
[9] In 1998, the applicant became head of financial services. The position involved a lot of travel, and he performed on-site audits at about 10 of Burundi’s embassies abroad. The audits revealed many financial irregularities, and a number of officials were reprimanded and required to repay improper spending. One of those officials was Ferdinand Nyabenda, the chargé d’affaires in Rome.
[10] In 2000, after a brief posting to Burundi’s embassy in Kenya, the applicant was appointed first secretary at Burundi’s embassy in Belgium. He was primarily involved in managing the embassy’s finances and matters related to the European Union’s development assistance to Burundi. He was also the chargé d’affaires between the departure of the former ambassador and the arrival of the new ambassador, Ferdinand Nyabenda, in 2002.
[11] Relations between the applicant and the new ambassador quickly deteriorated.
[12] On a visit to Burundi in 2003, the applicant found out that the ambassador had denounced him as a sympathizer of the opposition party, PARENA (Parti de la renaissance nationale). On June 11, 2003, he was summoned by police to answer a charge of breach of national security.
[13] Fearing for his safety, the applicant left Burundi that very day for Brussels.
[14] Back in Brussels, the applicant was told by a colleague that the ambassador was conducting a real smear campaign against him, questioning his loyalty to the government and whether he was a true Tutsi, and insinuating that he and his family members might be spies. Rumours of his imminent recall and dismissal reached him through his entourage.
[15] Fearing the worst if he were to go back to Burundi, the applicant, his wife and two minor children left Belgium for the United States on August 30, 2003. They made a claim for refugee protection at the Lacolle border crossing on September 1, 2003. Their two adult children followed in their footsteps and made a claim for refugee protection on September 2, 2003.
[16] The applicant says his home in Burundi and his parents’ home were ransacked and his parents managed to escape death by leaving the house just in time and hiding in the bush.
IMPUGNED DECISION
[17] In its reasons, the Panel said it was satisfied that the applicant’s identity had been clearly established and proceeded directly to the issue of his exclusion on the basis that there were serious reasons for considering that he had been involved in the commission of war crimes or crimes against humanity, without dealing with the merits of his claim for refugee protection.
[18] The Panel identified the appropriate standard of proof in matters involving Article 1F of the Convention, which is lower than the balance of probabilities applicable in civil matters (Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.)).
[19] The Panel then set out the principles from the case law on issues of complicity under Article 1F (Ramirez and Moreno, supra, Sivakumar v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 872 (C.A.), Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.), Sungu v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 192 (T.D.), Mohammad v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1457 (T.D.) (QL)).
[20] Based on the applicant’s written evidence and numerous documents, the Panel found that the government of Burundi had committed numerous crimes against humanity since 1993 against the civilian population. The Panel determined that they were « crimes sérieux, d’actes inhumains commis contre une population civile de manière systématique et généralisée ».
[21] The Panel then addressed the issue of the applicant’s complicity by association in crimes against humanity. Based on his membership in the governing party since 1979, his career progression within Burundi’s public service and the importance of the positions he held before seeking refugee protection in Canada, the Panel found that his association with the government of Burundi was voluntary and that he was fully aware of the atrocities committed by the government.
[22] Although the applicant expressed his disagreement with the actions of the government of Burundi at the hearing, the Panel found that his long government career and the importance of his diplomatic postings revealed that he and the government of Burundi shared the same vision.
[23] Based on the principles set out in Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No. 108 (C.A.) (QL), the Panel made the following findings:
Le tribunal conclut, au regard de la preuve soumise, que le demandeur principal avait « une connaissance personnelle et consciente » des actes commis par le gouvernement et son armée, de par les fonctions qu’il occupait. La preuve a révélé que le demandeur principal a toujours démontré son appui actif, constant et confiant à son gouvernement, dont il a joint les rangs de façon volontaire en 1979. Alors qu’il avait atteint un poste de haut niveau, il n’a fait aucun geste pour s’en dissocier, bien qu’il était au courant des actions prises par son gouvernement. Bien au contraire, il est resté en place; il a même continué à offrir ses services après être rentré du Burundi en juin 2004, jusqu’à ce qu’il reçoive la lettre de rappel au pays. Par conséquent, le tribunal estime qu’il y a « des raisons sérieuses de penser » que le demandeur principal a participé personnellement et sciemment aux crimes commis par le gouvernement burundais, du fait qu’il s’est fait complice par association de crimes graves contre l’humanité.
Le tribunal conclut qu’il existe des motifs sérieux de croire que le demandeur principal s’est fait complice de crimes contre l’humanité et de crimes de guerre, et qu’il est exclu de la protection offerte aux « réfugiés au sens de la Convention » et aux « personnes à protéger », par la section Fa) de l’article premier de la Convention. Par conséquent, le tribunal n’a pas à analyser l’exclusion du demandeur principal en application de l’article 1Fc) de la Convention
ANALYSIS
[24] Section 98 of the Act reads as follows:
|
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. |
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. |
[25] Paragraphs (a), (b) and (c) of section F of Article 1 of the Refugee Convention read as follows:
|
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. |
F. 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;
b) Qu’elles ont commis un crime grave de droit commun en dehors du pays d’accueil avant d’y être admises comme réfugiés;
c) Qu’elles se sont rendues coupables d’agissements contraires aux buts et aux principes des Nations Unies. |
1. Did the Panel err in law in considering the issue of the applicant’s exclusion from the status of a refugee or person in need of protection?
[26] The applicant argued that the Panel erred in finding that the government of Burundi was an organization principally directed to a limited, brutal purpose and that his exclusion under Article 1F(a) based solely on his membership in that organization warranted the intervention of this Court.
[27] The principle that mere membership in an organization that is principally directed to a limited, brutal purpose provides sufficient grounds for finding that a claimant should be excluded for complicity by association under Article 1F of the Convention was established in Ramirez, supra.
[28] The applicant argued that the Panel did not establish that the government of Burundi was that kind of organization, and that the evidence showed that he and the government did not share a common purpose with respect to the commission of crimes against humanity.
[29] Having read the Panel’s reasons, I cannot accept the applicant’s argument. The Panel did not find that his mere membership in the government of Burundi gave rise to his exclusion under Article 1F of the Convention; that would have been a finding of mixed law and fact subject to the intervention of this Court on the reasonableness simpliciter standard (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).
[30] On the contrary, the Panel performed an in-depth analysis of the circumstances of the applicant’s participation in the activities of the government of Burundi, his career path and departure.
[31] It is precisely because the Panel must have found the applicant’s mere participation insufficient in itself for exclusion that it embarked on a thorough analysis to determine whether or not there was any mens rea indicating his personal and knowing participation in the atrocities committed by the government of Burundi.
[32] It is worth mentioning that the applicant did not dispute the criminal allegations against the government of Burundi. Nor did he deny he was aware those crimes were committed while he was working for the government. This is clear from his Personal Information Form.
[33] Without question, the applicant did not personally commit any massacres or violence against the civilian population. However, it was not unreasonable for the Panel to find him complicit by association, given his voluntary involvement in government activities, his rise through the ranks of the foreign affairs department at a time when Burundi was consumed by terrible atrocities and the fact that he did not leave until he began to fear for his own safety. Considering the scope of the violence committed by government forces (as shown by the documentary evidence in the record) against members of the civilian population, the applicant’s claim of financial necessity as justification for his continued employment is not very impressive.
[34] In Harb, supra, Décary J.A. wrote at paragraph 11:
. . . It is not the nature of the crimes with which the appellant was charged that led to his exclusion, but that of the crimes alleged against the organizations with which he was supposed to be associated. Once those organizations have committed crimes against humanity and the appellant meets the requirements for membership in the group, knowledge, participation or complicity imposed by precedent . . . , the exclusion applies even if the specific acts committed by the appellant himself are not crimes against humanity as such. . . .
[35] The applicant took great pains to play down the importance of his role, but the fact remains that his financial work contributed to the continuation and smooth operation of the government of Burundi, particularly in relation to the operation of its diplomatic missions abroad and to the continuation of the European Union’s financial aid.
2. Did the Panel make its decision without regard for the relevant material before it?
[36] The applicant argued that the Panel’s decision was made without regard for relevant material in his favour.
[37] According to the applicant, the evidence showed that his work was limited to financial issues and that he never took part in the atrocities committed by the government and soldiers of Burundi.
[38] The applicant argued that the Panel’s findings of fact were patently unreasonable and that the intervention of this Court was required.
[39] I do not agree. The Panel clearly accepted the fact that the applicant’s work was of a financial nature and that he had not been directly involved in the crimes committed by the government of Burundi. However, based on his testimony and the ample documentary evidence, the Panel found that his work was of a nature that promoted the continued survival of the government of Burundi, and that despite the disagreement he expressed at the hearing over the atrocities that took place beginning in 1993, he did nothing to dissociate himself from them until he feared for his own safety.
[40] I therefore see no error in the Panel’s findings of fact to warrant the intervention of this Court.
3. Did the Panel err in failing to rule on the merits of the applicant’s application and on his potential inclusion in the Convention refugee definitions?
[41] According to the applicant, the Panel erred in law in failing to deal with the merits of his claim for refugee protection, i.e., his potential inclusion in the “Convention refugee” categories.
[42] The standard of review for such an error of law would be the correctness standard (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).
[43] I am not of the view that the Panel committed an error of law in failing to deal with the applicant’s claim for refugee protection after determining that he was excluded; since excluded persons cannot benefit from protection under the Act, failing to deal with the merits of their claims is not an error of law.
[44] In Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (C.A.), Mahoney J.A. wrote at paragraph 12:
I find nothing in the Act that would permit the Refugee Division to weigh the severity of potential persecution against the gravity of the conduct which has led it to conclude that what was done was an Article 1F(a) crime. The exclusion of Article 1F(a) is, by statute, integral to the definition. Whatever merit there might otherwise be to the claim, if the exclusion applies, the claimant simply cannot be a Convention refugee.
[45] I therefore find that the Panel did not err in law in failing to consider the issue of the applicant’s inclusion after determining that he was excluded under Article 1F(a) of the Convention.
[46] The parties submitted no question for certification and the record raises none.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No question is certified.
Certified true translation
Peter Douglas
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4281-05
STYLE OF CAUSE: SALVATOR KABURUNDI
v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: March 15, 2006
REASONS FOR JUDGMENT
DATE OF REASONS: March 20, 2006
APPEARANCES:
Lia Crisitnariu FOR THE APPLICANT
Mario Blanchard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lia Crisitnariu FOR THE APPLICANT
Montreal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec