Docket: IMM-4864-08
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Applicants
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicants are challenging the lawfulness of the decision made by the Immigration and Refugee Board (the Board) on October 2, 2008, in which the Board accepted the respondent’s claim for refugee protection and refused to exclude him from the definition of Convention refugee.
[2] The respondent is a citizen of Macedonia and a member of the Muslim Albanian minority. He is a former student of the University of Tetovo and an activist for Albanian minority rights. In the summer of 2001, during the conflict between the Albanian minority and the Macedonian government, the respondent offered his assistance to the National Liberation Army (NLA). According to the documentary evidence, the NLA was created in early 2001 and dissolved in September of the same year. During that period, the NLA, which was pro‑Albanian, occupied certain villages, including the respondent’s village. NATO quickly intervened; the Macedonians feared that their Albanian neighbours wanted to create a Greater Albania. In August 2001, an agreement was reached to amend the Constitution to give the Albanian minority greater rights and disarm the NLA. During his testimony, the respondent explained that he had never been a member of the NLA’s “army section”; however, he said that he had been a member of the “civilian section”. In any event, he participated in the NLA for only two months, May and June 2001. At that time, the people in his village believed that the NLA would protect them from the Macedonian army. All those who were able became involved in the village’s defence in anticipation of an attack that never occurred. The respondent dug trenches at the NLA’s request and helped house refugees from the Albanian minority. In his testimony, the respondent stated that he had agreed with the NLA’s objectives but not the means it used, namely violence. However, he said that he had not witnessed any acts of violence by the NLA.
[3] In the decision under review, the Board found that the respondent was credible. In particular, it noted that in 2001 he was committed to a cause “supported by the European Union and by the United States, namely, the defence of the rights of the Albanian minority, and in particular educational and language rights”. Moreover, in the Board’s opinion, the respondent’s past activities were along these lines, both in the Tetovo university community and as a member of his village’s municipal council. With regard to the respondent’s exclusion, the Board determined that the NLA was an organization that “had many purposes other than the limited, brutal purposes”. The Board also refused to find that the respondent was complicit by association, noting that it had not been “established that the claimant personally and knowingly participated in acts of persecution” and that “there was no existence of a shared common purpose as between ‘principal’ and ‘accomplice’”. With regard to inclusion, the Board concluded that the documentary evidence confirmed the respondent’s fear of being personally persecuted by the Macedonian police. As a result, it decided to accept his claim for refugee protection.
[4] The applicants now submit that the Board erred with respect to the applicable standard of proof and that it clearly erred in finding that the NLA was not an organization with a limited, brutal purpose and that the respondent could not be considered complicit by association. In short, because of his membership in the NLA and the material support he provided to the NLA in 2001, and also because of his knowledge of the abuses committed by the NLA against the civilian population, the applicants submit that the respondent participated or was complicit in crimes against humanity, war crimes and acts contrary to the principles of the United Nations, which means that he can be excluded from having Convention refugee status.
[5] The decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, has not substantially changed the scope of the standard of review applicable to the Board’s decisions concerning the applicability of the exclusion clauses. According to past decisions of this Court and the Federal Court of Appeal, the application of the legal concept of complicity to the facts of a case is a question of mixed fact and law within the Board’s specialized expertise and is therefore subject to the standard of reasonableness (Tchoumbou v. Canada (Minister of Citizenship and Immigration), 2008 FC 585, at paragraphs 21‑24, [2008] F.C.J. No. 920 (QL); Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, at paragraph 14, [2003] F.C.J. No. 108 (QL); Valère v. Canada (Minister of Citizenship and Immigration), 2005 FC 524, [2005] F.C.J. No. 643 (QL), at paragraph 12; Salgado v. Canada (Minister of Citizenship and Immigration), 2006 FC 1, at paragraph 8, [2006] F.C.J. No. 1 (QL)).
[6] Mere membership in an organization that is principally directed to a limited, brutal purpose makes it possible to infer that an individual is complicit in the organization’s purpose and systematically results in the application of the exclusion clauses (Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306, at paragraph 16, [1992] F.C.J. No. 109 (Ramirez); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298, [1993] F.C.J. No. 912, at paragraph 45 (Moreno); Harb, at paragraph 19). This is a presumption of complicity: a shared common purpose between the individual and the organization is presumed unless the individual rebuts the presumption (Yogo v. Canada (Minister of Citizenship and Immigration), 2001 FCT 390, [2001] F.C.J. No. 655 (QL), at paragraph 35 (Yogo); Bukumba v. Canada (Minister of Citizenship and Immigration), 2004 FC 93, [2004] F.C.J. No. 102 (QL)). The Minister must therefore prove actual or presumed complicity (Ramirez). This is an exception to the general principle that mere membership in a group is not enough to create complicity (Ramirez, at paragraph 16). The characterization of the nature of the organization therefore becomes determinative (Yogo; Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, at paragraphs 9, 13, [1993] F.C.J. No. 1145 (QL)).
[7] With regard to the abuses committed by the NLA in 2001, the documentary evidence in the record refers to the U.S. Department of State’s Country Reports on Human Rights Practices - 2001, The Former Yugoslav Republic of Macedonia, which reveals the following:
NLA insurgents also committed serious abuses against the civilian population, including killings, beatings, looting, and "ethnic cleansing."
. . .
The NLA also killed civilians during the conflict (see Section 1.g.). For example, on August 26, NLA members killed two Macedonian employees in a bomb explosion at a Macedonian-owned restaurant.
. . .
b. Disappearance
Several persons disappeared during the conflict, possibly for political reasons or due to conflicts among organized crime groups. Authorities and the local press frequently addressed the status of 12 ethnic Macedonians and, less frequently, 6 ethnic Albanians, all of whom disappeared during the conflict. Former NLA leaders denied knowledge of the whereabouts of the 12 ethnic Macedonians who disappeared from their villages around Tetovo. The Government accused the NLA of having killed them, and the Public Prosecutor and the Minister of Interior claimed that their bodies were buried northeast of Tetovo. However, an exhumation of the suspected gravesite conducted by the Ministry of the Interior from November 22 to 25 was inconclusive at year's end.
. . .
The NLA beat, threatened, and otherwise mistreated civilians during the conflict. On May 24 and 25 in Matejce, NLA members detained for 4 days four elderly ethnic-Serb men in the village mosque and reportedly beat them with their fists and guns, and kicked them. The NLA members also detained a second group of ethnic Serbs for 4 days and beat some of them. On August 7, NLA members abducted five ethnic-Macedonian road workers on the Tetovo-Skopje highway. They beat the workers, mutilated them with knives, and forced them to perform sexual acts on each other. The workers were then released. There were persistent, unconfirmed rumors that the NLA threatened to kill elected ethnic-Albanian political leaders and journalists if they publicly opposed the insurgency (see Section 2.a.).
. . .
The NLA frequently and arbitrarily detained ethnic Macedonians, and in at least one instance, ethnic Serbs, in areas under its control. Most were released unharmed shortly after their detention. According to Human Rights Watch, on May 24, NLA elements detained four ethnic-Serb men--all reportedly fathers of Macedonian policemen--from the village of Matejce and allegedly tortured them for 4 days before they released them (see Section 1.c.). On June 29, NLA insurgents detained three ethnic Macedonians, including one foreigner. On August 26, the NLA released the three men to the ICRC.
. . .
On June 11, the NLA burned ethnic-Macedonian homes and an Orthodox Church in southern Matejce. On July 28, members of the NLA reportedly set fire to ethnic-Macedonian homes in Tearce to discourage returns of ethnic Macedonians to their villages; an NLA rebel commander claimed that the fires were caused by electrical problems from downed power lines.
. . .
NLA combatants sometimes used ethnic-Albanian civilians as human shields, forcing them to remain against their will in villages under artillery attack, thereby purposefully increasing the risk of civilian casualties. Both sides tortured, beat, and harassed civilians of the opposing ethnic group (see Section 1.c.). The NLA actively spread misinformation about the police, exaggerating the number and extent of their confirmed, serious abuses. Both the Macedonian police and the NLA arbitrarily arrested and detained persons (see Section 1.d.). Both sides destroyed homes and property (see Section 1.f.)
Civilians were killed by landmine explosions, which the NLA laid on roads heavily traveled by civilians. On July 19, two European Union monitors and their interpreter were killed in western Macedonia when their vehicle hit a landmine that allegedly was laid by the NLA. On July 29, an NLA landmine explosion on the Lesok-Zelce road north of Tetovo killed two ethnic-Macedonian civilians. Landmines planted by the NLA also killed security forces, including two members of the security forces on March 4. At year's end, no statistics were available on persons killed or injured by landmine explosions.
The NLA reportedly attacked the ethnic-Albanian village of Malina Maala with mortars when villagers disobeyed NLA instructions to evacuate the settlement.
The NLA at times engaged in "ethnic cleansing" campaigns in areas under its control. Threatening violence, the NLA forced thousands of ethnic Macedonians from their homes in northern and western Macedonia. The Framework Agreement called for safe conditions under which displaced persons could return home, and much progress had been made toward that goal by year's end.
The NLA cut off the water supply to the city of Kumanovo in June for approximately 11 days, causing serious health and humanitarian problems for civilians in the city. A cease-fire was negotiated in June by the national security advisor and the NLA, which allowed ethnic-Macedonian water engineers to reopen the water valves.
[8] Subsection 4(3) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, defines “crime against humanity” as follows:
|
“crime against humanity” means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission. . . . |
« crime contre l'humanité » Meurtre, extermination, réduction en esclavage, déportation, emprisonnement, torture, violence sexuelle, persécution ou autre fait - acte ou omission - inhumain, d'une part, commis contre une population civile ou un groupe identifiable de personnes et, d'autre part, qui constitue, au moment et au lieu de la perpétration, un crime contre l'humanité selon le droit international coutumier ou le droit international conventionnel, ou en raison de son caractère criminel d'après les principes généraux de droit reconnus par l'ensemble des nations [...] |
[9] In this case, the respondent does not dispute the fact that the NLA committed the crimes against humanity alleged against it in the documentary evidence on which the applicants rely. What the respondent considers problematic is characterizing it as an organization principally directed to a limited, brutal purpose. He relies on the following reasoning of the Board:
[29] Was the NLA an organization that was principally directed to a limited, brutal purpose? There is no question that the NLA led an armed insurrection and attacked Macedonia’s armed forces. Although it claimed to be fighting to protect the rights of Albanians, it unquestionably carried out some reprehensible acts, such as forcing Albanian villagers to remain in their village and thus making them human shields, and forcibly removing Macedonians from their homes and using antipersonnel mines, thus endangering the lives of civilians. The NLA was also responsible for a number of civilian deaths.
[30] An analysis of the documentation submitted reveals that Macedonian authorities may have committed more human rights violations than the NLA, although this does not excuse the NLA’s actions.
[31] Nevertheless, the armed conflict lasted only a short period of time, that is from February to July 2001, and very few lives were lost. Furthermore, when the conflict ended, the NLA laid down its weapons after obtaining a number of concessions from the Macedonian authorities.
. . .
[33] The panel does not conclude that the NLA did not commit crimes against humanity, but it does conclude that it had many purposes other than the limited, brutal purposes. The panel is of the opinion that assisting the cause defended by the NLA does not automatically constitute complicity in crimes against humanity.
[10] In the decision under review, the Board also concluded that the criteria for complicity by association had not been met for the following reasons:
[34] In the claimant’s case, the Minister is not alleging that the claimant personally committed such acts. However, the Minister did not establish on the balance of probabilities that the claimant was aware of the crimes against humanity that had been committed by the NLA. The claimant was isolated in his occupied village and kept busy relocating the refugees and digging trenches to protect the population. His involvement was limited to the two‑month period during which his village was occupied. To support the allegation of complicity, it was not established that the claimant personally and knowingly participated in acts of persecution (assuming that such acts were committed), within the meaning of the criteria set out by the Federal Court of Appeal in Ramirez v. MEI. Furthermore, to quote the Federal Court of Appeal in Moreno v. Canada, there was no existence of a shared common purpose as between “principal” and “accomplice”.
[35] Consequently, there were no serious reasons for considering that the claimant had committed a crime against humanity, either directly or indirectly. The panel therefore determines that the claimant must not be excluded from protection pursuant to the provisions of Article 1F of the Convention.
[11] The applicants submit first that the Board erred at paragraph 34 of its decision with regard to the standard of proof applicable to the respondent’s exclusion. However, paragraph 34 must be read in conjunction with paragraph 35, so I will presume that the Board applied the criterion established by the case law for the requisite standard of proof, namely “serious reasons for considering”. Indeed, the Board cited Moreno and Ramirez at paragraph 34 of its decision.
[12] In Pushpanathan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 867, this Court stated the following about the evidence required for an organization to be characterized as having a limited, brutal purpose:
[40] The Refugee Division in the case at bar came to the same conclusion as in Suresh, supra. The LTTE is responsible for brutal and calculated acts. The applicant however suggests that an organization must be one that engages “solely and exclusively in acts of terrorism” in order to be an organization with a limited and brutal purpose. To do so, he relies on the case of Balta v. Canada, [1995] F.C.J. No. 146 (F.C.T.D.). I am unable to agree. Rather the two cases of Mehmoud v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1019 (F.C.T.D.) and Shakarabi v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 444 (F.C.T.D.) illustrate that where there is no evidence that political objectives can be separated from militaristic activities, an organization could still be found to have a limited, brutal purpose. There is no evidence to suggest that the LTTE's terrorist activities can be separated from other objectives it may have. The LTTE resorts to terrorist methods to reach their objectives and this suggests that the LTTE is an organization with a brutal and limited purpose.
[Emphasis added.]
[13] On the issue of whether the NLA was an organization principally directed to a limited, brutal purpose, it is my view that the Board made a palpably erroneous finding of fact without regard for the documentary evidence before it and in reliance on irrelevant considerations, which is a reviewable error in this case (Cepeda‑Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.) (QL), (1998), 157 F.T.R. 35, at paragraph 17; Berete v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 359 (F.C.T.D.) (QL), at paragraph 8; Canada (Citizenship and Immigration) v. Molebe, 2007 FC 137, at paragraph 27). Based on the fact that the armed conflict was of short duration, the Board arbitrarily brushed aside the documentary evidence submitted by the Minister’s representative and trivialized the NLA’s abuses because there had been little loss of human life and the NLA had laid down its weapons. However, an analysis of the documentation filed shows that, on the contrary, the NLA committed many abuses against the civilian population, including human rights violations, kidnappings, arbitrary detention, torture, ethnic cleansing, murder, the use of civilians as human shields and sexual abuse.
[14] In this case, the Board seemed to infer that the NLA’s political objectives could be separated from its militaristic activities. That conclusion is not supported by any clearly articulated reasoning in the decision under review, nor is it echoed in the documentary evidence in the record. This means that it was unreasonable for the Board to conclude that the NLA was not an organization principally directed to a limited, brutal purpose. In any event, it is not permissible for the Board to infer that, because an organization seeks to defend minority rights, it is entitled to do so by all possible means. Not every legitimate motivation excuses the commission of acts repressed by the international community or international instruments, which was the case here with the NLA’s abuses (Tutu v. Canada (Minister of Citizenship and Immigration) (1994), 74 F.T.R. 44; Shakarabi v. Canada (Minister of Citizenship and Immigration) (1998), 145 F.T.R. 297, at paragraphs 21‑22; Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592 (F.C.A.), at paragraph 36; Pushpanathan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 867, at paragraph 40).
[15] Moreover, complicity by association was described as follows in Bazargan v. Canada (Minister of Citizenship and Immigration) (1996), 205 N.R. 282, [1996] F.C.J. No. 1209 (QL) (Bazargan):
[11] In our view, it goes without saying that “personal and knowing participation” can 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. At p. 318 [F.C., in Ramirez], MacGuigan J.A. said that “[a]t bottom, complicity rests . . . on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it”. 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.
[12] That being said, everything becomes a question of fact. The Minister does not have to prove the respondent’s guilt. He merely has to show - and the burden of proof resting on him is “less than the balance of probabilities” (Ramirez, supra, note 3, at p. 314) - that there are serious reasons for considering that the respondent is guilty. . . .
[16] Once again, I consider the Board’s analysis in the impugned decision flawed because of a number of factors. First, with regard to the recruitment method, the respondent declared the following to the immigration officer at the port of entry:
Subject says he is afraid of the police, because they could charge him for working for the [A]lbanian movement « National Liberation Army of Macedonia », UCK (the Macedonian one). Says he was building trenches for the soldiers and bunkers for civilians in the mountains. Says he was building trenches for the soldiers and bunkers for civilians in the mountains. Says he had been recruited by “commandant MALA ISMAIL, who was coming from his village, JAZHINCÉ, himself sent by the movement headquarter.
Subject says he worked two months, from May to June, during the Macedonian [A]lbanian insurrection in 2001. Since the end of the insurrection, he did not meet them anymore. Although there were amnesty, the police is arresting from time to time young people who got involved in those events, that why he says he was afraid to stay in Macedonia.
[Emphasis added.]
(Immigration officer, port‑of‑entry notes dated June 8, 2003)
[17] During his testimony, the respondent was confronted with his port‑of‑entry declaration and went over what he had stated about being recruited by an NLA commander. After saying that he had not been recruited, contrary to his port‑of‑entry declaration, he stated the following:
A. “But since I was a member of that I felt as obligation and, you know, to help in any way I could help and that’s why we did. But you know, (inaudible) the whatever, like you know doing those military things that probably I did, I was forced to do so.”
(Transcript of the hearing before the Refugee Protection Division of the Immigration and Refugee Board, Bekim Imeri, file MA3‑04338, April 16, 2008 (Transcript of the Board’s hearing), at p. 48)
A. (…) “But what I said I wasn’t recruited-- I did what I was forced to do whatever they asked me to do, so that’s what I did.”
(Transcript of the Board’s hearing, at p. 49)
A. (…) So he did came [sic] (inaudible), you are going to do this because I am forcing to do that You know, like it wasn’t like that (inaudible) but I felt as a member of like civilian, like council that I was and you know, doing whatever like was asked me to do (sic). So probably they asked me to do trench [sic] and I did the trench.
Q. Okay. So you did basically what they asked you to do.
A. Yes I did.
(Transcript of the Board’s hearing, at p. 49)
[Emphasis added.]
[NTD: It should be noted that I have corrected and re‑transcribed each of these quotes taken from the applicants’ record, which differed from the hearing transcript found in the panel’s record]
[18] At the hearing, the respondent also confirmed that he had dug trenches for the NLA at its request. I agree with counsel for the applicants that the respondent’s testimony was confused when he was asked whether he had been forced or had offered his help voluntarily. He testified that he had not tried to refuse to do what the NLA had requested of him, namely digging trenches.
BY MINISTER’S COUNSEL (to the person concerned)
Q. Okay. What would have happened if you had said no I am not building trenches, me, I am not doing it, what would have happened to you?
A. Probably they would have made me like to go in and guard somewhere.
Q. On a what?
A. Guard.
Q. Guard?
A. The term like you know, goes to a certain place and just stay there and I don’t know, I don’t really know. I can’t really say like what would happen if I said no.
Q. You didn’t try to say no?
A. Because I was a member of the, you know, the ---
Q. No, but just answer the question. You can explain, you can always explain but still you are not answering the question.
A. But as I said, you know, I - at that time I didn’t think for the consequence might happen in future because that was the time of the war and everybody was compelled to apply by the rules and the requirement that Uchuka was asking us to do, so ---
Q. Sir, did you try to say no?
A. Did I try to say no? No I didn’t.
BY THE PRESIDING MEMBER (to the person concerned)
Q. You did try?
A. No, I did not.
Q. Oh, you did not try, all right.
A. No, I did not.
[Emphasis added.]
(Transcript of the Board’s hearing, at p. 49)
[19] In any event, although the respondent claims that he was a member of the “civilian body”, he was nonetheless recruited to dig trenches, a decidedly military operation. The respondent tried as best he could to explain this inconsistency (Transcript of the Board’s hearing, at pp. 50‑51).
[20] During his testimony, the respondent was also confronted with the documentary evidence revealing the abuses committed by the NLA. He answered that this had all been made up by the Macedonian government. However, he admitted that he had been aware of it, since there had been media coverage of the acts in question.
A. Yeah, there were abused like that. The Macedonian Government was applying force so, you know, what the government said to me was just like bolognie (ph) and like I don’t really think (inaudible). You know like I wasn’t there, I haven’t seen something that happened so I don’t know.
Q. Did you know that, did you know about the ---
A. That was in the news that time so yeah, I was aware.
Q. It was in the news, okay. So you were aware of that but do you believe that?
A. No, I don’t believe that.
Q. You don’t believe it.
A. As long as I haven’t seen them and like you know, I cannot tell like that happened so I can’t comment, I cannot comment that one.
Q. Okay. So you don’t believe that. Do you agree with these methods?
A. No I don’t.
[Emphasis added.]
(Transcript of the Board’s hearing, at pp. 65-66)
[21] According to the evidence in the record, which the Board had a duty to consider, the respondent did not try to find out whether what he had heard about the crimes committed by the NLA was true (Transcript of the Board’s hearing, at pp. 67‑72). The Board completely ignored that highly relevant evidence, merely noting in its decision that the respondent had no knowledge of the NLA’s acts and did not share its intentions. On the contrary, the respondent clearly testified that he had been aware of the crimes committed by the NLA. Therefore, this Court has no choice but to conclude, as requested by the applicants, that the decision was made without regard for and contrary to the evidence in the record, which is a reviewable error.
[22] For all these reasons, this application for judicial review must be allowed. No question of general importance has been raised by counsel.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the Board’s decision of October 2, 2008 be set aside and the matter referred to another member of the Board for rehearing. There is no question to be certified.
Certified true translation
Brian McCordick, Translator
FEDERAL COURT
SOLICITORS OF RECORD
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS v. BEKIM IMERI
PLACE OF HEARING: Montréal, Quebec
REASONS FOR JUDGMENT
APPEARANCES:
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Lisa Maziade
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FOR THE APPLICANTS |
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Mark J. Gruszczynski
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada Montréal, Quebec
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FOR THE APPLICANTS |
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Gruszczynski, Romoff Westmount, Quebec |
FOR THE RESPONDENT |