Date: 19980824
Docket: IMM-3172-97
Between:
MOHAMED KIARED
Applicant
- and -
MINISTER OF CITIZENSHIP AND
IMMIGRATION OF CANADA
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board excluding the applicant from the refugee definition pursuant to Article 1F(a) of the Convention.
[2] The applicant, a citizen of Algeria, was an inspector with the Algerian police from 1986 to 1993.
[3] In October 1993, the applicant sought refuge in Canada and claimed refugee status. On July 12, 1994, the Refugee Division found that he was excluded from the definition of Convention refugee pursuant to Article 1F(a), suspecting him of having committed crimes against humanity. The applicant filed an application for judicial review of the decision. The respondent consented to the application. Accordingly, a second hearing before the Refugee Division was held, this time concerning the entire family, the applicant"s wife and children having come to Canada in November 1994.
[4] The Panel granted refugee status to his wife and children but decided to exclude the applicant pursuant to Article 1F(a) of the Convention since there were serious reasons for considering that he had committed crimes against humanity, in this case torturing and failing to assist civilians. The Panel did not believe his testimony. It was [TRANSLATION] "hesitant and ambiguous, with vague answers".1 It contained many inconsistencies and implausibilities, with the result that the Panel found that he had personally and knowingly participated in the alleged crimes:
| [TRANSLATION] The Panel does not believe that the claimant never participated in the torture but, even if that were so, the fact remains that it was on the basis of his interrogations that detainees were delivered over to the other authorities. The files were in the hands of inspectors who must have known if there was any information on the individuals. |
. . .
| Throughout his testimony, the claimant proved that he was aware of everything going on in the barracks and also in the police stations. Although he maintained that he was not part of the special brigades, he was nevertheless on call to back them up. The claim that he spent nights at the station and was always on night duty does not excuse him from intervening. He was required to wear a vest for identification purposes on patrol. Furthermore, the police and the brigades work together and it was the police who provided the information.2 |
[5] The Panel rejected the applicant"s claim that he did not share a common purpose:
| [TRANSLATION] The claim that the claimant did not share a common purpose of doing harm is not credible. The claim that he did not want to be involved, for example, in keeping the mosques under surveillance is not credible; there are many inconsistencies. Had he not followed orders, he would have been demoted or imprisoned. The claim that he reported his fellow officers is not credible either, as he had problems pinpointing the time of the report. First it was in September, then October and finally November 1990. In addition to these inconsistencies, it appears that during the period in which the claimant claims to have reported them, whether in writing or orally, he was not in Algeria. According to his PIF, he was in Marseille, France and in Italy from October 1988 to October 1990. Although the claimant claimed all along that he had never participated and that he handed the files over to other interrogators, in the course of giving evidence he admitted that the inspectors persecuted civilians.3 |
[6] The applicant continued to work as a police officer despite the abuses. He claims that he thought about quitting twice. The Panel rejected his evidence, finding that he voluntarily stayed in the police:
| [TRANSLATION] The claimant could have quit the police. He even supposedly thought about it twice; however, when confronted, he could not specify the date, for one thing, and, for another, the reason stated for failing to go through with it is not credible"the alleged police chief who advised him against resigning, and almost went so far as to punish him for wanting to, himself resigned because he was close to the FIS.4 |
[7] Counsel for the applicant argued to begin with that there is an appearance of bias due to the fact that the Panel at the second hearing made the same finding as the first panel. I am not of this view. In its decision, the Panel did a lengthy analysis of the evidence, which it heard over several hearing days, before finding, due to his lack of credibility, that the applicant was aware of the various crimes that there were serious reasons for considering that he had participated in, and that he shared a common purpose with the police force. After carefully reading the transcript, I find nothing to suggest that the Panel based its decision on the first panel"s decision. On the contrary, the transcript shows that it took great care to ensure that the applicant avoided the stumbling blocks that led the first panel to find that he was not credible, by constantly attempting to clarify his testimony.
[8] With respect to exclusion pursuant to Article 1F(a) of the Convention, the legal principles governing its application were set out by the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration),5 Moreno v. Canada (Minister of Employment and Immigration)6 and Sivakumar v. Canada (Minister of Employment and Immigration).7
[9] These principles can be summarized as follows:
| a) The burden of proof which must be met by the Minister to demonstrate that the Convention does not apply to a given person is less than the balance of probabilities. The wording of the exclusion clause requires only that there be "serious reasons for considering" that the person has committed a crime against humanity. Therefore, there is no need for the person to have been convicted of, or charged with, this crime. |
| b) The exclusion clause applies not only to those who physically commit the crimes but to accomplices too, provided that they exhibit the requisite degree of participation. |
| c) In order to be complicit in the commission of an offence, the individual"s participation in the perpetration or commission of the crime must be personal and knowing. Complicity rests on a shared common purpose, that is, knowledge of the activities that are being committed and failure to intervene. |
| d) Mere membership in an organization which from time to time commits international offences is not sufficient for exclusion. |
| e) At the same time, if the organization is principally directed to a "limited, brutal purpose", such as a secret police, mere membership may indeed meet the requirements of personal and knowing participation. |
| f) Mere presence at the scene of an offence, for example, as a bystander with no intrinsic connection with the persecuting group will not amount to personal involvement. |
| g) Personal and knowing participation can be inferred from the person"s rank. |
[10] In my view, the Panel"s decision must be upheld. The Panel correctly applied the legal principles, and its finding on the applicant"s credibility is not unreasonable.
[11] Contrary to the applicant"s submissions, the Panel did not make this finding solely on the basis that the applicant was a member of the police. The Panel found that the applicant had been a personal and knowing participant given his knowledge of the activities that were being committed and his failure to intervene. As Madam Justice Reed observed in Penate v. Canada (Minister of Employment and Immigration) :8
| As I understand the jurisprudence, it is that a person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and who neither takes steps to prevent them occurring (if he has the power to do so) nor disengages himself from the group at the earliest opportunity (consistent with safety for himself) but who lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. |
[12] There is therefore no reason for the Court to intervene. In the result, the application for judicial review is dismissed.
Danièle Tremblay-Lamer
JUDGE
OTTAWA, ONTARIO
August 24, 1998.
Certified true translation
Peter Douglas
Date: 19980824
Docket: IMM-3172-97
OTTAWA, ONTARIO, AUGUST 24, 1998.
PRESENT: THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
Between:
MOHAMED KIARED
Applicant
- and -
MINISTER OF CITIZENSHIP AND
IMMIGRATION OF CANADA
Respondent
ORDER
The application for judicial review is dismissed.
Danièle Tremblay-Lamer
JUDGE
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3172-97
STYLE OF CAUSE: MOHAMED KIARED v. MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 19, 1998
REASONS FOR ORDER OF TREMBLAY-LAMER J.
DATED August 24, 1998
APPEARANCES:
Jean-François Fiset FOR THE APPLICANT
Louise-Marie Courtemanche FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jean-François Fiset, Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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