Bonilla v. Canada (Minister of Citizenship and Immigration), (2009) 354 F.T.R. 116 (FC)

• Judge: O'Keefe, J.
• Court: Federal Court (Canada)
• Case Date: March 09, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 354 F.T.R. 116 (FC);2009 FC 881

Bonilla v. Can. (M.C.I.) (2009), 354 F.T.R. 116 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. SE.012

Mauricio Cervera Bonilla (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-2795-08; 2009 FC 881)

Indexed As: Bonilla v. Canada (Minister of Citizenship and Immigration)

Federal Court

O'Keefe, J.

September 9, 2009.

Summary:

The Refugee Protection Division of the Immigration and Refugee Board found that the applicant was excluded from refugee protection by art. 1F(a) of the United Nations Convention Relating to the Status of Refugees. The applicant applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - The Refugee Protection Division of the Immigration and Refugee Board found that the applicant was excluded from refugee protection by art. 1F(a) of the United Nations Convention Relating to the Status of Refugees - The applicant applied for judicial review - The applicant argued that the Board put the onus on him to prove that he did not commit the international crimes he was accused of - The Federal Court found that the Board was not unreasonable in how it conducted the analysis - The Minister tendered evidence to the Board to support its position that the applicant should be excluded because of complicity in crimes against humanity - The Board was investigating the allegations made by the Minister and whether it found the applicant's responses compelling enough to disprove the Minister's position - See paragraphs 86 to 87.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - The Refugee Protection Division of the Immigration and Refugee Board found the applicant was excluded from refugee protection by art. 1F(a) of the United Nations Convention Relating to the Status of Refugees - The applicant applied for judicial review - At issue was whether the Board committed a reviewable error on the facts related to the applicant's complicity in crimes against humanity committed by the Colombian army - The Federal Court dismissed the application - The court stated that "The applicant submitted that inferences being drawn from given facts were not enough for a finding of exclusion. I am satisfied, however, that the Board member went beyond finding superficial inferences. For each finding, the Board member explained why an inference was made as it related to documentary evidence and testimony. The Board's findings of complicity in crimes against humanity lay squarely on the time period the applicant spent in the Uraba region. During the applicant's time there, he is alleged to have committed torture. He also is alleged to have been in charge of a platoon of professional soldiers and in an acting Captain position for part of that time. I agree with the Board's assessment that it is implausible that the applicant was not aware of the allegations of torture and other crimes against humanity being levelled at Colombia's military during this period" - The court also accepted that the Board's finding that it was implausible that the applicant was not aware of the events (torture) happening at a farmhouse in March 1989 - He was in charge of the group that went to the farmhouse and it was reasonable to conclude that he would have had knowledge of the events that transpired there - See paragraphs 85 to 95.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - The Refugee Protection Division of the Immigration and Refugee Board found the applicant was excluded from refugee protection by art. 1F(a) of the United Nations Convention Relating to the Status of Refugees - The applicant applied for judicial review, arguing that the Board committed a reviewable error when it concluded that the applicant was complicit in crimes against humanity perpetrated by the "Colombian army" or the "Colombian military" - The applicant stated that the Board did not identify any particular unit or brigade within the Colombian army - He said it was not clear which group he was accused of being complicit with in crimes against humanity and the idea that he was implicated because he belonged to a group of such wide-ranching functions as the "army" or "military" suggested that the finding of complicity in crimes against humanity was too far reaching - The Federal Court dismissed the application - The court stated that without a close nexus between the unit the applicant belonged to and the army's systemic attacks against civilian populations, a finding of exclusion would be in error - The court noted that the Board found it implausible that the applicant served in the Uraba region for three years without knowledge of crimes against humanity perpetrated by the army or even without direct involvement in those crimes - The reason it was implausible was that the applicant eventually became platoon leader of a group made up of professional soldiers - The Board concluded that the activities of the army, and by extension, it was inferred, the applicant's platoon group in that region, involved a systemic targeting of civilians - The inference that the applicant participated in activities targeting civilians was reasonable - See paragraphs 96 to 104.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - The Refugee Protection Division of the Immigration and Refugee Board found the applicant was excluded from refugee protection by art. 1F(a) of the United Nations Convention Relating to the Status of Refugees - The applicant applied for judicial review, arguing that the Board erred in law by applying definitions of crimes against humanity from the Rome Statute retroactively - The applicant submitted that s. 4 of the Crimes Against Humanity and War Crimes Act precluded the application of the Rome Statute because it had not come into force - The Federal Court dismissed the application - The court stated, inter alia, "there is consensus in our courts and in the world that the elimination of crimes against humanity such as torture has been the focus of international instruments since the aftermath of World War II ... There has been no arbitrary date imposed on finding culpability in torture. For these reasons, I am not satisfied that the Board made an error in law" - See paragraphs 105 to 114.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - The Refugee Protection Division of the Immigration and Refugee Board found the applicant was excluded from refugee protection by art. 1F(a) of the United Nations Convention Relating to the Status of Refugees - The applicant applied for judicial review, arguing that the Board erred in law by finding that crimes against humanity could be committed in the context of an internal armed conflict - The applicant argued that his actions in the Columbian army were related to stopping narco-producers and drug traffickers in Colombia - The Federal Court dismissed the application - The court stated that "It may be the case that the Colombian army was fighting a complex conflict with many different facets. However, as international law dictates, this does not absolve individuals from accountability in cases where they are found to be complicit in crimes that go beyond the necessities of war. The Supreme Court, however, has said that for crimes to be elevated to crimes against humanity, the crimes must be directed against a civilian population as the 'primary object of an attack', not collateral to it ... I am satisfied that the civilian population was targeted in Colombia during the time that the applicant served in a manner that is against international law" - See paragraphs 115 to 120.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - The Refugee Protection Division of the Immigration and Refugee Board found the applicant was excluded from refugee protection by art. 1F(a) of the United Nations Convention Relating to the Status of Refugees - The applicant applied for judicial review - The issues were: (1) did the Board commit a reviewable error on the facts related to the applicant's complicity in crimes against humanity committed by the Colombian army; (2) did the Board commit a reviewable error when it concluded that the applicant was complicit in crimes against humanity perpetrated by the "Colombian army" or the "Colombian military"; (3) did the Board err in law by applying definitions of crimes against humanity from the Rome Statute retroactively; and (4) did the Board err in law by finding that crimes against humanity could be committed in the context of an internal armed conflict - The Federal Court held that the first two issues, which required a review of the Board's analysis of the factual circumstances as it related to the law, were reviewable on a reasonableness standard - The final two issues were bare legal questions and the standard of review was correctness - See paragraphs 81 to 84.

Statutes - Topic 6714

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Criminal or penal legislation - [See fourth Aliens - Topic 1330.2 ].

Cases Noticed:

Sivakumar v. Minister of Employment and Immigration, [1994] 1 F.C. 433; 163 N.R. 197 (F.C.A.), refd to. [para. 16].

Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), refd to. [para. 16].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [paras. 18, 110].

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), refd to. [para. 22].

Harb v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2003), 302 N.R. 178; 27 Imm. L.R.(3d) 1; 2003 FCA 39, refd to. [para. 22].

Penate v. Minister of Employment and Immigration, [1994] 2 F.C. 79; 71 F.T.R. 171 (T.D.), refd to. [para. 22].

Cortez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 470, refd to. [para. 31].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 49].

Ardila v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 892; 2005 FC 1518, refd to. [para. 51].

Murcia v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 175; 2006 FC 287, refd to. [para. 53].

Bedoya v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 632; 2005 FC 1092, refd to. [para. 55].

Vasquez v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 761; 2006 FC 1302, refd to. [para. 56].

La Hoz et al. v. Canada (Minister of Citizenship and Immigration) (2005), 278 F.T.R. 229; 2005 FC 762, refd to. [para. 57].

Ventocilla et al. v. Canada (Minister of Citizenship and Immigration) (2007), 314 F.T.R. 102; 2007 FC 575, refd to. [para. 63].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 66].

Diazgranados v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 472; 2008 FC 617, refd to. [para. 67].

Figueroa et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2001), 278 N.R. 27; 2001 FCA 112, refd to. [para. 77].

Moreno and Sanchez v. Minister of Employment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210; 107 D.L.R.(4th) 424 (F.C.A.), refd to. [para. 77].

Alza v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 187 (T.D.), refd to. [para. 77].

Quinonez v. Canada (Minister of Citizenship and Immigration) (1999), 162 F.T.R. 37 (T.D.), refd to. [para. 77].

Osagie v. Canada (Minister of Citizenship and Immigration) (2000), 186 F.T.R. 143 (T.D.), refd to. [para. 77].

Sulemana v. Canada (Minister of Citizenship and Immigration) (1995), 91 F.T.R. 53 (T.D.), refd to. [para. 77].

Gutierrez et al. v. Minister of Employment and Immigration (1994), 84 F.T.R. 227 (T.D.), refd to. [para. 77].

Vivar v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 180; 2007 FC 286, refd to. [para. 77].

Zeng v. Canada (Minister of Citizenship and Immigration) (2008), 333 F.T.R. 84; 2008 FC 956, refd to. [para. 83].

Statutes Noticed:

United Nations Convention Relating to the Status of Refugees, art. 1F [para. 1].

Authors and Works Noticed:

Waldman, Lorne, Convention Refugees and Persons in Need of Protection, in Immigration Law and Practice (2006), 1 LexisNexus Canada 8.519, p. 8.540 [para. 112].

Counsel:

Raj Sharma, for the applicant;

Rick Garvin, for the respondent.

Solicitors of Record:

Raj Sharma, Calgary, Alberta, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on March 9, 2009, at Calgary, Alberta, before O'Keefe, J., of the Federal Court, who delivered the following judgment on September 9, 2009.