El-Kachi v. Canada (Minister of Citizenship and Immigration)
|Publisher||Canada: Federal Court|
|Author||Federal Court of Canada, Trial Division|
|Publication Date||10 April 2002|
|Citation / Document Symbol|| FCT 403|
|Cite as||El-Kachi v. Canada (Minister of Citizenship and Immigration),  FCT 403, Canada: Federal Court, 10 April 2002, available at: http://www.refworld.org/docid/43feca772.html [accessed 20 September 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Ottawa, Ontario, April 10, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
AISSA (SALIBA) EL-KACHI
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
AMENDED REASONS FOR ORDER AND ORDER
 Aissa (Saliba) El-Kachi, a citizen of Lebanon, alleged a well-founded fear of persecution for his political opinions if he returned to Lebanon. He made this application for judicial review from the decision by the Refugee Division of the Immigration and Refugee Board (the "Refugee Division") on June 27, 2000, which excluded him from the protection of the United Nations Convention Relating to the Status of Refugees (the "Convention") pursuant to Article 1F(a) of the Convention.
 According to the definition in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, a Convention refugee does not include "any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof".
 It is worth setting out the relevant portion of section F of Article 1 of the Convention.
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.
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura les raisons sérieuses de penser :
a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes.
STATEMENT OF FACTS
 The applicant was born in 1956 in a province in northern Lebanon. After completing his military service, when he was 18 years old, the applicant enrolled in the Lebanese army. From 1973 to 1979 the applicant was in the Lebanese army. In 1979 the applicant got married and left the Lebanese army, but remained in the reserve. From 1979 to 1983 the applicant worked in Beirut as a mechanic.
 In 1982 the applicant was recalled by the Lebanese army in Beirut and in 1983 he moved to Jezzine, a province in south Lebanon, with his wife, as his wife's family lived in that town.
 The applicant enrolled voluntarily in the South Lebanon Army (the "SLA") and worked in that army from 1983 to 1999. He was promoted warrant officer and was then again raised to a higher rank, this time with over 45 men under his orders.
 The SLA was financed and armed by the State of Israel. Its troops assisted Israel during the occupation of south Lebanon, the invasion of Beirut and the creation of the buffer zone in south Lebanon. Various regions of Lebanon had been invaded by Israel since 1982, including Jezzine.
 According to the applicant, he joined the SLA so he could protect his family and neighbourhood. In 1986, his daughter was killed when a Hezbollah missile hit their house.
 In his Personal Information Form ("PIF"), the applicant stated that he was involved as team leader in military attacks on Hezbollah ordered by his superiors. In his account he said he was being sought by Hezbollah because he had fought against it and by the Lebanese government, which was officially at war with Israel. According to the applicant's PIF, the Lebanese government regarded anyone who belonged to the SLA as a traitor to their country.
 Two or three days before the hearing the applicant amended his PIF to add that during his 16 years of service with the SLA he was primarily in charge of checkpoints in the Jezzine area. Neither the applicant's PIF nor the port of entry notes mentioned that he had this responsibility.
 According to the applicant, he had never fired on civilians in air attacks or otherwise but, when he was firing, he did not see the targets.
 In 1999 Israel withdrew from Jezzine and handed over control of that town to the Lebanese authorities. The applicant had a choice of withdrawing along with Israel or remaining in the region. He decided to remain. The applicant maintained that his friends advised him to leave Jezzine, but that he chose instead to hide in the area. Finally, he met a taxi driver who put him in touch with a member of the Syrian intelligence service, who helped him leave the country.
 The applicant arrived in Canada on September 6, 1999, and claimed refugee status the same day.
 The claim hearing took place in Ottawa on May 25, 2000.
REFUGEE DIVISION'S DECISION
 In dismissing the claimant's claim, the Refugee Division concluded that the applicant had not shown that he had a well-founded fear of persecution if he returned to Lebanon, and that he should in any case be excluded from the benefit of "Convention refugee" status pursuant to Article 1F(a) of the Convention, since he had been a participant in war crimes or crimes against humanity by the SLA.
POINTS AT ISSUE
 The applicant argued that the Refugee Division's decision erred in law and in fact and made perverse or capricious findings without regard for all the evidence before it in its assessment of the evidence presented by the applicant, in particular for the following two reasons:
1 - by concluding that the applicant was covered by the provisions of the exclusion article of Article 1F(a) of the Convention;
2- by concluding that the applicant would not be persecuted for his political opinions if he returned to Lebanon, but would only be sought by that country's military authorities for joining the South Lebanon Army.
(a) Did the Refugee Division err in concluding that the applicant was covered by the provisions of the exclusion article of Article 1F(a) of the Convention?
 In Ramirez v. Canada (Minister of Employment and Immigration),  2 F.C. 306, the Federal Court of Appeal stated the rules to be followed when the Minister seeks to exclude an individual from Convention protection pursuant to the application of Article 1F(a) of that Convention. The following rules are applicable in the case at bar:
(a) the Minister always has the burden of establishing that the claimant has participated in international crimes;
(b) the burden of proof is lower than the balance of probabilities;
(c) as a general rule, "mere membership" in an organization involved in perpetrating international crimes is not sufficient to exclude the individual;
(d) complicity requires "personal and knowing participation" by the claimant in the perpetration of international crimes; and
(e) complicity is based on the existence of a common intent and knowledge that all the parties in question have.
 The question of complicity was also considered by Reed J. in Penate v. Canada (Minister of Citizenship and Immigration),  2 F.C. 79. Following an analysis of Ramirez v. Canada (Minister of Employment and Immigration),  2 F.C. 306 (C.A.), Moreno v. Canada (Minister of Employment and Immigration),  1 F.C. 298 (C.A.) and Sivakumar v. Canada (Minister of Employment and Immigration),  1 F.C. 433, Reed J. concluded at 84-85:
As I understand the jurisprudence, it is that a person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and who neither takes steps to prevent them occurring (if he has the power to do so) nor disengages himself from the group at the earliest opportunity (consistent with safety for himself) but who lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation.
 In the case at bar, the Refugee Division based its exclusion finding on the following facts:
The claimant joined the SLA voluntarily and was paid regular wages by the Israeli army. When he joined the SLA in 1983 he was only a Staff Sergeant. He was promoted several times, rising to become Lieutenant. He was associated with SLA in a supervisory capacity for 16 years, eventually being in charge of 45 men. According to his original PIF, the claimant participated in military attacks against Hezbollah and fought the Lebanese government. Based on his oral testimony and his PIF, the panel finds that the claimant joined the SLA because he agreed with its objectives and wished to contribute to their attainment, which he did. The panel does not believe the claimant's allegations that his role in the SLA was a defensive one.
. . . . .
This was the area, [Jezzine] where the claimant worked and worked so diligently that he was promoted several times. It is simply not plausible that he did not know of the massive human rights violations being committed by the SLA. He remained with the organization for 16 years and assisted it despite knowing of its illegal detentions, torture, destruction of crops, punishment of innocent people and indiscriminate bombing of civilians. ([Jezzine] not indicated in original.)
 The Refugee Division further observed that the applicant claimed he had not committed a war crime, since he was only responsible for checkpoints. The Refugee Division concluded that if this was so he would be in the same position as former SLA members, whom the Lebanese authorities released after they gave up and on whom the courts imposed relatively light penalties.
 Nevertheless, the Refugee Division rejected the applicant's last-minute change to his PIF, namely that his role was primarily responsibility for a checkpoint in the Jezzine area. Instead, it accepted the applicant's original account which stated that he was involved as a team leader in military attacks against the Hezbollah. In my opinion, this Refugee Division's conclusion was not patently unreasonable.
 I consider that the documentary evidence showed that the SLA was involved in crimes against humanity. At p. 3 of its reasons, the Refugee Division summarized the documentary evidence on which it based its findings as follows:
Tabs 1, 3 and 10 in R-1 and M-1, M-2 and M-3 assert that the SLA committed serious human rights violations; was complicit or participant in attacks on civilians; destroyed crops; forced deportation of civilians; forced recruitment; forced people to become enforcers; forced field relocations and inflicted massive punishments on innocent people in response to guerrilla attacks. In addition, SLA operated about 17 prisons with Israeli assistance, the most notorious being Khiam.
M-3, an Amnesty International report, says:
"Many men and women held in Khiam since 1985 have been tortured or ill treated during interrogation. Methods have reportedly included electric shock torture, beatings with electric cables, suspension from pool and dousing with water. The detainees are cut off from the outside world since family visits were suspended in 1988 and visits by the International Committee of the Red Cross have never been allowed there... They seemed to be held outside any legal framework."
M-3 further states that Khiam is "staffed by SLA", but Israeli officials had been directly involved in the detention centre, including participating in interrogation and torture at least until 1988. It said Israel's direct involvement has diminished since.
Other documents tell us of other areas where SLA held prisoners and detail its human rights violations against civilians. Of particular note is Tab-3, a question and answer series prepared by the Immigration and Refugee Board. It outlines that between July 1994 and January 1995 the United Nations recorded 87 attacks by guerrillas against Israeli and SLA positions. In the same period, the UNIFIL counted over 16,000 artillery, motor and tank attacks by Israeli and SLA forces, sometimes aimed at villages.
 I am satisfied that all these crimes are war crimes and/or crimes against humanity as defined in the international instruments drawn up to make provision in respect of such crimes. I feel that the documentary evidence supports the situation in which perpetration of these offences was a continuous and regular part of the SLA operation.
 That evidence supports the Refugee Division's conclusion that the SLA was a brutal organization which had committed war crimes and crimes against humanity. Based on the evidence, this conclusion was not patently unreasonable.
 The applicant joined the SLA voluntarily and worked in it for 16 years, and was eventually promoted to officer rank in charge of 45 men. Those facts are not in dispute. Based on this evidence, I consider that it was reasonable for the Refugee Division to conclude that the applicant became involved in the SLA because he agreed with its objectives and wished to help achieve them, which he in fact did.
 The evidence further showed that the applicant was aware that these crimes against humanity and war crimes had been committed by the SLA. Moreover, the evidence showed that in response to questions asked at the hearing the applicant admitted that he knew the SLA had committed crimes against humanity at the Khiam prison. He testified as follows:
Q. Sir, you have already given us a lot of evidence about your own personal activities in the artillery unit, in the infantry unit at the checkpoints. So I don't want to revisit all of that again. During the time that you were involved with the SLA, either when you were working at the checkpoints as part of the infantry unit or as part of the artillery unit in the earlier period of time, had you ever heard of - were you ever aware of the activities of the SLA which involved detentions of suspected Hesbullah at the prison in Kayan (phonetic)?
Q. Were you aware that routinely people in the prison were being tortured?
A. No. I was not aware of that, although I heard things from people.
Q. Well, that's confusing, that you were not aware, but you heard people. So give us an answer which we can understand.
A. I was aware of this.
 In its reasons the Refugee Division accepted this testimony by the applicant and concluded that it was implausible for him not to have known these crimes had been committed. I note this passage at p. 8 of the Refugee Division's reasons:
...The claimant served for 16 years as an SLA officer. He had 45 men under him. How is it possible that he did not know that the SLA and the Israelis were targeting civilians? How could he not know that SLA was recruiting people forcibly? Or that villages were being bombed? Or that massive punishments were being inflicted on whole villages because of sporadic guerrilla attacks? Or that the SLA was not torturing the Lebanese and Palestinian suspects it detained at its prisons? The Panel finds it implausible that the claimant would be in the SLA for 16 years as an officer and not know that these acts were taking place. The claimant at first denied and then, under questioning, stated that he knew that there were violations of human rights in Khiam Prison.
 In view of the applicant's testimony, his own experiences during his 16 years in the SLA and the documentary evidence in the record, I consider that the applicant had knowledge of the nature and scope of the criminal activities in which the SLA was involved in south Lebanon. The Refugee Division's conclusion in this regard was not patently unreasonable.
 This Court has ruled many times on a refugee status claimant's obligation to dissociate himself from the activities of a criminal group as soon as possible after learning he was contributing to them (Quinonez v. Canada (M.C.I.),  F.C.J. No. 42 online: QL, para. 28; Kiared v. Canada (M.C.I.),  F.C.J. No. 1197 online: QL, para. 11).
 In the case at bar, after being unavoidably aware of the criminal nature of several SLA activities, the applicant did not dissociate himself from them at the first opportunity of doing so without risk. I also find that, on the evidence, the applicant had an opportunity of leaving south Lebanon and dissociating himself from the SLA. He had in fact easily left Lebanon to travel in Israel. He also had contacts which could have helped him leave, including his brothers, soldiers in the Lebanese army. According to his own testimony, he had no problems contacting the Syrian authorities, who were willing to protect him. The evidence showed that the applicant made no effort to dissociate himself from the SLA at the first opportunity. He simply continued in his position of officer and by doing so, with full knowledge of the atrocities committed by the SLA, implicitly supported the SLA's activities.
 In the case at bar, I consider that the applicant has demonstrated personal and knowing participation in the crimes committed by the SLA, thus satisfying the requirement of mens rea. I am satisfied that the Minister presented his evidence at a standard lower than the balance of probabilities, as adopted by the Federal Court of Appeal (Ramirez, supra).
 In my view, the evidence is sufficient to support a finding that there are "serious reasons for considering" that the applicant participated in crimes against humanity committed by the SLA. The Refugee Division therefore made no error regarding the applicant's complicity.
 As I have concluded that the Refugee Division did not err in excluding the applicant from Convention protection, it is not necessary to consider the question of inclusion.
 For these reasons, the application for judicial review will be dismissed.
 The respondent asked the Court to consider the following question for certification:
In Ramirez v. Canada (M.E.I.),  2 F.C. 306, and Moreno v. Canada (M.E.I.),  1 F.C. 298, the Federal Court of Appeal held that mere participation in an organization which commits crimes against humanity will not suffice as a basis for an exclusion under Article 1F(a). However, the Court has made an exception to that rule. In Ramirez it considered that the membership can in itself suffice when the organization in question "is principally directed to a limited, brutal purpose" (ibid., at 317). In Moreno, this exception was given as applicable to organizations whose "very existence is premised on achieving political and social ends by any means deemed necessary" (ibid., p. 321).
Are these two tests, one taken from Ramirez and the other from Moreno, identical or equivalent? If not, may the Court use one or other of the tests as it sees fit?
 The proposed question deals essentially with the exception to the general rule, namely the application of the rebuttable presumption of complicity or mere membership in an organization committing crimes against humanity may suffice as a basis for an exclusion under Article 1F(a). My finding is based not on the application of the said presumption, but on the analysis of the applicant's personal and knowing participation on account of all the evidence in the record. I feel that the proposed question cannot be determinative.
 For these reasons, therefore, I will not certify the proposed question.
THE COURT ORDERS that:
1. The application for judicial review is dismissed.
"Edmond P. Blanchard"
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-3177-00
STYLE OF CAUSE: AISSA (SALIBA) EL-KACHI
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 23, 2001
REASONS FOR ORDER AND ORDER BY: BLANCHARD J.
DATED: APRIL 10, 2002
JACQUES BEAUCHEMIN FOR THE APPLICANT
NORMAND LEMYRE FOR THE RESPONDENT
SOLICITORS OF RECORD:
ALARIE, LEGAULT, BEAUCHEMIN FOR THE APPLICANT
PAQUIN, JOBIN, BRISSON & PHILPOT
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA