Mendez-Leyva v. Canada (Minister of Citizenship and Immigration)

  • Author: Federal Court of Canada, Trial Division
  • Document source:
  • Date:
    24 May 2001

BETWEEN:

ISIDRO MENDEZ-LEYVA

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

TREMBLAY-LAMER J.:

[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board), dated August 4, 2000, which determined that the applicant was not a Convention refugee.


[2] The applicant is a 29-year-old citizen of Mexico, who claimed Convention refugee status based on political opinion.

[3] The applicant was a collaborator of the Mexican guerilla group the EPR. His collaboration included providing information about government corruption to this organization and transportation of its members to their "missions" (on six occasions).

[4] The applicant alleged that he was kidnapped and tortured by the Judicial Police (JP) on October 17, 1997, after they discovered that he was responsible for giving Secretaria de Educacion Publica's (SEP) classified documents to the EPR.

[5] He was able to escape from these officers and eventually arrived in Canada on December 28, 1997, and claimed Convention refugee status on July 16, 1998. The Board rejected the Convention refugee claim on August 4, 2000, on two grounds.

1. Exclusion

[6] The Board determined that the applicant was excluded from the protection of the Convention, based on Article 1(F)(a) of the Convention.


[7] The Board found that the applicant had voluntarily joined the EPR, notwithstanding his knowledge that the EPR had killed people, before and after he joined the group.

[8] The Board determined that the applicant, by acting as a driver, had personally participated in the activities of a group involved in terrorism, with full knowledge, that people would be killed as a result of the EPR's actions.

[9] The Board found that the applicant was part of an organization that committed acts of terrorism, on a continuous basis, as part of its raison d'être. The Board noted that the EPR had opted for a "hit-and-run" strategy of armed attacks against police stations, military installations and government buildings; had conducted small-scale attacks in several states, mostly against Mexican military and police outposts, public buildings, and power stations, and had killed at least 17 persons, including several civilians.


[10] Given all of the above, the Board determined that the applicant had a shared common purpose with the EPR. The Board further determined that the applicant had, at the least, actively aided the EPR in the commission of crimes against humanity and, therefore, as an accomplice, could be held responsible for the crime. The Board further found that, as an accomplice, the applicant was as culpable as the EPR.

2. Inclusion

[11] The Board found that due to insufficient credible or trustworthy evidence, there was not a reasonable chance or a serious possibility that the applicant would be persecuted if returned to Mexico, by reason of any of the grounds set out in the definition of "Convention refugee".

[12] The Board found that the entire story about his "dramatic" escape from the JP's officers too contrived to be true. The Board found it implausible that, notwithstanding the severely weakened physical condition that he and his friend were in, they were able to overpower the heavily armed officers who were transporting them, push two officers off the heavily guarded vehicle that they were riding in, run away from the remaining four armed officers who were pursuing them, walk three kilometres, and take a public bus to the nearest town without being detected. The Board also found it even more implausible that, allegedly, the applicant and his friend were handcuffed.


[13] The Board noted an inconsistency between the applicant's description of his detention and the medical report provided by Dr. Claudio Borgono who examined him and concluded that the applicant is suffering from post-traumatic stress disorder. The applicant described the detention as taking place in a 24 hour period whereas the report stated that the applicant was "subjected to approximately 2-3 days of torture in October, 1997."

[14] The Board also noted that the applicant took almost eight months after his arrival in Canada before claiming Convention refugee status. The Board rejected his explanation that he did not know Canadian law governing the status of refugees, given that he is a lawyer who allegedly left Mexico to seek international protection outside his country.

[15] The Board found that this was yet another occasion when the applicant was purposely misleading the panel, taking into consideration the fact that, within less than one month of his arrival in Canada, the applicant registered his own business in Ontario (Mendez Law Office) and had obtained two credit cards, from two separate financial institutions, in Canada.

[16] This contradicted, in the Board's opinion, his statement before the Senior Immigration Officer who interviewed him at the port of entry, that he was coming to Canada for a vacation only. This further contradicts his statement in viva voce testimony to the effect that he purposely came to Canada to flee persecution in Mexico.


[17] The Board found that there was insufficient credible, reliable and trustworthy evidence to make a positive determination of his claim.

APPLICANT'S SUBMISSIONS

1. Exclusion

[18] The applicant submits that the Board erred in holding that the applicant was an accomplice in crimes against humanity. There was no evidence whatsoever that the EPR's members transported by the applicant, or otherwise assisted by him, committed any crimes. Therefore, the Board could not come to such a finding based on the evidence.

[19] There was no evidence that the weapons carried by the EPR's members transported by him were used in the commission of a crime against humanity. Even if the weapons were used in combat against government soldiers (of which there was no evidence either), this would not constitute a crime against humanity.


[20] The applicant notes that the only evidence concerning EPR's criminal activity referred to by the Board was that the EPR "has killed at least 17 persons, including several civilians" (Intelligence Resource Program, August 8, 1998, Applicant's Record, p. 61-62).

[21] There was no connection between the deaths of these civilians and anything that the applicant or his EPR's contacts did. The Board did not make a finding that any of the EPR's members transported by the applicant were involved in any of those killings, or any other crimes, nor could such a finding have been made on the evidence.

[22] Further, there was no evidence that the applicant committed crimes against civilian population in widespread, systematic fashion, as the definition of "crime against humanity" requires, either as a principal or an accomplice. In addition, there was no evidence that the EPR committed killings of civilians in a manner or on a scale that is required to constitute "crimes against humanity".

[23] The applicant argues that the Board failed to identify any specific crime in which the applicant participated. The Board incorrectly found the applicant to be an accomplice in the EPR's alleged "crimes against humanity" in general.


2. Inclusion

[24] The applicant submits that the Board displayed zeal in finding that he was not credible, as evidenced by its repeated and gratuitous use of the word "dramatic" as well as the word "sensational" to describe the escape. The Board misconstrued or disregarded parts of the evidence, or came to a finding that was perverse. There was nothing implausible about the manner of escape.

[25] The applicant submits that the Board's finding regarding the inconsistency between his description of the detention and the medical report provided by Dr. Claudio Borgono also displayed an "over-vigilant" and "microscopic" examination of the applicant's evidence.

[26] The applicant argues that the Board erred in relying on a discrepancy in the facts of the claim as related in a medical report. The report was not adduced for purposes of corroboration of the facts, but for purposes of establishing the medical diagnosis itself. The alleged discrepancy in the report does not have any bearing on the validity of the diagnosis of post-traumatic stress disorder.


[27] The applicant submits that the Board's finding on "inclusion" cannot be upheld on the basis of delay in the making of the claim alone. It is further submitted that it was unreasonable for the Board to take into account the applicant's misrepresentations at the port of entry, to the effect that he only wanted to enter Canada as a visitor. His evidence was that he had no knowledge that one could claim refugee status at the port of entry.

[28] Further, it was unreasonable to reject his credibility with respect to the events in Mexico on the basis of a "propensity for misleading authorities in Canada with regard to his purpose for coming to Canada."

[29] Even though the applicant is a lawyer in Mexico, it is submitted that such was not a reasonable basis on which to reject his explanation that his delay was due to his lack of knowledge of Canadian law governing the status of refugees.

RESPONDENT'S SUBMISSIONS

1. Exclusion

[30] Considering the Board's finding that the EPR has committed acts of terrorism, on a continuous basis, as part of its raison d'être, the respondent argues that the applicant's complicity in "crimes against humanity" is presumed, by being a member of an organization which is principally directed to a limited and brutal purpose.


[31] In addition, the respondent alleges that the EPR committed crimes against humanity by continuously killing civilians as part of its systematic attack on the Mexican government. The respondent also notes that the applicant had knowledge of the EPR's violent activities, provided classified documents to the EPR, acted as a driver for this organization, and at least on one occasion, strongly believed that the EPR's members he was transporting were carrying arms.

[32] Therefore, the respondent argues that the applicant's complicity in "crimes against humanity" is presumed, by having knowledge of the organization's violent activities yet participating in the organization, and sharing a common purpose with the organization.

2. Inclusion

[33] It is submitted that the Board was under no legal obligation to consider or determine whether the applicant might be included in the definition of "Convention refugee" but for the fact that there are serious reasons for considering that he fell within the parameters of the exclusion clause found in Article 1(F)(a) of the Convention.


[34] The respondent submits that the Board's decision is based on its findings of fact, in particular on the applicant's credibility; that these findings were not made in a patently unreasonable manner, and therefore this Court should not interfere with the decision.

[35] The respondent submits that it is proper and reasonable for the Board to decide adversely with respect to the applicant's credibility on the basis of contradictions and inconsistencies in his story, or on the basis that it is simply implausible.

ISSUES

Did the Board err by excluding the applicant under Article 1(F)(a) of the Convention ?

Did the Board base its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it?

ANALYSIS


[36] The characterization of whether an act falls within the definition of a "crime against humanity" is a question of law and, accordingly, the standard of review is correctness (Gonzalez v. M.C.I. (1994), 24 Imm. L.R. (2d) 229 (F.C.A.); Pushpanathan v. M.C.I., [1998] 1 S.C.R. 982).

[37] The definition of "Convention refugee" excludes "any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof [...]" (subsection 2(1) of the Immigration Act, R.S.C. 1985. c. I-2).

[38] Subsection F(a) of Article 1 of the Convention states:

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 [...].

[39] One of the instruments drawn up to make provisions in respect of crimes against humanity is the London Charter of the International Military Tribunal (Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis) [82 U.N.T.S. 279]. "Crimes against humanity" are defined in Article 6 of the Charter as follows:

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.


[40] Article 6 of the London Charter also provides for a definition of the persons included in the commission of war crimes and crimes against humanity:

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.

[41] The Federal Court of Appeal has previously considered the extent of participation required for the inclusion of a person as an "accomplice" to a crime against humanity.

[42] The Court has held that complicity can be established by mere membership in an organization, which is principally directed to a limited and brutal purpose (Ramirez v. M.E.I., [1992] 2 F.C. 306 (F.C.A.).

[43] When dealing with membership in an organization the first step is to look at the type of organization. If the main purpose of the organization is achieved by means of crimes against humanity or war crimes, membership is usually sufficient to establish complicity (Nejad v. M.C.I. (1994), 85 F.T.R. 312 (F.C.T.D.); Saridag v. M.C.I. (1994), 85 F.T.R. 307 (F.C.T.D.).


[44] Here, the only evidence referred to by the Board to support its finding that the EPR is "an organization that committed acts of terrorism, on a continuous basis, as part of its raison d'être", reads as follows:

The Partido Democratico Popular Revolucionario (PDPR) and its military wing, the Ejercito Popular Revolucionario (EPR - Popular Revolutionary Army) are active in Mexico. The self-­proclaimed Popular Revolutionary Army (EPR) unveiled itself in the southwestern Guerrero State on 28 June 1996 during a ceremony marking the anniversary of a state police massacre of local peasants. The EPR has conducted small-scale attacks in several states, mostly against Mexican military and police outposts, public buildings, and power stations. The group has killed at least 17 persons, including several civilians. The Zedillo government characterized the EPR as a terrorist group.

Intelligence Resource Program, August 8, 1998, Applicant's Record, p. 61.

[45] I do not find that this evidence can support the conclusion that the EPR is an organization with a limited and brutal purpose. The EPR is documented as engaging in violent acts (but not necessarily crimes against humanity), from time to time, to achieve political ends. Mere membership in an organization that commits abuses from time to time is not sufficient to meet the required degree of complicity in the commission of a crime against humanity, as stated by the Federal Court of Appeal in Ramirez, supra (at 317):

What degree of complicity, then, is required to be an accomplice or abettor? A first conclusion I come to is that mere membership in an organization which from time to time commits international offences [war crimes or crimes against humanity] is not normally sufficient for exclusion from refugee status.

[...]

It seems apparent, however, that where an organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts. [Emphasis added].


[46] The Court has also held that having knowledge of the organization's violent activities, yet participating in the organization, and sharing a common purpose with the organization establishes the required degree of participation for the inclusion of the person as an "accomplice" to a crime against humanity (M.C.I., [2000] 3 F.C. 66 (F.C.A.).

[47] In the present case however, I am not satisfied that the Board considered whether the EPR's criminal activities amounted to crimes against humanity; the Board simply stated that it "committed acts of terrorism, on a continuous basis, as part of its raison d'être", without referring to other evidence.

[48] In Sivakumar v. M.C.I., [1994] 1 F.C. 433 (F.C.A.), the Federal Court of Appeal held that there needs to be an additional legal requirement for crimes to be considered as "crimes against humanity" (at 442-43):

There are certain additional legal requirements commonly accepted as part of the definition of crimes against humanity in the international sphere. Crimes against humanity must generally be committed in a wide-spread, systematic fashion [...]. As one Canadian commentator, Joseph Rikhof, supra, at page 30 has noted:

This requirement does not mean that a crime against humanity cannot be committed against one person, but in order to elevate a domestic crime such as murder or assault to the realm of international law an additional element will have to be found. This element is that the person who has been victimized is a member of a group which has been targeted systematically and in a widespread manner for one of the crimes mentioned.


[49] Here, the Board has not contemplated whether the persons who have been victimized by the EPR were members of a group which has been targeted systematically by this organization, in a widespread manner as opposed to crimes against isolated individuals.

[50] Consequently, I find that the Board erred in law in excluding the applicant from the protection of the Convention based on Article 1(F)(a) of the Convention.

[51] I will now consider the Board's determination with respect to the applicant's well-founded fear of persecution in Mexico.

[52] The applicant attacks the Board's findings of fact, in particular its negative credibility finding, submitting that they were made in a capricious and perverse manner. I disagree. The Board considered and weighed all of the evidence and offered detailed reasons with respect to the contradictions and implausibilities in the applicant's story. Thus, there are no grounds for this Court to intervene in this case.


[53] For these reasons, the application for judicial review is dismissed.

"Danièle Tremblay-Lamer"

J.F.C.C.

Toronto, Ontario

May 24, 2001


FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-4677-00

STYLE OF CAUSE: ISIDRO MENDEZ-LEYVA

Applicant

-and-

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

DATE OF HEARING: WEDNESDAY, MAY 23, 2001

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER

AND ORDER BY: TREMBLAY-LAMER J.

DATED: THURSDAY, MAY 24, 2001

APPEARANCES BY: Mr. Lehrer

For the Applicant

Ms. Hashemi

For the Respondent

SOLICITORS OF RECORD: VanderVennen Lehrer

Barristers and Solicitors

45 Nicholas Street

Toronto, Ontario

M4Y 1W6

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent


FEDERAL COURT OF CANADA

Date: 20010524

Docket: IMM-4677-00

Between:

ISIDRO MENDEZ-LEYVA

Applicant

-and-

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

AND ORDER

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