Aguilar v. Canada (Minister of Citizenship and Immigration)

Federal Court Reports
Aguilar v. Canada (Minister of Citizenship and Immigration) (T.D.) [2000] 4 F.C. 20 

BETWEEN:

MARIA EVA RIVERA AGUILAR

CARLOS ERNESTO HERNANDEZ RIVERA

REYNALDO JOSELITO HERNANDEZ RIVERA

Plaintiffs

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Defendant

REASONS FOR ORDER AND ORDER

BLAIS J.

[1] This is an application for judicial review of a decision by the Refugee Division on August 6, 1999 in which the Division concluded that the plaintiff was excluded from the scope of the Convention and that her sons were not Convention refugees.

FACTS

[2] The plaintiffs, a mother and her children, are citizens of El Salvador. The two sons, one of whom is a minor, arrived on November 30, 1998. The plaintiff arrived in Canada on December 28, 1998, and claimed refugee status the same day.

[3] The plaintiff was involved with the Frente Farabundo Marti para la Liberacion Nacional ("FMLN"). She took food, medication, shoes and sometimes weapons to various fronts occupied by the guerillas, as the latter could not come and get them in the town.

[4] Further, the plaintiff had responsibility for finding locations where the guerillas could hold their meetings.

[5] Following the peace accords, the plaintiff worked on making the FMLN a political party. However, after the 1994 elections the FMLN split up and other groups which operated as death squads began to appear.

[6] In 1995 the plaintiff was allegedly approached by these groups, who wanted her children to kill police officers and take their weapons. She refused to cooperate and was the subject of threats.

[7] The threats continued and her son Joselito had to leave school.

[8] On October 14, 1997 Carlos was injured by a shot in the leg, but the police were unable to take action as there were no witnesses.

[9] In May 1998, armed individuals went to her home when she was absent and left death threats. The plaintiff then took refuge with a friend. Next she hid with another friend in the village of Chinameca, ninety minutes away from the capital. She continued to travel every day to get to her work.

[10] In fall 1998, the threats began again and the plaintiff brought this fact to the attention of a human rights committee, which was powerless to act as the identity of the persons threatening her was unknown.

[11] In October 1998, at the end of Carlos' graduation ceremony, individuals forced the plaintiffs to leave, threatening them with death. They succeeded in escaping with the aid of the school principal.

[12] The children then left El Salvador and the plaintiff followed them in December 1998.

[13] They alleged they had a valid fear of persecution for their political opinions and membership in a particular social group, the family.

REFUGEE DIVISION'S DECISION

[14] The Division considered that the plaintiffs were not refugees but were victims of crime, corruption or a vendetta prevailing in El Salvador.

[15] The Division noted that the plaintiff was alleging that her sons were not able to identify the individuals who sought their participation, although the plaintiff testified that they were individuals

aged between eighteen and twenty. When this fact was put to her, she indicated that they were former guerillas. The Division did not believe this, noting that these youths were only twelve years old in 1992.

[16] The Division noted that the plaintiff had testified that persons who knew her had come to ask for her support. She later indicated that she was not able to identify the group, but thought it was the Maras, of Sombra Negra. She finally admitted that a sergeant of the civilian police had threatened her. The Division noted that this was a contradiction, as she had indicated that they were organized groups.

[17] The Refugee Division concluded that the plaintiff's testimony was contradictory, involved and difficult to reconcile. It noted that the fact that the plaintiff went to her work every day when she had fled from the capital seriously undermined her credibility. It concluded that the plaintiff's actions were inconsistent with those of a person who feared for her safety.

[18] The Division noted that the facts showed that there was nothing to suggest that the plaintiffs' problems were connected with the FMLN. The documentary evidence showed that the soldiers had banded together in groups which were engaged in criminal activity.

[19] The Division considered that the plaintiffs were not refugees.

[20] After an exhaustive analysis, the Division considered the question of whether the principal plaintiff was excluded under the Convention.

[21] It considered that the plaintiff minimized her participation in the activities of the guerilla force in El Salvador. The plaintiff avoided answering questions concerning the basis of her membership and her knowledge of various activities of the FMLN.

[22] The Division indicated that the plaintiff had responsibilities which required trust from the leaders: she brought food and weapons, collected money outside and found safe places for meetings.

[23] The Division then considered the activities of the FMLN and characterized them as terrorists. It concluded that the plaintiff was excluded from the definition of a refugee.

PLAINTIFFS' ARGUMENTS

[24] The plaintiffs argued that the Refugee Division did not take all the evidence into account and did not ask itself the right questions. The Division made no reasonable effort to determine whether the criminal acts and conduct were political in nature. Further, it failed to analyse the concepts of subjective and objective fear of persecution.

[25] The plaintiffs alleged that the Refugee Division misinterpreted the evidence and, even more obviously, did not report the facts related accurately. By finding that the plaintiff took weapons to the FMLN on several occasions, the Division entirely distorted the question.

[26] The plaintiffs alleged that neither their testimony nor the evidence presented supported the Refugee Division's conclusions. They maintained that the plaintiff was not a member of the FMLN.

[27] The plaintiffs maintained that the Division took only the negative factors into account. The lack of credibility was justified only by a version of the facts formulated by the Refugee Division.

[28] The plaintiffs submitted that the Division did not take into account the fact at the time of the plaintiff's humanitarian collaboration the country was going through a civil war, and today the FMLN is a legal political party.

DEFENDANT'S ARGUMENTS

[29] The defendant submitted that so long as there is evidence allowing the Refugee Division to arrive at such a conclusion, as there was here, this Court cannot substitute its own assessment of the facts for that of the Refugee Division.

[30] The defendant noted that the Division found the plaintiff's testimony contradictory. He pointed out that the plaintiff's actions in going to work each day strongly contributed to undermining the validity of her claim.

[31] The defendant submitted that the plaintiffs did not show that the Division's decision could not be based on the evidence submitted.

[32] The defendant admitted that the evidence did not show that the plaintiff herself personally committed crimes against humanity. However, it submitted that the evidence showed that the FMLN had engaged in terrorist activities and that the plaintiff helped it with full knowledge of the situation. The defendant alleged that the Division's conclusion that the plaintiff was an accomplice was not unreasonable.

ANALYSIS

[33] In Boye v. Canada (M.E.I.) (1994), 83 F.T.R. 1, this Court indicated:

The jurisprudence has established the standard of review in cases of this nature. To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal's impugned finding relates to the credibility of a witness, the court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, his demeanour, frankness, readiness to answer, coherence and consistency in oral testimony before it.

[34] The Division, referring to the transcript several times, noted in its reasons that the plaintiff's testimony was contradictory: at one point she said she was not able to identify the persons threatening her and at another that they were persons whom she knew, and finally that it was a police sergeant.

[35] The Division concluded:

[TRANSLATION]

The tribunal can only find that the female claimant's testimony is contradictory, involved and difficult to reconcile.

[36] This finding of fact is within the Division's jurisdiction and is firmly based in the plaintiff's testimony.

[37] Further, it is not patently unreasonable for the Division to be surprised that the plaintiff, though living in hiding, continued to work in the capital every day. It found these actions at odds with a fear of persecution.

[38] In Huerta v. M.C.I. (1993), 157 N.R. 225, the Court of Appeal held that actions prior to the alleged persecuting incidents could lead the Refugee Division to infer that there was no fear of persecution.

[39] The plaintiffs did not persuade the Court that the disputed findings of fact were patently unreasonable. The Division identified and noted the portions of the testimony supporting its conclusion.

[40] In Aguebor v. Canada (M.C.I.) (1993), 160 N.R.315, the Federal Court of Appeal explained:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.

[41] The Division was persuaded that the plaintiffs' problems were not of a political nature and that the association with the FMLN had no effect on the plaintiffs' present situation.

[42] Further, the documentary evidence showed that former soldiers were engaging in criminal activity in El Salvador. The Division concluded that the troubles were criminal in nature, not political. These findings were based on the evidence presented and this Court cannot intervene on this point.

EXCLUSION

[43] Section 2(1) of the Immigration Act defined what a refugee is, but also excludes certain persons from the Convention's definition:

Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.

Does not include any person to whom the Convention does not apply pursuant to section E or F of Article I thereof, which sections are set out in the schedule to this Act.

[44] Section F provides:

F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des 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.

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 . . .

[45] In Penate v. Canada (M.E.I.), [1994] 2 F.C. 79, after reviewing the applicable case law (Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306; Moreno v. Canada (M.E.I.), [1994] 1 F.C. 298; Sivakumar v. Canada (M.E.I.), [1994] 1 F.C. 433), Reed J. summed up the rules formulated:

1. The burden of proof which must be met by the Minister to demonstrate that the Convention does not apply to a given individual is less than the balance of probabilities. That is, there is no need for the person to have been convicted or even charged with an international offence. This follows from the wording of the text which requires only that there be "serious reasons for considering" that the individual committed an act of the type described. Alternatively, one could consider this requirement as a threshold question with respect to which the existence of the "serious reasons for considering" have [sic] to be proven on the balance of probabilities . . .

2. An individual who has been complicit in (an accomplice to) an act which is physically committed by another is as responsible for the offence as the person who physically committed the act. Thus, if there are serious reasons for considering that an individual has been complicit in the commission of an international offence that individual will be excluded from obtaining refugee status by operation of section F of Article I.

3. In order to be complicit in the commission of an international offence the individual's participation must be personal and knowing. Complicity in an offence rests on a shared common purpose.

The Ramirez, Moreno and Sivakumar cases all deal with the degree or type of participation which will constitute complicity. Those cases have established that mere membership in an organization which from time to time commits international offences is not normally sufficient to bring one into the category of an accomplice. At the same time, if the organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may indeed meet the requirements of personal and knowing participation. The cases also establish that mere presence at the scene of an offence, for example, as a bystander with no intrinsic connection with the persecuting group will not amount to personal involvement. Physical presence together with other factors may however qualify as a personal and knowing participation.

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 offenses have occurred but where the commission of such offenses is a continuous and regular part of the operation.

[46] In Gutierrez v. Canada (M.E.I.) (1994), 84 F.T.R. 227, MacKay J. listed the three criteria which the defendant must establish in order for the exclusion mentioned in section 1F(a) of the Convention for complicity cases to apply:

Essentially then, three prerequisites must be established in order to provide complicity in the commission of an international offence: (1) membership in an organization which committed international offences as a continuous and regular part of its operation, (2) personal and knowing participation, and in (3) failure to disassociate from an organization at the earliest safe opportunity.

[47] In Bazargan v. Canada (M.C.I.) (1996), 205 N.R. 282, the Federal Court of Appeal held that to be excluded it is not necessary to be a member of a terrorist group:

Membership in the organization will, of course, lessen the burden of proof resting on the Minister because it will make easier to find that there was "personal and knowing participation". However, it is important not to turn what is actually a mere factual presumption into a legal condition.

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., Mac Guigan, 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.

That being said, everything becomes a question of fact. The Minister does not have to prove the respondent's guilt. He merely has to show -- and the burden of proof resting on him is "less than the balance of probabilities" . . . -- that there are serious reasons for considering that the respondent is guilty.

[48] In excluding the plaintiff, the Division noted that the plaintiff had admitted being aware of the fact that the FMLN was committing terrorist acts. Her job was to enrol people and to provide the necessary logistic support, including weapons, while being fully aware that the FMLN was engaging in terrorist activity.

[49] Further, her function for seven years was to locate safe places so the guerilla leaders could hold their meetings in safety. The Division considered that this was a confidential role and that the plaintiff was trying to play down her role. This was a question of fact, as the Federal Court of Appeal pointed out, and as the judge of fact the Division had power to draw the conclusions and make the inferences which it did.

[50] The plaintiff did not persuade the Court that the Division erred. This application for judicial review is dismissed.

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[51] Counsel submitted no question for certification.

Pierre Blais Judge

OTTAWA, ONTARIO

August 16, 2000

Certified true translation

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

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FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT No.: IMM-4491-99

STYLE OF CAUSE: MARIA EVA RIVERA AGUILAR et al.

v.

MCI

PLACE OF HEARING: MONTRÉAL, QUEBEC

DATE OF HEARING: AUGUST 3, 2000

REASONS FOR ORDER AND ORDER BY: BLAIS J.

DATED: AUGUST 16, 2000

APPEARANCES:

JORGE COLASURDO FOR THE APPLICANT

FRANÇOIS JOYAL FOR THE RESPONDENT

SOLICITORS OF RECORD:

JORGE COLASURDO FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg FOR THE RESPONDENT

Deputy Attorney General of Canada