IMM-3219-01
2002 FCT 1240
Roberto Jose Morales Murillo (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Murillo v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Lemieux J.--Montréal, March 19; Ottawa, November 29, 2002.
Citizenship and Immigration -- Exclusion and Removal -- Inadmissible Persons -- Judicial review of Adjudicator's decision applicant inadmissible to Canada -- Applicant served in executive squadron of Sandinista air force -- Claimed refugee status in Canada but withdrew claim when married Canadian -- Applied for sponsored permanent residence -- Ineligibility report issued alleging committed war crime or crime against humanity -- Inquiry directed -- Deportation ordered by IRB Adjudicator -- Immigration Act amended, after inquiry directed, when Crimes Against Humanity and War Crimes Act in force -- Latter Act defines crime against humanity as including deportation of civilian population, identifiable group -- Sandinista armed forces having relocated Miskitos (Indians) from lands on Atlantic coast of Nicaragua -- No evidence applicant directly involved in relocation -- Studying in U.S.S.R. at time -- Association held sufficient by F.C.A. in Ramirez v. Canada (Minister of Employment and Immigration) -- Correctness review standard for question of law: whether relocation of Miskitos within statutory definition of crime against humanity -- Tribunal's fact findings not set aside unless patently unreasonable conclusion -- Standard of proof for belief in guilt of crime against humanity -- Personal, knowing participation required: Ramirez -- Necessity for mens rea -- Reprehensible acts committed in every war, all combatants not automatically condemned -- Mere suspicion, conjecture not enough -- Sandinista army neither existing for limited, brutal purpose, nor notorious for human rights abuses -- Deportation set aside -- Adjudicator misapplied case law -- Conclusion applicant knew of events patently unreasonable -- Adjudicator failed to clearly express reasons for doubting credibility -- Why applicant thought relocation of Miskitos justified -- Stelco Inc. v. British Steel Canada Inc., considered, distinguished, not availing Minister -- Adjudicator failed to analyse documentary evidence and Court will not, on judicial review, do panel's work.
In 1979 the Sandinistas came to power in Nicaragua having overthrown dictator Samosa's government. A civil war between the Sandinistas and the Contras ensued. A Sandinista activist, the applicant, Murillo, joined the air force in 1980 as an aircraft mechanics student and in 1982 joined the executive squadron (which transported ministers and military commanders). In 1987, he was promoted to sub-lieutenant but left the armed forces in 1989, the year before the Sandinista government was defeated in the general elections. Murillo came to Canada in 1996 where he claimed refugee status but withdrew that claim after marrying a Canadian and applying for sponsored permanent residence. A report, under Immigration Act, paragraph 27(2)(a) was, however, issued alleging that Murillo was ineligible, there being reasonable grounds to believe he had committed a war crime or crime against humanity within the meaning of Criminal Code, subsection 7(3.76). An inquiry was directed by the Deputy Minister and a deportation order was later issued by an IRB Adjudicator. It was alleged against Murillo that he had been in a position to be aware of serious human rights violations and a witness to the clandestine transportation of weapons on night flights.
The Immigration Act was amended, after the inquiry was directed, when the Crimes Against Humanity and War Crimes Act came into force. Paragraph 19(1)(j) of the Immigration Act formerly referred to an act that constituted a war crime or a crime against humanity under Criminal Code, subsection 7(3.76) but now refers to "persons who there are reasonable grounds to believe have committed an offence referred to in any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act". That Act defines a crime against humanity as including deportation "committed against any civilian population or any identifiable group". The Adjudicator based his decision on the compulsory relocation of the Miskito population, Indians residing on the Atlantic Coast, by the armed forces of the Sandinista government. The Adjudicator found Murillo's testimony to be very credible except as to his knowledge of events with respect to which his evidence was either false or exhibited wilful blindness. While there was no evidence that Murillo was directly involved in the deportation, association had been held sufficient by the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Citizenship). He also referred to section 6 of the Crimes Against Humanity Act "which provides that complicity is also an indictable offence". Although Murillo was only a flight engineer, he had been selected for training in the U.S.S.R. and had been assigned to "a very politically sensitive position" with the executive squadron. He was not a mere army foot-soldier. Even if afraid of the repercussions on his family and children of his resignation, once aware of events Murillo should have taken the necessary steps to resign.
Held, the application should be allowed.
The question as to whether the compulsory relocation of the Miskitos falls within the statutory definition of a crime against humanity is a question of law and the standard of review is that of correctness. As to findings of fact, the Court ought not intervene unless the tribunal's decision was made in a perverse or capricious manner resulting in a patently unreasonable conclusion. As to the finding that Murillo was guilty of a crime against humanity, the officer's belief in "reasonable grounds" required a standard of proof that, while falling short of balance of probabilities, nevertheless connotes a bona fide belief in a serious possibility based on credible evidence.
In Ramirez, MacGuigan J.A. wrote that for complicity in an international crime there had to be "personal and knowing participation", a test that requires a mental aspect or knowledge indicating a mens rea. That Judge warned that all those involved in a war were not to be automatically condemned. Most combatants in the many wars fought throughout history have observed acts committed by their own side which they may have thought reprehensible but which they felt powerless to prevent without incurring serious personal risk. There is, however, case law to the effect that where one is an active member of an organization which has committed atrocities, if he was very late in showing remorse, that counts against him in determining the personal and knowing participation issue. Even so, mere suspicion or conjecture fails to satisfy the standard of proof.
Applicant's natural justice argument--that from the immigration officer's report he could not ascertain the facts alleged against him -- could not be accepted. The Minister had discharged the obligation of providing notice of the evidence against applicant.
Turning to the merits, the Adjudicator found neither that the Sandinista army existed primarily for a limited and brutal purpose nor that it was notorious for human rights infringements. In 1982, when the greater part of the Miskitos' relocation took place, Murillo had just joined the executive squadron as a mechanic. From to 1983 to 1986, he was pursuing further studies in the Soviet Union and it was in the last-mentioned year that the Miskitos were allowed to return to their ancestral lands on the Atlantic coast.
The Adjudicator's decision had to be set aside for two reasons, the first of these being a misapplication of the case law. Ramirez stands for the proposition that "mere membership in an organization which from time to time commits international offences is not normally sufficient for exclusion from refugee status". The exception to this rule is where the organization -- found not to be the case here -- is directed principally to a limited, brutal purpose, such as a secret police force. And applicant was not directly implicated in the army's deportation of the Miskitos.
Secondly, the Adjudicator's conclusion, that Murillo had knowledge of the events in that period, was patently unreasonable. The Adjudicator's "perhapses" and possibilities failed to meet the requirement established by the Federal Court of Appeal in Hilo v. Canada (Minister of Employment and Immigration) that reasons for casting doubt upon credibility had to be given in clear and unmistakable terms. The evidence was that Murillo had considered the relocation of the Miskitos justified since the Contras had, in late 1981, launched an offensive in which the Miskito villages were targeted.
The Minister's submission, that the Court ought to apply the rule in Stelco Inc. v. British Steel Canada Inc., that even if a tribunal has committed reviewable error in some of its findings of fact, its decision will be sustained if there were other facts on which it could reasonably have based its ultimate conclusion, could, in the circumstances, not be accepted. The Adjudicator had failed to analyse the documentary evidence referred to by the Minister and it was not for the Court to do the panel's work. This was judicial review, not an appeal de novo.
statutes and regulations judicially
considered
Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, ss. 6(1),(1.1),(3), 55.
| Criminal Code, R.S.C., 1985, c. C-46, s. 7(3.76) (as enacted by R.S.C., 1985 (3rd Supp.) c. 30, s. 1; S.C. 2000, c. 24, s. 42). |
| Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4)(d) (as enacted by S.C. 1990, c. 8, s. 5). |
| Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(j) (as am. by R.S.C., 1985 (3rd Supp., c. 30, s. 3; S.C. 2000, c. 24, s. 55), 27(2)(a) (as am. by S.C. 1992, c. 49, s. 16), 32(6) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 11). |
cases judicially considered
followed:
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); Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; (2000), 195 D.L.R. (4th) 422; 265 N.R. 121 (C.A.); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298; (1993), 107 D.L.R. (4th) 424; 21 Imm. L.R. (2d) 221; 159 N.R. 210 (C.A.); Bazargan v. Minister Employment and Immigration (1996), 205 N.R. 282 (F.C.A.); Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66; (2000), 183 D.L.R. (4th) 713; 3 Imm. L.R. (3d) 169; 252 N.R. 380 (C.A.); Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589; (1993), 109 D.L.R. (4th) 682; 22 Imm. L.R. (2d) 241; 163 N.R. 232 (C.A.); Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199; 130 N.R. 236 (F.C.A.); Aquebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.).
applied:
Mohammad v. Canada (Minister of Citizenship and Immigration) (1995), 115 F.T.R. 161 (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Hajialikhani, [1999] 1 F.C. 181 (T.D.).
distinguished:
Stelco Inc. v. British Steel Canada Inc., [2000] 3 F.C. 282; (2000), 20 Admin. L.R. (3d) 159 ; 252 N.R. 364 (C.A.).
considered:
Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793; (1997), 144 D.L.R. (4th) 577; 8 Admin. L.R. (3d) 89; 210 N.R. 101.
referred to:
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 11 Admin. L.R. (3d) 1; 43 Imm. L.R. (2d) 117; 226 N.R. 201; amended reasons [1998] 1 S.C.R. 1222; (1998), 11 Admin. L.R. (3d) 130; Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646; (1994), 115 D.L.R. (4th) 403; 24 Imm. L.R. (2d) 229; 170 N.R. 302 (C.A.); Mendez-Leyva v. Canada (Minister of Citizenship and Immigration) (2001), 205 F.T.R. 150 (F.C.T.D.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433; (1993), 163 N.R. 197 (C.A.).
APPLICATION for judicial review of the decision of an Adjudicator to issue a deportation order as having reasonable grounds for believing applicant had committed crimes against humanity and was therefore ineligible for permanent residence. Application allowed.
appearances:
William Sloan for applicant.
Normand Lemyre and Mario Blanchard for respondent.
solicitors of record:
William Sloan, Montréal, for applicant.
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for order rendered by
Lemieux J.:
A. INTRODUCTION
[1]The applicant, Roberto José Morales Murillo, is a citizen of Nicaragua who is 46 years old. He claimed refugee status on arrival in Canada in March 1996 after leaving the country of his birth in December 1995. One year later, on March 8, 1997, he married a Canadian, Marina Lucie Loye. On March 4, 1998, he filed an application for sponsored permanent residence, and subsequently withdrew his application for refugee status.
[2]On October 5, 2000, an immigration officer signed a report pursuant to paragraph 27(2)(a) of the Immigration Act, R.S.C., 1985, c. I-2 (hereinafter the Act), alleging that the applicant was not an eligible person since there were reasonable grounds to believe that he had committed a war crime or crime against humanity within the meaning of subsection 7(3.76) [as enacted by R.S.C., 1985 (3rd Supp.), c. 30, s. 1] of the Criminal Code [R.S.C., 1985, c. C-46] abroad, which constituted an offence against the laws of Canada at the time of the act. On the same day the Deputy Minister of Citizenship and Immigration issued a direction for an inquiry. On June 20, 2001, the Adjudicator of the Immigration and Refugee Board (the panel), Michel Beauchamp, issued a deportation order against the applicant pursuant to subsection 32(6) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 11] of the Act for reasonable grounds to believe that Mr. Murillo committed crimes against humanity covered in paragraphs 19(1)(j) [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3; S.C. 2000, c. 24, s. 55] and 27(2)(a) of the Act, which made him ineligible for permanent residence.
[3]Between 1980 and 1989 the applicant held various positions in the Nicaraguan army. During that period the Sandinista government was in power after overthrowing the government of the dictator Somosa in 1979. Shortly after, the miseries of a civil war between the Sandinista government and the Contras engulfed Nicaragua.
[4]After having been active for the Sandinistas in 1979, Mr. Murillo joined the air force of the Nicaraguan army in 1980 as a student in aircraft mechanics: he received his diploma in the fall 1981.
[5]In 1982, the applicant joined the executive squadron of the Sandinista air force leadership (hereinafter the executive squadron) as a mechanic and, apparently, a flight engineer.
[6]After completing advanced studies on engines and turbines in the U.S.S.R. from 1983 to 1986, he went back to the executive squadron with responsibility for maintenance of the aircraft in that unit, and subsequently was flight engineer. The executive squadron was responsible for transportation of the ministers in the Government of Nicaragua and of the military commanders.
[7]In 1987, he was promoted to the rank of sub-lieutenant. He testified that he left the army in June 1989. The following year, the Sandinista government of Daniel Ortega was defeated in the general elections by Violetta Chamorro.
[8]The immigration officer's report reads:
[translation] that: in October 1979, Roberto Jose Morales Murillo voluntarily and knowingly joined the movement of armed opposition to the existing government (Sandinista front). The existing government was subsequently overthrown by the sandinista forces and the subject joined the executive squadron of the air force. In September 1986, the subject became a Flight Engineer and in 1987 received the rank of Army Sub-Lieutenant. The subject stated that he was in a position to know about the serious violations of human rights. He was also a witness to the clandestine transportation of weapons on night flights. Not only for peasants, but also for drug traffickers. He stayed in the army until 1995, the date on which he decided to desert.
He apparently had full knowledge of the harsh actions committed by the military, constituting a crime against humanity within the meaning of s. 7(3.76) of the Criminal Code.
B. LEGISLATIVE BACKGROUND
[9]As mentioned, the applicant was the subject of a report pursuant to paragraphs 19(1)(j) and 27(2)(a) of the Act. Paragraph 27(2)(a) provides:
27. . . .
(2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who
(a) is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c);
[10]On October 23, 2000, (and so after the report by the immigration officer and the direction for an inquiry), there was an amendment to paragraph 19(1)(j) of the Act when the Crimes Against Humanity and War Crimes Act [S.C. 2000, c. 24] came into effect (hereinafter the Crimes Against Humanity Act).
[11]The wording of the old provision was:
19. (1) No person shall be granted admission who is a member of any of the following classes:
. . .
(j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission.
[12]After October 23, 2000 [S.C. 2000, c. 24, s. 55], the new provision in paragraph 19(1)(j) of the Act read:
19. (1) No person shall be granted admission who is a member of any of the following classes:
. . .
(j) persons who there are reasonable grounds to believe have committed an offence referred to in any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act. [Emphasis added.]
[13]Subsections 6(1) and 6(1.1) of the Crimes Against Humanity Act applies in the case at bar, and reads:
6. (1) Every person who, either before or after the coming into force of this section, commits outside Canada
(a) genocide,
(b) a crime against humanity, or
(c) a war crime,
is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.
(1.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an indictable offence. [Emphasis added.]
[14]Crimes against humanity are defined in subsection 6(3) of the Crimes Against Humanity Act:
6. . . .
(3) . . .
"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. [Emphasis added.]
C. ADJUDICATOR'S DECISION
[15]The Adjudicator had to determine whether, based on the report dated October 5, 2000, the applicant was a person who is covered by paragraph 19(1)(j) of the Act. For this, the Adjudicator applied the new provisions of the amended paragraph 19(1)(j).
[16]He recognized that there had been a dirty war between the Sandinista government and its opponents and that [translation] "on either side of the fence, there were regrettable acts committed by either side". He based his decision on the compulsory relocation of the Miskito population and determined that this relocation was a crime against humanity pursuant to section 6 of the Crimes Against Humanity Act.
[17]He explained his approach in the following passage from his decision of June 20, 2001, at page 3:
[translation] For the purposes of the case now before me, I have to look at the actions taken by the armed forces of the Sandinista government and it is clear, from this documentary evidence and the documentary evidence submitted by either of the two parties, including what I have received from you . . . it is clear that there was in fact a compulsory relocation of an identifiable part of the population, namely a part of the population residing on the Atlantic coast . As a general rule, Indians, and especially as to numbers the ones called Mosquitos [sic].
. . .
To return to what I was saying, these differences, which are explained by the context, were used by rebel groups in an effort to help their cause in the conflict between themselves and the government, and it was because of this that the government carried out the relocations of population. However, in my opinion these justifications--and this is my conclusion--do not suffice to blot out the actions committed or justify them, and in my opinion these compulsory relocations constitute a crime against humanity as defined in s. 6 of the Crimes Against Humanity and War Crimes Act. [Emphasis added.]
[18]Before the Adjudicator, the Minister's representative and the applicant submitted documentary evidence. The Adjudicator rejected the document submitted by the Minister's representative as No. C-5, as reflecting [translation] "such an obvious preconception that . . . the weight that can be attached to them is very small, or non-existent". He went on, [translation] "On the other hand, some have considerable weight, including the exhibit identified as No. C-2, which seemed very factual and objective to me". C-2 is a document prepared by the Documentation Centre of the Immigration and Refugee Board (the Centre).
[19]The Adjudicator found Mr. Murillo's testimony in general [translation] "very credible, very frank" except on one point--his knowledge of events--concluding [translation] "in my opinion, this is perhaps the only part of your testimony which may be described as not credible". The Adjudicator ended as follows:
[translation] Your testimony at the inquiry seemed to me to be in general very credible, very frank. However, on this point there were two possibilities, either that your testimony was false, that is, it was not credible testimony, or to adopt an expression used by Mr. Dubé from the Ramirez judgment, I think there was wilful blindness. [Emphasis added.]
[20]The Adjudicator noted that there was no evidence to involve the applicant directly in the deportation of the Miskitos, but added that association could make someone a person covered by paragraph 19(1)(j), citing the Federal Court of Appeal's judgment in Ramirez v. Canada (Minister of Employment and Citizenship), [1992] 2 F.C. 306. He also mentioned section 6 of the Crimes Against Humanity Act [translation] "which provides that complicity is also an indictable offence".
[21]He concluded:
[translation] And unfortunately for you, I have to agree with Mr. Dubé's opinion regarding the effect of Ramirez where you are concerned. You belonged to the Nicaraguan armed forces and were at a relatively high level, relatively being used here advisedly. It is clear that from your duties you had no impact or influence on the decisions taken by the government.
I note here that you were a flight engineer, a mechanical engineer onboard aircraft. What is more important is that you were selected to receive specific training in this area in the U.S.S.R., as it was then known. Further, your assignment was to what I might describe as a very politically sensitive position, namely that you were assigned to what you called, and what was several times translated as, the executive squadron, with duties which included being responsible for the travel of members of the government or headquarters personnel.
Accordingly, we are not talking here about compulsory participation as a person who was forcibly enrolled and who simply had the position of a messenger, or even a foot-soldier in the army. You were even promoted--two years, I think, before you resigned--to the rank of sub-lieutenant, a relatively high rank in the military hierarchy, and also as I have said by the nature of your duties you certainly had to be someone who was trusted.
No one appoints as a flight engineer or mechanic on an aircraft carrying members of the government or military a person who is not trusted. Your knowledge of the events in that period--your testimony sought to establish that you had no knowledge of those events that took place, and in my opinion this is perhaps the only part of your testimony which may be described as not credible.
. . .
The reasons you gave for not resigning from the armed forces more quickly do not justify the fact that you did not do so. Clearly they are quite understandable--I am not saying they are not understandable. The fears you had about the repercussions which such a resignation might have on your family and children . . . but from the moment when I conclude that you were aware of the events, I have to conclude that you should have taken the necessary steps to resign, and to avoid possible problems for your family. [Emphasis added.]
D. ANALYSIS
| (1) Standards of review |
[22]The standard of review of a tribunal's decision varies in terms of certain factors: (1) the nature of the question raised (issues) and the focus of the case before the Court; (2) the existence of a privative clause; (3) the tribunal's expertise; and (4) the purpose of the Act or legislative provision (see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).
[23]The question of whether an act like that of the compulsory relocation of the Miskitos is covered by the definition of a crime against humanity in the Crimes Against Humanity Act is a question of law, and so the standard of review is that of correctness (Mendez-Leyva v. Canada (Minister of Citizenship and Immigration) (2001), 205 F.T.R. 150 (F.C.T.D.); Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (C.A.)).
[24]Further, when a decision is based on findings of fact (for example, the occurrence of compulsory relocation) and the argument put forward for setting aside the decision relies on errors of fact, paragraph 18.1(4)(d) [enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act provides that this Court should not intervene unless the decision is based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before the tribunal, which amounts to a patently unreasonable conclusion. In the Supreme Court of Canada judgment in Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, L'Heureux-Dubé J. writes at paragraph 85:
We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one. . . . Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision . . . .
[25]In general, the decision of a tribunal based on a mixed question of fact and law is reviewable on the basis of reasonableness simpliciter.
| (2) Standard of evidence |
[26]Mr. Murillo is inadmissible if the Adjudicator had "reasonable grounds" to believe that he had committed an act constituting a crime against humanity in Nicaragua.
[27]In Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297, the Federal Court of Appeal concluded that this legislative provision imposed the following standard of evidence [at paragraph 60]:
As for whether there were "reasonable grounds" for the officer's belief, I agree with the Trial Judge's definition of "reasonable grounds" (supra, at paragraph 27, page 658) as a standard of proof that, while falling short of a balance of probabilities, nonetheless connotes "a bona fide belief in a serious possibility based on credible evidence." See Attorney General of Canada v. Jolly, [1975] F.C. 216 (C.A.). [Emphasis added.]
| (3) Principles |
[28]The concept of complicity by association is very well known in the decisions of this Court, since the landmark judgments of the Federal Court of Appeal in Ramirez, supra; Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.); and Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), to which we must add that of Bazargan v. Minister of Employment and Immigration (1996), 205 N.R. 282 (F.C.A.) and Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66 (C.A.) and several judgments of Trial Division judges.
[29]In Mohammad v. Canada (Minister of Citizenship and Immigration) (1995), 115 F.T.R. 161 (F.C.T.D.), Nadon J., as he then was, drew from the aforesaid precedents the circumstances in which a person may be held responsible for crimes against humanity, for committing them as an accomplice without having personally committed the act constituting the crime. Nadon J. listed the following principles at page 178 of his judgment:
| 1. A person who commits a crime must be held responsible therefor. |
| 2. A person may be responsible for a crime he or she did not personally commit, that is, as an accomplice. |
| 3. The starting point for the existence of complicity is "personal and knowing participation" by the person in question. |
| 4. Mere bystanders are not accomplices. |
| 5. A person who aids in or encourages the commission of a crime may be responsible therefor. |
| 6. A superior may be responsible for crimes committed by those under his or her command if the superior knew about them. |
| 7. A person may be held responsible for crimes committed by others because of his or her close association with those who committed them. |
| 8. The more important the position held by a person in an organization that has committed one or more crimes, the more likely his or her complicity. |
| 9. A person who continues to hold a leadership position in such an organization with full knowledge that the organization is responsible for crimes may be considered an accomplice. |
| 10. Evidence that the individual protested against the crime, tried to stop its commission or attempted to withdraw from the organization must be taken into consideration in determining he or she is responsible. |
[30]According to MacGuigan J.A. in Ramirez, supra, the requirement for the existence of complicity in an international crime is "personal and knowing participation", a test that includes a mental aspect or knowledge, an indication of the mens rea necessary in these circumstances.
[31]MacGuigan J.A. went on to discuss the required degree of complicity and concluded [at pages 317-318]:
(1) mere membership in an organization which from time to time commits international offences is not normally sufficient for exclusion from refugee status;
(2) however, 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";
(3) "mere presence at the scene of an offence is not enough to qualify as personal and knowing participation . . . though, again, presence coupled with additional facts may well lead to a conclusion of such involvement";
(4) "mere on-looking, such as occurs at public executions, where the on-lookers are simply bystanders with no intrinsic connection with the persecuting group, can never amount to personal involvement, however humanly repugnant it might be";
(5) however, in the opinion of MacGuigan J.A. someone who is an associate of the principal offenders can never be said to be a mere on-looker: "[m]embers of a participating group may be rightly considered to be personal and knowing participants, depending on the facts" [underlining in original]. In such cases, MacGuigan J.A. considered, at 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" [underlining added].
[32]At page 319, MacGuigan J.A. issued a warning, as follows:
One must be particularly careful not to condemn automatically everyone engaged in conflict under conditions of war. Probably most combatants in most wars in human history have seen acts performed by their own side which they would normally find reprehensible but which they felt utterly powerless to stop, at least without serious risk to themselves.
[33]At page 320, MacGuigan J.A. concluded:
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.
[34]In Bazargan, supra, Décary J.A. further clarified the "personal and knowing participation" test. At paragraph 11, he wrote this:
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. . . . 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. [Emphasis added.]
[35]Like MacGuigan J.A. in Ramirez, supra, Décary J.A. considered that the question of whether a person is an accomplice in an international crime, that is, meets the test of personal and knowing participation, is a question of fact and he noted that the Minister did not have to prove the respondent's guilt but only to show, by a standard of proof which is less than the balance of probabilities, that he had serious reasons for considering that the respondent was guilty.
[36]Décary J.A. noted that the fact that a person was actually an active member of the organization that committed the atrocities, and the fact that he was very late in showing remorse, are [at paragraph 10] "facts that helped determine whether the condition of personal and knowing participation had been met; they were not additional conditions. Membership in the organization will, of course, lessen the burden of proof resting on the Minister because it will make it easier to find that there was `personal and knowing participation'. However, it is important not to turn what is actually a mere factual presumption into a legal condition."
[37]Décary J.A. analysed the Board's decision and noted that it had taken into account the responsible positions held by Mr. Bazargan, and from his duties, he [at paragraph 12] "could not have failed to be very well informed about the kind of repressive measures used by SAVAK to punish any social or political dissidence in the country". He collaborated with that organization for many years as a senior police officer in the Iranian security forces. The Board noted the notoriousness of SAVAK's human rights violations.
[38]In Bazargan, supra, the panel concluded [at paragraph 12]:
. . . given the notoriousness of SAVAK's human rights violations, the positions of authority the claimant held until 1980 and the knowledge he necessarily had of the situation, we must conclude that in this case there are serious grounds for considering that the claimant tolerated, encouraged or even facilitated SAVAK's acts and therefore became guilty of acts contrary to the purposes and principles of the United Nations. [Emphasis added.]
[39]Décary J.A. considered that the panel's decision was correct. At paragraph 13 of his judgment, he wrote:
These inferences and this conclusion are based on the evidence and are reasonable. This Court has noted on many occasions that the Board is a specialized tribunal that has complete jurisdiction to draw the inferences that can reasonably be drawn . . . In the case at bar, the motions judge was all the more wrong to intervene given that the Board's inferences were accompanied by devastating observations on the credibility of that part of the respondent's testimony in which he argued that he had no knowledge of SAVAK's activities.
[40]In the recent case of Sumaida, supra, Létourneau J.A. was entirely of the same view on the question of complicity. At paragraphs 31 and 32, he wrote:
Our Court never required in that case that a claimant be linked to specific crimes as the actual perpetrator or that the crimes against humanity committed by an organization be necessarily and directly attributable to specific acts or omissions of a claimant.
Indeed, short of that kind of direct involvement and of evidence supporting it, our Court accepted the notion of complicity defined as a personal and knowing participation in Ramirez . . . as well as complicity through association whereby individuals may be rendered responsible for the acts of others because of their close association with the principal actors . . . .
[41]In Sumaida, supra, Létourneau J.A. noted that the standard of proof required more than suspicion or conjecture.
[42]Finally, an observation by Robertson J.A. in Moreno, supra, seems to me appropriate in this case. At page 321of his judgment, Robertson J.A. noted that it is well settled that mere membership in an organization involved in international offences is not a sufficient basis on which to invoke the exclusion clause, but an exception to this general rule arises where the organization is one whose very existence is premised on achieving political or social ends by any means deemed necessary. He added, with respect to a military organization involved in armed conflict with guerrilla forces:
Membership in a military organization involved in armed conflict with guerrilla forces comes within the ambit of the general rule and not the exception.
| (4) Application |
| (a) Preliminary point--natural justice |
[43]The applicant maintained that he was unaware from reading the immigration officer's report of the facts alleged against him, since in his submission there was no indication in the report that he would be held responsible for the crimes against humanity resulting from the relocation of the Miskitos in 1982. He said he learned the nature of the charges against him only when the Minister's representative filed his arguments. Nonetheless, the applicant received all the documents which the Minister produced in the inquiry before that inquiry began. That documentation mentions the compulsory relocation of the Miskitos by the Sandinista army.
[44]In my opinion, the Minister discharged his obligation to give notice of the evidence collected against the applicant. In Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589, at page 596, Linden J.A. wrote, for the Federal Court of Appeal:
A basic and well-established component of the right to be heard includes notice of the case to be met (see, for example, Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105, at page 1114). The purpose of this notice is, in turn, to allow a person to prepare an adequate response to that case. This right to notice of the case against the claimant is acutely important where the claimant may be called upon to provide evidence to show that no valid IFA exists in response to an allegation by the Minister. Therefore, neither the Minister nor the Refugee Division may spring the allegation of an IFA upon a complainant without notice that an IFA will be in issue at the hearing.
[45]Having received the Minister's documentary evidence before the inquiry began, the applicant could prepare for it. The applicant did not request an adjournment at any time. Further, in the inquiry the applicant filed certain documents which contradicted those of the Minister. What is more, after the final session of the inquiry, and before the decision was rendered orally, the applicant's wife sent the Adjudicator certain documents on the relocation of the Miskitos. In his reasons the Adjudicator said he had examined those documents but that they did not in any way alter his decision.
[46]The applicant had no legal counsel at the inquiry. The Adjudicator asked Mr. Murillo several times whether this was what he wished and that he was entitled to have counsel beside him. The applicant always declined to be represented.
[47]In these circumstances, I conclude that no breach of natural justice or procedural fairness was established by the applicant and I therefore dismiss this argument put forward by him for quashing the decision.
| (b) On the merits |
[48]At the hearing of June 20, 2001, at page 3, the Adjudicator specified that:
[translation] The credible and reliable documentary evidence establishes beyond any doubt that there was what might be described as a dirty war between the Sandinista government and the opponents of that government. On either side of the fence, there were regrettable acts committed by either side.
[49]The Adjudicator relied on the compulsory relocation of the Miskitos in concluding that the Sandinista army had committed crimes against humanity. In his decision he made no reference to other acts committed by the Sandinista army which might be regarded as crimes against humanity. He also did not find that the Sandinista army was an organization existing primarily for limited and brutal purposes, nor did he conclude that the infringements of human rights by the Sandinista army were notorious.
[50]In considering the documentary evidence, I note that the compulsory relocation of the Miskitos began in late 1981 but the greater part of that relocation took place in 1982. The Miskitos were resettled within the national territory. In 1986 the Sandinista government allowed the Miskitos to return to their ancestral lands on the Atlantic coast.
[51]When we look at what the applicant was doing at that time, we note that in 1982 he had just completed his studies and joined the executive squadron as an ordinary mechanic. Further, from 1983 to 1986 the applicant was not in Nicaragua as he had returned to his studies in the U.S.S.R.
[52]In his decision the Adjudicator emphasized the fact that the applicant was not a simple messenger or foot-soldier, but held a politically sensitive position with a relatively high rank in the military hierarchy, and that on account of his position as a flight engineer he had to be a person who was trusted.
[53]In my opinion, the Adjudicator's decision should be set aside essentially for two reasons: (1) the Adjudicator misinterpreted the case law, and in particular Ramirez, which although the point was not argued in this Court I think is valid also for the application of section 6 of the Crimes Against Humanity Act; (2) the conclusion that [translation] "your knowledge of the events in that period" is not based on any evidence and so is patently unreasonable.
| (1) First ground--case law misapplied |
[54]The general rule is that a person cannot have "committed" a crime against humanity unless there was a certain degree of personal and knowing participation. I repeat the words of MacGuigan J.A. in Ramirez, supra, 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. [Emphasis added.]
[55]An exception to this general rule is recognized: that of membership in an organization directed principally to a limited, brutal purpose, such as a secret police activity, since "mere membership may by necessity involve personal and knowing participation in persecutorial acts" (see Ramirez, supra, at page 317).
[56]In Moreno, supra, Robertson J.A. considered that membership in a military organization involved in an armed conflict against guerrilla forces (the Contras) was covered by the general rule and not the exception.
[57]In the case at bar, the panel did not conclude that the Sandinista army was an organization directed principally to a limited, brutal purpose. On the other hand, the panel concluded that there was no evidence involving the applicant directly in the only acts alleged against the Sandinista army, namely the compulsory deportation of the Miskitos.
| (2) Second ground--patently unreasonable conclusion |
[58]I find that the Adjudicator's conclusion on the [translation] "knowledge of the events in that period" is a patently unreasonable conclusion. It is true that the Adjudicator noted [translation] "your testimony sought to establish that you had no knowledge of those events that took place, and in my opinion this is perhaps the only part of your testimony which may be described as not credible". The Adjudicator went on to indicate that on this point there were two possibilities: testimony that was not credible or deliberate blindness.
[59]In my view, the Adjudicator did not conclude that Mr. Murillo was not credible on this point. In Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.), Heald J.A. wrote at page 201:
In my view, the board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakable terms.
[60]The Adjudicator's "perhapses" and possibilities do not meet this requirement.
[61]Mr. Murillo denied in his testimony having any knowledge of attacks on civilian populations: he had knowledge of the struggle against the Contras and the relocation of civilians from combat zones (transcript, at pages 340, 341 and 351).
[62]The courts have held that knowledge of crimes against humanity may be inferred, depending on the circumstances, and according to Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), the Court should not intervene if an inference is based on evidence and is drawn reasonably. I see no evidence from which the Adjudicator could infer knowledge by Mr. Murillo of crimes against humanity, since the Adjudicator only noted one--that of the relocation of the Miskitos, which Mr. Murillo felt was justified in the circumstances, justification which under the Crimes Against Humanity Act is recognized, but the Adjudicator did not comment. (The documentary evidence indicated an offensive launched by the Contras in late 1981, in which the Miskito villages were targeted.)
[63]In 1982 Mr. Murillo was an ordinary soldier and it was not until 1987 that he became an army sub-lieutenant when he joined the executive squadron as a flight engineer. However, the Adjudicator did not give any specific comment on the extent of Mr. Murillo's knowledge, of what the Adjudicator simply described as [translation] "the events", and not crimes against humanity.
[64]In my view, for the reasons set out above, the Adjudicator erred in concluding that there was complicity by association. Certainly, Mr. Murillo had an association with the Sandinista army, but what the Adjudicator did not rule on was the Sandinista army's involvement in the crimes against humanity (except for one on which I reject the analysis) and therefore on Mr. Murillo's responsibility as a member of that organization.
[65]The documentary evidence accepted by the Adjudicator (Exhibit C-2) was very limited on this point. At page 150 of the certified record, the Centre's document noted:
[translation] In every case the picture is the same: the Nicaraguan government from time to time commits violent abuses, systematically denies the right to due process in cases involving persons charged with helping the Contras and carries out compulsory relocations. These relocations may have some military justification but have involved breaches of the rights of persons required to leave their homes. At the same time, the Contras systematically engage in violent abuses. Indeed, the violence-scarred breaches of the laws of war by the Contras _ as in the case of their attacks on peasant cooperatives _ are so numerous they may be regarded as the Contras' chief means of waging war. [My underlining.]
[66]At page 154 of the certified record, the Centre's report noted [translation] "certain cases of human rights abuses committed by government forces, including murder and torture, though they are less frequent because the principal instigators have been successfully prosecuted".
[67]The respondent was concerned that this Court should arrive at the conclusion that the panel had made an error on this point. This is why the respondent argued that, according to the documentary evidence submitted on the time at which the applicant was part of the Sandinista army, it committed the following crimes against humanity: (1) compulsory and cruel relocation of peasants and Indians (1981 to 1987); (2) torture of civilian and military prisoners to obtain information (1979 to 1990); (3) military attacks on civilians, causing them to flee to Costa Rica (1987 and in preceding years); (4) detention without charge for periods of up to more than a year (1987 and prior years); (5) murders, summary executions and bombings of certain Indian tribes and presumed Contra sympathizers (1979 to 1990); (6) forced disappearances (1979 to 1990); and (7) persecution for political reasons (1988 and prior years).
[68]The respondent cited Stelco Inc. v. British Steel Canada Inc., [2000] 3 F.C. 282 (C.A.), for the rule that in order to establish the validity of a decision maker's reasons the Court may legitimately look at evidence available to the latter but which he did not refer to.
[69]At paragraph 22 of his decision, Evans J.A. wrote:
Accordingly, in order to establish that the Tribunal committed a reviewable error the applicant and the interveners must demonstrate on the balance of probabilities that the Tribunal's finding that dumping was likely to resume if the original finding were rescinded was not rationally supported by any material before it. Thus, even if the Tribunal committed a reviewable error on some of its findings of fact, its decision to rescind will still be upheld if there were other facts on which it could reasonably base its ultimate conclusion. [Emphasis added.]
[70]The respondent would like me to apply this rule. On the other hand, in the case at bar the Adjudicator did not analyse the documentary evidence cited by the Minister and did not weigh it against the totality of the documentary and oral evidence, and it is impossible for me to conclude on certain facts and to make an analysis of law which the Adjudicator did not make, so as to determine whether the Sandinista army committed certain acts and whether those acts were crimes against humanity. It is not this Court's function to do the panel's work. The case at bar is one of judicial review, not an appeal de novo. In Canada (Minister of Citizenship and Immigration) v. Hajialikhani, [1999] 1 F.C. 181 (T.D.), Madam Justice Reed mentioned at paragraph 45:
I have considered whether in the light of the above, this is a case in which the Court could conclude that the decision was right even though the reasons do not reflect that the appropriate analysis was undertaken. I have decided, after considerable reflection, however, that the appropriate disposition of the application is to quash the decision under review and refer the matter back for rehearing by a differently constituted Board. It is not within the Court's authority to write the decision the Board should have given. There are issues of credibility respecting the claimant's evidence. There are issues that involve documentary evidence that is not physically before the Court, nor to which the Court has easy access. There are issues of both fact and the application of the law that need to be decided. The proper legal analysis would benefit from a more extensive examination of when a crime has been found in international law to come within the definition of a crime against humanity, particularly in the light of the Pushpanathan decision, and the relevant international instruments, including decisions in other jurisdictions. Counsel for the applicant will have an opportunity to present that kind of analysis to the Board on a referral back for rehearing.
[71]I should also say that the nature of the decision by the Canadian International Trade Tribunal in British Steel, supra, which rests on questions of discretion, special matters or predictions as to the future, differs considerably from that taken by the Adjudicator under the legal provisions in the Act.
[72]For the reasons stated, I allow the application for judicial review. I give each party a week to suggest one or more certified questions to the Court and the following weekend for a reply.