Cordon v.Canada (Minister of Citizenship and Immigration)

BETWEEN :

JOSE ANIBAL CORTEZ CORDON

Applicant

- and -

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

TEITELBAUM J.:

INTRODUCTION

[1] This is an application for judicial review of an April 15, 1997 decision of the Convention Refugee Division of the Immigration and Refugee Board [hereinafter Refugee Division] wherein the Refugee Division found that the applicant was not a Convention Refugee.

FACTS

[2] The applicant, Jose Anibal Cortez Cordon, is a citizen of Guatemala. When the applicant found that he could no longer find a position as a teacher, he decided to study at the police cadet school of the Guardia de Hacienda from January 1983 to November 1984. In January 1985, he joined the Guardia de Hacienda, an organization he believed to be respectable.

[3] For the first three months, the applicant was a guard at the office of Colonel Pacheco, director of the Guardia de Hacienda. He was then assigned as a guard to the entrance of police headquarters. The applicant took a radio communications course during that time.

[4] From November 1985 to June 1986, the applicant was a radio operator in the Champerico region. The applicant testified that by listening to radio communications, he learned of crimes committed by the police forces and the army.

[5] In June 1986, the applicant was transferred to Malacatan to become a customs inspector.

[6] In October 1986, the applicant, a colleague, and three recruits were sent without explanation to Cabanas. The applicant soon learned that this was a clandestine cemetery. In addition to his radio communications duties, the applicant had to help his colleagues bury corpses in common graves.

[7] Prior to Christmas 1986, the applicant testified that he was forced to take part in a firing squad which killed two people who were accused of being guerillas. The applicant stated that he did not shoot these people but aimed to their side although the transcript of the hearing indicates otherwise. The applicant used his four day leave to flee Guatemala on December 24, 1986 and arrived in Canada on February 2, 1987.

[8] The applicant provided one Formulaire de renseignements personnels ([hereinafter FRP] on October 27, 1989 and a further FRP on February 27, 1994. The applicant was accepted as a Convention Refugee by the Refugee Division on May 18, 1994. On April 20, 1995, Pinard J. allowed the respondent's application for judicial review and sent the matter back to a differently constituted Refugee Division for rehearing (see Canada (M.E.I.) v. Cordon (1995), 94 F.T.R. 208). Pinard J. held that the Refugee Division had not considered all of the relevant evidence in its determination of the application of the exclusion clause.

[9] On April 15, 1997, the Refugee Division determined that the applicant was not a Convention Refugee because he was excluded under article 1F(a) of the United Nations Convention Relating to the Status of Refugees. The Refugee Division based this conclusion on its findings that the applicant knew of the actions committed by the security forces, his participation in some of these acts and the fact that he did not leave the police force at the first opportunity.

[10] The Refugee Division found several discrepancies between the FRP's and the applicant's statements at the two hearings which the applicant did not adequately explain. The Refugee Division also believed that the applicant minimized his participation in and knowledge of the Guardia de Hacienda and the army. For example, the applicant stated that although he heard radio communications and relayed them to his superiors, he did not know if the orders were executed. However, at the first hearing, the applicant stated that he knew everything that happened in the country. The Refugee Division held that it was implausible that the applicant did not know the activities of other police forces or whether the orders were executed. The Refugee Division noted that the applicant did know that orders to kill were executed in one instance because he heard a transmission indicating that "the operation was complete."

[11] The applicant also contradicted himself by stating at the first hearing that he had carried a weapon, but changed his story at the second hearing. Furthermore, at the first hearing, the applicant stated that while in Malacatan he would have two or three days holidays and he would visit other places. The applicant provided a different story at the second hearing by stating that he did not receive such holidays and that he never visited other places.

[12] The applicant also claimed that he was not a witness to illegal acts in Malacatan by stating that either he or his lawyer had erred in writing his first FRP. The Refugee Division disbelieved this statement because they found that he had knowledge of the statements in that FRP and a good knowledge of French. The Refugee Division found that the applicant did not satisfactorily explain this discrepancy.

[13] The applicant's FRP's also differed in that, on the first FRP, the applicant stated that he updated drug trafficking routes while in Malacatan, but his second FRP stated that he was asked to act as an inspector and went out on a couple of occasions to identify plantations.

[14] The Refugee Division considered this evidence and applied it to the exclusion clause under Article 1F(a) and the associated jurisprudence. The Refugee Division cited the test in Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306 (C.A.) that there must be serious reasons for considering that the applicant committed crimes against humanity. The Refugee Division also applied MacKay J.'s three-part test in Gutierrez v. Canada (M.C.I.) (1994), 84 F.T.R. 227 to help determine whether the applicant was a participant in crimes against humanity (at page 234):

[15] Concerning the first element, the Refugee Division noted that the applicant voluntarily joined the Guardia de Hacienda. The Refugee Division cited testimony where the applicant admitted that he knew the army committed illegal acts and that the police acted in the same way. He learned this information while decoding and transmitting messages as a radio operator, and he knew the fate of those individuals suspected of being against the government. There was also documentary evidence to this effect. Thus, the Refugee Division concluded that he was a member and accomplice of a group engaged in international offences.

[16] On the second part of the test, the Refugee Division cited the applicant's testimony where he stated that he heard about murders and the fate of citizens under suspicion of being anti-government supporters. The applicant also stated that people were killed by the death squads every day. He also cited an instance when he saw an individual being buried alive. The Refugee Division concluded that the applicant knew of these crimes and, despite this knowledge, he remained with the Guardia de Hacienda between 1983 and 1986.

[17] On the final part of the test, the Refugee Division noted from the applicant's testimony that he often had time off, visited the town and sometimes had holidays of up to four days in length. The Refugee Division concluded that the applicant had the opportunity to leave but he did not do so until after the incident involving the firing squad. The tribunal also noted that prior to that event, the applicant never contested the orders of his superiors. In fact, a colleague tried to warn the applicant prior to his transfer to Cabanas but the applicant believed his colleague was merely jealous that he was chosen for this transfer. The Refugee Division held that the applicant did not take advantage of the first opportunity to flee.

[18] Thus, the Refugee Division concluded that the applicant should be excluded from the definition of Convention Refugee because there were serious reasons to consider that he had committed crimes against humanity.

RELEVANT LEGISLATIVE PROVISIONS

[19] The definition of Convention refugee is provided in subsection 2(1) of the Immigration Act. That subsection incorporates Article 1F(a) of the United Nations Convention Relating to the Status of Refugees which excludes persons having committed such crimes from being declared Convention refugees. The relevant provisions read as follows:

[20] The schedule mentioned in the definition of "Convention Refugee" reads:

[21] Article VI of the London Charter [Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, August 8, 1945, 82 U.N.T.S. 279] defines crimes against humanity in the following manner:

SUBMISSIONS

1. The Applicant's Submissions

[22] The applicant's preliminary submission is that the Refugee Division should not look too closely at the alleged contradictions in the applicant's testimony and FRP's because there is a fourteen year time lag between the date of the events and the hearings. Furthermore, the applicant argues that the events in question were very traumatic and so the Refugee Division should not penalize the applicant for not being able to provide complete details.

[23] The applicant also submits that he did not speak French fluently in 1989 so he cannot be wholly responsible for the content of his FRP dated October 1989. The applicant testified that the wife of his employer helped to complete the form on his behalf. Furthermore, the applicant submits that the annex to that FRP was not translated to the applicant, not signed by him or an interpreter, nor is it dated. The applicant refutes a great deal of the information in that annex stating that it was written by his counsel.

[24] On the issues of law, the applicant's first submission is that the Refugee Division erred by failing to adjudicate upon the propriety of the applicant's claim before considering the application of the exclusion clause. The applicant submits that this procedure differs from the recommended procedure in the UNHCR Handbook. The applicant adds that the Refugee Division must establish a preponderance between the nature of the supposed infraction and the degree of persecution feared.

[25] The applicant's second submission is that the Refugee Division misinterpreted the term "crimes against humanity" as it is used in Article 1F(a) of the Convention. The applicant argues that his actions do not demonstrate sufficient complicity to warrant the application of the exclusion clause.

[26] The applicant submits that he voluntarily joined the Guardia de Hacienda but did not voluntarily enlist in the army or the secret police. The applicant further submits that he was trained in instantaneous recognition, martial arts, personal defence and control, arms drills and radio operations, but not trained for the incidents of which he was forced to partake. Thus, the applicant submits that he was not a member of an organization involved in international offences. He was merely a member of the Guardian de Hacienda and not the secret police or the army.

[27] Furthermore, the applicant contends that he cannot be considered to be an accomplice to the crimes committed by the police force for he does not share a common purpose with them. The applicant argues that he simply heard messages, decoded them and passed them to his superiors. He submits that he did nothing to facilitate the commission of the offence.

[28] The applicant also submits that he was troubled by the content of the radio transmissions but he could not leave for fear for his life and his family. Thus, the applicant submits that he had no mens rea to be a participant or accomplice to these offences.

[29] The applicant also cites the decision in Moreno v. Canada (M.E.I.), [1994] 1 F.C. 298 (C.A.) for the proposition that the higher the rank within the organization, the more likely the inference of complicity can be drawn. The applicant submits that he did not hold an important position within the police and he was never promoted in rank or salary during his service.

[30] The applicant also cites the decision in Aden v. Canada (M.E.I.), [1994] 1 F.C. 625 (T.D.) where the court held that the claimant was not a participant or accomplice in the commission of the offences because he was remote from the scene of the crimes and had no decision-making authority. The applicant submits that he was also remote from the scene of the offences and did not have decision-making power.

[31] The applicant also submits that he did not commit any acts which violated paragraph 1F. The applicant submits that arresting people and/or remitting them to the authorities is not a crime against humanity.

[32] Finally, the applicant submits that his activities were solely as a guard or radio operator up until he was transferred to Cabanas in October 1996. The applicant submits that he soon learned it was a clandestine cemetery. After the firing squad incident which was the first time the applicant was ordered to kill, the applicant fled Guatemala at the first opportunity.

2. The Respondent's Submissions

[33] The respondent submits that the Refugee Division did not err in finding that there were serious grounds to consider that the applicant had committed crimes against humanity.

[34] The respondent notes that in the applicant's FRP of October 1989, he wrote:

[35] The respondent also cites the applicant's statement at the March 22, 1994 hearing that the applicant was aware of the annex to the October 1989 FRP, but he denied the contents. The respondent notes that the applicant signed a declaration that both FRP's were true and accurate.

[36] The respondent submits that the Guardia de Hacienda is an organization involved in the commission of crimes against humanity. The respondent notes the applicant's own statement that the Guardia de Hacienda "travaillaient dans le même sens que l'armée." The respondent also cites the applicant's own submissions where he says that the Guardia de Hacienda stops anti-government supporters and provides them to the army. The respondent also notes that the applicant knew of the army's activities because of his experience as a radio operator. Moreover, the respondent submits that the applicant's superiors in the Guardia de Hacienda sent him to Cabanas and ordered him to take part in the firing squad.

[37] The respondent submits that, according to Ramirez, supra, the proof needed to find that one has committed crimes against humanity is less than the preponderance of possibilities. Thus, the respondent contends that it was not unreasonable for the Refugee Division to conclude that there were serious reasons for considering that the applicant had committed crimes against humanity. The respondent submits that the systematic extrajudicial execution of individuals contrary to the government is captured by article 1F of the Convention.

[38] Concerning the applicant's claim that he was not personally responsible for the acts committed, the respondent submits that the issue is whether there was personal and knowing participation. The respondent also cites Sivakumar v. Canada (M.C.I.), [1996] 2 F.C. 872 (C.A.)for the proposition that such participation is essentially a question of fact. The respondent cites the following facts in support of his contention that the applicant was a participant: the applicant voluntarily joined the Guardia de Hacienda, he had numerous days off in which he did not desert, the proof demonstrated that the Guardia de Hacienda systematically aided the army to stop people suspected of acting against the government from crossing the border and were involved in the extrajudicial murder and burial of such persons. Thus, the respondent submits that the Refugee Division was fully justified to find that the Guardia de Hacienda was an organization with a limited and brutal purpose. Moreover, the respondent submits that the applicant cannot show that the Refugee Division was unreasonable to find that the applicant had personal and knowing participation in the acts committed by the Guardia de Hacienda.

[39] The respondent submits that, according to the proof, the applicant knowingly participated in the activities of the police by transmitting the orders to execute guerrillas and messages stating the results of the operations. Moreover, the applicant was a guard in Cabanas who helped in mass burials and participated in a firing squad. Thus, the respondent submits that the Refugee Division had the right to find that there were serious reasons for considering that the applicant had committed crimes against humanity.

[40] Finally, the respondent submits that the Refugee Division need not find whether the applicant faced a serious risk of persecution due to the decision in Gonzalez v. Canada (M.E.I.), [1994] 3 F.C. 646 (C.A.).

DISCUSSION

[41] In Gonzalez, supra, the court definitively decided that the Refugee Division is under no obligation to consider whether the applicant would be included in the definition of Convention Refugee (at page 657):

[42] Given that this issue hs already been decided by the Federal Court of Appeal, I am satisfied that the applicant must fail on this ground. Clearly, the Board is under no obligation to determine whether the applicant would be included in the definition of Convention Refugee although it would be more practicable to do so.

[43] The second issue is whether the Refugee Division erred in finding that there were serious reasons to consider that the applicant had committed crimes against humanity. I do not believe that the Refugee Division has made a reviewable error.

[44] The Guardia de Hacienda is an organization that committed international offenses as a continuous and regular part of its operation and had a limited and brutal purpose. The evidence shows that the Guardia de Hacienda sought anti-government supporters that were attempting to cross the border and delivered them to the army. Moreover, the applicant's superiors sent the applicant to Cabanas to dig mass graves and forced him to participate in a firing squad.

[45] The evidence also shows that the applicant transmitted radio messages about the illegal activities of the police force and the army and relayed that information to his superiors. The messages consisted of reports of attacks or searches for people suspected of being anti-government supporters. On at least one occasion, the applicant knew that extrajudicial murders had been carried out. The applicant facilitated the execution of these orders by relaying information and orders between the parties. The applicant admits that he knew the content of these messages and was aware that the police force and the army were committing illegal acts. Furthermore, the applicant was involved in mass burials in Cabanas for three months and was a participant in a firing squad.

[46] Although the applicant submits that he was not a personal and knowing participant in these activities, I am satisfied that it was open to the Refugee Division to come to a contrary result. The applicant would have to be wilfully blind to be unaware of the illegal acts committed by the army and the police force. The applicant heard about these activities for eight months while he was a radio operator in the Champerico region. He became a direct participant in these acts when he arrived in Cabanas.

[47] I also note that the applicant did not take the first opportunity to flee. The evidence shows that the applicant had numerous opportunities to escape and yet he failed to do so until after the firing squad incident. One can be certain that the applicant first learned that the Guardia de Hacienda was not a benign police force while he was a radio operator in the Champerico region. Still, he continued to stay in this position for several months. He also stayed in Cabanas at the clandestine cemetery for three months before he decided to flee. It is apparent the applicant did not take the first opportunity to leave Guatemala.

CONCLUSION

[48] For the above stated reasons, the application for judicial review is denied.

[49] Neither party submitted a question for certification.

"Max M. Teitelbaum"

J.F.C.C.

OTTAWA, ONTARIO

April 14, 1998