TA1-20252

TA1-20252

On the facts the panel found serious reasons for considering that the DAS committed widespread or systematic crimes against humanity and that the claimant, by virtue of his 15 years' service, middle rank (level 9), documented involvement in DAS operations, knowledge of DAS atrocities since circa 1990, failure to protest or disengage despite opportunities to resign, and occasional supervisory duties, lent effective support and shared a common purpose with the DAS; therefore he is complicit as an accomplice and is excluded under Article 1F(a) and section 98 IRPA despite an objectively well-founded fear of persecution by the FARC; the claimant's family members, however, qualify as Convention...

Citation
TA1-20252
Parties
Claimant: XXXXX XXXXXX XXXXXXX XXXXX; Respondent (refugee Protection Division): Refugee Protection Officer; Respondent (minister): Minister of Citizenship and Immigration; Adjudicator: S. Alidina
Court
Refugee Protection Division
Jurisdiction
Canada
Judgment Date
18 March 2004
Procedural Posture
Refugee Protection Claim (exclusion and Inclusion) / Decision (refugee Protection Division)
Outcome
Principal claimant excluded under Article 1F(a) and s.98 IRPA; not a Convention refugee nor a person in need of protection; claimant's wife and children recognized as Convention refugees.
Legal Topics
Exclusion (article 1 F(a)), Complicity and Accomplice Liability, Crimes Against Humanity, State Protection, Nexus to a Convention Ground, Persecution, Inclusion of Family Members
Source Language
English
Immigration Law Refugee Law International Criminal Law Human Rights Law Exclusion (article 1 F(a)) Complicity and Accomplice Liability Crimes Against Humanity State Protection +3 more

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Parties

XXXXX XXXXXX XXXXXXX XXXXX

Claimant

Refugee Protection Officer

Respondent (refugee Protection Division)

Minister of Citizenship and Immigration

Respondent (minister)

S. Alidina

Adjudicator

Procedural Posture

Refugee Protection Claim (exclusion and Inclusion) / Decision (refugee Protection Division)

Legal Issues

  1. 1 Whether the claimant is excluded under Article 1F(a) of the 1951 Convention as having committed or been complicit in crimes against humanity
  2. 2 Whether the DAS committed crimes against humanity on a widespread or systematic basis
  3. 3 Whether the claimant had the requisite knowledge, rank, position, length of service and opportunity to leave to establish complicity

Ratio Decidendi

On the facts the panel found serious reasons for considering that the DAS committed widespread or systematic crimes against humanity and that the claimant, by virtue of his 15 years' service, middle rank (level 9), documented involvement in DAS operations, knowledge of DAS atrocities since circa 1990, failure to protest or disengage despite opportunities to resign, and occasional supervisory duties, lent effective support and shared a common purpose with the DAS; therefore he is complicit as an accomplice and is excluded under Article 1F(a) and section 98 IRPA despite an objectively well-founded fear of persecution by the FARC; the claimant's family members, however, qualify as Convention...

Court Disposition

Principal claimant excluded under Article 1F(a) and s.98 IRPA; not a Convention refugee nor a person in need of protection; claimant's wife and children recognized as Convention refugees.

Orders

  • Exclude principal claimant from refugee protection pursuant to Article 1F(a) and section 98 IRPA
  • Recognize claimant's wife and children as Convention refugees (grant refugee protection)