TA7-15048

RPD File No. / N° de dossier de la SPR : TA7-15048 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXXXXXXXXXXXXXXXXXXX Demandeur(e)(s) d'asile Date(s) of Hearing June 22, 2011 July 7, 2011 August 23, 2011 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision November 9, 2011 Date de la décision Panel Michael S. McCaffrey Tribunal Counsel for the Claimant(s) Alyssa Manning Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer Agent(e) de tribunal Designated Representative(s) Représentant(e)(s) désigné(e)(s) Counsel for the Minister Martine Stam Conseil du ministre [1] XXXXXXXXXXXXXXXXXXX is a citizen of the Republic of Congo (Congo), who is claiming refugee protection pursuant to s. 96 and ss. 97(1) of of the Immigration and Refugee Protection Act1 (IRPA). Allegations [2] The claimant alleges that he served in the Congolese army from his recruitment in 1991 until his desertion following a coup d'état in 1997. The claimant fled the Congo in 1999 and sought refugee protection in the United Kingdom beginning in 2000. His claim for asylum and subsequent appeal were denied. He obtained an improperly issued UK passport in an assumed name, travelled to Paris where he obtained an entry visa for the Congo. Upon arrival at the airport in XXXXXX in XXXXX 2007, he alleges that he was arrested and detained and released with the help of a senior officer. He left to France and then travelled to Canada to seek protection in December 2007. Exclusion 1F(a) [3] The Minister of Public Safety intervened in the present claim, both by personal appearance and by introduction of evidence2 and written submissions.3 The Minister alleges that the claimant is excluded from refugee protection because there are serious reasons to consider that the claimant was complicit in crimes against humanity prior to his seeking protection in Canada. Issues and Determination [4] The panel determines that the claimant is excluded from refugee protection. The panel's reasons are as follows: Legislative Provisions and Jurisprudence [5] s. 98 of the IRPA provides as follows: A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.4 [6] The schedule to the IRPA provides as follows: 1F. 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;5 [7] The Minister's submissions set out the provisions of the Rome Statute, and the jurisprudence which instructs the panel on what constitutes crimes against humanity and war crimes.6 In her submissions,7 counsel for the claimant argues that the Minister's evidence relates vaguely either to 'government' or 'security forces', without implicating the Congolese army by name. With respect, the panel does not accept the position of counsel for the claimant. The panel finds it reasonable to include the army as part of the government or security forces of the Congo. After reviewing the documentary evidence, the panel concludes, as submitted by the Minister, that the Congolese army committed crimes against humanity in the period 1993 to 1997, including killing and displacement of civilian populations, arbitrary detention and torture, ethnically-targeted killings, and rape. The panel is also persuaded by the documentary evidence that the Congolese army committed war crimes from June through October 1997, including murder, torture hostage-taking, and summary executions. [8] The evidence before the panel does not suggest that the claimant was directly responsible for either crimes against humanity or war crimes by virtue of his service with the Congolese army. Rather, the Minister submits that the claimant was complicit in these acts by virtue of his military service during the period when these acts were committed. Complicity [9] In the Sivakumar decision, the Federal Court of Appeal declared in part: '...association with a person or organization responsible for international crimes may constitute complicity if there is personal and knowing participation or toleration of the crimes. Mere membership in a group responsible for international crimes....is not enough'.8 [10] This notion was reaffirmed most recently by the Court of Appeal in the Ezokola decision which stated in part: 'The knowledge of these crimes is not determinative on its own. Only the respondent's personal and knowing participation in these crimes can support a finding of complicity for the purpose of Article 1F(a)'9 [11] In the Ishaku decision, the Federal Court reiterated the following elements necessary to assess complicity in crimes against humanity or war crimes: The case law has laid down the factors to be taken into consideration in determining whether there genuinely are serious reasons for considering that a claimant may be considered to be complicit in the commission of crimes or acts referred to in section 1F of the Convention. Those factors are: the method of recruitment, the applicant's position and rank in the organization, the nature of the organization, the applicant's knowledge of the crimes or acts committed, the length of his or her participation in the organization's activities, and the opportunity to leave (Ndabambarire, above, at paras. 38-44; Thomas, above, at para. 20; Muchai v. Canada (Minister of Citizenship and Immigration), 2007 FC 944, 160 A.C.W.S. (3d) 682, at para. 7).10 [12] The panel will evaluate the claimant's complicity in crimes against humanity and war crimes in light of the factors set out above. The Method of Recruitment [13] The claimant testified that he struggled with school and was eventually expelled. He further testified that his father, already serving in the army, invited the claimant to join the army or to go and live with his grandparents in the country. The claimant testified that he chose to join the army because he foresaw a hard life working XXXXX and few prospects there. The panel concludes there was no duress or compulsion which led the claimant to join the Congolese army. The Claimant's position in the Congolese Army [14] The claimant testified that he joined the army as a XXXXXXXX in 1991. One year later he said he was promoted to the rank of XXXXX. Following 2 years as a XXXXX, he became a XXXX XXXXX, and finally a XXXXX one year later. He did not receive any further promotions. The panel finds this testimony reasonable as the claimant would not likely have been promoted to the rank of officer without better educational credentials. He also received training in XXXXXXXXX from Israeli trainers in 1994. As a XXXXX, he testified that he was responsible for XXXXX XXXXXXXXXXX to members of his unit. He concluded his service in the Congolese army XX XXXXXXXX the Minister XXXXXXXXXXXXXXXXXXXXXX. Counsel for the claimant argues that his association with the army ended upon his assignment XXXXXXXXXXXXXXX.11 The panel rejects that argument as the claimant's testimony was that he maintained the rank of XXXXX during his service to XXXXXX. From the claimant's testimony, the panel finds that the claimant's position in the Congolese army was not a trivial one. The Nature of Congolese Army [15] In light of the preceding analysis, the panel is satisfied that the Congolese army committed crimes against humanity and war crimes during the period of the claimant's membership. The claimant testified that, among his duties, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. The panel finds XXXXXXXXXXXXXXXXXXX, among other assigned duties, is a significant contribution to the ongoing operations of the government and army of the Congo. The Claimant's Knowledge of the Crimes or Acts Committed by the Congolese Army [16] According to Amnesty International, in XXXXXX 1993, 'members of the security forces used automatic weapons against the opposition strongholds of XXXXX and XXXXXX, suburbs of XXXXXXX.12 The claimant testified that he lived and worked in these districts and recalls hearing rocket fire from his position at XXXXXXXXXXXXXXXXXXXXXXX. He testified that he was disturbed by the news. He testified that he was aware of a declaration of a state of emergency because all leaves were cancelled. The claimant testified that he learned about the attacks from radio and television reports, and thought the crimes were horrible. He insisted, however, that he was not aware of the implication of the Congolese army in the rocket attacks. He maintained that his unit within the army was neutral. The panel does not find the claimant's denial of awareness of the implication of the Congolese army to be plausible or credible in light of the cancellation of authorized leave. Although his own unit may not have been directly implicated, the panel finds there are serious reasons to consider the claimant had personal knowledge of the army's involvement in atrocities within his earshot. The Length of the Claimant's Association with the Congolese Army [17] In light of the claimant's testimony, the panel is satisfied that the claimant served in the Congolese army from 1991 until he effectively deserted it in 1998. He was thus a serving member of the army during a period when crimes against humanity and war crimes were committed. The Opportunity for the Claimant to Leave the Congolese Army [18] The claimant deserted the army when the government was overthrown. The Minister submits that the claimant could have left the army at any time.13 Counsel for the claimant suggests that it is common knowledge, and certainly the case in Canada, that deserting a military is an offence punishable by serious consequences.14 The panel finds it would be erroneous to apply Canadian standards to the situation in other countries. In any event, in his Personal Information Form (PIF),15 the claimant stated that upon being arrested for desertion, he was released upon condition that he report to the army office in Pointe Noire daily, which he did for almost a year. The panel finds it reasonable to conclude that the claimant could have resigned from the military sooner than he did. [19] After considering the acts committed by the Congolese security forces, including the army of which the claimant was a member, the factors established by the jurisprudence to assess complicity in crimes against humanity and war crimes, the panel finds there are serious reasons to consider that the claimant is complicit in these crimes by virtue of his personal and knowing participation by virtue of his service in the Congolese army. In accordance with the provisions of the IRPA, the claimant is excluded from refugee protection. Conclusion [20] The panel determines that, in accordance with section 98 of the IRPA, the claimant is excluded from refugee protection. (signed) "Michael S. McCaffrey" Michael S. McCaffrey November 9, 2011 Date REFUGEE PROTECTION DIVISION / MILITARY SERVICE / DESERTER / SAFE THIRD COUNTRY / REFUSED ELSEWHERE / MINISTER'S INTERVENTION / EXCLUSION / ART. 1 F(A) / CRIMES AGAINST HUMANITY / PROFILE / COMPLICITY / FAILURE TO DISASSOCIATE / MALE / NEGATIVE / REPUBLIC OF THE CONGO 1 As enacted by S.C. 2001, c. 27. 2 Exhibit M-2 3 Exhibit PH-1 4 Supra, footnote 1. 5 ibid. 6 supra, note 3, pp. 5-16. 7 Exhibit PH-2, pp. 7-8. 8 supra, note 3, p. 18. 9 MCI v. Ezokola, 2011 FCA 224, Noël, Nadon, Pelletier JJA, July 15, 2011. 10 Ishaku v. Canada (MCI), 2011 FC 44, Shore J, January 14, 2011. 11 supra, note 7, page 6. 12 supra, note 3, page 1. 13 supra, note 3, p. 23. 14 ibid, page 7. 15 Exhibit C-1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (February 12, 2009) Disponible en français RPD.15.7 (February 12, 2009) Disponible en français RPD File No. : TA7-15048 RPD File No. :TA7-15048