Januario v. Canada (Minister of Citizenship and Immigration)

  • Author: Federal Court of Canada, Trial Division
  • Document source:
  • Date:
    8 May 2002

BETWEEN:

ALBERTO MIGUEL JANUARIO

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

HANSEN J.

Introduction

[1] This is an application for judicial review of the September 11, 2000 decision of the Convention Refugee Determination Division ("CRDD"). The applicant, Alberto Miguel Januario, claimed Convention refugee status on the basis of a well-founded fear of persecution by reason of his membership in a particular social group, namely, "young males fleeing persecution because of evasion from the army".


[2] The CRDD concluded that the applicant is excluded from the Convention refugee definition by reason of Article 1 F(a) of the United Nations Convention Relating to the Status of Refugees. The CRDD found that there are serious reasons for considering that the applicant had committed crimes against humanity. The respondent Minister participated at the hearing and made written submissions concerning the applicant's exclusion.

[3] The CRDD found that even if the applicant were not excluded under Article 1 F(a), there was insufficient credible or trustworthy evidence upon which to find he had a reasonable chance or serious possibility of being persecuted on any grounds set out in the Convention.

Background

[4] The applicant is a 30 year old citizen of Angola. He was forcibly conscripted into the Popular Movement for the Liberation of Angola ("MPLA") in 1990. The applicant states he declined a promotion to the rank of sergeant because it would have made it more difficult for him to escape from the army. He states he attempted to escape four times. Each time he was caught, he was beaten and placed on kitchen or laundry duty. In 1995, when the army was being demobilized, he finally escaped.


[5] After spending 17 months in hiding at home, the applicant joined the Angolan National Police ("ANP") where he became a prison guard in 1997. In 1998, he was transferred to regular police duties. As a prison guard, the applicant's duties included escorting prisoners to and from interrogations and trials. Occasionally, he was sent out with police squadrons carrying out crowd control. These police outings often entailed the beating and abuse of civilians, in which the applicant maintains he never participated. As a police officer, the applicant was sent out with other officers in search of suspected National Union for the Total Independence of Angola (UNITA) supporters. The other police officers shot at people trying to flee. The applicant states that he did not shoot at anyone. Because he did not shoot at those trying to escape, his colleagues did not want him to go out with them on subsequent raids. As a consequence, he was required to write a report.

[6] In the report, the applicant complained about the abuses being committed. This led to a meeting with the squadron chief and his superior. The squadron chief denied the allegation and told the applicant to keep his mouth shut. The applicant states he was knocked unconscious when the squadron chief broke his nose with a gun butt. When he recovered consciousness, police officers took him home and threatened him for having reported on their activities. Fearful for his life, the applicant fled Angola for Canada.

[7] When the applicant arrived at the Canadian port of entry, he was initially questioned by a summer student immigration officer with the assistance of a Portugese interpreter participating by telephone. Portugese is not the applicant's first language. During this interview, the applicant answered the following two questions on the Notification of Claim to be a Convention refugee in the affirmative:

32. Has person ever been associated or involved with an organization or movement that used, uses or advocates the use of armed struggle or violence to attain political, religious or social objectives?


34. In periods of either peace or war, has person ever been involved in the commission of a war crime or crime against humanity, such as willful killing, torture, enslavement or other inhumane acts committed against civilians or prisoners of war, or deportation of civilians?

[8] According to the summer student's notes, in response to a question regarding the nature of the force used, the applicant stated: "government wanted us to go to certain buildings where members of UNITA lived. We went at night and kicked people out". In answer to a question concerning the number of times he used his weapon, the applicant stated "once or twice, never harmed anyone, shot in the air, just shot to make people leave area".

[9] Because of the affirmative responses to questions 32 and 34, the interview was taken over by a senior immigration officer ("SIO") and a different interpreter, again participating by telephone. The SIO's notes refer to the earlier interview by the summer student and state "subject claimed he had administered torture to prisoners in prison as part of his job-hence no longer an RPU case. I took over and using another interpreter Bibi Russell confirmed all the previous information covered by the immigration officer assistant". The notes also indicate that the applicant "states that he actually tortured individuals under orders of his superior officers".


[10] At the CRDD hearing, the SIO testified he also asked the applicant question 34 to which he received an affirmative response. When he asked the applicant which of the acts described in question 34 he was referring to, the applicant stated "torture". The SIO did not ask any follow-up questions as to what the applicant had done that constituted torture. The SIO also testified that the applicant stated he had to get away from Angola because "he couldn't stomach the torture".

[11] At the hearing, the applicant denied telling the SIO he had committed torture and maintained the SIO must have misunderstood what he was saying. The applicant also entered into evidence an expert report prepared by Manuela Marujo concerning her assessment of his Portugese linguistic skills. Ms. Marujo concluded it was plausible that the applicant did not fully understand the meaning of the word torture when he arrived in Canada.

Decision under Review

[12] The CRDD stated it preferred the evidence of the SIO over the expert report. Further, in view of other "credibility problems" surrounding the applicant's evidence, the CRDD accepted the SIO's evidence concerning the applicant's admission that he had committed torture.


[13] In light of the documentary evidence, the CRDD found it was not plausible that after four or five failed attempts to desert from the MPLA, the applicant was beaten and put on kitchen or laundry duty. The CRDD noted the documentary evidence before it cast the MPLA as ruthless towards anyone perceived to be an opponent, and found that it would be more likely to beat or shoot those who attempt to desert.

[14] Although the applicant had witnessed beatings, rape, executions and extortion of money from civilians, he testified he had never tortured any UNITA soldiers or civilians he had captured. Nor had he been involved in any executions. The CRDD found it belied credibility that he had never participated in any violence against UNITA prisoners or civilians and was not involved in executions yet, by his own evidence, he had been offered a promotion to sergeant at the end of 1992. The CRDD found that the applicant was offered a promotion because he had performed his duties to the satisfaction of his superiors.

[15] The CRDD noted the ample documentary evidence regarding human rights abuses perpetrated by the MPLA including extra-judicial killing of unarmed civilians, rape, and the brutal treatment of prisoners or war.

[16] The CRDD found the applicant remained voluntarily in an organization which had engaged in human rights abuses. The panel noted that when the opportunity presented itself in 1991, the applicant failed to disengage himself from the MPLA, an organization he knew committed abuses against humanity. Thus, the CRDD found the applicant was complicit in the crimes committed by the MPLA.


[17] With respect to the applicant's work with the ANP, the CRDD found that the applicant "knowingly joined and remained in another government organization that regularly engaged in the brutal abuse of human rights". The CRDD noted the applicant's evidence regarding his role in the ANP and the ample documentary evidence concerning the ANP's responsibility for extra-judicial killings, rape, extortion and its use of torture while the applicant served on the force. The panel found that since he was transferred to active duty from his position as prison guard his performance must have satisfied his superiors. For these reasons, the panel found the applicant shared a common purpose with the ANP and, therefore, was complicit in the commission of crimes against humanity by the ANP.

Issues

[18] The applicant raised a number of issues concerning the CRDD's finding of complicity in the crimes against humanity committed by the MPLA. While I accept the applicant's submission that the CRDD's finding of complicity with respect to the MPLA does not withstand scrutiny, in my view, the determinative issues on this judicial review centre on the applicant's activities while he was a member of the ANP. Accordingly, these reasons will focus on the issues surrounding the applicant's membership in the ANP.

[19] The applicant submits:

1) the CRDD misconstrued the expert report prepared by Ms. Marujo.;

2) the CRDD erred in its complicity analysis; and


3) the CRDD failed to consider the defences of superior orders and duress.

Analysis

Issue 1: Did the CRDD misconstrue the expert report?

[20] As noted earlier, the applicant submitted the report of Ms. Marujo concerning her assessment of the applicant's Portuguese linguistic skills. In her report, Ms. Marujo considered the following question:

Is it plausible that Mr. Januario would not understand the meaning of the word "torture" at the time of his arrival in Canada?

[21] Based on listening comprehension, speaking and reading tests, she concluded:

The Portuguese word for torture is not a word used in the everyday vocabulary of someone like Mr. Januario whose language skills are below average. In my opinion, although his language skills are adequate to express basic thoughts and feelings, they are not sufficiently sophisticated to allow him, for example, to ask for clarification of a particular question or meaning of a less familiar word. Therefore, as a result of his limited fluency in the language, it is plausible that he did not fully understand the meaning of the word torture when he arrived in Canada.

[22] The applicant submits the CRDD misconstrued this report. In its reasons, the CRDD stated:

John Willoughby, the Senior Immigration Officer, testified that the claimant specifically told him that as a prison guard he was obligated to administer torture. The Immigration Officer added that when he asked the claimant what he meant by responding "yes" to question 34, the latter replied that he had to get away from Angola because he could not stand torture. Mr. Willoughby responded affirmatively when counsel to the claimant asked him whether the claimant specifically told him that he administered torture. When counsel raised the possibility that there may have been some confusion in the translation, the Senior Immigration Officer categorically denied this, and elaborated by saying that when he asked the claimant what he meant by answering question 34 positively, whether he meant "killing" or "torturing", the claimant replied "torturing". He further reiterated that the claimant "actually replied that he tortured individuals, and those words were actually recorded." The panel prefers the evidence of the Senior Immigration Officer over the opinion expressed by Mr. Manuela Marujo contained in Exhibit C-3 on this point.


When the claimant filled his Personal Information Form (herein "PIF"), he made no mention of his having tortured prisoners. On the contrary, he wrote in his narrative that while serving with the police, "the mistreatment of innocent suspects offended my conscience," and that he "gradually questioned [his] superiors about the activities which [he] witnessed." His questions allegedly brought about his problems with his superiors. The claimant also denied during the hearing that he had said to the Immigration Officers that he had engaged in torture. Instead, he testified that he had only told the Immigration Officer that he had been a prison guard. The panel accepts the Senior Immigration Officer's testimony and accords it full weight especially in view of the credibility problems pertaining to the claimant that emerged during the hearing.

[23] The applicant submits the CRDD's statement that it "prefers" the evidence of the SIO over the opinion expressed in the report implies that there is some contradiction in the evidence from the two sources. The applicant argues there is no contradiction between the expert report and the evidence of the SIO and that they address two different aspects of the evidence. The crux of the SIO's evidence is the applicant's admission of having engaged in torture. The report, however, speaks to the applicant's comprehension of the word torture. The applicant argues the report was premised on his having said torture when he answered question 34 and was introduced to demonstrate that he did not have the usual understanding of the word. Accordingly, his answer did not represent an admission of having personally committed torture.


[24] The applicant points out that the summer student's notes indicate he answered "yes" to question 34 but also indicate he denied any personal involvement in human rights abuses. As well, the SIO did not ask any follow-up questions of the applicant beyond whether he meant killing or torture in response to question 34. The applicant submits that his denial at the CRDD hearing of having told the SIO that he personally engaged in the use of torture is consistent with his statement to the summer student. The applicant maintains that there is no rational basis for the CRDD to have accorded more weight to the evidence of the SIO than to the report.

[25] The CRDD appears to have made two findings regarding the port of entry interviews. First, it accepted the SIO's evidence that there was no confusion due to interpretation. It is in this sense that the CRDD preferred the evidence of the SIO over that contained in the report. Second, the CRDD rejected the applicant's denial of having told the SIO he actually committed torture.

[26] With respect to the possible confusion stemming from interpretation, at the CRDD hearing the SIO categorically denied that this may have occurred. He stated under cross-examination that he would have known if there had been difficulties with the interpretation because the applicant would have asked for clarification as most claimants do when they are confronted with unfamiliar terms.


[27] Given that the SIO did not ask any follow-up questions of the applicant beyond whether he meant killing or torture in answer to question 34, the SIO was not in a position to assess the applicant's comprehension of the word torture. The report, however, does not address the concern arising from the use of an unfamiliar word, instead it deals with the applicant's understanding of the word torture. I accept the applicant's argument that in this sense the CRDD misconstrued the report.

[28] The applicant argues that this error alone is sufficient to warrant the decision being set aside. In her written submissions to the CRDD following the hearing, the Minister acknowledged that, having regard to the applicant's testimony and the totality of the evidence, it was possible at the port of entry interview that the applicant did not mean he had personally committed acts of torture. Instead, he may have been referring to the incidents when he slapped and pushed some prisoners or when he went out with other police officers. Accordingly, the Minister chose to focus her argument on the applicant's complicity instead of his admission. In my opinion, this is a fair assessment of the evidence.

[29] Similarly, in my view, the CRDD did not base its finding of exclusion on the applicant's alleged admission of having personally committed torture while he served with the ANP. Instead, the CRDD found that the applicant was excluded on the basis of his complicity in the crimes against humanity committed by the ANP.

Issue 2: Did the CRDD err in its complicity analysis?


[30] Counsel for the applicant acknowledged that the applicant joined the ANP voluntarily and that there is ample evidence documenting the crimes against humanity committed by the ANP. However, the applicant states he played a legitimate role as a member of the ANP and that his acts with respect to the abuses perpetrated by the ANP were passive in nature. In this respect, the applicant maintains the facts in the present case are similar to the facts in Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (FCA) where the Court held that passive acquiescence is insufficient to ground a finding of complicity.

[31] In my opinion, the facts in the present case are distinguishable from those in Moreno, supra. In Moreno, the appellant had been forcibly conscripted into the Salvadoran army. On one occasion, he was ordered to guard a prisoner who had been taken for interrogation. Although he observed acts of torture during the interrogation, he did not intervene because he thought he would be killed. Shortly after this incident, he deserted the army and fled El Salvador. The Court considered whether the appellant's conduct satisfied the criterion of "personal and knowing participation in persecutorial acts", noting also that complicity rests on the existence of a shared common purpose as between the accomplice and the principal. In its reasons, the Court observed that the appellant did not possess any prior knowledge of the acts of torture to be perpetrated nor did he render any direct assistance or encouragement in the commission of the offence. As well, the appellant deserted from the army within a relatively short period of time after his enlistment. The Court concluded his presence during the torture amounted to passive acquiescence and not complicity in the commission of the crime against humanity.


[32] In contrast, the applicant, in the present case, joined the ANP voluntarily. Although he was aware of the brutal practices of the ANP, he did not resign because he was afraid of being caught and sent to the front. He testified that he escorted prisoners to and from interrogations and trials where he knew they were being tortured, and he participated with other police officers in crowd control activities and in the search for suspected UNITA supporters. He described one of the incidents as a massacre. In his PIF, the applicant stated:

As I worked with the ANP I became increasingly exposed to the human rights abuses which they perpetrated. Occasionally I was sent out with squadrons who were supposed to implement crowd control but instead they randomly beat and abused people on the pretext that they were supporters of UNITA. I witnessed families with children and seniors being attacked and innocent suspects being tortured. When inmates were brought in for detention, they often didn't last until the next day because they had been so badly treated during interrogation. These activities occurred even during times when conditions were relatively calm.

[33] The applicant also argues that where, as in the present case, there is no evidence that the applicant personally committed crimes against humanity, there must be some discussion in the reasons with respect to the applicant's role. In this respect, the applicant submits that the CRDD's complicity analysis is flawed.

[34] The respondent takes the position that there is ample evidence to support the CRDD's finding that the applicant was complicit in the commission of crimes against humanity by the ANP.


[35] In reaching its finding of complicity the CRDD took into account the following: the documentary evidence regarding the crimes against humanity committed by the ANP; the fact that the applicant joined the ANP voluntarily; the applicant's evidence regarding his activities as a prison guard and police officer; the applicant's transfer from prison guard duty to active police duty which was indicative of the fact that his performance satisfied his superiors; and the fact that applicant did not resign from the ANP even though he was aware of its brutal practices. Based on this evidence the CRDD found that the applicant shared a common purpose with the ANP and was therefore complicit in the crimes against humanity committed by the ANP.

[36] While I agree with the applicant that the CRDD could have provided greater detail with respect to the specific acts or omissions it relied upon in arriving at their finding of a shared common purpose, in my view, the reasons adequately set out the basis for the finding. Further, given that the burden of proof which must be met is less than the balance of probabilities and having regard to the totality of the evidence, in my opinion, the CRDD did not err in reaching its finding of complicity.

Issue 3: Did the CRDD err by failing to consider the defences of superior orders and duress?


[37] The applicant submits the CRDD is obliged to consider the defences of superior orders and duress even though the applicant did not raise these defences in argument before the CRDD. In the applicant's submission, he bears the burden of bringing forth all the facts to support these defences. He stresses, however, that the panel has an obligation to consider the defences raised by those facts.

[38] After a careful review of the transcript, I find that there is no factual foundation for the defences. Accordingly, the CRDD did not err in this regard.

[39] Counsel for the applicant proposed a question for certification concerning the defences of superior orders and duress. Given the absence of a factual foundation, the question will not be certified.

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

"Dolores M. Hansen"

J.F.C.C.

OTTAWA, ONTARIO

May 8, 2002


FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.: IMM-5258-00

STYLE OF CAUSE: Alberto Miguel Januario v. M.C.I.

PLACE OF HEARING: Toronto, Ontario

DATE OF HEARING: September 13, 2001

REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE HANSEN

DATED: May 8, 2002

APPEARANCES:

Mr. Micheal CraneFOR THE APPLICANT

Ms. Marissa BielskiFOR THE RESPONDENT

SOLICITORS ON THE RECORD:

Mr. Micheal CraneFOR THE APPLICANT

Toronto, Ontario

Mr. Morris RosenbergFOR THE RESPONDENT

Deputy Attorney General of Canada

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