D. (N.O.) (Re), Convention Refugee Determination Decisions
| Publisher | Canada: Immigration and Refugee Board of Canada |
| Author | Immigration and Refugee Board |
| Publication Date | 6 September 1991 |
| Citation / Document Symbol | [1991] C.R.D.D. No. 787 No. U91-04103 (formerly T90-04345) |
| Type of Decision | 787; U91-04103 (formerly T90-04345) |
| Cite as | D. (N.O.) (Re), Convention Refugee Determination Decisions, [1991] C.R.D.D. No. 787 No. U91-04103 (formerly T90-04345), Canada: Immigration and Refugee Board of Canada, 6 September 1991, available at: http://www.refworld.org/cases,IRBC,3ae6b6a94.html [accessed 24 October 2017] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
D. (N.O.) (Re), Convention Refugee Determination Decisions [1991] C.R.D.D. No. 787
No. U91-04103 (formerly T90-04345)
Convention Refugee Determination Division
Toronto, Ontario Panel: G. Carsen and I.F. Liebich In camera Heard: October 11, 1990; January 15, April 4, 1991 Decision: September 6, 1991 South Africa (ZAF)--Negative--Males--Agents of persecution--Change of circumstances in home country--Conscientious objection--Ethnic persecution-Ethnic discrimination--Exclusion clauses-Human rights violations--Military service--Persecution for political opinion--Stateless persons (Indexed). Appearances:
Richard A. NBA, for the claimant(s).
Gudrun LeBlanc, Refugee Hearing Officer.
REASONS FOR DECISION
The claimant, xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, was present at the hearing into his claim held on October 11, 1990 and January 15 and April 4, 1991 at Toronto, Ontario. He was represented by Richard Nabi, Barrister and Solicitor. The panel members were assisted by Refugee Hearing Officer Gudrun LeBlanc. The claimant is forty-seven years of age. He was born in Johannesburg, South Africa and is a citizen of South Africa. He arrived in Canada on August 5, 1989 and first stated his intention to make a refugee claim on January 3, 1990. He claimed in his Personal Information Form [Exhibit C-1, Personal Information Form of Claimantl, completed on April 17, 1990, to be a Convention refugee by reason of a well-founded fear of persecution related to the grounds of race, nationality and political opinion. During the course of the hearing the claim was expanded to include the ground of membership in a particular social group. The issue before the Refugee Division ¡s whether the claimant ¡s a Convention refugee as defined in section 2(1) of the Immigration Act [as enacted by R.S.C. 1985 (4th Supp.), c. 28, s. 11. 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...
The evidence adduced at the hearing consisted of the claimant's testimony and documentary evidence presented by the claimant's counsel and the Refugee Hearing Officer. The claimant provided the following evidence. He was born out of wedlock in Johannesburg, South Africa, in 1943, as xxxxxxxxxxxxxxxxxxxxxxxxxxxxx. In 1950, he moved with his family to Rhodesia. In 1961 he was adopted by the xxxxxxxxxxxxxxxx family, in Rhodesia. In 1964 he was baptised as xxxxxxxxxxxxxxxxxxxxxxxxxxxxx. In 1965 his last name was changed to that of his adoptive parents, xxxxxxxxxxxxxxxx. The first names xxxxxxxxxxxxxxxxx were provided to satisfy the Rhodesian government, which government objected to the Christian names xxxxxxxxxxxxxxxxx. The claimant then changed his last name to xxxxxxx in his mid-20,s, when he wanted to marry a divorcee. There had never been a divorce in his family and the claimant's family requested the change so as not to embarrass the family. Finally, when the claimant entered the United States in 1983, he entered as xxxxxxxxxxxxxxxxxxxxxxxxxxx since xxxxxxxxxxxxxxxxxxx was too difficult a name [Exhibit C-1. Personal Information Form of Claimant, p. 1. 1. Given and Family Names: xxxxxxxxxxxxxxxxxxxxxxxxx 2. Other names used: (1) xxxxxxxxxxxxxxxxxxxxxxxxxxxxx (2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) xxxxxxxxxxxxxxxxxxxxxxxxxxx]. When the claimant turned 16 years of age in Southern Rhodesia he joined the army as a cadet. All males were required to enter the cadets after high school. From 1956-62 the claimant served as a cadet in boot camp for three weeks a year. The claimant was third in his class. Military training included the use of weapons. Between 1962-66, the claimant attended hotel school in South Africa, however he travelled on a Rhodesian passport. From 1966-70, he was a hotel manager in Malawi. From 1970-1974 he was a marketing manager and sales director of a xxxxxxxx firm in Melbourne, Australia. In 1974 he moved back to Rhodesia and decided to buy a hotel in xxxxxxxxxxx, Rhodesia. He testified that it looked as if Ian Smith, then Governor of White-dominated Rhodesia, would win the war against Black insurgents. He quoted during the hearing Smith's words at the time, in 1974, that "not within our lifetime would Blacks control Rhodesia." So the claimant returned to Rhodesia. Military service was required and he testified that he was happy to join. He testified that he bought the xxxxxxxxxxx Hotel cheaply because it was in a war zone. His son and wife were issued with Uzi submachine guns. xxxxxxxxxxx was the size of a county, approximately xxx square miles, populated by xxxxxxx Europeans and approximately xxxxxxx Blacks. The Government of Ian Smith, which was comprised of 52 seats, was all White. The claimant was conscripted into the regular any and volunteered for the Selous Scouts of the King's African Rifles of the Southern Rhodesia Security Service. The Scouts were, in the claimant's words, regarded as the best commando force in the world. All the members of the Scouts were ex-game officers, or people of similar background, and were very good shots. The claimant served in the Scouts for 200 days a years for two years, not consecutive days but as the military operations required, and he rose to the rank of captain. The Scouts were engaged in combat against Black guerrilla groups such as ZAPU and ZAPU, which groups were attempting to overthrow the Government of Rhodesia. The claimant testified to the atrocities committed by the Black guerrilla groups in Rhodesia, using examples such as the tossing of a White baby from one bayonet onto another in front of a White mother. He was visibly agitated and flushed when describing these incidents. However, although he was asked on several occasions to describe the activities of the Selous Scouts, and in particular incidents of human rights abuses, the claimant provided none, but only noted that, with respect to the anti-guerrilla activities, that the Scouts "had their successes". The objective materials, referred to later in this decision and entered as exhibits at the hearing, detail the record of the Selous Scouts in this regard. The claimant left Rhodesia in 1976. He testified that he had arrived at the conclusion that the war could not be won and, as his son was of conscription age, he did not want his son to serve in the military. The claimant notified the army that he was going on vacation but actually went AWOL, or went on leave without authority, since military service by conscripts in Rhodesia was for 200 days a years, during every year, for able-bodied males from the ages of 16 to 60. The claimant lived in Sierra Leone, Africa, from 1976 to 1978, Bolton, England, from 1978-1980 and the Cayman Islands, British West Indies, from 1980 to the spring of 1983. In April 1980 independence was declared in Rhodesia, which is now called Zimbabwe. The claimant returned to Zimbabwe in late 1982. He and his family returned to Zimbabwe from the Cayman Islands, because the claimant's work permit in the Cayman Islands could not be extended, and he hoped that the would be safe in Zimbabwe. However, after one week in Zimbabwe the claimant was informed that certain Blacks were looking for him. He thinks that these were members of the youth security movement or the police. The claimant had hoped that the memories of the war had faded, particularly because all military files were destroyed as a part of the so-called Lancaster talks, which provided for the transition from the white Smith government to the Black Mugabe government. However, the claimant learned that three former officers were arrested, jailed for two and a half years without trial and tortured, including having an "electric cattle prod applied to their buttocks and genitals. [Exhibit C-1, Personal Information Form of Claimant, P. 7111 Two of those detained were released and the claimant is not certain about the third individual. The claimant stayed in Zimbabwe approximately three weeks and then moved to Gretna, Louisiana, United States of America, where he claimed refugee status. "(He) was given the impression that (he) had been granted refugee status or at least that it would not be refused. (He) continued to live and work under that impression until 1989, when (he) learned that (his) claim and that of (his) family had actually been refused in 1984 [Personal Information Form, p. 8]. It is clear from the claimant's testimony that the claims to refugee status were actually denied in September, 1983. From March 1985 until March 1989 the claimant lived and worked in Texas, Colorado and California, U.S.A. In early 1989, according to the claimant's testimony, he lost his job and applied for unemployment insurance. The claim to benefits was denied, but the claimant appealed and won. However, during the course of the hearing the judge contacted U.S. Immigration to inquire as to the claimant's status in the United States. The judge was informed that the claimant was an illegal, since his refugee claim was denied in 1983. It was from the judge in 1989, according to the claimant, that he first learned that his refugee claim in the United States had been denied. The claimant obtained legal advice to the effect that since the U.S. government was not and had not been attempting to remove him, he should continue to remain in the United States and apply for landing once he had been there seven years; and, since the claimant had been in the U.S. for over six years, he decided to follow this advice. The claimant's PIF states that in August, 1989 he travelled to Canada to stay with and help a friend who had been injured in an automobile accident. The claimant elaborated during examination-in-chief by his lawyer, explaining that he and his family were in Niagara Falls when he learned that a friend had an accident in Canada. He testified that he thought as a U.S. resident, he would be able to return to the United States. In answering questions from the Refugee Hearing Officer on this subject, the claimant advised that he was in fact planning to meet his Canadian girlfriend in Niagara Falls on August 4, 1989. When she did not appear for the meeting, he telephoned and learned that she had been involved in a car accident in Ajax, Ontario. The claimant then testified that he entered Canada on August 5, 1989 knowing that he might not be able to re-enter the United States due to his uncertain legal status in that country. The claimant is now separated from his wife and resides in Ontario with his girlfriend. He made his claim to be a Convention refugee on January 3, 1990 [Personal Information Form, p. 41. The claimant is a citizen of South Africa by birth, and retains his South African citizenship. He may also presently be a citizen of Zimbabwe, which he indicated on his P.I.F. [p. 1, Present Citizenship: Zimbabwe]. The grounds of race (white), nationality (Rhodesian) and membership in a particular social group (a former member of the Selous Scouts) relate to the claim against Zimbabwe. The ground of political opinion applies to the claim against South Africa. The basis for the ground of political opinion is in fact perceived political opinion in that if the claimant returns to South Africa he would be inducted into the military and that is objectionable to him since the government is based on the apartheid system. The claimant would refuse to serve since the apartheid system. is contrary to his beliefs, and he would therefore be a conscientious objector. There is no alternative service for conscientious objectors in South Africa and he would therefore be jailed, which, he claims, would constitute persecution. The Republic of South Africa would be the agent of persecution and therefore, if the reasoning is sound and the merits of the claim are established, the claimant would have established a well-founded fear of persecution against South Africa on the basis of his political opinion, that is, his opposition to the apartheid system. The claim was advanced on the basis of dual nationality, although alterations were made in the bases of the claim against Zimbabwe as the hearing advanced. For clarity, the claim against each country is dealt with separately.ZIMBABWE
Two issues arose during the course of the hearing with respect to Zimbabwe. The first issue is whether the claimant is at present a citizen of Zimbabwe. Considerable argument was devoted to the exact nature of the legal rights of the claimant at present in Zimbabwe. His evidence. was that when Rhodesia evolved into Zimbabwe the new government issued new passports and passed fresh legislation dealing with citizenship in Zimbabwe. In refugee law, in order to be found to be a national of Zimbabwe, it must be determined that the claimant has essentially the rights and obligations of citizenship. The claimant testified that he was issued with and travelled on a Zimbabwe passport in 1980. The Zimbabwe passport expired on xxxxxx, 1984. The claimant was issued with a British passport, for travel purposes only, since he was outside of Zimbabwe at the time. He further testified that the British passport did not give him the full legal rights of a British subject, such as those rights held by persons in circumstances similar to his who were born in the United Kingdom, and that his British passport was very limited in terms of legal rights. There is also a letter on file from the British High Commission stating that the claimant does not have a right of abode in the United Kingdom and that the passport is not evidence of British nationality [Exhibit R-4, British High Commission, Nov. 16, 1990, Exhibit R-3, Zimbabwe Passport of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx; Exhibit R-2, Passport of the United Kingdom of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx]. The claimant also testified that since his Zimbabwe passport expired in 1984, he would be required by law to return to Zimbabwe to renew the passport, as passports are only issued from within the country if a person is absent for more than one year. In addition, he testified that after an absence of five years from Zimbabwe a person does not have an automatic right of renewal of a passport. The objective sources [Exhibit C-2, 1989 U.S. Department of State Reports at 4281 corroborate the testimony that citizens of Zimbabwe who have left the country, but were not born in Zimbabwe are not guaranteed the right of return. However, immigration is not restricted and a citizen who was not born in Zimbabwe, and is absent from Zimbabwe for a period of seven years, must travel to Harare, Zimbabwe, and make a formal demand in person to the proper governmental authorities [Exhibit R-9, I.R.B.D.C., Response to Information Request, Feb. 26, 1991.]. In any event, the claimant must make out a claim against all countries of citizenship [ward v. M.E.I. (F.C.A., A-382-90)] and, therefore, the panel determines that it is not essential to consider the claim against Zimbabwe if the claim against RANK 4 OF 9, PAGE 15 OF 26, DB CRDD South Africa fails, as will be evident from the decision. Having made this finding, the following analysis of the claimant's activities in Zimbabwe relate only to the ultimate evaluation of the merits of his claim, as a conscientious objector, against South Africa. A preliminary issue, with respect to the claim against South Africa, is whether the claimant is excluded from being a Convention refugee by reason of his activities with the Selous Scouts. The definition of "Convention Refugee" set out on page 1 of this decision does not include any person to whom the United Nations Convention does not apply pursuant to Section F of Article 1 thereof. Article 1F of the United Nations Convention, as set out in the Schedule to the Immigration Act states in part: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.
After detailed consideration of the evidence respecting the claimant's activities with the Selous Scouts, we determine that he is not excluded pursuant to Article 1F. There is insufficient evidence on which to conclude that the claimant has personally committed or been an accomplice to, crimes against humanity or war crimes. However, certain aspects of the claimant's activities with the Selous Scouts, his testimony in that respect, and the activities of the Scouts bear mention as they relate to his claim against South Africa. First of all, the demeanour of the claimant was noticeably positive and animated while testifying respecting the Scouts. He appeared to be proud of the reputation of the Scouts as the best commando unit in the world. He spoke of the role of the Scouts with great respect. Although he was of conscription age when he entered the military in Rhodesia, he volunteered for the Scouts. It is notable that at this time Ian Smith declared that Blacks would not control the country within present lifetimes. The claimant provided no examples of human rights abuses by the Scouts. However, the objective record [Exhibit R-9, Response to Information Request No. ZWE7636 Information on the Selous Scouts with Respect to Human Rights, IRB Documentation Centre, February 26, 19911 clearly establishes that the scouts were accused of atrocities against civilians as well as ruthlessness against the guerrillas, including the bombing of churches, throughout the 1970's. Furthermore, Rhodesia "was founded upon an institutionalized form of racial discrimination not unlike the apartheid system in neighbouring South Africa. Blacks who made up the overwhelming majority of the population were excluded from political power and were only allowed to farm land in designated areas. [Exhibit R-8, Response to Information Request No. ZWE4290, Attachment Zimbabwe, "Human Rights and Political Unity", Africa Watch, October 1989, p. 5] 11 The claimant testified that he returned to Zimbabwe from abroad in 1974 and purchased a hotel property at a greatly reduced price since it was in a war zone. The war was in essence between the white majority in Rhodesia and various black guerrilla groups black seeking control of Rhodesia. The claimant gave every appearance of a deliberate, intelligent, skilled businessman and it is fair to conclude that he supported both the principles of the Rhodesian regime and the military actions deemed necessary to protect that hegemony. once again, he volunteered for the notorious Selous Scouts, in the context of Ian Smith's platform of no black government within his lifetime. The claimant then obviously supported the goals and aspirations of white Rhodesians. Earlier in this decision the claimant's view of what grim fate awaited him on return to Zimbabwe was recounted in some detail. The very torture and persecution that the claimant fears on return to Zimbabwe is strikingly similar to the tactics of repression used by the elite counter-insurgency units in Rhodesia:"A man hangs spreadeagled, handcuffed to a steel bed frame.... shortly the frame will be rotated and he will hang upside down.... the man on the bed has a wire in his anus, and another attached to his RANK 4 OF 91 PAGE 19 OF 26, DB CRDD testicles with a crocodile clip (deletions as appropriate) This torture of a black ranch-hand, foreman of the black staff at a ranch in Rhodesia, was carried out by the Rhodesian counter insurgency unit in the presence of the owner of the ranch, for whom the foreman had worked for nine years. Once the victim gave the information sought by the Scouts, he was summarily shot". ["Human Rights and Political Unity", Africa Watch, October 1989, p. 7, 8.]
The Selous Scouts, beyond any reasonable doubt, engaged in the grossest human rights abuses in an attempt to uphold the crumbling white Rhodesian regime. There is no specific evidence respecting the claimant's involvement in such activities and therefore he is not excluded from consideration as a Convention refugee.SOUTH AFRICA
The claimant testified that he considers himself to be Rhodesian. Rhodesia is a country which no longer exists and therefore the claimant considers himself to be stateless. However, the claimant acknowledges that since he was born in South Africa, he has by birth the right to return to South Africa as a national. On the facts and law, the claimant is a citizen of South Africa. The claim against South Africa is based on a well-founded fear of persecution on the ground of political opinion. The claimant's professed political opinion is that of a person who is totally against the South African policy of apartheid. The claimant's evidence is that he would be required to serve in the South African military, in that he has not performed his obligatory military service for South Africa to date, and the draft age is 15-49 years [Exhibit R-7, The World Fact book, 1989, p. 2721. The claimant was born on xxxxxxxx, 1943. The claimant's counsel made the submission that the claimant's past military service would make him attractive to the South African government. The claimant feels that he would be unable to serve in the South African military, due to his political opinion, which is in opposition to the apartheid policy. The claimant would then claim to be a conscientious objector, for which there is no alternative service to the military in South Africa, and he would therefore serve a prison term, which would constitute persecution on the basis of political opinion. It is conceivable that a person could establish that, as a conscientious objector to military service in a country where the military enforced through human rights abuses a blatantly racist policy, he or she could be persecuted for his inability to serve in the military due to matters of conscience. Assuming the appropriate country conditions, the punishment for failure to serve might constitute persecution and not prosecution. Of course, the credibility of a claimant with respect to such a claim to conscientious objection is critical. Conscientious objection is a conviction that must be a deep-seated conviction in an individual. From the beginning of what was to become Rhodesia, with the defeat of the Black Ndebele rulers between 1893 and 1897, the White settlers made every effort to institutionalize their supremacy [Exhibit R-1, Encyclopedia of the Third World, Third Edition, Volume III, p. 22181. It was not until 1981 that very real progress was made in changing the racial bias of the country's structure [Exhibit R-1, Africa Contemporary Record, 1980-81, Africana Publishing Company, p. B9161. During the previous fifteen years of White rule, abuses against the Black majority were frequent and severe, including arbitrary arrests, detentions without charge, torture, unwarranted searches and seizures and summary killings [Exhibit R-1, Human Rights in Developing Countries, 1988, Akodemisk Forlog, p. 1301. In summary, Rhodesia was "founded upon an institutionalized form of racial discrimination not unlike the apartheid system in neighbouring South Africa [Supra, footnote 81.11 Since the claimant returned to Rhodesia from abroad to purchase a property at a propitious price, because it was in a war zone, the war being between the white minority and Black guerrillas, in the climate of Ian Smith's repression of Black aspirations for democracy, it can safely be said that the claimant supported apartheid in both deed and mind. Furthermore, the claimant volunteered for the Selous Scouts because, in his words, they were unruly and crack troops. The appalling human rights record [Supra], of "the notorious Selous Scouts (who) were implicated in the campaign of bombing and vilification directed against Mugabe and his party, ZANU [Exhibit R-1, Response to Information Request, No. ZWE4290, IRBDC, March 14, 19901,11 is clear evidence of the intention of Ian Smith's government to perpetuate minority White rule, or "to attempt to preserve the social, political and economic privileges of Rhodesia's 270,000 white inhabitants at the expense of the six million Africans who make up the mass of the population [Exhibit R-10, Rhodesia/Zimbabwe, Amnesty International Briefing, Amnesty International Publications, 1976, p. 1]." The claimant has not credibly demonstrated that he conscientiously objects to apartheid forces and policies in South Africa, as they were at their harshest, prior to country conditions in South Africa which appear at this time to be improving. Due to the claimant's active participation in repression against Blacks and democracy in Rhodesia, the panel gives little or no probative value to the claimant's profession in 1991 of opposition to apartheid in South Africa as a matter of conscience. The claimant testified that he left Rhodesia in 1976 because he did not want to fight a war that did not accomplish anything. In addition, his son would soon be of conscription age. His Personal Information form indicates that RANK 4 OF 91 PAGE 24 OF 26, DB CRDD he served in the Selous Scouts until 1976 [Exhibit C-1. Personal Information Form Claimant, of Claimant, p. 51. In "late 1976 representatives of the Rhodesian Front, the African nationalists and the British Government met to discuss the transition to majority rule [Exhibit R-8, The Europe World Year Book 1990, Volume II, Europa Publications Limited, p. 30161. From an objective viewpoint, in the opinion of the panel members, the claimant vigorously defended an attempt to uphold white minority rule in Rhodesia and left Rhodesia either due to the inevitable ascendancy of pluralistic democracy or due to fear of accountability for his role in the activities of the Selous Scouts, or both. The claimant did not have, and has not had, a fundamental change in moral and political convictions. There is no merit whatsoever in his claim based on conscientious objection. Counsel for the claimant made a submission in reply that the claimant was a member of the military forces of a legitimate government in Rhodesia, the function of which forces was to defend the country against Blacks whereas in South Africa the army is used to uphold segregation and apartheid. In the view of the panel members, both the governments of Rhodesia and South Africa purported to be legitimate governments. Both governments used force to uphold minority rule, segregation and apartheid. Finally, the most recent objective information [Exhibit R-8, Newspaper Articles: The Globe and Mail, October 25, 1990, The New York Times, November 14, 1990; The Globe and Mail, December 4, 1990; Toronto Star, December 19, 1990. Africa Research Bulletin, November 1-3, 1990; Africa Confidential, "South Africa": Back on Track, November 9, 1990.] indicates that fundamental changes have occurred in South Africa and that the apartheid policy is being dismantled. The reasons for the claimant's fear of return to South Africa, that is, the fact that he will be conscripted and forced to serve for two years at most in a military, the function of which is to uphold the apartheid system, is no longer valid. Country conditions appear to be progressing rapidly, and positively, from a human rights perspective. The claim of fear of persecution therefore fails on the basis of the historical situation in South Africa, as well as being devoid of merit on the ground of political opinion based on conscientious objection. RANK 4 OF 91 PAGE 26 OF 26, DB CRDD The Refugee Division, therefore, determines xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx not to be a Convention refugee. DATED at Toronto, this 6th day of September, 1991. "G. Carsen" Concurred in by: "I.F. Liebich"Copyright notice: This document is published with the permission of the copyright holder and producer Immigration and Refugee Board of Canada (IRB). The original version of this document may be found on the offical website of the IRB at http://www.irb-cisr.gc.ca/en/. Documents earlier than 2003 may be found only on Refworld.
