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Albuja v. Canada (Minister of Citizenship and Immigration)

Publisher Canada: Federal Court
Author Federal Court of Canada, Trial Division
Publication Date 23 January 2000
Citation / Document Symbol [2000] 2 F.C. 538
Reference IMM-3562-99
Cite as Albuja v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 538, Canada: Federal Court, 23 January 2000, available at: http://www.refworld.org/docid/43fec9352.html [accessed 24 July 2014]
DisclaimerThis 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.

Federal Court Reports
Albuja v. Canada (Minister of Citizenship and Immigration) (T.D.) [2000] 2 F.C. 538 

Between:

JORGE ERNESTO ECHEVERRIA ALBUJA

Applicant

- and -


THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent


REASONS FOR ORDER


PINARD, J.:


[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated June 18, 1999, determining him to be a person to whom the Convention does not apply pursuant to subsection F(a) of Article 1 thereof.

[2] Subsection 1F(a) of the Convention provides that the Convention shall not apply to any person with respect to whom there are serious reasons for considering that he has committed crimes against humanity. The definition of a Convention refugee in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the Act) excludes any person to whom the Convention does not apply pursuant to subsection 1F(a) thereof.

[3] It is well established that mere membership in an organization which commits international offences will not justify a finding that a claimant was an accomplice to the commission of such offences (see Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306 at 317). The starting point for complicity in a crime against humanity is "personal and knowing participation". In the words of Justice MacGuigan in Ramirez, supra, at page 318:

At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it.


This view was subsequently adopted by another panel of the Federal Court of Appeal in Bazargan v. M.E.I. (1996), 205 N.R. 282, wherein Décary, J.A. stated, at page 287:

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. At p. 318 F.C., MacGuigan, J.A., said that "[a]t 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". 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.


[4] Complicity through association is a factual question that can only be answered on a case-by-case basis (see Sivakumar v. Canada (M.E.I.), [1994] 1 F.C. 433 at 438).

[5] Here, the Board found the applicant to be credible. However, on the grounds that he belonged to the Coupola, a group implicated in reprisals against civilians, the Board held that the Convention did not apply by virtue of subsection 1F(a). Although it was not established that the applicant had personally committed crimes against humanity, the evidence demonstrated that he was not merely a member of the Coupola, but that he held the rank of First Sergeant and had been promoted several times. He had access to highly confidential information and read and encoded orders pertaining to individuals that the authorities wished to make disappear. The applicant received this material from "la hiérarchie la plus élevée". He then sent the orders to the GOE, a group of soldiers under the joint command of the army. The applicant explained that the GOE can also be authorized to take orders from the police. According to the applicant, the GOE is trained to act against individuals considered to be subversives.

[6] In addition, the applicant testified that he knew of civilian deaths caused by the GOE and the army. He learned of these crimes not only through the media, but also as a result of his position. The applicant testified that he encoded a conversation about two officers who were the victims of sabotage by the army. Later, he transmitted orders to the GOE to make "disappear" two union leaders. When asked by the Board how he reacted to the latter incident, he replied that he spoke to no one of the incident and that, "je fais tout simplement le travail qu'on m'avait commandé de faire". The applicant also testified that he was aware of the use of torture as a method of interrogation and that some of the information that passed through his hands was from interrogation centres.

[7] The applicant's evidence is supported by the documentary evidence, which indicates that there have been reports of torture and ill-treatment by members of the Ecuadorean armed forces1 and refers to the Restrepo case mentioned by the applicant2.

[8] The evidence also established that the applicant failed to withdraw from the Coupola even though he had opportunity to do so.3 No evidence was presented to the effect that the applicant would have suffered any risk to himself had he chosen to withdraw from the Coupola. In fact, the applicant only quit after learning about the planned coup d'état, when his superiors harassed him physically and psychologically into leaving.

[9] Given the applicant's own testimony regarding his knowledge of the crimes against humanity committed by the GOE with the support of the Coupola, his position with the Coupola and his failure to withdraw from that organization, it was reasonable for the Board to infer that the applicant's conduct amounted to "personal and knowing participation" and that he shared the organization's purpose in committing these crimes.

[10] Moreover, contrary to the applicant's second argument, I do not think that it can be said that the Board failed to identify the specific crimes alleged to have been committed. Unlike the panel in Sivakumar, supra, the Board in this case made factual findings about the acts committed by the GOE and supported by the Coupola. The Board also found that these acts constituted crimes against humanity. In my opinion, the Board "set out in its reasons those crimes against humanity for which there are serious reasons to consider that a claimant has committed them" (see Sivakumar, supra, at page 449).

[11] In light of all of the above, I am not satisfied that the Board committed any reviewable error and this application must be dismissed.




JUDGE

OTTAWA, ONTARIO

October 23, 2000




__________________

1 Tribunal Record at page 473, "Amnesty International: Ecuador" and Tribunal Record at page 479, "Human Rights Watch".

2 Tribunal Record at page 479, "Human Rights Watch". See applicant's reference at page 577 of the Tribunal Record, transcript.

3 cf. Moreno v. Canada, [1994] 1 F.C. 298 (C.A.), where the applicant, who had been conscripted into the Salvadorean army at age sixteen, was ordered to stand guard outside a cell where a prisoner was being tortured. The facts disclosed that the applicant was a bystander who could not have intervened, who did not share the military's purpose and who deserted as soon as possible. He was found not to be an accomplice to the torture.

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