Digests

Mukwaya v. Canada (Minister of Citizenship and Immigration)

IMM-5752-99

2001 FCT 650, Lutfy A.C.J.

13/6/01

14 pp.

Application for judicial review of CRDD decision applicant, through involvement with rebel Ugandan Allied Democratic Front (ADF) forces opposed to government, complicit in war crimes and crimes against humanity--Applicant alleging involvement limited to delivering foodstuffs to ADF and using influence in business to encourage people to support political objectives of ADF--Insisting never envisaged rebel activities would involve atrocities since attributed to ADF--Application allowed--Review of guiding principles concerning burden of proof in demonstrating refugee claimant complicit in international crimes attributed to organization--Where Minister seeks exclusion from consideration for Convention refugee status on basis of person's role as accomplice to principal entity guilty of war crimes or crimes against humanity, tribunal should apply following principles: Minister always has burden of establishing refugee claimant complicit in commission of international crimes; complicity requires refugee claimant's "personal and knowing participation" in commission of international crimes; as general rule, "mere membership" in organization involved in international crimes does not establish personal and knowing participation; exception to this general rule may arise when tribunal "free from doubt" that Minister has established that organization "principally directed to limited, brutal purpose"; where exception applies, mere membership in such organization may place on refugee claimant evidentiary burden of showing had no personal and knowing participation in commission of organization's international crimes; "mere membership" in organization "principally directed to limited, brutal purpose" may allow tribunal to infer refugee claimant's personal and knowing participation in international crimes in absence of any reliable evidence proffered by that person to explain otherwise role in organization--Court choosing not to refer to rebuttable presumption of complicity: Minister's onus of establishing complicity never displaced; where exception applies, claimant may be required to explain why inference of "personal and knowing participation" should not by necessity be implied from membership in organization "principally directed to limited, brutal purpose"--Tribunal's reasons herein did not disclose any finding ADF "principally directed to limited, brutal purpose", at least not for period prior to applicant's departure from Uganda--In absence of such finding, tribunal could not infer that applicant had "personal and knowing participation" in international crimes attributed to ADF, let alone suggest that he had to rebut presumption of complicity--No evidence applicant participated in crimes committed in course of November 1996 invasion--His knowledge of those crimes after they occurred cannot make him complicit in their commission--Could have had no mens rea or "personal and knowing participation" concerning those incidents.