N. (Q.D.) (Re), Convention Refugee Determination Decisions

 

N. (Q.D.) (Re), Convention Refugee Determination Decisions [1992] C.R.D.D. No. 420 Nos. U91-07659, U91-07660, U91-07661

Immigration and Refugee Board of Canada
Convention Refugee Determination Division
Toronto, Ontario Panel: H. Maraj and B.L. Thomas In camera Heard: December 19, 1991 Decision: March 20, 1992 Nicaragua (NIC)--Negative--Males--Females--Agents of persecution--Change of circumstances in home country--Civil war--Civil and political rights--Detention--Exclusion clauses--Human rights--Human rights violations--Legal decisions--Military service Political opinion--War crimes.

Appearances:

Mary Ann Scott, for the claimant(s). Kevin Fainbloom, Refugee Hearing Officer.

REASONS FOR DECISION

The claimants xxxxxxxxxxxxxxxxxxxxxxxxxxx, xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx and xxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx, husband, wife and child, respectively, are citizens of Nicaragua. They came to Canada on August 1, 1991 and claim to be Convention refugees on the grounds of their political opinion and membership in a particular social group. At the hearing of their claims on December 19, 1991, the claimants were represented by Mary Ann Scott, Barrister and Solicitor. Kevin Fainbloom, Refugee Hearing Officer (RHO) assisted the panel. The proceedings were duly interpreted by an interpreter proficient in the Spanish and English languages. The husband was appointed the designated representative for the minor child. The issue before the Refugee Division is whether the claimants are Convention refugees as defined in section 2(1) of the Immigration Act [as enacted by R.S.C. 1985 (4th Supp.), c.28, s.1]. This definition reads in part:

"Convention refugee" means any person who

(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 the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country...

but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;

Section F of Article 1 of the Convention relating to the Status of Refugees reads in part 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;... [Schedule to Immigration Act, as enacted by R.S.C. 1985 (4th Supp.), c.28, s.34]

Xxxxxxxxxxxxxxx (hereinafter referred to as the claimant) and his wife testified, and a witness gave evidence on behalf of the claimants. Documentary evidence was produced on their behalves and by the RHO. The claimant was born on xxxxxxxxxxx, 1963 at Chinandega, Nicaragua. He attended school from 1976 to 1987. The claimant attended secondary school for three years, but did not complete his secondary school education. He served in the military from August 1983 to October 1989. He was married in July 1988, and his son, a claimant herein, was born in November 1988. Two years after joining the army, he became a member of the Sandinista Front of National Liberation (FSLN). He was promoted and assigned to the State Prison of Managua, known as the Chipote Prison. He was responsible for xxxxxxxxxxxx prisoners. In the performance of his duties, he discovered prisoners were kept in small cells, were poorly fed and badly treated. The cells were often in filthy condition. Some of these prisoners would be questioned by the commander and then taken back to their cells. Others would disappear. The claimant said he did not know what happened to them. The claimant said he denounced the poor treatment of prisoners at party meetings in 1985. He did so about four times. No improvement was made, and he sensed that he was not trusted. He was imprisoned in September 1986 when he threatened to go to xxxxxxxxx. In prison, he was placed in a cell with Contra prisoners. He received harsh treatment. After three months he was released. On release, he was demoted. He returned to his old job as security guard. The claimant was ordered in December 1986 to capture a person who was suspected of being a Contra. He refused, knowing that the Contra would be killed, and told his superior officer that was not his job. He was again imprisoned for disobeying this order for three months. As a continuation of his punishment, the claimant said that in March 1987, he was sent to San Jose de los Remates, located in the mountains. There he had to engage in combat against the Contras, or those suspected to be Contras, who were usually innocent he knew these peasants. He asked to be transferred because peasants were being massacred and told the squadron chief that he was ill. He was allowed to work as a security guard. The claimant said he became friendly with the squadron chief who told him that he had orders to kill him if he did anything wrong. After he heard this he became afraid. He felt one of his colleagues might kill him. He was not sent to fight but felt that had he remained, he would be ordered to kill peasants. In August 1987, he abandoned his post and returned to Managua. He was captured four days later by the DGSE (General Office of the Security of State). He was imprisoned for fifteen days in Capote Jail. After this, he continued to serve as a security guard, but kept a low profile. He did not leave the country because he feared reprisals would be taken against his family. The claimant said that he was refused permission to marry his wife because she was from a counter-revolutionary family. He was, however, not punished for marrying her. In August 1988, the claimant said he was ordered with other soldiers to capture four persons who had kidnapped a Soviet military attache. Among them was a boy sixteen years old. The military attache was rescued and his captors were arrested. They were taken to prison the same afternoon. The claimant said he was carrying weapons but did not participate in the capture of the kidnappers. His task was confined to searching vehicles. When he returned, he saw these four persons for the first time in jail. He went to rest after that. At 3:00 a.m. the following day, the claimant was ordered to go to the command post. When he got there, he was told he had been chosen with four others to execute these four prisoners. They were blindfolded and handcuffed. The claimant said he told the commander he would accompany them, but would not take part in the execution. The commander told him that as a member of the party, how could he be so weak in front of the enemy. He was told to board the jeep. When they arrived at the place of execution, which was along a road outside of the capital, the prisoners were told to run, and as they did so they were shot in the back of their heads. The claimant said he did not shoot. The commander took his rifle away and hit him with his fist and he fell back. The commander shot at his feet three times. He was handcuffed and taken into detention. He was imprisoned for about two to four weeks. Upon his release, the claimant said he requested a discharge from the army but his request was denied. They told him he would be a peril to the army as a civilian. About one year later, in September 1989, the claimant said he was accused of being a counter-revolutionary by the Sandinista Party, and sentenced to three months' imprisonment. At that time preparations for the 1990 elections had begun, and his sentence was reduced to fifteen days. After his release he again requested to resign, but his request was not granted. He was told the only way to leave the party was to die, otherwise he would be regarded as a traitor. While on a weekend pass, the claimant left Nicaragua. This was on October xx, 1989. The claimant said if he returns to Nicaragua, he would be killed by the Sandinistas, as a traitor. After he left Nicaragua, he contacted his sister who told him that his two brothers were arrested and kept for fifteen days. Both before and after the 1990 elections, the army went to his mother's home, looking for him. He was advised by his brother not to return to Nicaragua. In answer to questions by the RHO, the claimant testified that his commander gave the excuse that he was sick, and as a result he did not take part in fighting between the Sandinistas and Contras in the mountains. If he was killed in Managua, the army would not be able to say he was a war victim, but had he been killed in combat with the Contras, they would be able to say he was a war casualty, and that was the reason why he was sent to fight in the mountains. He said the reason why he was chosen to take part in the execution of the four prisoners was because the army wanted to test him. The claimant further testified in answer to questions by the panel, that when he was selected to capture the four persons who had kidnapped the Soviet attache, he did not object because he regarded this exercise as a mission of mercy. The incident was published in the media as "bandits killed". xxxxxxxxxxx, the commander, knew that he objected to the execution, and that he was imprisoned for desertion before. His selection for the execution showed that they were trying to get rid of him. Had he not participated, it would have been known all over the place. The commander who prevented him from serving in the mountains, gave the excuse that the claimant had a heart condition and spoke to one of the nurses who provided him with a certificate to this effect. The wife of the claimant testified that when she was dating her husband, she was not aware he had problems with the Sandinista Party. He did not inform her of these problems until they were married. She said she always advised him to keep quiet about this. Before coming to Canada, her husband told her the army was looking for him. He had problems with the authorities because her family was not in agreement with what the Sandinistas did. xxxxxxxxxxxxxxxxxxxxxxxxxx was called as a witness for the claimant. She said she was a friend of the claimant. She met the claimant in 1984 at the National Directorate xxxxxxxxxxxxxxxxx. She was a member of the Sandinista party. She was aware of his activities at work and knew he was in opposition to the things the Sandinistas did. He had ideological problems with the party. She was imprisoned for hiding information, and being involved in counter-revolutionary activities. In November 1988, when she was brought to the kitchen to give a helping hand, she met the claimant. He told her of his problems which were similar to hers. She said the claimant took a message to her family which was illegal. She never saw him again until they met at the Refugee Centre in Canada. She said there are many instances when those who were against the Sandinistas were killed on returning to Nicaragua. The panel has to consider the plausibility of the claimant's testimony. He joined the army in 1983. After two years, he became a member of the Sandinista party. while in this position and a guard at Chipote prison, he discovered the brutality and harsh treatment administered to prisoners. He knew prisoners were disappearing, but he was quick to say he did not know what became of them. We do not believe him. He was within the prison compound. He was transporting prisoners. He saw them disappearing. In the context of the civil war in Nicaragua, at that time, is it reasonable to conclude that the claimant did not know that these prisoners were murdered when they disappeared? We do not think so. The claimant said he objected at party meetings about the treatment given to these prisoners, and instead of remedial measures being taken, he himself had to undergo the hardships these prisoners were experiencing when he was imprisoned for three months. He was given an order by his commanding officer to capture a Contra which he bluntly refused to do, on the ground that he knew what would be the outcome if the prisoner was captured. It meant he knew that the prisoner would be killed if his story was true. For disobeying orders, he was again imprisoned. After his release, he was sent to serve in the mountains. He did not wish to participate in the conflict between the army and the Contras because he knew innocent peasants were being massacred by the army. The squadron chief told him that he was given instructions to kill him if anything went wrong. He befriended this officer and was able to pretend to be sick. He never took part in combat but instead did guard duties within the camp. If the officer was given instructions to kill the claimant if he did anything wrong, is it plausible that this officer would protect the claimant from active service, when military headquarters must have been observing the behaviour of the claimant? We do not think the squadron chief would risk his own reputation to protect the claimant, by deliberately seeking to have a medical certificate issued by a nurse stating that the claimant had a heart condition. If this information was divulged to headquarters, would the commander not jeopardize his own situation by failing to obey the orders given to him? Would the claimant who suffered from this heart condition be permitted to even keep guard duties from March 1987 to August 1987? Surely this would have been good grounds for having him discharged from the army. Instead, the claimant abandoned his position by leaving the protective custody of the squadron chief, thus exposing this officer to military investigation, if it were discovered that the claimant did not in fact suffer from a heart problem. The reason he abandoned this position was because he feared he would eventually be sent into combat against the Contras. We do not believe his story. The panel believes he did take part in the conflict against the Contras. The squadron chief would have compelled him to do so and would not have disobeyed the instructions he received from military headquarters. For abandoning his post, he received the light sentence of fifteen days, detention. At that time, assuming his testimony is true, he must have known that atrocities were being committed. However, he continued to serve until 1988, when the execution of the kidnappers took place. He stated he did not leave because he was afraid of reprisals against his family.

The claimant maintained that he was known to be a person who was against such atrocities. He complained about the harsh treatment prisoners were receiving, and refused to obey orders when he was asked to capture a Contra. He maintained he refused to participate in military action. All these acts of military indiscipline were allegedly known to the authorities, nevertheless he was selected to participate in the inhuman task of executing four prisoners, which required dedicated killers. We do not believe that with an alleged background of undisciplined service, he would have been selected for this execution. His selection indicated that he was a trustworthy soldier.

It took him one year after this assassination to leave his country. So here we have a person who was against the atrocities being committed against prisoners, yet remained in the army from 1983 to 1989. Our conclusion from the evidence is that the claimant knew of the atrocities that were being perpetrated by the army, he took part in them, and in particular in the last incident, he took part in the execution of those prisoners. In arriving at this conclusion, we adopt the dicta of MacGuigan, J.A. in Ramirez [Ramirez, Saul Vincent, v. M.E.I. (F.C.A., no. A-686-90), Stone, MacGuigan, Linden, February 7, 1992, p. 19-20], who in applying section F(a) of Article 1 of the Convention had this to say:

He was an active part of the military forces committing such atrocities, he was fully aware of what was happening, and he could not succeed in disengaging himself merely by ensuring that he was never the one to inflict the pain or pull the trigger....

The appellant was not an innocent by-stander: he was an integral, albeit reluctant, part of the military enterprise that produced those terrible moments of collectively deliberate inhumanity.

The testimony of the witness and that of the claimant's wife does not contain any evidence to avoid this conclusion. In the circumstances, the panel feels that the exclusion clause has to be applied because, in our opinion, there are serious reasons for considering that the claimant has committed a crime against humanity. Crimes against humanity are described in Article 6 of the Charter of the International Military Tribunal [Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1988, Annex V] as follows:

(c)Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

"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 Refugee Division finds that the claimant is not a person to whom the Convention applies for the above reasons. As the claims of the wife of the claimant and their child do not have any independent reasons for persecution, but are dependent on his claim, their claims also, cannot succeed unless it can be shown that there is a reasonable possibility they would face persecution on return to Nicaragua. Such a possibility does not exist in the changed circumstances in Nicaragua. The Refugee Division determines that the claimants xxxxxxxxxxxxxxxxxxxxxxxxxxxx, xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx and xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, are not Convention refugees. DATED at Toronto, this 20th day of March, 1992. "Heytam Maraj Concurred in by: "Barry L. Thomas"