Zoya v. Canada (Minister of Citizenship and Immigration)

  • Author: Federal Court of Canada, Trial Division
  • Document source:
  • Date:
    20 November 2000

Between:


MUNDELE ZOYA

Plaintiff

And:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Defendant



REASONS FOR ORDER


ROULEAU J.

[1] This is an application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board (hereinafter "RD") on October 14, 1999 which held that Mundele Zoya (hereinafter "the plaintiff") was not a Convention refugee as defined in s. 2(1) of the Immigration Act (hereinafter "the Act") and that the plaintiff was excluded under art. 1F(a) of the Convention.

[2] The plaintiff is a citizen of the Democratic Republic of the Congo.

[3] He was allegedly employed by the National Intelligence and Protection Service (hereinafter "the NIPS") as a technician for the first three years and as an informer for the last year.

[4] On December 29, 1997 the plaintiff allegedly arrived in Canada seeking protection from the Canadian authorities.

[5] The RD refused to grant the plaintiff refugee status for two reasons, namely the absence of a credible basis for the plaintiff's claim and the fact that the plaintiff did not fall within the scope of Convention protection.

[6] The RD reached a negative conclusion about the plaintiff because he was for five years a member of the NIPS, a violent movement organized contrary to all human rights.

[7] The plaintiff maintained that the RD dismissed his claim and concluded that there was no credible basis in the case at bar without considering the evidence in the record.

[8] It is apparent that the RD failed to carry out its duty to provide reasons for this conclusion. However, the exception under art. 1F(a) of the Convention must be upheld.

[9] Article 1F(a) of the Convention reads as follows:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes . . .

[10] The burden of proof which the Minister must discharge in order to establish that the Convention does not apply to a given individual is less onerous than the balance of probabilities (see Ramirez v. M.E.I. (1992), 135 N.R. 390 (F.C.A.); Moreno and Sanchez v. M.E.I. (1993), 159 N.R. 210 (F.C.A.); and Sivakumar v. M.E.I. (1993), 163 N.R. 197 (F.C.A.)). Further, with respect to complicity, it is well settled that this essentially rests on the existence of a shared common purpose and knowledge of that purpose by all persons concerned (see Ramirez, supra). As the Federal Court of Appeal later said in Bazargan v. M.E.I. (1996), 205 N.R. 282, at 287: "That being said, everything becomes a question of fact".

[11] The evidence clearly showed that the NIPS is an organization which has perpetrated international offences in the ongoing and everyday course of its activities and its purpose is limited and brutal. The plaintiff admitted that he was a member of the NIPS for five years (in the PIF and his oral evidence). Although he maintained that he had no knowledge of these activities, the Court is persuaded that it was reasonable for the RD to draw a contrary conclusion. As the RD noted, it is well-known around the world that the NIPS is a movement that engages in torture. The newspapers have been discussing it since 1990. It is not probable that the plaintiff was unaware of the NIPS's activities, as knowledge of these repressive activities was widespread, and especially in view of the fact that he worked in the organization for an extended period. The plaintiff continued performing his duties for several years before deciding to flee, instead of disassociating himself from the organization at the first possible opportunity. In my opinion, he was an accomplice and therefore reasonably excluded. The conclusion is based on the evidence and it is reasonable. Consequently, the RD did not erred in concluding that the plaintiff was accepted under art. 1F(a) of the Convention.


[12] In Gonzalez v. Canada (M.E.I.), [1994] 3 F.C. 646 (C.A.), at 657, the Court made a definitive ruling that the RD is not in any way required to consider whether the plaintiff falls within the definition of a Convention refugee:

Whatever merit there might otherwise be to the claim, if the exclusion applies, the claimant simply cannot be a Convention refugee.
In my opinion, there is no error in law in either approach but there is a practical reason for the Refugee Division to deal with all elements of a claim in its decision. If it were to hold without reviewable error that, but for the exclusion, a claim was not well-founded, it would not be necessary, as it was in Moreno, for the matter to be referred back for yet another full hearing should a court find that the exclusion had been wrongly invoked. On the other hand, if it were to hold, as it did in Ramirez and Sivakumar, that the claim was well-founded but for application of the exclusion and, unlike those cases, it were found on appeal to have erred in applying it, this Court could make the necessary declaration without requiring the Refugee Division to deal with it again. Taxpayers might appreciate the economy of that approach.

[13] It would be illogical to revise a decision, even if erroneous, on the inclusion when the plaintiff has been correctly excluded under art. 1F(a), an exclusion clause in the Convention. A plaintiff cannot possibly be a Convention refugee if the exclusion applies. In the case at bar, I am of the view that the RD correctly concluded that art. 1F(a) applies and of necessity excluded the plaintiff. As this conclusion is fully supported by the evidence, the plaintiff logically cannot be a Convention refugee.

[14] For these reasons, I consider that this Court's intervention would not be justified and the application for judicial review is therefore dismissed.


P. Rouleau

JUDGE

OTTAWA, Ontario

November 20, 2000


Certified true translation




Suzanne M. Gauthier, LL.L. Trad. a.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD


COURT No.: IMM-5256-99
STYLE OF CAUSE: MUNDELE ZOYA v. MCI

PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: NOV. 7, 2000
REASONS FOR ORDER BY: ROULEAU J.
DATED: NOV. 20, 2000

APPEARANCES:

STÉPHANIE VALOIS FOR THE APPLICANT

NORMAND LEMYRE FOR THE RESPONDENT


SOLICITORS OF RECORD:

STÉPHANIE VALOIS FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg FOR THE RESPONDENT

Deputy Attorney General of Canada






Date: 20001120


Docket: IMM-5256-99

OTTAWA, Ontario, November 20, 2000

BEFORE: Rouleau J.

Between:


MUNDELE ZOYA


Plaintiff

And:


THE MINISTER OF CITIZENSHIP AND IMMIGRATION


Defendant



ORDER


[1] The application for judicial review is dismissed.



P. Rouleau

JUDGE

Certified true translation




Suzanne M. Gauthier, LL.L. Trad. a.

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