Monteiro v. Canada (Minister of Citizenship and Immigration)

OTTAWA, ONTARIO, THIS 5^th DAY OF DECEMBER, 2002

PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU

BETWEEN:

MONTEIRO Remy

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[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") rendered on September 26, 2001, wherein the applicant was found not to be a Convention refugee.

BACKGROUND

[2] The applicant, a Senegalese national, claims he was persecuted on account of his political opinion stemming from his membership in the Mouvement des Forces Démocratiques de la Casamance (the "MFDC"), the Democratic Forces of Casamance Movement. According to the documentation on record, the MFDC is a separatist group which also has an armed wing. The MFDC advocates the secession of southern Senegal.

[3] The applicant became a member of the MFDC in 1991 and a member of the Executive Branch in Dakar in 1992. He claims that he was responsible for the restructuring of the Ligue de la Jeunesse. He also alleges that around May 1996, he sent a letter to Marcel Bassene who was responsible for establishing a committee between the government and the MFDC. In the letter, he allegedly denounced the sabotage of the peace process and the torture perpetrated by certain officers of the Senegal army. The applicant submits that the army intercepted the alleged letter which led to his kidnapping a week following his return from Canada at the end of August 1996. He was released at the end of September 1996 after having been detained and tortured.

[4] The applicant contends that he was arrested again in August 1997. At that time, he witnessed, and was a victim of, torture. He was released on October 7, 1997. He then left the country in December 1997 for Guinea-Bissau where he stayed until May 1998, at which time he returned to Dakar in order to reconstitute the Ligue de la Jeunesse. In February 1999, the applicant left Senegal with a new passport and a new identity card issued by the country's authorities. It was only in July 1999, after receiving additional information from his wife, that the applicant decided to claim refugee status in Canada.

[5] The claim was dismissed on two grounds:

a) First, the Board found that the applicant was not credible and that he had no subjective fear of being persecuted (the "inclusion issue").

b) Second, the Board also determined that there were serious reasons for considering that the applicant was an accomplice in crimes against humanity committed by the MFDC (the "exclusion issue").

PARTIES' SUBMISSIONS

[6] With regard to the inclusion issue, the applicant submits that the Board has erred in discarding his evidence on key incidents of his claim. More particularly, the Board found it implausible that the authorities would have released him in October 1997 after he had witnessed the perpetration of various acts of assassination and torture. However, the applicant's counsel insists that the documentary evidence provides examples of individuals who have been arrested and tortured by the authorities and who have nonetheless been released. The applicant's counsel argues that the applicant's explanation that he was able to secure his release by pretending to be of the Peulh ethnic group, which supports the Senegalese authority, was reasonable. Furthermore, the applicant's counsel pointed out that since the Board recognized that the applicant was an important member of the MFDC, several of its implausibility findings are simply unfounded. The applicant also submits that the Board failed to address in its decision the applicant's reasons for not claiming refugee status earlier and also ignored the particular conditions of Senegal.

[7] With respect to the exclusion issue, the applicant first argues that the Board erred in rejecting his objection to the late intervention by the Minister, and that it breached the rules of procedural fairness in deciding a month after the applicant's hearing to bring the case to the Minister's attention and give her another opportunity to intervene. Although the Minister had indicated earlier that she did not intend to intervene, after said invitation and a review of the cassettes of the applicant's hearing, the Minister issued a Notice of Intervention advising the applicant of her intention to raise section F of Article 1 of the United Nations Convention Relating to the Status of Refugee (the "Convention"). Before this Court, the applicant's counsel emphasized that the Minister should be bound by her previous decision and should provide adequate explanation to the applicant when there is a change of position. Moreover, the applicant's counsel submits that such a change can only be justified in cases where new evidence is brought at the hearing, which is not the case here. The applicant's counsel also submits that significant delays were incurred and that the hearing had to start again because the Minister changed her position.

[8] Second, the applicant contests the Board's finding that there were serious reasons for considering that he was an accomplice in crimes against humanity committed by the MFDC. The applicant argues that the MFDC is internally divided and that the main leader of the organization does not have control over the dissenting factions and rebels who commit violence in the name of the MFDC. The applicant submits that the Board erred in law in applying the general principles on complicity and association formulated in the leading jurisprudence of the Federal Court of Appeal and in failing in its decision to address the specific argument made by the applicant. In this regard, the applicant's counsel insists that the applicant has always been an advocate of peace and has never associated himself with anyone who commits violence in the name of the MFDC.

[9] On the other hand, the respondent submits that the Board has not ignored relevant evidence and that the applicant has not demonstrated that the credibility finding and the other findings of facts made by the Board are patently unreasonable. The respondent also argues that there has been no breach of the principles of procedural fairness. Paragraph 69.1(5)(a) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") entitles the Board to ask the Minister whether she wishes to present evidence on the exclusion issue. Moreover, there is no obligation, under section 69.1(5) of the Act, on the Minister to give notice to an applicant of the former's intention to participate in a hearing. As was underlined by Robertson J.A. (as he then was) in Arica v. Minister of Employment and Immigration (1995), 182 N.R. 392 (F.C.A.), at page 396: "[t]he purpose of the notice, which is directed solely at the Board, is to empower the Minister to question a claimant and other witnesses and to make representations". Although this may result in inconvenience and supplementary delays, nothing prevents the Minister from changing her position during the course of procedures. The notice to intervene is not a "decision" and the respondent submits that the Board cannot compel the Minister to provide reasons when there is a change of position. Furthermore, as to the rationale for excluding the applicant, the respondent defends the Board's decision, which refers to the following cases: Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (F.C.A.); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (F.C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (F.C.A.); and Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (F.C.A.).

ANALYSIS

[10] The definition of "Convention refugee" found in subsection 2(1) of the Act requires that the applicant prove that he has a "... well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion ...". Moreover, the definition provides that it "... does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof ...". More particularly, section F of Article 1 of the Convention provides that the provisions of the 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 humanity ...".

[11] I will begin my analysis with the inclusion issue, which was the first aspect raised by the Board in its decision.For the following reasons, I conclude that the credibility finding and the risk assessment made by the Board should not be overturned.

[12] The determination of the applicant's credibility is the heartland of the Board's jurisdiction and this Court has found that the Board has a well-established expertise in the determination of questions of facts, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant (see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 (F.C.T.D.) at para. 38; Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), N.R. 300 (F.C.A.) at p. 306; Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.) at p. 40).

[13] Moreover, it has been recognized and confirmed that, with respect to credibility and the assessment of evidence, this Court may not substitute its decision for the Board's when the applicant has failed to prove that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (see Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at para. 14; Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1124, at para. 9; and the grounds for review at subsection 18.1(4)(d) of the Federal Court Act).

[14] Normally, the Board is entitled to conclude that an applicant is not credible because of implausibilities in his or her evidence, so long as its inferences are not unreasonable and its reasons are set out in "clear and unmistakable terms" (see Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.); Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.); Zhou v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1087 (F.C.A.); and Kanyai, supra, at para. 10).

[15] Furthermore, the Board is entitled to make reasonable findings based on implausibilities, common sense and rationality (see Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 at para. 2 (F.C.A.); and Aguebor, supra at para. 4). The Board may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence (see Akinlolu, supra, at para. 13; and Kanyai, supra, at para. 11).

[16] The Board simply did not believe the applicant's account of the facts leading to his fear of persecution, and it expressed the reasons for casting doubt upon the applicant's credibility in clear and unmistakable terms. The elements of evidence must be assessed together, and not in isolation from each other (see Lai v. Canada (Minister of Citizenship and Immigration) (1989), 8 Imm. L.R. (2d) 245 (F.C.A.)). That is what the Board did in reaching its decision, and its conclusion is reasonable. This does not mean that I necessarily share the same views, or that I would have come to the same conclusion. In this case, however, that is not the point. The Board is not immune from making errors. When errors of fact are made, the Court should not hastily substitute its judgment for that of the Board, except in the clearest of cases and where the error made by the Board is material and patently unreasonable.

[17] In the case at bar, the Board was ready to accept that the applicant has been a member of the MFDC since 1991 and that he has been actively engaged in the organization. In this regard, the Board recognized the importance of the role the applicant has played since 1992 as a member of the Executive Branch of the MFDC in Dakar and as President for the restructuring of the youth section. However, the Board did not believe his personal account of the incidents leading to his assertion of the existence of a well-founded fear of persecution. Although the Board recognized and believed that the applicant occupied an important position, it had sound reasons to doubt his credibility with respect to his fear of persecution. The Board concluded that certain aspects of the applicant's testimony were not credible due to inconsistencies and implausibilities, such as the fact that they released him even though they found compromising documents on him, the fact that he was able to describe his involvement in the MFDC but was evasive and vague in his recollection of his arrest, and so on (see Ismaeli v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 573; and Wu v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1233). It was also reasonably open to the Board to conclude that, according to the documentary evidence, it was not plausible that an individual who was the witness of so many executions and torture from the authorities would be released and not executed as mentioned in the documents.

[18] The Board also concluded that the applicant's behaviour showed a lack of subjective fear, since he did not claim refugee status while in Canada during his first visit, despite the two alleged arrests in his country; on the contrary, the applicant returned to Senegal. On his second trip to Canada, the applicant did not claim refugee status upon arrival, but waited several months before doing so; the Board did not believe the explanation provided by the applicant regarding a phone call from his wife telling him that he was wanted by the authorities. Furthermore, the delay in claiming refugee status was undoubtedly an important and pertinent factor in determining whether the applicant had a subjective fear of persecution. Again, it was reasonably open to the Board to reject the explanation given by the applicant. The absence of a subjective fear of persecution was fatal and alone justified the dismissal of the applicant's claim (see Tabet-Zatla v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1778; and Kamana v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1695).

[19] Despite the able argument of the applicant's counsel in this regard, I also find that the Board has not ignored significant documentary evidence on the country's conditions. It should be presumed that the Board did, in fact, evaluate the entirety of the evidence (see Sathanandan v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 310 (F.C.A.); Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); and Gourenko v. Canada (Solicitor General) (1995), F.T.R. 264). Indeed, the Board noted that in March 2001, the MFDC and the government signed an agreement providing for peace between the two organizations. This agreement was viewed by the Board as influencing the applicant's objective fear of persecution. In effect, the Board determined that even if the problems he alleged existed before the signature of the agreement, his fear of persecution was less justified in light of its now being in force. Even though this reason was raised to show the applicant's lack of a well-founded fear of persecution, the Board also pointed out that he would have had more reasons to claim refugee status at the beginning of his stay in Canada while the situation in Senegal was explosive.

[20] Considering that the Board's conclusion concerning the inclusion issue was reasonable, the exclusion issue appears moot. This finding does not signify that the Board's decision was accurate on the exclusion issue, but rather simply means that, since I find its decision accurate as to credibility, even if the case were sent back for redetermination it would not change the result. The applicant would still not be considered a Convention Refugee under the first part of the definition. That being said, I recognize that exclusion by Canada under Article 1F(a) of the Convention is a serious matter which could affect the applicant for the rest of his life. I am also aware that at least one judge of this Court has expressed the view that "an exclusion order should be reviewed to ensure that it is error-free, even if, as is the case here, the decision about exclusion would not be dispositive of the judicial review application" (Simpson J. in Ledezma v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1664 at para. 6). Although in obiter, the following comments are made to address this particular concern.

[21] First, I must mention that the exclusion issue is a complex one. Based on the case law, simple membership in an organised group which perpetrates international crimes does not in and of itself justify the application of the exclusion clause of the Convention. However, this rule does not apply where said organization is principally directed to a limited, brutal purpose. This issue is in my view a question of fact which falls within the Board's specialised valuation role and the Board had jurisdiction to assess and weigh the different documentary evidence available on this subject (see Aleman v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 955 (F.C.T.D.); Bamlaku v. Canada (Minister of Citizenship and Immigration) (1998), 142 F.T.R. 140 (F.C.T.D.); and Sungu et al. c. Le Ministre de la Citoyenneté et de l'Immigration, 2002 CFPI 1207 (C.F.P.I.)).

[22] Second, as it appears from the documentary evidence accepted by the Board, I note that several crimes against civilians have been imputed to the MFDC by various credible observers, such as the Senegalese human rights organization African Meeting for the Defence of Human Rights (the "RADDHO") and Amnesty International [Tribunal's record, exhibits A-7, A-8 and A-15]. No attempt is made by RADDHO and Amnesty International in these reports to excuse or to reduce the responsibility flowing from these exactions on the basis that they were committed by a particular faction of the MFDC. In this context, the applicant's counsel has failed to convince me that the Board has made a reviewable error in not specifically addressing this particular argument made by the applicant. Therefore, on the basis of the reliable documentary evidence on record, I find it was not unreasonable for the Board to attribute global responsibility to the MFDC. Again, I wish to state that in view of the particular result of this case, any failure of the Board to address the exclusion issue in light of any alleged split or fight between the Northern and the Southern wings of the MFDC would not be determinative of the present judicial review application.

[23] Third, the Board found that the applicant had a lengthy and voluntary association in the MFDC. In addition, he held a relatively important position in the organization as a member of the Executive Branch since 1992. Applying the leading jurisprudence on complicity and association, the Board concluded that the applicant voluntarily chose to associate with the MFDC and did not try to dissociate himself from the organization at the first possible occasion, thereby imputing to the applicant "personal and knowing participation in persecutorial acts" (see Ramirez, supra, at p. 307 (F.C.A.)). Thus, the Board's conclusion appears reasonable in the circumstances. Essentially, a person who, knowing that his or her contribution to this kind of organization might lead to the perpetration of international crimes, still contributes to it, exposes himself or herself to the application of the exclusion clause of the Convention as much as the person who directly participates in the commission of the crimes (see Ramirez, supra; Sivakumar, supra; Gonzalez, supra; and Bazargan v. Canada (Minister of Employment and Immigration) (1996), 205 N.R. 282). Again, this question is within the Board's jurisdiction and need not, and will not, be further examined. I also add that there is no documentary evidence on record that clearly shows what the MFDC authorities did to condemn and prevent the exactions committed by some MFDC members or followers.

[24] Finally, without taking an ultimate position on this particular issue, I refrain from endorsing the Minister's position with regard to her late intervention in front of the Board and her alleged right to raise the application of Article 1F of the Convention at any time during a proceeding. I find it troubling that once a notice pursuant to paragraph 69.1(5) of the Act, mentioning that the Minister will not intervene, has been given, that, apart from any special reason, the Minister can change her mind and oblige the Board to held a new hearing. Whether this is done at the invitation of the Board does not, in my opinion, change the concern expressed by the applicant that valid reasons for this change of position be provided, especially in light of paragraph 69.9(9) of the Act which provides that the Board "shall render its decision as soon as possible after completion of the hearing". However, the applicant's counsel recognized before the Court that the applicant had ample opportunity following the notice of intervention to address the allegations concerning the exclusion issue. Furthermore, there was no suggestion in the present case that the Board's behaviour demonstrates a reasonable apprehension of bias toward the applicant. Finally, as already stated, I have concluded that the decision made by the Board on the inclusion issue should not be reviewed. Therefore, even if the applicant's argument was well-founded, I would not exercise my discretion to set aside the Board's decision and remit the matter back to the Board.

CERTIFICATION OF A QUESTION

[25] The applicant has submitted the following questions for certification:

A. Where the Minister decides to intervene in a refugee claim and raises the issue of exclusion, contrary to a previous decision expressly made in the particular claim not to do so, does the Minister have an obligation to provide reasons for this change in position?

B. Does the Immigration and Refugee Board commit an error by not requesting the Minister to provide reasons for her change of position when this expressly occurs in a given case?

C. Where a person joins an organization that is internally divided, and one distinct dissenting faction commits acts of violence, should this person be considered an accomplice, where the person is clearly not a member of the dissenting faction and where he or she does not agree with the acts of violence committed as a means to an end?

[26] In Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4, the Federal Court of Appeal specified at paragraph 4 that a certified question must be one that "transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application [...] but it must also be one that is determinative of the appeal". Furthermore, the Court in Huynh v. Canada, [1995] 1 F.C. 633 (F.C.T.D.) (confirmed by [1996] 2 F.C. 976 (F.C.A.)) indicated that "[a] certified question is not about the case at bar; it seeks to clarify an undecided legal point of general importance". In the case at bar, the proposed questions are not determinative of the appeal. Moreover, the present record and the particular circumstances of this case would make it difficult, through an appeal, to clarify any undecided legal point of general importance. Accordingly, no question of general importance will be certified.

ORDER

The application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, rendered on September 26, 2001, is dismissed. There is no serious question of general importance to be certified.

Judge

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-4730-01

STYLE OF CAUSE: MONTEIRO REMY v. MCI

PLACE OF HEARING: Montreal, Quebec

DATE OF HEARING: November 12, 2002

REASONS FOR ORDER

AND ORDER: December 5, 2002

APPEARANCES:

Ms Styliani Markaki FOR PLAINTIFF/APPLICANT

Mr Michel Pépin FOR DEFENDANT/RESPONDENT

SOLICITORS OF RECORD:

Ms Styliani Markaki FOR PLAINTIFF/APPLICANT

Montreal, Que

Morris Rosenberg FOR DEFENDANT/RESPONDENT

Deputy Attorney General of Canada