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F. (O.Z.) (Re), Convention Refugee Determination Decisions

Publisher Canada: Immigration and Refugee Board of Canada
Author Immigration and Refugee Board
Publication Date 16 November 1989
Citation / Document Symbol [1989] C.R.D.D. No. 167 No. C89-00202
Reference 167; C89-00202
Cite as F. (O.Z.) (Re), Convention Refugee Determination Decisions, [1989] C.R.D.D. No. 167 No. C89-00202, Canada: Immigration and Refugee Board of Canada, 16 November 1989, available at: http://www.refworld.org/docid/3ae6b6cb8.html [accessed 28 August 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.
 

F. (O. Z.) (Re), Convention Refugee Determination Decisions [1989] C. R. D. D. No. 167 No. C89-00202

Immigration and Refugee Board of Canada
Convention Refugee Determination Division
Calgary, Alberta

Panel: F. W. Wright and D.J. Frunczak In camera

Heard: September 28, 1989

Decision: November 16, 1989

El Salvador (SLV) -- Positive -- Males -- Agents of persecution – Deserters - - Exclusion clauses – Guerilla fighters -- Human rights - - Human rights violations – Military service -- Persecution for political opinion – Post-flight reasons for persecution -- Prosecution -- Social group persecution -- War crimes -- (Indexed).

Appearances:

Diana Lowe, for the claimant(s).

Velten Pilger, Refugee Hearing Officer.

REASONS FOR DECISION

These are the reasons in the decision of the claim of xxxxxxx xxxxxxxxxxxxxxx, a citizen of El Salvador, to be a Convention refugee as described in section 2(l) of the Immigration Act [As enacted S.C. 1988 ch.35, s.18.]

The claimant was present at the hearing and was represented by Diana Lowe, Barrister & Solicitor. An interpreter was present and interpreted the proceedings as required. Velten Pilger, a refugee hearing officer, was also present to assist the Refugee Division.

The claimant says that he has a well-founded fear of persecution for political opinion and membership in a particular social group. These are two of the reasons described in section 2(l) of the Immigration Act [1] A "well-founded fear of persecution" is not defined in the Immigration Act. However, the United Nations Handbook on Procedures and Criteria for Determining Refugee Status[2] has been helpful in coming to this decision. In particular, paragraphs 38, 40, 41 and 42 of the United Nations Handbook refer to the "subjective,, and "objective" elements which the Handbook says must be considered when determining whether an individual has a well-founded fear of persecution. The Handbook, however, is only a guide to the Refugee Division when determining whether a person is a Convention refugee. In addition the Federal Court of Appeal decision in Rajudeen (Rajudeen v. M. E. I. (1984), 55 N.R. 129 (F.C.A.)] also referred to the subjective and objective elements necessary to satisfy the definition of a Convention refugee.

The claimant's story relating to his fear of persecution is as follows. The claimant is 24 years old and a citizen of El Salvador. During testimony he stated that at age 18 he was conscripted into the army. This took place in the fall of 1983. He stated that he trained for three months and then became a member of the infantry. He explained that his job was to combat the guerrillas who were opposing the government of El Salvador. In addition, he stated that from time to time he was ordered to go into the villages and apprehend civilians whose names and addresses were supplied by his superiors. He said that it was his job to bring those civilians back to the military bases by any means he could. He indicated that at times when they resisted, these civilians were beaten by soldiers in the infantry. He further stated that he observed civilians beaten and sometimes killed when they resisted. He stressed that he himself had never killed any of these-civilians and that if he had been ordered to do so he would not have. He further commented that some of his friends in the infantry had refused to kill any civilians and that they had deserted the army after they had witnessed these occurrences. The claimant said that he disagreed with the orders of his superiors to apprehend and beat civilians. He further stated that he disliked killing the guerrillas because they were also Salvadoreans. He said that if he had refused to apprehend these civilians he would have been suspected of being a member of the guerrillas and probably would have disappeared. When asked what he meant by "disappeared", the claimant said that he would be dead, that he would be killed by the army.

The claimant further stated that in the fall of 1985, when he expected to be released from the army after two years of service, he was informed that he was needed and therefore would not be discharged. The claimant said that he petitioned the army for a discharge but was refused. In January of 1986, the claimant said that while on leave he deserted and he went to stay in a place known to his parents and his friends (for a few days). He was informed by his parents and his friends that the army was looking for him. The claimant said since he believed that the army would torture him and perhaps kill him, he decided to leave the country. The claimant said that he travelled from El Salvador, through Guatemala and Mexico by bus to the United States. when the claimant was asked whether he had been stopped by the border guards of these various countries, he stressed that he walked across the borders of these various countries through the mountains and that he entered each of those countries illegally. He stated that the army had refused to give him his identity papers and therefore he believed that he would be sent back to El Salvador if the border guards stopped him at any of the border crossings. When asked if he made a refugee claim in Mexico or the United States, he replied that he did not.

On page 12 of Exhibit R-1, which is an Overview on El Salvador [overview on El Salvador, Immigration and Refugee Board Documentation Centre, Ottawa, November 24, 1988.], it is said that Salvadoreans are not recognized as refugees in Mexico. The report next says that they are not even permitted to work or remain permanently and are merely tolerated as illegal aliens. The report also points out that numerous Salvadoreans have allegedly suffered abuse from Mexican officials.

Testimony by the claimant was to the effect that he lived and worked illegally in the United States from June 1986 until may 1989. The claimant stated that he did not believe that he could get refugee status in the United States. Page 13 of Exhibit R-1 says a judge in a United States court decision in April 1986 was of the opinion that the immigration and naturalization services of the United States government employ a number of techniques such as subtle persuasion, outright threats and misrepresentation to persuade refugees from El Salvador to depart the United States.

The claimant made his way to Canada and on 18 May 1989 he made a refugee claim.

The basis of his claim is that, by deserting the army while on leave and fleeing the country, the government would believe that he is supporting the guerrillas who are politically opposed to the government of El Salvador. In my opinion this is an expression of political opinion by the claimant. In addition, by being perceived as a person supporting the guerrilla group, he said he is part of a particular social group. Political opinion and membership in a particular social group are two of the reasons for which the claimant can make a claim and be determined to be a Convention refugee.

Exhibit R-1, on page 4, states that both sides in the dispute (the government and the guerrillas) have been accused of violations of human rights as well as engaging in activities leading to the killing or wounding of civilians. Page 10 of the same exhibit refers to the forced recruitment by both the army and the guerrillas in the fighting. The report goes on to say that refusal to comply can result in disappearance or death. Page 15 of the exhibit says that some people who have returned to El Salvador have been viewed with suspicion because they had previously fled the country.

Exhibit R-3 [Country Reports on Human Rights Practices for 1988, United States Department of State, February 1989.1, on page 552, says in part that these guerrilla groups are dedicated to the violent overthrow of the Salvadorean government. The report goes on to say that both the government forces and the guerrillas have been involved in human rights violation.

Exhibit C-6, which is the Amnesty International Report, 1988 [Amnesty International Report 1988, Amnesty International Publications, London.], on page 111, refers to the state of siege which has existed in El Salvador since March 1980. on page 112 of the same report, it is stated that there have been killings or disappearances of individuals carried out by government death squads, which the report suggests may be linked to the army.

Exhibit C-7 consists of three pages of newspaper reports. They basically confirm what the claimant has stated about conditions in El Salvador. The reports say that there are human rights violations occurring in El Salvador. Also, according to the reports some of these violations have been carried out by government forces, and some have been carried out by guerrilla groups.

To recapitulate the evidence provided by the claimant, it is clear that he did not object to serving in the armed forces of El Salvador. It is also clear that he objected to shooting the guerrillas who are also Salvadoreans. But, more particularly, he objected to the arresting and torturing of civilians. while he was not involved in the torture of these civilians, he said that he knew when he took them to the military barracks that the civilians would be tortured. He further said that he himself would be tortured and killed if he did not obey orders.

Finally, when he realized that he was not going to be discharged from the army, and that he would not receive his identity papers, he deserted while on leave. In my view, this is the act of an individual who could not abide the human rights abuses that he witnessed and heard about from his friends. In my opinion the claimant, when he deserted, made a political statement. That statement was that he opposed the government's actions. The government in turn perceived that the claimant was now opposed to the government and, as the evidence indicates, the claimant would be regarded as a supporter of the guerrillas and therefore be opposed to the government.

As stated earlier, the claimant deserted the army and fled El Salvador. Paragraph 167 of the United Nations Handbook, which deals with deserters and persons avoiding military service, says, in part:

Fear of persecution and punishment for desertion or draft evasion does not in itself constitute a well-founded fear of persecution under the definition. Desertion or draft evasion does not on the other hand exclude a person from being a refugee and a person may be a refugee in addition to being a deserter or draft evader…

Paragraph 169 adds, in part:

A deserter or draft evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership in a particular social group, or political opinion. The same would apply if it can be shown that he has a well-founded fear of persecution on these grounds above and beyond the punishment for desertion.

The claimant's evidence, and this is supported by most of the exhibits, is that he, like others who return to El Salvador, probably would be tortured and perhaps killed. The claimant further said that even if he was not killed, his body would be "wrecked" because of the many broken bones from the beatings to which he would be subjected. In my opinion, it is reasonable to conclude that such punishment would be more in the form of persecution than prosecution for military desertion.

Paragraph 171 of the Handbook refers, in part, to the condemnation by the International Community of certain types of conduct by governments. The testimony of the claimant, and the exhibits, manifestly makes it clear to me that the torture and killings of civilians by both the government forces and the guerrilla forces are clear violations of human rights. In my opinion punishment of the claimant by the government of El Salvador and the type of punishment for desertion from the army constitutes persecution.

Paragraph 51 of the United Nations Handbook says, in part:

…it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution ...

It is clear from the evidence that there are serious human rights violations in El Salvador. It is clear also from the evidence that the claimant, by deserting the army, believes that there is a reasonable chance that his life will be threatened if he returns to El Salvador. Again, it is clear from the evidence that the government may believe the claimant to be allied with the guerrillas who are politically opposed to the government of El Salvador. That guerrilla group, in my opinion, is a particular social group opposed to the Salvadorean government.

The claimant has demonstrated by the evidence presented at the hearing that he has both a subjective and an objective fear of returning to his country. In my opinion he has a well-founded fear of persecution for political reasons and membership in a particular social group. These are two of the reasons described in section 2(1) of the Immigration Act.

Therefore, pursuant to section 69.1 of the Immigration Act', it is my determination that the claimant is a Convention refugee. Section 69.1 of the Immigration Act requires that both the claimant and the minister receive a written notice of its decision. That notice was sent on 4 January 1990.

Dated at Calgary, this 5th day of April, 1990.

"F. W. Wright"

DISSENTING REASONS:

I have read my colleague's reasons and with regret, I find that I cannot agree with the determination.

The evidence adduced into the record is that the claimant, while on leave from the El Salvadorean military, deserted his unit in January 1986, his motive being that he had completed his two years of military service and that he was unable to retrieve his personal papers because his commandant wanted him to remain in military service. Consequently he did not receive a discharge from military service.

The claimant remained in his country for a few days, and after a conversation with his family, he decided to leave El Salvador. He sojourned to Mexico, where he remained until June 1986; then he travelled into the United States. He worked at different jobs from June 1986 until may 1989. He did not make a Convention refugee claim in Mexico or the United States in these three years.

The claimant arrived at Coutts, Alberta, on May 18, 1989; it was there that he formed the intention to make a claim for Convention refugee status to the Canadian Immigration authorities. He made his claim to be a Convention refugee later that day at Edmonton, Alberta.

His claim for recognition as a Convention refugee is based on a well-founded fear of persecution for reason of his political opinion and membership in a particular social group.

The evidence adduced indicates that, in 1983, the claimant was conscripted into the military service of El Salvador. He did not object to military service and was aware of what the army was doing to the civilians in his country. He stated that he performed the mandatory two years of military service and that he continued in the military service after the mandatory two years. He stated that he was loyal to his country.

The claimant testified that while performing his military service he was in combat, fighting against the guerrillas. He also testified that he was trained for a "special group" assignment. His duties were to search out, from a list with addresses, individuals from the civilian population. The "special group" that consisted of five to six men, would locate these individuals, interrogate them and take them as prisoners. If the individuals resisted, they were beaten and some were killed. (Page 6 of the transcript.] Also, those taken as prisoners would be taken back to the barracks where they were made to talk through being tortured; and sometimes killed. [Exhibit C-3, the Personal Information Form, page seven, question number 29.1 "They were made to disappear, they were murdered." [Page 13 of the transcript.]

These "special group" units consisting of five or six men can be characterized as "hit squads" and have been known as "death squads" in El Salvador, who were terrorizing the civilian population and who can be characterized as agents of persecution.

Exhibit R-1, [Overview on El Salvador, IRBDC, Nov. 28, 1988. page 6, states that:

… Extrajudicial killings, reportedly the work of members of right wing "death squads", which formerly accounted for hundreds of killings monthly, decreased slightly in 1986-87, but appear to be on the rise again. The most recent Americas Watch Report, states that many observers feel that the levels this year (1988) represent a return to those of the early 1980's .... (underlining is mine) Exhibit C-6, [Amnesty International Report 1988, Amnesty International Publications, London.] page 111, states that:

There were arrests of suspected government opponents, some of whom were reportedly tortured, subjected to severe psychological pressure or extrajudicially executed and some of whom "disappeared" while in custody. victims included trade unionists and members of cooperatives; human rights workers; former prisoners; refugees who had voluntarily returned to El Salvador, particularly from Honduras; and church and relief workers assisting them.

The so-called "death squads" -- official personnel acting in plain clothes under the direction of superior officers - - re-emerged in the course of the year. They issued public lists threatening particular individuals with death and claimed responsibility for the "disappearances" and killing of a number of suspected critics or opponents of the government....

… Other killings or disappearances which local human rights groups attributed to the government were carried out in "death squad" style by heavily armed men in plain clothes who abducted their victims in the presence of witnesses or shot them in the streets...

Exhibit C-7, [The Globe and Mail, October 26, 1988. International, page A5.] states:

Right wing death squads have abducted, tortured and killed hundreds of Salvadoreans in the past 18 months and have often beheaded the victims to spread fear, Amnesty International said today....

The London-based human-rights organization said the killings were carried out by plain clothes gunmen and by uniformed police and military units with the apparent acquiescence of the state...

… The Amnesty report was based on testimony from families of victims, witnesses, former death-squad members and a few survivors left for dead by their would-be killers.

"Killings by these squads are now the most alarming aspect of the human rights situation in the country," it said. "Victims are customarily found mutilated, decapitated, dismembered, strangled or showing marks of torture or rape...."

…"The death-squad style is to operate in secret but to leave mutiliated (sic) bodies of victims as a means of terrifying the population. The ordinary citizen has no protection. There can be no recourse to the police or military when they themselves carry out death-squad killings."

Several former members of death squads, many now living in hiding in the United States, told Amnesty the squads were drawn from specially trained police units, the Treasury Police and the National Guard.

The testimony of the claimant is supported by the documentary evidence that "special groups", of which he was a member, were trained and did carry out terrorist criminal acts against the civilian population. The documentary evidence indicates that the height of this act was in the early 19801s, which was during the time that the claimant was in active duty with his "special group" in the military. By the claimant's evidence, his own admission, he "did participate and did carry out the orders of his superior officer". [Page 5 of the transcript.]

The claimant testified that he was present and participated in these violent acts of human rights violations against the civilian population of El Salvador. He testified that he himself did not kill anyone. He testified that neither did he attempt to stop these violent human rights violations nor did he complain about these violent acts to his superiors, or for that matter to anyone else.

Reference is made to documentary evidence filed by the claimant, Exhibit C-3, the Personal Information Form (page seven, question number 29); a statement regarding his claim to refugee status, paragraph three, outlining the claimant's obligation while with this "special group" in the El Salvadorean military, which reads:

…One of the obligations that I was often required to be involved in, was to investigate civilians who were identified as members of the guerrilla movement. Our unit would be ordered to move into a particular town or city, and we would be split into groups of five or six soldiers and told which homes we were to attend at and the actions we were to take. Sometimes we were told to go in and terrorize the people in order to get them to give us names and information with respect to those suspected of guerrilla activities. other times we were given specific names and addresses. We would enter these homes, and if we were ordered to do so, we would beat the people whom we found in the homes. We often arrested these people and returned them to the base, where they were tortured and sometimes killed....

The claimant testified that the actions of the "special group" and his own personal actions against the civilian population of his country was wrong. He testified that these actions were a crime and could be characterized as a crime against the civilian population of his country and a violation of human rights.

This evidence is that of the claimant, viva voce, while under oath and by way of an executed declaration in Exhibit C-3. This evidence cannot be ignored.

For a claim to succeed there must be evidence that the claimant has a well-founded fear of persecution for ONE of the reasons in the definition of a Convention refugee as defined under section 2(l) of the Immigration Act. [As enacted by R. S. C. 1985 (4th Supp.), c.28 s.1.]

The Act does not define a well-founded fear of persecution, but in Rajudeen [Rajudeen v. M. E. I. (1984), 55 N. R. 129 (F. C. A.).] the Federal Court of Appeal at page 134 said, in part, that ordinary dictionary definitions may be considered.

The court also said, on the same page:

…This court as well as the Supreme Court of Canada has made reference in a number of cases to the subjective and objective components necessary to satisfy the definition of Convention refugee. The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear

In this case, in my view, there is no objective basis for a well-founded fear of persecution.

While past persecution is not necessary for the recognition of Convention refugee status, it can assist in the determination. There was no evidence adduced to demonstrate or establish that the claimant had been mistreated in any way while in the service of the military or otherwise. Nor was there any evidence that the claimant had been persecuted.

The purpose of recognizing persons as Convention refugees is to protect those persons who are in genuine need of protection by reason of persecution for one of the five reasons in the definition stemming from their government's inability or unwillingness to protect those persons from agents of persecution.

I am not suggesting that deserters, draft evaders or conscientious objectors cannot under certain circumstances be recognized as Convention refugees; however, they do not as such fall under the definition of a Convention refugee and each case should be assessed on its own merits.

In this case, the evidence is that the claimant was trained to carry out human rights violations against the civilian population in his country of El Salvador. He can be said to have been a member of the "special group" in the military service, which can be characterized as the "death squads" in El Salvador.

In my view, the claimant is not in genuine need of protection. What the claimant fears is prosecution not persecution for violation of an ordinary law of general application, desertion, while in military service.

The evidence indicates that there are serious reasons for considering that the claimant has committed a crime against humanity, the civilian population of El Salvador, and is guilty of acts contrary to the purposes and principles of the United Nations.

Therefore, in my view, Section F(a) of Article 1 of the United Nations Convention Relating To The Status of Refugees, which reads:

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; (underlining is mine)

should be applied in this case.

It is my view that the claimant took part and violated the "Universal Declaration of Human Rights", [The International Bill of Human Rights, United Nations, New York, 1978, reprinted by Human Rights Program, Department of Secretary of State, Ottawa, Canada, 1980.1 Article 5, which reads:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment....

And Article 9, which reads:

No one shall be subjected to arbitrary arrest, detention or exile....

The evidence of the claimant was that he did arrest, detain and deliver for further torture civilians of the El Salvadorean population.

The Handbook[3] states:

"Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan..."

The International Military Tribunal also accepted that crimes against humanity could be committed both by persons acting as organs of the state and by individuals in their private capacity. Such crimes remained crimes whether or not they were tolerated or encouraged by the state and whether or not they violated domestic law. Thus "a person otherwise guilty of a crime against humanity cannot effectively plead that his act was legal under the domestic law", [memorandum of Secretary-General, Doc. A/Cn. 4/5 of 3, March 1969, p. 69.1 page 3.

The citation[4]4, page 4, further states:

crimes against humanity. "All other inhuman acts committed against any population, or against individuals on social, political, racial, religious or cultural grounds, including murder, deportation, extermination, persecution and the mass destruction of their property....

Citation, [see citation above] page 6, further states:

Where a refugee claimant has committed an act of an excludable type on orders of a superior, this will not generally absolve the person of responsibility for the Act ....

In my view, the claimant is not absolved from the performance of the crimes he has committed against the civilian population by suggesting that he followed orders of the sergeant in charge of the "special group" he was assigned to.

The claimant should not be shielded by the definition of a Convention refugee under Canadian law and be saved from answering for his violent human rights violations that his evidence indicates he has committed, been a witness to and has been a party to.

In my opinion, there is no "reasonable chance" as in Adjei, [Adjei v. Canada (M. E. I.) (1989), 57 D. L. R. (4th) 153, 7 Imm. L. R. (2d) 169 (F. C. A.).] that the claimant would be persecuted if he was to return to his homeland. What he would be subjected to is prosecution for deserting his army unit and for violating a law of general application as in Musial. [Musial v. M. E. I., (1982) 1 F. C. 290, 38 N. R. 55 (C.A.).]

In my opinion, the claimant should be excluded from the definition of a Convention refugee under the "schedule"; Section F(a) of Article 1 of The United Nations Convention Relating To The Status Of Refugees.

Therefore, it is my determination that the claimant does not meet the definition of a Convention refugee as defined under section 2(l) of the Immigration Act, and is not a Convention refugee.

Dated at Calgary, Alberta, this 5th day of April 1990.

"D. J. Frunchak"

 


 



[1]Note 1

Section 2 (1) of the Immigration Act, reads:

2. (1) "Convention refugee" means any person who

PANK 7 OF 9, PAGE 4 OF 31, DB CRDD

(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i)is outside the country of his nationality and is unable or, by reaon of that fear, is unwilling to avail himself of the protection of that country, or

(ii) not having a country of nationality, is outside the country of his former habitual residence and

(b) has not ceased to be a Convention refugee by virtue of subsection (2)…

[2]Note 2

Office of the United nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1988.

[3]Note 3

Handbook on Procedures and Criteria for Determining Refugee Status, January 1988 (the Handbook). Annex V excerpt from the Charter of The International Military Tribunal, Article 6, page 88.

[4]Note 4

No. 6 Legal project, UNHCR branch office in Canada, Article 1F (a) of The 1951 Convention war Crimes and Crimes Against Humanity; Ottawa, 18 September 1989.

Copyright notice: This document is published with the permission of the copyright holder and producer Immigration and Refugee Board of Canada (IRB). The original version of this document may be found on the offical website of the IRB at http://www.irb-cisr.gc.ca/en/. Documents earlier than 2003 may be found only on Refworld.

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