AA5-00309

Immigration and Refugee Board Refugee Protection Division Commission de l'immigration et du statut de réfugié Section de la protection des réfugiés RPD File No. / No de dossier de la SPR : AA5-00309 Private Proceeding Huis clos APPLICATION TO VACATE Applicant Demandeur Minister of Public Safety and Emergency Preparedness Respondent L'intimé XXXXX XXXXX XXXXX Date of Decision Date(s) de l'audience February 22, 2006 May 30 and 31, 2006 Place of Hearing Lieu de l'audience Ottawa, Ontario Date of Decision Date de la décision September 29, 2006 Panel Tribunal Leon Graub Respondent's Counsel Conseil de l'intimé Me Nicole Goulet (present at the first sitting ) Refugee Protection Officer Agent de la protection des réfugiés N/A Minister's Counsel Conseil du ministre Claude Beaupré You can obtain the translation of these reasons for decision in the other official language by writing to the Editing and Translation Services Directorate of the IRB at the following address: 344 Slater Street, 14th Floor, Ottawa, Ontario K1A 0K1, by e-mail at translation@irb.gc.ca or by facsimile at (613) 947-3213. La Direction des services de révision et de traduction de la CISR peut vous procurer les présents motifs de décision dans l'autre langue officielle. Vous n'avez qu'à en faire la demande par écrit à l'adresse suivante : 344, rue Slater, 14e étage, Ottawa (Ontario) K1A 0K1, par courriel à traduction@cisr.gc.ca ou par télécopie au (613) 947-3213. I. INTRODUCTION Under section 109 of the Immigration and Refugee Protection Act (IRPA)1 and rule 57 of the Refugee Protection Division Rules,2 the Minister (the applicant) submitted to the Refugee Protection Division (the Division), on June 30, 2005, an application to vacate the determination of the Division dated October 25, 1996, recognizing XXXXX XXXXX XXXXX (the respondent) as a Convention refugee. In his application, the Minister also asked the Division to examine the applicability of the exclusion clause based on the respondent's complicity in actions contrary to human rights. There were three days of hearings. On February 22, the respondent had the assistance of counsel. For monetary reasons, the respondent participated in the subsequent hearings without that assistance. An adjournment would not have changed that situation. The panel made sure that the respondent understood the entire procedure well. He had every opportunity to present his arguments on the issues. II MINISTER'S ALLEGATIONS The applicant claims that refugee protection was granted to the respondent based on misrepresentation or withholding of material facts relating to a relevant matter. The respondent stated that he never had a job and that he never did military service, because he had never been interested in it. In his narrative, the respondent only mentions the circumstances surrounding his escape from Rwanda; there is no mention of military training or of his military career. After he was determined to be a refugee, the respondent stated that he had studied at the École supérieure militaire [military college] and worked in the armed forces of Rwanda. The applicant claims that the respondent should have been excluded, given his involvement in some of the army's military operations during his years of service between XXXXX 1991 and XXXXX 1994. III MINISTER'S EXHIBITS In his application for permanent residence filed in Nairobi on XXXXX, 1994 (Exhibit M-1),3 at question 18, which asks for the jobs held by the applicant during the last 10 years, the respondent wrote "Nil." On XXXXX, 1996, during the respondent's interview upon his arrival at Pearson Airport (Exhibit M-3),4 he stated that when he left Rwanda, he had been at university, the army was looking for him, he was not a member of any political party and he had no military experience (page 313). In his PIF (Exhibit M-4)5 signed on January 29, 1996, at question 18, which asks for work history, the only response is [translation] "N/A" for not applicable. In response to question 19(d), which asks whether the claimant did his military service, the response "no" is checked off. The reason given for that (h) is: [translation] "Because I was never interested in a military career" (page 90).6 Exhibit M-7 is made up of three documents.7 Two are emails, dated May 14, 1998, and June 5, 1998, which include communication between XXXXX XXXXX of the war crimes unit and XXXXX XXXXX and Christine Groleau of the Canada Immigration Centre (CIC), indicating amendments made by the respondent, then in Canada, to his application for permanent residence dated November 1, 19968 (see especially page 411, to which we will return). The third document is the application for permanent residence. The amendments in it are very visible, written in a different ink. In response to question F about post-secondary studies, the respondent added that, from XXXXX 1991 to XXXXX 1992, he was a XXXXX at the École supérieure militaire [military college] of Kigali. At question G, he added the name of the company for which he worked-the Forces armées rwandaises (FAR) [Rwandan armed forces]-as a job held between XXXXX 1992 and XXXXX 1994, having interposed a period at the Université nationale du Rwanda (UNR) [national university of Rwanda]; he specified at question I that he served as a XXXXX XXXXX of the FAR in the XXXXX XXXXX XXXXX from XXXXX 1991 to XXXXX 1994. The emails add other details. He started as a simple soldier in the army on XXXXX 1991, and on XXXXX 1992, he was promoted to XXXXX XXXXX. He was then transferred to the field XXXXX XXXXX and remained there until XXXXX 1993, when he returned to the UNR. On XXXXX 1994, he was promoted to XXXXX XXXXX. After XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX (XXXXX XXXXX XXXXX), the respondent resumed service and was assigned to a XXXXX XXXXX XXXXX. He served under the orders of Major XXXXX, considered to be one of the architects of the genocide. The respondent's XXXXX XXXXX XXXXX, was allegedly also one of the architects of the genocide (page 11). Exhibit M-99 is a memorandum dated October 13, 2000, written by two CIC officers who had interviewed the respondent two days earlier. The respondent confirmed a number of points for them. - He served in a XXXXX XXXXX XXXXX XXXXX XXXXX. He was assigned to artillery last in Kigali as an XXXXX, from XXXXX 1994 to XXXXX 1994. He was under the command of Major XXXXX, XXXXX (this name appears on the list of XXXXX XXXXX XXXXX, Exhibit M-8).10 - The respondent stated that he was part of the armed forces that fought the Front patriotique rwandais (FPR) [Rwandan Patriotic Front]. He was supposed to bombard the enemy positions and not worry about whether there was any civilian population there. He confirmed that he served in the army from XXXXX, 1991, to XXXXX, 1994. - He XXXXX because he had become bitter. He had received threats from the Interahamwe because he had relocated his father back to his hometown with his wife, a Tutsi, with a XXXXX XXXXX. It was because of this wife that there had been negative whispering about the respondent. - The respondent told the CIC officers that he did not participate in the genocide, and that he did not know whether there was genocide and whether the people targeted by the genocide were Hutus or Tutsis. However, he stated later that he became aware that there had been genocide on April 7, 1994. In Kigali, he saw cadavers-probably killed because they were suspected of being Tutsis. Then he stated that there was a generalized massacre against Tutsis, that these massacres had been perpetrated by the Interahamwe group, that he was not close to this group and that he was not involved in politics. He stated that XXXXX XXXXX XXXXX, had been killed in XXXXX. He also added that he had learned from his cook that the Lamberts, who were Tutsis, had all been killed and that, since he had no military strength at that time, he had been unable to intervene. On XXXXX, 2004, the respondent sent a letter, accompanied by two documents, to Manuel Pereira at CIC (Exhibit M-10),11 in which the respondent discussed his various interviews and continued to assert his innocence. - The first document is a witness statement for the investigators at the International Criminal Tribunal for Rwanda (ICTR). According to the testimony of witness XXXXX XXXXX XXXXX XXXXX, accompanied by Interahamwe militiamen, allegedly played a crucial role in the killing of his XXXXX, XXXXX, her children and a girl who had sought refuge at her home. - The second document is an indictment presented to the investigators of the international tribunal for the matter of XXXXX XXXXX. XXXXX XXXXX XXXXX XXXXX was one of those involved in manning the largest roadblock in XXXXX. Following the order of XXXXX, the military officers and the Interahamwe from the roadblock massacred the Tutsis found at home and those who were trying to cross the roadblock. IV ANALYSIS WAS THERE MISREPRESENTATION OR WITHHOLDING OF MATERIAL FACTS RELATING TO A RELEVANT MATTER? Exhibit M-1 is an application for permanent residence in Canada signed by the respondent in Nairobi, dated XXXXX, 1994. At question 18, which asks that the applicant indicate the jobs held over the last 10 years, the response provided is "Nil." Nothing there indicates a military background.12 The panel notes here the withholding of a material fact. Exhibit M-3 includes the notes from the interview at Pearson International Airport, dated XXXXX, 1996, with a CIC officer. According to the interview notes, his responses to the three questions-whether the respondent had previously participated in violent demonstrations, whether he had been a member of a political group and whether he had military experience-were all negative (page 313). Therefore, here too, nothing indicates a military background.13 The panel notes again the withholding of material facts. In his PIF (Exhibit M-4), at question 18, which asks for work history, the only response is [translation] "n/a" for "not applicable." In response to question 19(d), which asks whether the claimant did his military service, the response [translation] "no" is checked off. The reason given for that (h) is [translation] "Because I was never interested in a military career" (page 90).14 That is a direct misrepresentation about a material fact. During the hearing, when the Minister's counsel (MC) asked him whether he had indicated in any of his applications for permanent residence that he had been in the military, the response given was negative, with the explanation that when he arrived in Nairobi, during a discussion with some friends, the respondent came across a copy of the Ottawa Citizen newspaper, dated XXXXX.15 In it, he saw an article with a photo showing an FPR military officer with a United Nations military officer who had the Canadian flag beside him inside the Kigali presidential palace. It was on the palace grounds that the presidential airplane had been shot down. His XXXXX had also just been killed. In addition, according to some peasants, rumour had it that some white people were leaving the place where the presidential airplane had been shot down; then, on XXXXX 1994, he XXXXX XXXXX and had intended to mention it to the embassy. The photo made him ask himself questions at that time and confused him. He decided not to mention his military background. The panel notes that, regardless, the application for a visa at the Kigali embassy, with the two letters attesting to his military background, was made in 1993, before the start of the genocide. At that time, these revelations could not harm his application for a visa; on the contrary, these documents were able to contribute to the issuing of a visa by the Canadian authorities. The fact is that, in his applications for permanent residence as well, the respondent withheld information about his military background, a material and relevant fact. The panel notes again that when the respondent was before the first panel, he had a lawyer to assist him in his steps. The respondent stated that he had not informed his lawyer at that time of his military background, not knowing what he could tell him. Therefore, the panel notes once again that the respondent's intention was obviously to hide his military background, which he did until May 1998. The panel therefore notes the respondent's reluctance to admit a material fact about a relevant matter concerning his refugee protection claim. WAS THERE OTHER SUFFICIENT EVIDENCE CONSIDERED AT THE TIME OF THE FIRST DETERMINATION TO JUSTIFY REFUGEE PROTECTION? The respondent's claim was settled in October 1996. There is no doubt that the panel that allowed the refugee protection claim made that decision unaware of the respondent's military background. However, the respondent is a Hutu. In XXXXX 1994, he left Rwanda, and on XXXXX, 1994, the United Nations High Commissioner in Nairobi granted him refugee status. As he wrote in his PIF, in the summer of 1994, there was an exodus of Hutus from Rwanda. The respondent's XXXXX had held key positions in the Hutu party, the MRND, and had also been XXXXX. The claimant had not heard from his brothers and sisters. These are strong arguments in a refugee protection claim. However, the panel hearing the refugee protection claim would not have determined that the respondent was a Convention refugee or person in need of protection, because the panel would have concluded that the respondent should be excluded from this determination. We will look at that more closely. The panel took Aleman into account.16 The Honourable Justice Rouleau had a case before him that contained several elements that seem to be the same as in this case. Mr. Aleman had not told the first panel hearing his case what he revealed later on during his application for permanent residence, that is, that as a soldier (which he had revealed at the beginning), he had been forced to kill civilians (para. 6). In this case, the respondent had chosen not to reveal that he had a military background. Justice Rouleau referred to Thambipillai,17 in which the Honourable Justice McKeown had supported the Division's conclusion that there were serious reasons to consider that the respondent had been guilty of crimes against humanity, as specified in Article 1F(a) of the Convention. This conclusion distanced the respondent from the context in which refugee status was a possibility; if the respondent had not misrepresented his situation, he would have been excluded from Convention refugee status. Article 1F(a) states: "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; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations." The question to ask is, therefore, why the respondent, in coming to Canada, tried to hide his military background when, in 1993, he had in fact sent the Embassy of Canada some documents attesting to his military status. On a balance of probabilities, the most plausible reason for this withholding of information is the respondent's knowledge of the army's involvement in this genocide in 1994, rendering the respondent, if not a participant, then at the very least complicit in the criminal acts committed by the FAR. As we will see, the Rwandan army was significantly involved in the terrible events that took place in Rwanda. Let us first look at the possible personal involvement of the respondent in an incident reported to the ICTR investigators. Exhibit M-10 consists of the respondent's letter, dated November 1, 2004, addressed to CIC; the testimony of a witness, XXXXX, for the ICTR; and the indictment against XXXXX XXXXX. Witness XXXXX stated that he met the ICTR investigators on two occasions. He stated that he is a Tutsi and has been employed as a XXXXX in XXXXX since XXXXX 1994. He stated that he received the order, as did all of the XXXXX, to go to the roadblock between XXXXX home and the XXXXX XXXXX. He stated that the second day after that roadblock was set up, XXXXX XXXXX XXXXX XXXXX arrived there around 11:30 a.m., accompanied by his neighbour XXXXX, a XXXXX Interahamwe militiaman, and two other members of that militia. He stated that XXXXX XXXXX XXXXX told the roadblock commander that his XXXXX, XXXXX, her two children and another girl were going to be killed at 1:00 p.m. and that people had to be sent to bury the bodies. Witness XXXXX stated that, toward 1:00 p.m., after hearing some screams, he and the other Tutsis who were responsible for burying the bodies found four bodies, including that of XXXXX and her two children; XXXXX XXXXX XXXXX, XXXXX and the two other militiamen were on site. He further stated that XXXXX XXXXX told them that XXXXX had been killed by XXXXX because she had refused to sleep with him. He also stated that he knew XXXXX XXXXX because XXXXX, XXXXX XXXXX, was a XXXXX and he had married the XXXXX XXXXX XXXXX. Lastly, the witness stated that he never saw XXXXX XXXXX XXXXX again. In his statutory declaration (Exhibit D-1),18 the respondent alleged that witness XXXXX who testified for the ICTR investigators two times19 (Exhibit M-10, pages 226 to 236), never existed. The respondent alleged that [translation] "this testimony was a complete fabrication by the FPR through the member of its military who passed himself off as a night guard"20 (page 7). As evidence of this, the respondent pointed to two different versions given by the witness to explain why the Interahamwe at his roadblock did not kill him (Exhibit M-10). In one, witness XXXXX stated that he and other XXXXX were loading the bodies of those killed into the trucks. [translation] According to what the military officers told us, the XXXXX who were loading the bodies were Tutsis reserved to be killed after the burial of President Habyarimana to cover his tomb. For that reason, the Interahamwe who wanted to kill us were dissuaded by the military officers. (page 228) In the second, the witness testimony was: In my case, I think that I was not killed because the military officers and the Interahamwe feared the reaction of my boss. He provided them with medications and he evacuated their injured to the ICRC, where they were cared for. (page 9) The panel notes that witness XXXXX met the investigators two times. Therefore, they knew where to find him. He is not a person who was just passing through or imaginary. The second statement only corroborates statements made by the witness during his first interview. And then the part concerning the respondent is found in the ICTR indictment against the former prefect of XXXXX, XXXXX XXXXX. The panel cannot take lightly the very serious accusations that were made by the prosecutor of the ICTR, a tribunal representing international justice. Exhibit D-11 contains a CIC email indicating that the ICTR was not looking for the respondent as a suspect but as a key witness (page 37). The panel takes the information into account. However, it must also be taken into account that the standards of evidence of involvement in the genocide are much higher than those that apply to exclusion from the definition of Convention refugee or of person in need of protection. The panel is therefore of the opinion that the accusations made before the ICTR by witness XXXXX about the killing of XXXXX, her two children and another woman with them (Exhibit M-10, page 224)21 must be taken very seriously. These accusations, which implicate the respondent personally, concern Article 1F of the Convention. The fact that the ICTR considers the respondent to be a key witness indicates that the ICTR is of the opinion that the respondent knows much more than he claims to know before the Division. The panel that heard the refugee protection claim would have concluded that there are serious reasons to believe that the respondent was personally guilty of serious crimes against humanity and would have excluded the respondent from the definition of Convention refugee. The Minister's counsel (MC) asked the respondent whether he was a member of the Hutu party, the MRND. The respondent answered that he had talked about it, that he embraced its ideas, but that he was not part of it, that he was not a member. After the MC noted that the application for permanent residence of XXXXX 1996, mentioned this (Exhibit M-7 page 399),22 the respondent instead became evasive. He stated that in 1991, ideas were discussed and that it was before he joined the army, given that, in the army, an individual cannot be a member of a political party. Finally, the respondent acknowledged that, yes, he had been a member at the start, in 1990-1991. The MC noted that the written response gives the date of XXXXX 1991, as the start of the respondent's affiliation and that there is no expiry date, while the other responses to that same question have an expiry date. The respondent answered that this was an oversight on his part. The panel finds it implausible that the respondent, whose attention to detail is visible through all of the documents that he submitted, forgot to complete the response in question. The panel is of the opinion that the respondent did not want to dissociate himself from the MRND, whose ideas he embraces, and that he still considered himself a member when he filled out his application for permanent residence. MILITARY CAREER The respondent stated that in 1989, having gone to the UNR, after the FPR attacked Rwanda in 1990 and seeing that the university year was going to be cancelled, in XXXXX 1991, without pressure, he enlisted in the army. He started his training in military sciences at the École supérieure militaire [military college], where officers are trained. On XXXXX, 1992, he obtained the rank of XXXXX XXXXX. He was assigned to the XXXXX XXXXX unit whose name was changed to XXXXX XXXXX XXXXX. The respondent continued his training in XXXXX. From XXXXX 1992 to XXXXX 1992, he was in the XXXXX military operation sector, XXXXX region, as a XXXXX position officer. Since a truce was declared, on July 13, 1992, the respondent returned to Camp XXXXX, in XXXXX, Kigali. He went there to continue his training and remained in the barracks until XXXXX 1992. He continued in XXXXX at Camp XXXXX, to update his military knowledge. His training ended in XXXXX 1992. After the Arusha Accords, the respondent returned to the university, where he remained from the XXXXX of 1993 to XXXXX 1994. He stated that those who wanted to be demobilized could be. He did not ask to be. He liked the military career and felt very good in it. He was therefore at university while remaining in the armed forces. Then, he was reassigned to his former unit. Having obtained a leave of 25 days, he had planned to come to Canada, but the FPR attack took place and his 25 days were cancelled. He was assigned to the multiple rockets, the Katyushas, which fire 12 rounds simultaneously, with a range of eight kilometres. The respondent was an XXXXX XXXXX in Kigali. He had to prepare the fire coordinates. He saw the targets, which were positions occupied by the FP. The approval of the sector commander was required to fire. The respondent stated that the targets were military. They could be an occupied hill or valley or a place identified as a logistics centre or a command post. He stated that it was the observation officer who, in coordination with the command staff, identified the objective; the targets were military, not civilian. He stated that, when an attacked occurred, the population left the zone and the FPR systematically killed the population. The panel understands that one part of the army fought against the FPR. However, the army's activities were not limited to military operations against the FPR. THE ARMY'S INVOLVEMENT IN THE GENOCIDE Exhibit M-11,23 published in French in 1999, comes from Human Rights Watch - International Federation for Human Rights. It is titled: "Aucun témoin ne doit survivre" [No witnesses must survive]. It gives an extensive account of the army's involvement in the tragic events that occurred. Chapter 6, which deals with the orchestration of the genocide, speaks about the use of administrative, political and military structures affecting all Rwandans to incite them or force the majority of Hutus to accept the massacres or to participate in them (page 261). Exhibit M-11 identifies among the initiators of the genocide: [translation] "The officers of the army, such as Bagasora and the commanders of the three elite units: Major Protais Mpiranya of the presidential guard, François-Xavier Nzuwonemeye of the reconnaissance battalion, and Major Aloys Ntabakuze of the paracommando battalion. We also cite Lieutenant Colonel Léonard Nkundiye, the former chief of the presidential guard; Captain Gaspard Hategekimana, who had supervised the execution of the prime minister; Major Bernard Ntuyahaga, who had, it seemed, ordered the massacres in the residential neighbourhood in the centre of Kigali, in the Gisenyi prefecture; and Colonel Anatole Nsengiyumwa, the local commander, who also seemed to be among the first to implement the massacre plan. Colonel Tharcisse Renzaho, a military officer who was prefect of Kigali, quickly gathered his subordinates to organize patrols and erect barriers to capture the Tutsis and kill them." (page 263) "The soldiers and police officers, in active service or retirement, killed civilians. They gave the authorization, led by example and ordered others to kill. Although less numerous than the civilian killers, the military officers played a decisive role in triggering the massacre and orchestrating it." (page 262) Exhibit M-11 adds: [translation] "The systematic and large-scale participation of the military for the entire duration of the genocide shows that their role was dictated or approved by the highest national authorities." (page 263) Further on, it is written that [translation] "the military officers also fostered the progression of the genocide by refusing to help the authorities, including the prefect of Gitarama and the bourgmetres of Gitarama, Gikongoro and Butare, who tried to end the massacres and other acts of destruction." (page 266) Exhibit M-11 is full of examples of actions by military members sided with the perpetrators of the genocide. They can be found on pages 250, 279, 297, 309, 312, 318, 319, 320, 321, 322, 324, 325, 332, 333, 338 and 344;24 in Exhibit D-10.9,25 page 339; and in Exhibit D-10.11,26 page 116. According to Exhibit M-12,27 those who planned the genocide: [translation] "...counted on the unfailing support of the armed forces and obtained it with few exceptions." (page 274) For all practical purposes, the FAR had therefore become an instrument used principally for limited and brutal purposes, even if it seems as though there were certain military officers who did not approve of the genocide. Exhibit M-11 mentions them (pages 313-314). Lieutenant-General Roméo Dallaire also refers to them (Exhibit D-10.9, page 325, and M-13, page 301). The respondent is not one of them, because he claims that he was not aware of the massacres. When the subject of the massacres was addressed, the claimant provided rather vague responses. When the MC asked him who had killed Prime Minister Agathe Uwilingiyimana, the respondent answered that several authors state that there had been a false rumour that the Belgians had killed the president and that the opposition was also involved. Pressed once again to respond, he stated that today people say that the individuals responsible were presidential guards of the president's residence. When asked also whether he was stating that there had been no plan to massacre Tutsis, he responded that it was a delicate question and that there was evidence about this that he had not submitted. The fact remains that, according to Exhibit M-11, some soldiers, including the captain of the presidential guard, participated in the arrest and execution of the prime minister (page 224 and M-13, page 317).28 The panel still sees no regrets by the respondent regarding the genocide massacres that took place. The MC asked the respondent what he was aware of from April 7, 1994-the day after the attack on the presidential airplane-to XXXXX 1994, the date when he had to return to resume service on XXXXX 1994. The respondent answered vaguely. He was not in the service. He obtained his information from a lieutenant. He found out about the route to take. He did not have the time to listen to the radio; in combat situations, it is advised not to read the newspapers or to listen to the radio. Furthermore, what was he going to learn on it, other than that his XXXXX had been killed? However, throughout all of Rwanda, the hunting down of Tutsis and moderate Hutus had begun. Already: [translation] "On April 7 at noon, the moderate political leaders of Rwanda had been massacred or had hidden." (Exhibit M-13, page 302). "The presidential guard triggered the massacre of Tutsis and other civilians shortly after the death of Habyarimana (Exhibit M-11, page 218).29 On April 7 at midday, the presidential guard, assisted by soldiers of other elite battalions and police officers, had eliminated the leaders who could have legitimately exercised power (Exhibit M-11, page 225). During the afternoon of April 7, "the presidential guard and other elite units were conducting massacres across the city" (Kigali) (Exhibit M-11, page 226). Still on April 7, "the massacres extended to outside Kigali, in the parishes of Zaza, Kabarondo, Nyarubuye, Kibungo, Shangi, etc...." (Exhibit D-10.7,30 page 338). Given the abundant documentary evidence that so many massacres had taken place as of April 7, 1994, the panel does not find it at all plausible that the respondent did not know that these massacres were taking place. Otherwise, why would he have hidden his military background, when his wife, a Hutu like him, had been determined to be a "Convention refugee" as of November 1994? It seems clear that someone who is looking for protection, who has a clear conscience, would not need to go there. The panel is of the opinion that the respondent, who continued to be a member of an organization principally directed to a limited, brutal purpose, was therefore complicit in the achievement of these objectives. The act of genocide is described by each of the paragraphs of Article 1F. Thousands of innocent civilians were massacred in Rwanda. The panel is of the opinion that there is no doubt that the respondent is complicit. Despite his denials, the respondent could not be unaware of the massacres of moderate Hutus and Tutsi civilians that took place in all of Rwanda and in which so many military officers were involved. The documentary evidence does not show that even the minority of military members who were not in favour of these massacres did not know that these massacres had taken place. The fact that he hid his military background in his refugee protection claim confirms that the respondent knew that there were serious reasons to hide this background. The fact that he chose to XXXXX when he understood that he was poorly regarded for having provided a XXXXX XXXXX in order to save his father's Tutsi wife does not exonerate the respondent, who had remained in the army to that point. In Aleman,31 Justice Rouleau stated that he agreed with Justice McKeown that when a panel analyzes exclusion in the matter of an application to vacate status, the panel is not required to analyze the evidence that relates to inclusion under the Convention definition (para. 37). Consequently, having chosen to follow the procedure set out in Aleman, and having established that there were serious reasons to believe that the respondent was guilty of crimes against humanity, on these grounds, the panel did not analyze the evidence that relates to inclusion. DETERMINATION Given the additional facts that the first panel did not know, that panel would not have allowed the respondent's refugee protection claim because it would have concluded that there are serious reasons to believe that XXXXX XXXXX XXXXX was complicit in crimes against humanity, serious non-political crimes and acts contrary to the purposes and principles of the United Nations. Consequently, he is excluded from the protection provided to "Convention refugees" and to "persons in need of protection" as defined in Articles 1F(a), (b) and (c) of the Convention. Section 98 of the IRPA applies these exclusion clauses to section 9632 and subsection 97(1).33 Therefore, the respondent also cannot be a person in need of protection. For all of these reasons, the Division allows the applicant's application to vacate the Convention refugee status of XXXXX XXXXX XXXXX. As set out in subsection 109(3), his claim is deemed to be rejected and the initial decision that led to the conferral of refugee protection is nullified. Léon Graub Léon Graub September 29, 2006 Date IRB translation Original language: French 1 109. (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. (2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection. (3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified. 2 Rule 57 of the Refugee Protection Division Rules. 3 Exhibit M-1, Application for permanent residence (XXXXX), question 18. 4 Exhibit M-3, Respondent's notes from interview at Pearson Airport XXXXX (p. 313). 5 Exhibit M-4, Personal Information Form, question 18. 6 Ibidem, question 19, p. 90. 7 Exhibit M-7, Application for permanent residence signed XXXXX, and M-7, which contains three documents: two emails, dated May 14, 1998, and June 5, 1998, as well as an Application for permanent residence made on XXXXX. 8 Exhibit M-7, Application for permanent residence signed XXXXX: p. 411. 9 Exhibit M-9, Memorandum dated October 13, 2000. 10 Exhibit M-8, list of XXXXX shareholders. 11 Exhibit M-10, letter from the respondent, dated November 1, 2004. 12 Exhibit M-1, supra, footnote 3 (question 18). 13 Exhibit M-3, supra, footnote 4 (p. 313). 14 Exhibit M-5, Notice of Decision, dated October 30, 1996. 15 Exhibit D-11.6: Ottawa Citizen, dated May 29, 1994. 16 Aleman, Eladio v. M.C.I. (F.C.T.D., No. IMM-4707-94), McGillis, September 20, 1995. 17 Thambipillai, Thamby Indrarajah v. M.C.I. (F.C.T.D., No. IMM-5279-98), McKeown, July 22, 1999. 18 Exhibit D-1, Statutory declaration. 19 Exhibit M-10: pp. 226 to 236. 20 Exhibit D-1, p. 7. 21 Exhibit M-10, p. 224. 22 Exhibit M-7, supra, p. 399. 23 Exhibit M-11, "Aucun témoin ne doit survivre" [No witnesses must survive] Human Rights Watch - International Federation for Human Rights (1999). 24 Ibidem, pp. 250, 279, 297, 309, 312, 318, 319, 320, 321, 322, 324, 325, 332, 333, 338 and 344. 25 Exhibit D-10.9, Excerpts from Lt. General Roméo Dallaire's book, Shake Hands With the Devil: p. 339. 26 Exhibit D-10.11, Excerpts from the book by Charles Onana, journalist, to show when the FPR attacked: p. 116. 27 Exhibit M-12, Gerard Prunier, "Rwanda - 1959-1996: Histoire d'un genocide" [Rwanda - 1959-1996: history of a genocide]. 28 Exhibit M-11, Human Rights Watch, "Aucun témoin ne doit survivre" [No witnesses must survive] - International Federation for Human Rights (1999): p. 224; Exhibit M-13, Roméo Dallaire, Shake Hands With the Devil: p. 317. 29 Exhibit M-11, p. 218. 30 Exhibit D-10.7, Colette Braeckman, journalist. "Rwanda: Histoire d'un genocide" [Rwanda: history of a genocide]: p. 338. 31 Aleman, Eladio v. M.C.I. (F.C.T.D., No. IMM-4707-94), McGillis, September 20, 1995. 32 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 33 97(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. a) --------------- b) --------------- c) --------------- --------------- 2 RPD File No. / No de dossier de la SPR : AA5-00309