Guardado v. Canada (Minister of Citizenship and Immigration)

BETWEEN:

ROBERTO GUARDADO

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

HEALD, D.J.

[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated May 12, 1997. By that decision the Board determined that the applicant was excluded from refugee protection pursuant to Article 1F(a) of the Schedule to the Immigration Act, R.S.C.1985 c. F-7¹.

[2] Alternatively, the applicant seeks a declaration that he is a Convention refugee. In his submission it is open to the Court to make such a declaration because one member of the Board found him to be a Convention refugee but for his exclusion pursuant to Article 1F(a) of the Schedule to the Act.

Facts

[3] The applicant is a citizen of El Salvador. He arrived in Canada on June 3, 1995 with his common law wife Maria and his cousin Isaac. All three of them applied for Convention refugee status. The Board accepted Maria as a Convention refugee, rejected the cousin Isaac on the basis that he did not have a reasonable fear of persecution. The applicant was also rejected on the basis of exclusion pursuant to Article 1F(a) of the Schedule to the Act because there were serious reasons for considering that he had participated in crimes against humanity.

[4] The applicant was employed as civilian driver on a military base in San Salvador. During this employment, he became aware of the activities of a death squad on his base. Between 1988/1992, he was ordered to drive on five "commissions", usually at night. He would drive several armed men in civilian clothes in a civilian car to a designated location. He would wait in the car. On at least 3 occasions, a person was brought back to the car. The applicant drove the men and the captive back to the army base. He said that he did not know what became of the captive on the return to the base. On one occasion, the captive was hooded. On another, the captive bled from his face and appeared to have been beaten.

[5] After the first "commission" and on several occasions, he complained to the captain about the nature of the work. He was ordered to continue and was not allowed to "resign." On December 10th, 1994, four men in civilian clothes armed with revolvers and automatic weapons arrived at his home. One of the men was hooded. He was told by these men who were unknown to him that he was a member of the army and had to join the death squad. They ordered him to meet them on a street corner near his home seven days later.

[6] The next day, the applicant reported this incident to his captain, who denied any knowledge of the existence of death squads. He did not show up for the scheduled meeting. On the evening of December 30, 1994, three men came to his house. The applicant and his wife fled, were shot at and were both wounded, he in his shoulder and his wife through her leg.

[7] Thereafter, the applicant and wife fled to a civilian hospital. They recuperated after release at the applicant's mother's house. Difficulties and problems began to occur again. Death squad members were sighted. As a consequence, the applicant and his wife fled to Canada.

The Decision of the Board

[8] The Board concluded that the applicant was excluded from Canada pursuant to Article 1F(a) of the Convention. This decision was based on his evidence that he drove "commissions" for the death squad, was a knowing participant in the illegal activities of the military officers and was an accomplice in their crimes against humanity.

[9] The second Board member concurred in "the crimes against humanity" finding, but concluded, additionally, that the applicant had a reasonable fear of persecution in El Salvador. He found as credible the applicant's evidence as to the death squad visits and as to the subsequent shootings of the applicant and his wife.

Issues

Analysis

1. Crimes against humanity

[10] I am unable to find reviewable error on this ground. The Board decided to apply Article 1F(a) on the facts of this case because the applicant admitted participation as a driver on five missions for death squad members in El Salvador. He also admitted to knowledge of and complicity in these activities. The Board concluded that the applicant did not disengage himself from the military at the first available opportunity. Based on the applicant's own testimony, the Board was entitled to reach the conclusion which it did reach.

[11] While it is true that the Board made some errors in its recitation of the facts, I am not persuaded that such errors are substantial or decisive in any way. They came to light only after a microscopic examination of the applicant's evidence².

[12] Accordingly, and on the totality of the evidence, I conclude that the Board had ample grounds for concluding that the applicant was properly excluded pursuant to Article 1F(a), supra.

2. The meaning of "a crime against humanity" as set out in Article 1F(a), supra

[13] In this case, the Board applied the test for complicity as set out in Ramirez v. Canada (M.E.I.)3. That test is to the effect that there must be serious reasons for considering that the applicant committed crimes against humanity. The Board concluded that although the applicant was only a driver, he "was a knowing participant in the military missions to capture people. He had the knowledge of and complicity in the military officers' illegal activities."

[14] In my view, such a conclusion was reasonably open to the Board on this record⁴. Accordingly, I am unable to identify any reviewable error.

[15] The within application for judicial review is dismissed.

Certification

[16] Neither counsel suggested the certification of a serious question of general importance pursuant to section 83 of the Immigration Act. I agree with that view. Accordingly, no question is certified.

"Darrel V. Heald"

D.J.

Toronto, Ontario

June 2, 1998

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-2344-97

- and -

DATE OF HEARING: JUNE 1, 1998

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER BY: HEALD, D.J.

DATED: JUNE 2 , 1998

APPEARANCES:

Mr. Roderick H. McDowell

For the Applicant

Mr. Godwin Friday

For the Respondent

SOLICITORS OF RECORD:

Marchand, Hagan, Hallett & Mcdowell

Barristers & Solicitors

29 Jarvis Street

P.O. Box 68, Station Main

Fort Erie, Ontario

L2A 5M6

For the Applicant

George Thomson

Deputy Attorney General

of Canada

For the Respondent

FEDERAL COURT OF CANADA

Date: 19980602

Docket: IMM-2344-97

Between:

Applicant

- and -

Respondent

REASONS FOR ORDER

__________________

¹ F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

² Compare Boulis v. M.E.I. (1972), 26 D.L.R. (3d) p. 216 at p. 223

³ Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306 (C.A.)

⁴ In Sivakumar v. Canada (M.C.I.), [1996] 2 F.C. 872 (C.A.) it was held that participation in such crimes is essentially a question of fact.