Bukumba v. Canada (Minister of Citizenship and Immigration)

Ottawa, Ontario, this 22^nd day of January 2004.

PRESENT: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN

BETWEEN:

MADELEINE MANGABU BUKUMBA and

GRACIA MUKUMBA Applicant

AND

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1] The principal applicant, Madelaine Bukumba, is a 41 year-old woman from the Democratic Republic of Congo (DRC). She was named the designated representative of her daughter, 10 year-old Gracia Mulumba. In the DRC, the applicant was employed by the Comité de Securité de l'État (CSE). Recruited by the current Minister of the Interior, her job was to listen incognito to the conversations of individuals in public places and to report on their opinions to the CSE. She also reported on media coverage of the government.

[2] The applicant claims persecution on the basis of political opinion. She claims that she was criticized and punished by her supervisor for issuing reports critical of the government. Most seriously, in August 2000, she was shown on television speaking against the government's use of child soldiers. As a result, she was imprisoned for 15 days. After her release, she attempted to quit her job but was told that she would be killed if she did so. It was at this point that she fled with her daughter to Kenya and eventually came to Canada.

[3] The Board found that the applicant was excluded from the definition of Convention Refugee as she had knowingly been an accomplice to crimes against peace, war crimes and crimes against humanity as an employee of the CSE in the late 1990s. In addition, it found that there was insufficient credible evidence that either she or her daughter would face a risk to her life, or a risk of cruel and unusual treatment or torture if returned to the DRC.

Issues

[4] The applicant alleges that the Board erred in finding: 

(1) that the CSE engaged in crimes against humanity or torture,

(2) that the applicant was an accomplice to any crimes which CSE committed, and

(3) that she and her daughter would not be subject to more that a mere possibility of persecution if returned to the DRC.

[5] As a preliminary matter, the respondent takes issue with the manner in which the applicant has phrased the issues. The applicant failed to raise error of law as a ground for relief in her application for leave but did so in her Memorandum of Argument. In the respondent's view this contravenes section 5(1) of the Federal Court Immigration and Refugee Protection Rules, SOR/93-22.

[6] Although the applicant did not raise issues of law in her application for leave, the respondent has suffered no prejudice from her failure to do so. See: Canada (M.C.I.) v. Ekuban, [2001] 200 F.T.R. 285. The request in her application for leave that the court consider "other grounds" provides sufficient basis for this Court to consider the issues of law which she now raises. 

Standard of Review

[7] Both sides agree that the standard of review for the Board's decision that certain acts fall within the definition of "crimes against humanity" is correctness (Mendez-Levya v. Canada (M.C.I.), 2001 FCT 523; Gonzalez v. Canada (M.C.I.) (1994), 24 Imm. L.R. (2d) 229 (F.C.A.)) and that the standard of review for the Board's decision that certain acts occurred is patent unreasonableness (Mugesera v. Canada (M.C.I.), [2003] F.C.J. No. 1292, 2003 FCA 325). 

[8] For issues 1 and 2, the central question has been whether or not the CSE and the applicant herself undertook certain acts. Issue 3 relates to the Board's factual finding that 10 year-old Gracia Mukumba would not be at risk if returned to the DRC. Accordingly, the standard of review for all three issues is patent unreasonableness.

Relevant Law

[9] Section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (Act) provides 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.

[10] Subsections E and F of Article 1 of the United Nations Convention Relating to the Status of Refugees (Refugee Convention) provide:

E) This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country/

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.

[11] Section 35 (1) of the Act also provides that:

A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for... (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act....

[12] Subsection 4(3) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 provides:

"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 crimes against humanity according to customary international law or conventional international law or by virtue or its being criminal according to the general principles of law recognized by the community of nations....

Issue 1: Did the Board err in finding that the CSE had engaged in crimes against humanity or torture

[13] The applicant refers to the definition of crimes against humanity in Article 1 (F) of the Refugee Convention. She argues that the Federal Court of Appeal in Sivakumar v. Canada [1994] F.C.J. No. 1145 (Sivakumar) found that the acts described in the latter section must be widespread and involve the systematic targeting of certain populations.

[14] In this case, the applicant argues that the only evidence before the Board was that the CSE arrested, imprisoned for short periods and harassed individuals. She argues that these activities were not widespread and systematic and do not otherwise meet the definition of crimes against humanity. She submits that there is no evidence on the Record that individuals were tortured while imprisoned by the CSE and that allegations of mistreatment in an Amnesty International Report central to the Board's decision were directed against civil war combatants and the Military Order Court rather than at the CSE

[15] In Mugesera v. Canada (M.C.I.), [2003] F.C.J. No. 1292, 2003 F.C.A. 325 at para. 52, the Federal Court of Appeal found that that there four esseential factors to a crime against humanity:

(I) the act, inhumane by definition and by nature, must occasion serious suffering or seriously impair physical integrity or mental or physical health;

(ii) the act must be part of a widespread or systematic attack;

(iii) the act must be against members of a civilian population;

(iv) the act must be committed for one or more discriminatory reasons, in particular for national, political, ethnic, racial or religious reasons.

(Le Procureur v. Jean-Paul Akayesu, International Criminal Tribunal for Rwanda, September 2, 1998, N. ICTR-96-4-T; R. v. Finta [1994] 1 S.C.R. 701; Sivakumar v. Canada (M.E.I.), [1994] 1 F.C. 433 (C.A.); Figueroa v. Canada (M.C.I.) (2001), 212 F.T.R. 318 (C.A.)

[16] Article 1(F) of the Refugee Convention requires that there be a "serious reason for considering" that an individual has committed a crime against humanity. In Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306 (F.C.A.), the Court described this standard as less than proof on a balance of probabilities. The onus is on the government to meet this standard of proof (Srour v. Canada (M.C.I.), [1995] F.C.J. No. 133. 

[17] The applicant conceded at the hearing that there are ongoing crimes against humanity committed in the DRC. However she argues that there is no specific proof that these are carried out by the CSE. Documentary evidence on the Record, including a 2000 Amnesty International Report and particularly the contextual information package contained in item A.3 thereof, describes the continued persecution of individuals opposed to the government. In this material, the CSE is described as one of the institutions responsible for the arrest and detention of political opponents and journalists. Once arrested, the evidence suggests that individuals are routinely beaten and tortured and that many are tried and executed without due process. Other evidence also describes a specific instances of the treatment and fate of individuals arrested by the CSE as opposed to other organizations within the DRC's security apparatus. For instance, the following UNHCR report:

4.4a Question of the Violation of Human Rights and Fundamental Freedoms in Any Part of the World

E/CN.4/2000/42

Report on the situation of human rights in the Democratic Republic of the Congo, submitted by the Special Rapporteur, Mr. Roberto Garretón, in accordance with Commission on Human Rights resolution 1999/56 United Nations. Commission on Human Rights (UNHCHR)

(Geneva: UNHCHR, January 2000)

(http:/www.unhchr.ch/Huridoca/nsf/

(Symbol)/E.CN.4.2000.42.En/$FILE/G0010229.pdf

(Accessed 09/01/01)

describes two instances of whipping and torture committed by the CSE at page 51. Overall, therefore, the record confirms the importance of the CSE within the state apparatus of the DRC, and furnishes sufficient reason for the Board to have inferred that it was an active participant in unlawful acts committed by the regime.

Issue 2: Did the Board err in finding that the applicant was an accomplice to any crimes

which CSE committed

[18] The applicant argues that she was not personally complicit in any of the crimes that the CSE may have undertaken. She argues that her reports were of a public rather than individual nature and that she did not know that they were being used for an improper purpose. She submits that, pursuant to the judgement in Sivakumar, supra., an individual cannot be an accomplice to an international crime merely because she knows it is occurring unless she is a leader of the organization which is committing the crime or the organization was created for a "limited, brutal purpose." If the CSE committed any crimes, the applicant argues that she is not complicit as she had no part in its chain of command.

[19] The following principles have been enunciated with regards to complicity in crimes against humanity: 

1. An individual may be an accomplice to an international crime even though a specific act or omission is not directly attributable to him (Sumaida v. Canada (M.C.I.), 2000 3 F.C. 66 (C.A.)).

2. An individual who associated with a person or organization responsible for international crimes may be an accomplice to these crimes if he knowingly participated in or tolerated them (Sivakumar, supra.)

3. An individual may be an accomplice to an international crime if, having knowledge of that crime, he fails to take steps to prevent it occurring or to disengage himself from the offending organization at the earliest opportunity consistent with his own safety (Penate v. Canada (M.E.I.), [1994] 2 F.C. 79)

4. An individual will be an accomplice to an international crime if he provides information about others to an organization with a limited, brutal purpose with knowledge that they will likely come to harm (Horvaiz v. Canada (M.C.I.), [2002] F.C.J. No. 1199)

5. Membership in an organization with a limited, brutal purpose leads to a presumption of knowledge as to the act which this organization is undertaking (Harb v. Canada (M.C.I.), [2003] F.C.J. No. 108, 2003 FCA 39).

[20] In this case the Board found as follows:

...While the claimant was not in a physical sense the perpetrator of the crimes against humanity, by virtue of her employment and close relationship with the head of CSE, she was an accomplice. An accomplice is as culpable as the principle perpetrator, a principle set out by the Federal Court in the case of Moreno.11This situation can be distinguished from that in the case of Ramirez¹² as she was not merely a member of an organization which from time to time committed international offences, but was a long-time employee, specifically recruited by the head of the security agency and agreeing voluntarily to anonymously collect information on what people were saying, and report directly to the head. She testified she realized early in her employment that her reports were not being used for the benign purpose for which she assumed they would be, but continued nevertheless to feed information on protestors and others, to the CSE. She made no attempt for four years to leave her employment until she was personally involved in a conflict with Mr. Ndjoku. Therefore, the panel finds her participation in the activities of the CSE were personal, knowing and voluntary.

¹¹ Moreno v. Canada (Minister of Employment and Immigration [1994] 1 F.C. 298 (C.A.)

¹² Ramirez v. M.E.I. [1992] 2 F.C.306 (C.A.)

[20] This statement seems to be consistent with the principles referred to in paragraph 19 above. In light of this and given the evidence contained in the Tribunal Record, I cannot see how this inference by the Board was patently unreasonable.

Issue 3: Did the Board err in finding that she and her daughter would not be subject to more that a mere possibility of persecution if returned to the DRC.

[21] In light of the conclusions reached in respect of items 1 and 2, by virtue of section 98 of the Act, this question becomes irrelevant with regards to the principal applicant. With regards to the minor applicant, there was no evidence before the Board that she would be at risk if returned to the DRC. Notably, her father has continued to reside in the country without any negative consequences as a result of the principal applicant's actions.

[22] In light of the above findings, this application is hereby dismissed.

ORDER

IT IS HEREBY ORDERED that:

1. This application is dismissed.

"K. von Finckenstein" 

JUDGE 

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-3088-03

STYLE OF CLAUSE: MADELEINE MANGABU BUKUMBA and

GRACIA MUKUMBA Applicant

AND 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION 

Respondent

DATE OF HEARING: January 14, 2004

PLACE OF HEARING: CALGARY, ALBERTA

REASONS FOR ORDER

AND ORDER: The Honourable Mr. Justice von Finckenstein

DATE: January 22, 2004

APPEARANCES BY: 

Mr. Stephen G. Jenuth For the Applicant

Ms. Carrie Sharpe For the Respondent

SOLICITORS OF RECORD:

Ho MacNeil Jenuth 

Calgary, Alberta For the Applicant

Morris Rosenberg

Deputy Attorney General For the Respondent