Ottawa, Ontario, February 10, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review by James Obita (Applicant) from a decision of a Visa Officer denying him permanent residency in Canada. That decision was based upon a finding by the officer that the Applicant was inadmissible because he fell within the exclusions found in section 35(1)(a) of the Immigration Refugee and Protection Act(IRPA), S.C. 2001, c.27. The Applicant seeks to have that decision quashed so that his request for residency can be reconsidered on the merits.
Background
[2] The Applicant is a citizen of Uganda. He applied, from London, England, for a permanent resident visa in 2002. His application is sponsored by his common law spouse, Joyce Odongo.
[3] The Applicant and Ms. Odongo have four children, all born in Kenya between 1990 and 1998. Ms. Odongo and the four children are all Canadian citizens and they now reside in Canada.
[4] The Applicant had come to England in 1999 from Kenya and he sought asylum there. That claim to asylum in England apparently remains outstanding. The Applicant claims that he essentially fled from Kenya because of a threat that he might be forced to return to Uganda to answer for his involvement in an organization called the Lord's Resistance Movement (LRM) between the years 1996 and 1998. His application for admission to Canada is not, though, as a Convention Refugee or as a person in need of protection but, as noted above, as a sponsored applicant.
[5] The LRM was the so-called political arm of the Lord's Resistance Army (LRA). The LRA has fought the forces of the Ugandan military since 1987, mainly in northern Uganda. The fighting continues to this day despite sporadic attempts to achieve a cessation in the hostilities.
[6] The Applicant has never denied his involvement with the LRM. He readily admitted his senior leadership role within that organization in his Personal Information Form (PIF) and in a subsequent interview with the Visa Officer. Detailed notes of that interview are contained within the record. The Applicant also submitted documentary evidence confirming his status within the LRM to the Visa Officer for her consideration, including a lengthy speech he delivered to a conference in London, England in 1997.
[7] The record contains a considerable amount of open-source research dealing with the insurgency in northern Uganda and describing, in some detail, the conduct of the LRA and the forces fighting on behalf of the Ugandan government. There is no suggestion in the record that the Applicant actively participated in the combat operations of the LRA and, during the material time, it appears to be the case that he was residing in Kenya.
[8] By letter dated December 15, 2004, the Visa Officer turned down the Applicant's application for permanent residency. Because that letter is the focal point of the Applicant's argument in this case, it is set out in its entirety below:
Dear Mr. Obita:
After careful and thorough consideration of all aspects of your application and the supporting information provided, I have determined that you do not meet the requirements for a permanent resident visa.
There are reasonable grounds to believe that you are a member of the inadmissible class of persons described in section 35(1)(a) of the Immigration and Refugee Protection Act which states that a permanent resident or foreign national is inadmissible on grounds of violating human or international rights for committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
Sections 4 to 7 of the Crimes Against Humanity and War Crimes Act state in part:
"crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
"genocide" means an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that, at the time and in the place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in place of its commission.
"war crime" means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
Specifically, there are reasonable grounds to believe that, during the 1990's, while you were an active member and representative of the Lords Resistance Army you were complicit in crimes against humanity. While you did indicate at interview that you disapproved of the abduction of children and the use of landmines by the LRA, by claiming support for the LRA's military campaign, which was targeted towards the civilian population rather than the government, you therefore still supported the other atrocities which were committed (rape, torture, mutilation etc..). These acts were against civilian Ugandans. I have reached this conclusion based on the information gathered at interview, open source information as well as the documents which you recently submitted to me on November 4th, 2004.
As a result, you are inadmissible to Canada pursuant to section 35 of the Act. I am therefore refusing your application.
I am sending a letter to your sponsor notifying her of the appeal provisions of the Immigration and Refugee Protection Act. I am using the last known address for your sponsor:
Joyce Reachel Odongo
645 Lansdowne Ave1st floor
Toronto, ON M6H 3Y2
CANADA
If this address is not correct, please provide your sponsor's new address immediately so that this letter can be resent to her new address.
I understand that this negative decision will be a disappointment to you but, for the reasons mentioned in this letter, it cannot be otherwise.
Jillan Sadek
Immigration Officer
[9] It is the above decision that the Applicant has challenged in this proceeding.
Issues
Was the Visa Officer's decision unreasonable having particular regard to her finding that the Applicant was a member and representative of the LRA and to her treatment of the Applicant's exculpatory evidence?
Analysis
[10] It is contended on behalf of the Applicant that the Visa Officer ignored important evidence and thereby failed to appropriately distinguish between his admitted role on behalf of the LRM and his minimal, if any, involvement with the LRA. It is said that the Visa Officer blurred the lines between those two organizations and erred by describing the Applicant as "an active member and representative of the Lord's Resistance Army". The Applicant asserts that there is nothing in the record which could reasonably support this conclusion that he was a member of the LRA and therefore complicit in its behaviour.
[11] The Applicant has not attempted to "soft pedal" or to gloss over the atrocious behaviour of the LRA but he does say that his role on behalf of the LRM was substantially directed at finding a peaceful solution to the armed conflict in northern Uganda and to bringing an end to the commission of atrocities by the warring parties. He therefore argues, as a secondary issue, that the Visa Officer erred by failing to adequately address this exculpatory evidence.
[12] In order to assess the strength of the Applicant's arguments, it is first necessary to examine the statutory regime that applied to the Visa Officer's decision and the evidence which she had before her to justify that decision.
The Statutory Regime
[13] The Applicant required a visa to enter Canada as a permanent resident but to obtain that visa the officer had to be satisfied, inter alia, that he was not inadmissible: section 11(1) of the IRPA. The grounds of inadmissibility considered in this case by the Visa Officer are contained within section 35(1)(a) of the IRPA which reads:
| 35. (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
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35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants : a) commettre, hors du Canada, une des infractions visées aux articles 4 à 7 de la Loi sur les crimes contre l'humanité et les crimes de guerre;
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[14] The applicable provision from the Crimes Against Humanity and War Crimes Act, 2000, c. 24 is found in section 4(3). It defines a "crime against humanity" as follows:
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"crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission. |
« crime contre l'humanité » Meurtre, extermination, réduction en esclavage, déportation, emprisonnement, torture, violence sexuelle, persécution ou autre fait - acte ou omission - inhumain, d'une part, commis contre une population civile ou un groupe identifiable de personnes et, d'autre part, qui constitue, au moment et au lieu de la perpétration, un crime contre l'humanité selon le droit international coutumier ou le droit international conventionnel, ou en raison de son caractère criminel d'après les principes généraux de droit reconnus par l'ensemble des nations, qu'il constitue ou non une transgression du droit en vigueur à ce moment et dans ce lieu.
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[15] The test to be applied to the determination of inadmissibility under section 35 is found in section 33 of the IRPA. That provision requires that the Visa Officer rely upon facts for which there are reasonable grounds to believe have occurred, are occurring or may occur. This obligation has been held to require proof which is something more than mere suspicion but less than the civil standard of proof on the balance of probabilities. This point is made clearly in the Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v. Mugesera [2005] S.C.J. No. 39 (SCC) (QL) where Chief Justice McLauchlin held at paragraphs 114-115:
114 The first issue raised by s. 19(1)(j) of the Immigration Act is the meaning of the evidentiary standard that there be "reasonable grounds to believe" that a person has committed a crime against humanity. The FCA has found, and we agree, that the "reasonable grounds to believe" standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities: Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), at p. 445; Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.), at para. 60. In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information: Sabour v. Canada(Minister of Citizenship & Immigration)(2000), 9 Imm. L.R. (3d) 61 (F.C.T.D.).
115 In imposing this standard in the Immigration Act in respect of war crimes and crimes against humanity, Parliament has made clear that these most serious crimes deserve extraordinary condemnation. As a result, no person will be admissible to Canada if there are reasonable grounds to believe that he or she has committed a crime against humanity, even if the crime is not made out on a higher standard of proof.
[16] The Court in Mugesera went on to say that the "reasonable grounds to believe" standard applies only to questions of fact. Whether those facts are sufficient to constitute a crime against humanity is a question of law. Questions of law must be decided correctly so that the facts as found on the lower standard must show that the impugned conduct would constitute a crime against humanity in law.
[17] The Mugesera decision also identifies the elements of a crime against humanity. Although the Court was there dealing with the Criminal Code provisions - since replaced by the Crimes Against Humanity and War Crimes Act - the slight differences were noted to be immaterial. The Court held that a criminal act rises to the level of a crime against humanity upon proof of four elements (paragraph 119):
1. An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act);
2. The act was committed as part of a widespread or systematic attack;
3. The attack was directed against any civilian population or any identifiable group of persons; and
4. The person committing the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of that attack.
[18] As noted above, the enumerated proscribed underlying acts include murder, torture, sexual violence or any other inhumane act; but to be elevated to crimes against humanity they must also be shown to have taken place in the context of a widespread or systematic attack directed at a civilian population.
[19] In Mugesera a widespread attack was held to involve a massive, frequent, large scale action carried out collectively with considerable seriousness and directed against a multiplicity of victims but need not be part of a specific strategy or plan.
[20] The Court described a systematic attack as one which is thoroughly organized and which follows a regular pattern on the basis of a common policy involving the application of substantial resources. It must be part of a policy or plan but need not be part of an "official" policy or plan. Patterns of criminal conduct - as distinct from random events - are the common expression of systematic attacks.
[21] The terms "widespread" and "systematic" as used in the Crimes Against Humanity and War Crimes Act, above, are disjunctive so that proof of either is sufficient. The determination of what conduct is widespread or systematic is made by examining the means, methods, resources and results of an attack upon a civilian population. A perpetrator need not be involved in the commission of every criminal act. Proof of involvement in a single act committed within the broader criminal pattern will suffice.
[22] In Mugesera the Court went on to define the mental element of a crime against humanity in the following passage at paragraphs 174-175:
174 It is important to stress that the person committing the act need only be cognizant of the link between his or her act and the attack. The person need not intend that the act be directed against the targeted population, and motive is irrelevant once knowledge of the attack has been established together with knowledge that the act forms a part of the attack or with recklessness in this regard: Kunarac, Appeals Chamber, at para. 103. Even if the person's motive is purely personal, the act may be a crime against humanity if the relevant knowledge is made out.
175 Knowledge may be factually implied from the circumstances: Tadic, Trial Chamber, at para. 657. In assessing whether an accused possessed the requisite knowledge, the court may consider the accused's position in a military or other government hierarchy, public knowledge about the existence of the attack, the scale of the violence and the general historical and political environment in which the acts occurred: see, e.g., Blaskic, at para. 259. The accused need not know the details of the attack: Kunarac, Appeals Chamber, at para. 102.
Complicity
[23] The Applicant was denied residency in Canada because the Visa Officer found him to be complicit in the commission of crimes against humanity. In order for me to assess the impugned decision, it is therefore also necessary to understand what is meant by the term "complicit". I must then assess the Visa Officer's finding of complicity against the backdrop of the evidence of the Applicant's involvement with the LRM and LRA.
[24] Complicity is not a crime; it is only a method of committing a crime: see Zazai v. Canada(Minister of Citizenship and Immigration) 2005 FCA 303 (C.A).
[25] One of the leading Canadian authorities dealing with complicity in a context similar to this one is Ramirez v. Canada(Minister of Employment and Immigration)[1992] 2 F.C. 306 (C.A.). Mr. Ramirez was a member of the Salvadoran Army. He joined the army at a young age to avenge the murder of one sister and the rape of another at the hands of the guerillas. Mr. Ramirez was engaged in protracted and serious combat operations and, by his own admission, was at least present during the commission of atrocities including torture and murder. Eventually his conscience got the better of him and he deserted. He then sought refugee protection in Canada. The decision of Justice MacGuigan in Ramirez sums up the evidence of his involvement in the following passage (paragraphs 38-39):
On a standard of "serious reasons for considering that...he has committed a crime against peace, a war crime, or a crime against humanity," I cannot see the appellant's case as even a borderline one. He was aware of a very large number of interrogations carried out by the military, on what may have been as much as a twice-weekly basis (following some 130-160 military engagements) during his 20 months of active service. He could never be classed as a simple on-looker, but was on all occasions a participating and knowing member of a military force, one of whose common objectives was the torture of prisoners to extract information. This was one of the things his army did, regularly and repeatedly, as he admitted. He was a part of the operation, even if he personally was in no sense a "cheering section". In order words, his presence at this number of incidents of persecution, coupled with his sharing in the common purposes of the military forces, clearly constitutes complicity. We need not define, for purposes of this case, the moment at which complicity may be said to have been established, because this case is not to my mind near the borderline. The appellant was no innocent by-stander: he was an integral, albeit reluctant, part of the military enterprise that produced those terrible moments of collectively deliberate inhumanity.
To convict the appellant of criminal liability for his actions, would, of course, require an entirely different level of proof, but on the basis of the lower-than-civil-law established by the nations of the world, and by Canadian law for the admission of refugees, where there is a question of international crimes, I have no doubt that no properly instructed tribunal could fail to come to the conclusion that the appellant had been personally and knowingly involved in persecutorial acts.
[26] The Ramirez decision is important because it confirms that a person is not complicit in the commission of a war crime or a crime against humanity by simple membership in an organization which is guilty of such behavior - unless, of course, the organization has a limited brutal purpose. Similarly, a person who is a mere on-looker to criminal behavior is not, by that fact alone, complicit. What is required for complicity is "a shared common purpose and the knowledge that all of the parties in question may have of it". The Court's analysis of this issue concludes with a cautionary note at paragraph 22:
22 One must be particularly careful not to condemn automatically everyone engaged in conflict under conditions of war. Probably most combatants in most wars in human history have seen acts performed by their own side which they would normally find reprehensible but which they felt utterly powerless to stop, at least without serious risk to themselves. While the law may require a choice on the part of those ordered actually to perform international crimes, it does not demand the immediate benevolent intervention, at their own risk, of all those present at the site. Usually, law does not function at the level of heroism.
[27] There are a number of authorities which have further considered the issue of complicity in this context including Moreno v. Canada(Minister of Employment and Immigration)[1994] 1 F.C. 298 (C.A.) and Sivakumar v. Canada (Minister of Employment and Immigration) [1994] 1 F.C. 433 (C.A.) but an excellent summary of the cases from Ramirez forward is set out by Justice Edmond Blanchard in Sungu v. (Minister of Citizenship and Immigration) [2003] 3 F.C. 192:
[29] Also in the Ramirez decision, supra, the Federal Court of Appeal laid down the applicable principles where the Minister is seeking to exclude a party from the protection of the Convention, pursuant to paragraph 1F(a) of the Convention. The following principles are applicable in this case:
(a) the Minister always has the burden of legally establishing that the claimant is an accomplice in international crimes;
(b) the burden of proof is less than the balance of probabilities;
(c) as a general rule, "mere membership" in an organization involved in the perpetration of international crimes is not sufficient to exclude the interested party (other than where it is established that the very existence of the organization in question is primarily intended for limited, brutal purposes);
(d) complicity requires the "personal and knowing participation" of the claimant in the perpetration of international crimes; and
(e) complicity is based on the existence of a shared common purpose and knowledge that all the parties in question have of it.
[30] The general rule, as it is recognized by the decisions of this Court (Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.)), is that mere membership in an organization involved in the perpetration of international crimes is not enough to trigger the exclusion provision. However, there is an exception to the general rule when the very existence of the organization in question is primarily intended for a limited, brutal purpose. Then there is a rebuttable presumption of complicity (Saridag v. Canada (Minister of Employment and Immigration) (1994), 85 F.T.R. 307 (T.D.). That is why, in such circumstances, it is important, before acting on this presumption of complicity, to characterize the organization with irrefutable evidence.
[31] The question of complicity was also considered by Madam Justice Reed in Penate v. Canada (Minister of Citizenship and Immigration), [1994] 2 F.C. 79. Following an analysis of the decisions in Ramirez, supra, Moreno, supra, and Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), Reed J. concluded, at pages 84-85:
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. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation.
[32] Likewise, in Sivakumar, supra, the Court of Appeal, following Ramirez, supra, explained that a person may be considered "an accomplice through association" and laid down the following principles:
- Complicity through association can mean that individuals may be rendered responsible for the acts of others because of their close association with the principal actors.
- Furthermore, the case for an individual's complicity in international crimes committed by his or her organization is stronger if the individual member in question holds a position of importance within the organization. The closer one is to being a leader rather than an ordinary member, the more likely it is that an inference will be drawn that one knew of the crime and shared the organization's purpose in committing that crime.
- In such circumstances, an important factor to consider is evidence that the individual protested against the crime or tried to stop its commission or attempted to withdraw from the organization.
- Association with an organization responsible for the perpetration of international crimes may constitute complicity if there is personal and knowing participation or toleration of the crimes.
[28] At the end of the day, it is not a person's membership status that is important. Rather it is the nature and scope of one's activity in support of an organization engaged in criminal behavior that is the measure of his complicity. The same point was made by Justice Blanchard in Sungu, above, at paragraph 33:
Moreover, in Bazargan v. Canada (Minister of Citizenship and Immigration) (1996), 205 N.R. 282, the Federal Court of Appeal held that "personal and knowing participation" may be direct or indirect and does not require formal membership in the organization that is ultimately engaged in the condemned activities. It is not working within an organization that makes someone an accomplice to the organization's activities, but knowingly contributing to those activities in any way or making them possible, whether from within or from outside the organization. Those who become involved in an operation that is not theirs, but that they know will probably lead to the commission of an international offence, laid themselves open to the application of the exclusion clause in the same way as those who play a direct part in the operation.
The Visa Officer's Decision
[29] While there is not complete unanimity with respect to the standard of review which I must apply to a decision of the type made here by the Visa Officer, I will apply a standard of reasonableness simpliciter with respect to issues of fact or mixed fact and law. Of course, it is correctness that is applied to issues of law.
[30] The compelling analysis by Justice Nadon in the similar case of Au v. Canada (Minister of Citizenship and Immigration) 2001 FCT 243 has persuaded me that reasonableness simpliciter is appropriate bearing in mind that it must be applied to the standard of proof required by s. 33 of the IRPA ("reasonable grounds to believe"). On that point, I cannot improve upon Justice Nadon's treatment of the application of the judicial standard of review to the standard of proof that applied to the Visa Officer's decision:
[40] In my opinion, Officer Schultz's conclusion that the applicant was inadmissible to Canada under paragraph 19(1)(c.2) of the Act was not unreasonable. Paragraph 19(1)(c.2) does not require that a visa officer be satisfied on a balance of probabilities that an applicant was or is a member of a criminal organization; it only requires "reasonable grounds to believe" that the applicant is a member of a criminal organization.
[41] In Chan v. Canada (M.E.I.) (1996), 34 Imm. L.R. (2d) 259 (F.C.T.D.), the applicant had been deemed inadmissible in Canada pursuant to s. 19(1)(c.2) of the Act. Among other arguments, the applicant claimed that the visa officer did not have "reasonable grounds" to believe that she was a member of a triad. In response to her argument, Cullen J. stated the following at page 273:
While the evidence to which the applicant directed me tends to support her case, the visa officer need not be convinced "beyond a reasonable doubt" that the applicant is a member of a triad. It must be shown that the visa officer had reasonable grounds to believe that the applicant is or was a member of an organization that there are reasonable grounds to believe is or was engaged in crime. This does not mean that there must be proof that the organization is criminal or that the applicant is or was an actual member of such an organization, but only that there are reasonable grounds to believe she is or was a member of such an organization. In my view, the proper test to be applied is the one set out in Canada (Attorney General) v. Jolly, [1975] F.C. 216, where the Federal Court of Appeal, in examining whether a potential visitor was a member of a subversive organization, stated the following at 225 and 226:
But where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me that to require proof of the fact itself and proceed to determine whether it has been established is to demand the proof of a different fact from that required to be ascertained. It seems to me that the use by the statute of the expression "reasonable grounds for believing" implies that the fact itself need not be established and that evidence which falls short of proving the subversive character of the organization will be sufficient if it is enough to show reasonable grounds for believing that the organization is one that advocates subversion by force, etc.
[31] On the face of the Visa Officer's letter of refusal, it is clear that she considered the applicable statutory provisions and adopted the correct standard of "reasonable grounds to believe" in proof of the facts required for her decision. Although the letter of decision is quite short, she did make a number of factual findings which bear repeating:
· That during the 1990's the Applicant was a member and representative of the LRA;
· That while the Applicant disapproved of child abduction and the use of landmines, he nevertheless supported the LRA military campaign which was targeted towards civilians; and
· That the Applicant's support for the LRA and its military aims constituted support for its atrocities including rape, torture and mutilation.
[32] The Visa Officer then went on to find on the basis of the above that the Applicant was complicit in the commission of crimes against humanity by the LRA.
[33] It was strenuously argued on behalf of the Applicant that the Visa Officer erred in concluding that he was "an active member and representative of the Lord's Resistance Army". The Applicant acknowledges that he was an active member of the LRM but says that he was never a member of the LRA and was always careful to distinguish between the two groups.
[34] In his submissions, the Applicant has not attempted to minimize the gravity of the conduct of the LRA, which is not particularly surprising given that there was ample evidence before the officer to allow her to form a reasonable belief that the LRA and its leaders had committed crimes against humanity. In the material before the officer the following extracts can be found:
· The LRA, the oldest and best known of the Ugandan rebel groups, is active along the frontier with Sudan and carries out most of its attacks in the northeast of the East African country.
The war, marked by the mutilation of civilians and the abduction of thousands of children into the LRA's ranks, has caused tens of thousands of deaths and driven some 1.2 million people from their homes.
After a couple of years of relative calm, the conflict has flared up again since 2002. (source: Relief Web per Agence France-Presse).
· The Lord's Resistance Movement (LRM), the political wing of the rebel Lord's Resistance Army (LRA), claims the LRM/A is a non-religious, non-tribal armed resistance movement. A statement received by the IRIN on Monday, protesting "Panda Gari" ("get into the truck") security operations in Gulu town, attempts to present a political programme for the movement, long a human rights pariah. The name "Lord's", the statement says, refers to the prayers of the rural population to prevent "pogroms and massacres".
...
The LRA, notorious for abductions of children, is now protesting "abductions" by the government during the Gulu security sweep. (source: United Nations Office for the Coordination of Humanitarian Affairs, December 5-7, 1998).
· Since 1986, in the northern Ugandan districts of Gulu and Kitgum, the Lord's Resistance Army (LRA), also known as the Lord's Resistance Movement, and other insurgent groups are said to have carried out systematic attacks on the civilian population, abducting thousands of children and forcibly recruiting them into their armed ranks.
Throughout 1997 and early 1998, the attacks allegedly intensified, killing hundreds of civilians and causing many more to flee their homes. Thousands of these internally displaced people were moved by the Government of Uganda to "protected villages" which were insufficiently resourced to provide even the minimum requirements for these people, such as shelter, nutrition, sanitation and clean water, and to ensure their safety and respect their human rights.
According to Amnesty International, food security in camps remains poor, and local people have consistently complained that the government forces, the Ugandan People's Defence Force (UPDF), has failed to protect them from assault by the LRA seeking to abduct children and loot food. There are allegations that the UPDF soldiers have themselves been directly responsible for human rights violations against people in camps. (source: Amnesty International: "Breaking the Circle: protecting human rights in the northern war zone", March, 1999 in FAS Intelligence Resource Program, "Lord's Resistance Army").
· There have reportedly been incidents in which unarmed civilians caught in the countryside by UPDF soldiers have been extra judicially executed, beaten, or raped. Ibid.
The International Save the Children Alliance reported that children who have escaped or are rescued are taken to two rehabilitation centres in Gulu. According to statistics provided by these centres up until the first quarter of 1999, a total of 5,837 children had been reintegrated since the beginning of the conflict into their communities after receiving medical treatment, counselling and education. Estimates as to the number of missing children believed to be in the LRA base camp in southern Sudan vary between 2,000 and 5,000. Many of the children have reportedly been killed either by their abductors or as a result of the conflicts they have been forced to take part in. The sexual exploitation of many of the abducted girls has reportedly led to the birth of approximately 200 babies. (source: United Nations Economic and Social Council, December 27, 1999).
· Last year, Amnesty International visited Gulu twice and published a report on human rights abuses by the LRA. The fact is that the LRA is destroying a generation of Acholi children by abducting them, turning them into traumatized killers and forcing them to the battlefield. The LRA has visited extreme violence on villagers, murdering and raping thousands, destroying education and health services and disrupting the economy. Whatever the motive for taking up arms, the LRA's conduct is in total breach of the human rights standards that the world community has defined in international law. Amnesty International visited Gulu again in May this year in order to follow up on issues to do with the accountability of UPDF soldiers for abuses for a report currently under preparation. The extreme violence of LRA over-shadows a complex set of problems associated with the Uganda Government. While not on the same scale as the LRA, UPDF soldiers have also killed and raped villagers. Civilians have been beaten during spot-checks or after arrest. Civilians suspected of being LRA collaborators have been arrested on inadequate evidence. (source: Respecting Human Rights: A Path towards Peace - Amnesty International, 1998).
[35] This evidence is obviously sufficient to support the Visa Officer's belief that the LRA had committed crimes against humanity including widespread attacks involving the murder, rape, abduction and sexual slavery of thousands of Ugandan citizens and her conclusion in that respect is unimpeachable.
The Applicant's role in the LRM and LRA
[36] Needless to say, the Applicant now seeks to distance himself from the LRA and contends that the Visa Officer misapprehended his role. He relies heavily upon the decision by Justice Jerome in Cardenas v. Canada(Minister of Employment and Immigration)[1994] F.C.J No. 139. He also relies upon discovery evidence given by the Visa Officer which he says established a clear division between the LRM and the LRA of the sort that was present in the Cardenas case.
[37] Cardenas, above, involved an individual who was a member of a political group or faction in Chile and, according to the evidence, he had no involvement with the dissident military faction. The two organizations were described as separate and distinct. The political group denounced the use of force. Justice Jerome held that the Board had erred in treating the two groups as one. His treatment of this issue evidences a clear distinction from the facts of the case at bar:
16 The Board inferred that the applicant had advance knowledge of the military faction's activities based on the fact that he held a position of trust and leadership within the organization.
17 This inference of advance knowledge might have been reasonable if the clear distinction between the military and political factions had not existed. The record is clear, however, that the applicant joined the political faction and worked exclusively in the area of information and recruitment. His position of leadership was within the political faction not the military one.
[38] The discovery evidence relied upon by the Applicant is also not as helpful to his case as was argued on his behalf. Notwithstanding the somewhat leading nature of the questioning, the Visa Officer did not acknowledge the kind of clear division that was present in the Cardenas case. She testified as follows:
Q Right. Okay. Now, your conclusion - the - your conclusion, if I read your notes correctly, was that - let me look here, if I can take it right from your affidavit. Paragraph 12 of your affidavit, you concluded that the two were linked together?
A Yes, that's right.
Q But there are two separate organizations that were linked. Is that the way you understood it?
A Yes.
Q Okay. And that was the way Mr. Obita presented it to you; is that correct?
A Well, I found him to be - that his position in the Lords Resistance Movement was one where he was representing the army outside of Uganda.
Q Right.
A So it was based on my research and the links that were drawn in the research, as well as what I was hearing from him about his involvement with the LRA and the role of the LRA.
Q Okay, right. But he never identified himself to you as a member of the LRA.
A He didn't.
Q He always - right, okay.
A But he did say he acted on behalf of the LRA.
Q Right.
A And supported the LRA.
Q Okay. So when you read the last paragraph on the first page where she ---
A Which page are you on?
Q Of the refusal letter.
A Refusal letter.
Q Ms. Sadek says he was a member of the Lords Resistance Army, but that's not consistent with the way he had ---
A And a representative of the Lords Resistance ---
Q Well ---
A I certainly agree that he was a representative of the Lords Resistance ---
Q All right. But there's a difference between representative and member.
A But at the same time, she has information available to her that he presented to her an interview. I've seen those two letters. And he has written a letter.
Q Yes, those are in the record and the court - you're referring to the letter at Page 11, right? Yes, that's the one that he presented the day of the ---
A Yes. And if you look at the letterhead at the top of the page, it's Lords Resistance Movement/Army.
Q Yes. Well, that's the way it was always identified, I think, in most of the material. So your view is that he was a representative, but you - at least based upon what he told you and your understanding when you left, he never identified himself as a member. So that was a conclusion that would have been reached by Ms. Sadek, based upon whatever other documents she saw; is that correct?
A Right, yes.
[39] The Visa Officer's notes of her meeting with the Applicant indicate very clearly that she understood the distinction between the LRA and the LRM such as it was. Those notes state:
PI has made no secret of his involvement with the Lord's Revolutionary Movement. He was in a senior and highly influential position within this movement. This movement is clearly linked with the Lord's Revolutionary Army. The movement took the first two words of its name from the LRA. There were meetings between the movement and the army at the army's base in Sudan. The movement acted as a mouthpiece for the army's cause. The atrocities committed by the LRA are well documented and include horrific crimes such as child abduction and mutilation of civilians.
PI claims that while he supported the LRA's military campaign, he disapproved of the abduction of children and the use of landmines. He says he denounced the use of landmines by the LRA in radio broadcast. He referred to an incident where girls were abducted from a college. He says he tried unsuccessfully to get them released.
[40] It is not at all surprising that the officer chose to describe the Applicant as member and representative of the LRA because there were many references in the materials before her which describe the LRA and LRM as essentially one group. Indeed, the Applicant was the source of many of those references. He frequently described the LRA and the LRM as a blended organization with common objectives.
[41] The best example of this is a speech which the Applicant delivered in London, England in early April, 1997 to the so-called Kacoke Madit Conference. In a conference paper, printed after the London conference, the organizers noted that the LRA had "sent their Secretary for External Affairs and Mobilization, Dr. James Obita and two other members of the LRA/M High Command".
[42] It was the Applicant who submitted the conference paper to the Visa Officer for consideration. It is not altogether clear why he did so because it represents the strongest evidence of his close association with the LRA and his commitment to its aims. It is essentially a propaganda piece for the LRA and in it the Applicant comes across as its firm advocate and apologist.
[43] The Applicant is represented as the author of the speech and he refers to himself as the "LRM/A Secretary for External Affairs and Mobilisation, Leader of LRM/A delegation to KM97".
[44] The opening sentence of the speech reads: "I bring you warm and sincere greetings from the Lord's Resistance Movement/Army". He then urges the audience to "forget at the moment all that you think that you know about LRM/A that you have learnt from President Museveni's propaganda and his worldwide collaborations including the Western media".
[45] There are several references in the speech to the Applicant's role on behalf of the LRA. He is not only speaking for the LRA but he includes himself within that group. For instance, he stated:
The LRA is a small force but very well organized and highly motivated. Although we are not adequately armed, we have managed to defend ourselves and beat back the NRA at all encounters in the last eight years. The NRA has pursued us in all places with sophisticated armament including helicopter gun ships, tanks, armoured personnel carriers, heavy artillery and a whole array of deadly weapons no sane government can use against it own citizen. But we have managed to survive.
[Emphasis added]
[46] In other passages, the Applicant refers to the LRA and the LRM as a combined entity. In one surprising statement he defends the LRM/A by challenging the evidence of atrocities and by suggesting that discipline is sometimes maintained by firing squad executions:
The LRM/A has tried to the best of its ability to investigate and deal with allegations against its fighters who may have acted outside official policy and reportedly taken people against their will or committed atrocities. Disciplinary measures, including the execution by firing squad of LRA fighters who have grossly abused civilians, have taken place in our camps. Currently the LRM/A is engaged in investigating various allegations of abductions and by the time this paper was prepared the outcomes were not yet available.
[47] In another passage, the Applicant attempts to refute allegations of mutilations by the LRA by saying only that it had no such official policy:
There has been unfair blanket labelling of LRA as a brutal group, carrying out mutilations of ears, lips and limps of alleged government informers. We would like to emphasize here once more that LRA has no official policy of carrying out such atrocious acts. All captured NRA soldiers and informers have either been reformed and integrated into the LRA or released without any such brutality inflicted on them.
[48] In other passages, he offers praise to the LRA and its leaders and heaps scorn on the Ugandan Government and its forces. For example, he refers to the LRA leader, Joseph Kony, as "an effective organizer and leader" but accuses the government forces of advancing a "heinous programme of extermination".
[49] The Applicant's speech concludes with a three-point listing of the LRA's demands which included the resignation of General Museveni, the disbanding of his so-called personal army and the formation of a new government of reconciliation.
[50] There can be no serious doubt from this speech that the Applicant was speaking on behalf of the LRA or that the LRA and LRM were effectively two arms of a single entity with a common purpose. This conclusion was reinforced by a letter written by the Applicant to President Museveni on November 6, 1997. The Applicant provided a copy of this letter to the Visa Officer for her consideration. The purpose of the letter was to invite peace negotiations. The letterhead used is that of the "Lord's Resistance Movement/Army" and is written under the title of the "Office of the secretary for foreign affairs". The opening paragraph states clearly that the Applicant was writing "on behalf of the Military High Command of the Lord's Resistance Army (LRA) and its political wing, the Lord's Resistance Movement (LRM)". Further into the letter the Applicant refers to his speech given at the conference in London: "In April, 1997 at the Kacoke Madit (KM) in London, United Kingdom, the LRM/A's publicly declared intention of pursuing a peaceful resolution to the northern conflict was enshrined in the conference resolutions."
[51] In addition to all of the above, the Visa Officer requested and obtained the view of an analyst at the Canadian Office of Modern War Crimes in Ottawa concerning the LRA and LRM. The advice she received by email dated February 18, 2004 was as follows:
Mr. Obita's own statements support the accusations against him as he has demonstrated support for the military campaign of the LRA. Your CAIPS notes indicate that he disapproved of the abduction of children and the use of landmines by the LRA. While he may not have approved of these actions, by claiming support of the LRA's military campaign, which was targeted towards the civilian population rather than the government, he is still saying that he supported the other atrocities which they committed (rape, torture, mutilation, etc.).
Even though in his application he has attempted to distance himself from the LRA, by maintaining membership in the LRM, open source research (one article actually written by himself) shows that he was actually a representative of the LRA, rather than the LRM, in peace efforts, and has often acted as an LRA spokesperson regarding the conflict in Uganda. It is also difficult to draw distinction between the LRA and the LRM. Most often they are quoted as being the same organization (they have the same leadership, Joseph Kony). The Applicant was in a very senior position and would be briefed by Kony directly.
He had knowledge of the crimes committed by the organization, he supported their activities, he had influence within the organization, he shared a common purpose with the LRA, he was associated with and was himself a senior member of the LRM/A and he remained with them until he felt that his own personal life was threatened.
RZTW supports your finding that Mr. Obita is inadmissible pursuant to IRPA 35(1)(a) for complicity in the crimes against humanity and war crimes committed by the LRA.
[52] It was not an error for the Visa Officer to describe the Applicant as a member and representative of the LRA because that is how he described himself. And even if it was an error, the evidence of his actual complicity in advancing the LRA's cause is fatal to his argument. It is not the label that the Applicant now attaches to himself that is important. It was his personal and knowing participation in the affairs of the LRA that was the measure of his complicity.
[53] Unlike s. 37 of the IRPA, there is no requirement to establish membership in an organization as a condition of inadmissibility pursuant to s. 35(1)(a). The issue is simply whether there are reasonable grounds to believe that the individual in question has committed an offence. The fact that the Visa Officer referred to the Applicant as a member and representative of the LRA is, therefore, completely superfluous to her decision. What was of concern was the issue of his active involvement with the LRA and the degree of his support for its causes. Her decision does address that substantive concern.
[54] The Applicant held a senior leadership position within the LRM and, in that capacity, he interacted with the LRA leadership. He had knowledge of the LRA atrocities and, rather than disengage, he became a strong advocate for the LRA cause. Indeed, he attempted to diminish, if not to sanitize, the LRA's crimes through the use of misrepresentations and propaganda. The LRM and LRA shared a common purpose of defeating the Ugandan government by force. The LRA advanced that aim, in large measure, by abducting and forcibly conscripting children.
[55] It is clear from the documentary material that the LRA's abuses were notorious and spanned many years in duration. The Applicant's London speech discloses that he had intimate knowledge of the LRA's activity and knew of its abuses. This is corroborated in the affidavit material he filed in support of this application.
[56] The Applicant's active support for the LRA in the face of his knowledge made him an accomplice to its crimes.
[57] The Applicant's argument that he can isolate himself from this nauseating history of violence because he was only ever a part of the LRA's political arm is contradicted by his own acknowledgments. If a person chooses to become a member of organizations such as these, even at a political level, he cannot create a form of immunity by referring to selective acts of criticism or piece-meal disagreement from within. While he may have sought a peaceful solution to the conflict, the record shows that it was a peace on the LRA's terms. The fact that the Applicant may have attempted to achieve a curtailment of some of the LRA's criminal behaviour is offset by his public assertions by which he excused or diminished those same crimes and ignored others. The Visa Officer was correct in her treatment of this so-called exculpatory evidence.
Conclusion
[58] The Applicant's active involvement with the LRA and the close association between the LRM and LRA are sufficient to support the Visa Officer's belief that he was a member and representative of the LRA. There was also ample evidence before the Visa Officer to establish the commission of crimes against humanity by the LRA and the Applicant's complicity in those crimes between 1996 and 1998.
[59] I also find that the Visa Officer's letter of denial provided sufficient information to the Applicant that he would have no difficulty understanding how she arrived at her decision of inadmissibility. The decision clearly identifies the statutory bar to admissibility which she applied. It informs the Applicant that he has been denied entry to Canada because he was complicit in the commission of crimes against humanity committed by the LRA in the 1990's. It refers to the interview held with the Applicant, to the documents he provided to the Visa Officer including his London speech and to the independent research she had carried out. The decision references his acknowledgement of support to the LRA's military campaign which was targeted in large measure towards the civilian population. Finally, it draws attention to specific atrocities committed by the LRA including rape, torture and mutilation - all of which had been supported by the Applicant through his active support for the LRA and its goals. Certainly the Visa Officer's letter was adequate to meet the transparency concerns identified in Baker v. Canada(Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817.
[60] Even if I am wrong in finding that the Visa Officer's decision was reasonable and sufficient, I would not order that this case be remitted for reconsideration. In my view, the facts of this case are so compelling that no other conclusion could be reasonably made except that the Applicant is inadmissible to Canada: see Sivakumar v. Canada(Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), above.
[61] Neither party asked that a question be certified and no question is certified.
ORDER
THIS COURT ORDERS that:
1. this application for judicial review is dismissed; and
2. there is no question to be certified.
" R. L. Barnes "
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1473-05
STYLE OF CAUSE: JAMES ALFRED OBITA
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 24, 2006
ORDER BY: THE HONOURABLE MR JUSTICE BARNES
APPEARANCES:
SOLICITORS OF RECORD:
Waldman & Associates
Barristers and Solicitors
John H. Sims Q.C.
Deputy Attorney General of Canada FOR RESPONDENT