Prompt:
What standard of review does this Federal Court of Canada decision apply to immigration decisions?

Maheswaran v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-07-21 Neutral citation 2023 FC 1003 File numbers IMM-5529-20 Decision Content Date: 20230721 Docket: IMM-5529-20 Citation: 2023 FC 1003 Ottawa, Ontario, July 21, 2023 PRESENT: Mr. Justice Pentney BETWEEN: KANESHANANTH MAHESWARAN Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS [1] The Applicant, Kaneshananth Maheswaran, is a Tamil from northern Sri Lanka, who came to Canada in 2010 and claimed refugee status. His refugee claim was denied in 2011, and since that time he has lived and worked in Canada under various work permits. He says that he has developed a strong establishment here, including a strong work history, engagement with his community, as well as a close and meaningful relationship with his sister, brother-in-law, and nephew. The Applicant’s application for permanent residence from within Canada on humanitarian and compassionate (H&C) grounds was refused. [2] The Applicant seeks judicial review of the Officer’s decision denying his H&C claim. He argues that the decision is unreasonable because the Officer applied the wrong test, erred in assessing the hardships he would face on a return to Sri Lanka, and wrongly discounted his strong establishment in Canada. Finally, the Applicant submits that the Officer conducted an inadequate analysis of the best interests of the child, in light of the evidence of the close relationship between him and his nephew. [3] For the reasons that follow, I find that the determinative issue in this case is the Officer’s failure to explain why a relatively short gap in the Applicant’s employment history outweighed all of the other positive establishment factors. The decision is marred by an unexplained leap of logic on a crucial point, and this is a sufficiently serious flaw to warrant quashing the decision and sending the matter back for reconsideration. The application for judicial review will therefore be granted. I. Background [4] The Applicant is a Tamil from northern Sri Lanka. He says that he fled the country after he and his family were caught up in the conflict between government forces and the Liberation Tigers of Tamil Elam (LTTE), and he was arrested, interrogated, and beaten by security forces who believed he had ties to the LTTE. The Applicant initially went to the United Kingdom on a student visa, and then made his way to Canada in 2010. [5] Upon his arrival in Canada, the Applicant claimed refugee status based on the risk that he and his family faced in Sri Lanka due to his Tamil identity, and the mistreatment he experienced because of his perceived ties to the LTTE. The Applicant’s parents reside in France as refugees, and he has one sister in Canada and another who lives in Switzerland. [6] The Applicant’s refugee claim was dismissed by the Refugee Protection Division in 2011, because he was found to lack credibility and to have lied under oath to Canadian authorities in regard to key aspects of his claim. This Court dismissed the Applicant’s application for leave and judicial review of that decision. Following this, the Applicant submitted several applications for H&C relief under section 25 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], which were refused in May 2013, March 2015, and September 2017. [7] The Applicant filed a fourth claim for H&C relief in September 2019, based on his establishment in Canada, the risk and hardship he would face because of Sri Lanka’s treatment of the Tamil community, and his fear of the police who suspect that he is a member or supporter of the LTTE. He also cited his lack of family or other ties to Sri Lanka, as well as the best interests of his nephew in Canada, with whom he had developed an extremely close relationship. [8] On the establishment issue, the Officer gave strong positive weight to the Applicant’s length of time in Canada, his clean civil record and compliance with immigration law. The Officer noted the Applicant’s employment history of both full-time and seasonal work, reflected in the income tax documents he filed for tax years 2011 to 2018, as well as his commitment to personal development through job-related training. However, the Officer also noted that the Applicant had not demonstrated that he would be unable to find work if he returned to Sri Lanka, and that there was an unexplained gap in his employment history from November 2013 to August 2014. Based on this, the Officer attributed low weight to the Applicant’s employment history. [9] Noting the evidence of the Applicant’s close ties to friends in Canada, his support of the friends’ elderly parents, and his community activities, the Officer gave some positive weight to the Applicant’s engagement with the community. Despite this, the Officer attributed low weight to the Applicant’s overall establishment, stating: “However, I also observe that the lack of evidence and what has been noted above cannot be understated.” [10] In regard to hardship and ties to Sri Lanka, the Officer acknowledged that moving back to that country would constitute some form of upheaval for the Applicant, but found that he would be returning to a country where he had spent the majority of his life, having been raised and educated there. The Officer found that the Applicant could resettle and re-establish himself in Sri Lanka because he was familiar with the language and culture. Based on this and the limited evidence presented by the Applicant, the Officer gave low weight to the hardship factor. [11] The Officer attributed low weight to the best interests of the child element, because while the Applicant had shown that he had developed a strong relationship with his nephew (e.g. by visiting him every weekend), the evidence did not demonstrate a strong level of dependency. The Officer observed that if the Applicant left for Sri Lanka, the child would remain in Canada with his parents and could maintain contact with his uncle through other means of communication. [12] As for the Applicant’s claim of risk, the Officer noted that the country condition evidence showed that some Tamils face persecution in Sri Lanka because of their ethnicity and also their perceived support for the LTTE. However, the Officer found that the Applicant had not demonstrated that he would be at risk as a Tamil male from northern Sri Lanka, because he failed to show how the general country conditions would apply to his personal situation. [13] The Officer concluded that the positive elements in the Applicant’s case were not sufficient to grant him an exemption to the usual rule of applying for permanent residence from overseas, and thus refused the Applicant’s request for H&C relief. [14] The Applicant seeks judicial review of the decision. II. Issues and Standard of Review [15] The overarching issue in this case is whether the Officer’s decision is reasonable. Within that, the Applicant raises four sub-issues, arguing that the Officer: (i) applied the wrong legal framework to the section 25 analysis (as reflected by a failure to grapple with the Applicant’s personal circumstances, and giving undue weight to a minor gap in his employment history in assessing his establishment in Canada); (ii) erred by relying on the RPD’s negative credibility finding; (iii) ignored relevant and recent country condition evidence that the Applicant provided, and applied the wrong test to assessing the hardship associated with a return to Sri Lanka; and (iv) failed to conduct a proper assessment of the best interests of the child regarding the Applicant’s nephew. [16] The standard of review that applies to all of these questions is reasonableness, in accordance with the framework set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. [17] In summary, under the Vavilov framework, a reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85). An administrative decision-maker’s exercise of public power must be “justified, intelligible and transparent” (Vavilov at para 95). The onus is on the Applicant to demonstrate flaws in the decision that are “sufficiently central or significant to render the decision unreasonable” (Vavilov at para 100). The decision must be assessed in light of the history and context of the proceedings, including the evidence and submissions made to the decision-maker (Vavilov at para 94). Finally, “absent exceptional circumstances, a reviewing court will not interfere with [the decision maker’s] factual findings” (Vavilov at para 125). III. Analysis [18] The determinative issue in this case is the Officer’s failure to explain why a relatively short gap in the Applicant’s employment history was sufficient to outweigh all of the other positive establishment factors. [19] The analysis of the establishment factors included the following elements. On the length of time in Canada, the Officer attributed “strong positive weight” to this element, in light of the Applicant’s history of employment, his good civil record, and the fact that he had been in Canada since August 2010. [20] Turning to employment history, the decision notes the Applicant’s history of full-time, part-time, and seasonal employment from 2011 to 2018, as demonstrated by his income tax information showing employment income during this period. However, the Officer also notes that there is a gap in the Applicant’s employment from November 2013 until August 2014: “the [A]pplicant has provided no evidence to show how he was able to support himself during [this] period…” Based on this, the Officer concludes: “Therefore, based on the evidence presented to me and what has been noted above, I have attributed low weight to the [A]pplicant’s employment history as a positive component of this application.” [21] On ties to the community, the Officer attributed positive weight to this factor, based on the letters of support from friends, his engagement with the community – including caring for the elderly parents of friends, his history of making blood donations to the Canadian Red Cross, and his positive contribution to his workplace. [22] However, the Officer then goes on to sum up the analysis, in the following key passage: Overall, based on the totality of the evidence presented to me, I find that the applicant’s willingness to be self-sufficient, acquire new skills as well as get involved in his community is commendable. However, I also observe that the lack of evidence and what has been noted above cannot be understated. As such, I have attributed low weight to the establishment component of this application. [23] There are two main problems with this conclusion: first, the Officer’s reference to “the lack of evidence and what has been noted above…” is unclear. The only evidentiary deficiency mentioned in this part of the decision relates to the nine-month gap in the Applicant’s otherwise unbroken history of employment. The second problem arises from the first: having given strong positive weight to the Applicant’s time in Canada, and having accorded positive weight to the ties to the community, and also having found that he had shown an almost continuous pattern of employment over nine years, the Officer needed to explain why the failure to provide details about a nine-month period of unemployment was sufficiently serious to lead to an overall assessment that the Applicant’s establishment in Canada should be accorded low weight. [24] In making this finding, it is important to underline that I am not re-weighing the evidence, but rather pointing to an unexplained leap of logic at the heart of the Officer’s analysis on a key element of the overall H&C claim. There may be good reasons for the Officer to find that a lack of evidence on some points combined with the Applicant’s failure to explain his entire employment record are sufficiently serious to overcome the other positive elements and thus justify a low rating for the establishment factor. However, this conclusion needed to be explained. That is what responsive justification under the Vavilov framework for analysis calls for, and its absence here is a sufficiently serious flaw to warrant quashing the decision and sending the matter back for reconsideration. [25] This is sufficient to deal with this application. The parties submitted detailed arguments on the other points raised, but because this case will be sent back for reconsideration it is not appropriate to discuss these submissions in any detail. I will simply note that I was not persuaded by the Applicant’s other arguments, and in particular I reject the argument that the Officer failed to give effect to the equitable purpose that section 25 is meant to serve. In most other respects, I find the Officer’s decision to be careful, compassionate and thorough. IV. Conclusion [26] For the reasons set out above, I find that the Officer’s decision is unreasonable, when assessed against the framework set out in Vavilov. The gap in the reasoning regarding the Applicant’s period of unemployment, and why it outweighed the other positive elements of his establishment in Canada, is exactly the type of leap of logic that Vavilov signalled could lead to a finding of unreasonableness. That is the case here, and given the importance of the establishment factor in the overall H&C analysis, I am persuaded that this is sufficiently serious to warrant overturning the decision (Vavilov at para 100). [27] As discussed above, I am not persuaded by the Applicant’s other arguments. While the Applicant may disagree with the Officer’s findings on each of the points discussed above, this does not make the decision unreasonable. [28] For the reasons set out above, this application for judicial review is granted. The matter is remitted back to a different decision-maker for reconsideration. [29] There is no question of general importance for certification. JUDGMENT in IMM-5529-20 THIS COURT’S JUDGMENT is that: The application for judicial review is granted. The Applicant’s request for permanent residence from within Canada based on humanitarian and compassionate grounds is sent back for reconsideration by a different Officer, in accordance with these reasons. There is no question of general importance for certification. "William F. Pentney" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5529-20 STYLE OF CAUSE: KANESHANANTH MAHESWARAN v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: By videoconference DATE OF HEARING: march 16, 2022 REASONS FOR JUDGMENT AND JUDGMENT: pentney j. DATED: july 21, 2023 APPEARANCES: Suyema Mulla For The Applicant Meva Motwani For The Respondent SOLICITORS OF RECORD: Waldman and Associates Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent

Response:
## Analysis of Court Decision: Maheswaran v. Canada (Citizenship and Immigration)

### Key Issues
l review of the decision. II. Issues and Standard of Review [15] The overarching issue in this case is whether the Officer’s decision is reasonable. Within that, the Applicant rais

### Standard of Review
the decision. II. Issues and Standard of Review [15] The overarching issue in this case is whether the Officer’s decision is reasonable. Within that, the Applicant raises four sub

### Legal Analysis
The court's analysis focuses on: ficer conducted an inadequate analysis of the best interests of the child, in light of the evidence of the close relationship between him and his nephew. [3] For the reasons that follow, I find that the determinative issue in this case is the Officer’s failure to explain why a relatively short gap in the Applicant’s employment h

### Precedential Value
This Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency.


Prompt:
What factors were considered in this Refugee Protection Division decision from the Immigration and Refugee Board of Canada?

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 : MA8-00814 MA8-00815 MA8-00816 MA8-00817 MA8-00818 MA8-00819 MA8-00820 MA8-00821 MA8-00822 MA8-00823 Private Proceeding Huis clos Claimant(s) Demandeur(e)s d'asile XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX Date(s) of Hearing Date(s) de l'audience May 11, 2009, July 29, 2009, and July 30, 2009 Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision September 23, 2009 Panel Tribunal Ruth Delisle Lawyer Claimant's Counsel Conseil du demandeur d'asile Diane Favreau Lawyer Tribunal Officer Agent du tribunal Céline Paradis [Filing of documents] Designated Representative Représentant désigné XXXXX XXXXX XXXXX Minister's Counsel Conseil du ministre Anne-Renée Touchette Lawyer [1] XXXXX XXXXX XXXXX, his wife, XXXXX XXXXX XXXXX, and seven of their eight children, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX XXXXX and XXXXX XXXXX XXXXX, are citizens of the Democratic Republic of the Congo (DRC). XXXXX XXXXX XXXXX is a citizen of the United States of America. They are claiming to be "Convention refugees" and "persons in need of protection" under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA). [2] XXXXX XXXXX XXXXX has been appointed as the designated representative of her minor children. ALLEGATIONS [3] The male claimant was a XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX in XXXXX, where he had worked since XXXXX, 2004, as XXXXX. [4] On XXXXX, 2003, a transitional government was formed in the DRC following a decision from the Inter-Congolese Dialogue in Sun City, South Africa. This new transitional government was made up of a president and four vice-presidents from the parties that were previously in conflict. Together, they were supposed to manage a transitional period that was not to exceed three years before elections. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [5] On XXXXX, 2004, XXXXX XXXXX XXXXX signed a transfer order assigning the male claimant to a XXXXX XXXXX in XXXXX, on XXXXX, 2004, the male claimant arrived in the United States where, in the context of his duties, among other things, he attended sessions of the XXXXX XXXXX XXXXX XXXXX. He also headed the XXXXX XXXXX XXXXX XXXXX XXXXX as acting chargé d'affaires from XXXXX, 2007, and from XXXXX, 2007. During the same period, he spoke before the XXXXX XXXXX regarding XXXXX XXXXX XXXXX XXXXX XXXXX. He also managed the file of a Congolese man named XXXXX XXXXX XXXXX who had alleged links to XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. The male claimant also represented his country during the substantive session of the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [6] The male claimant's problems at the XXXXX XXXXX in XXXXX began during the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. The male claimant was hoping for change, namely a democratic change of the country's leader. Stemming from this situation, he was subjected to various types of persecution; for example, people often answered him unkindly, his staff privileges were suspended, etc. After Joseph Kabila's victory, XXXXX XXXXX XXXXX XXXXX resignation message XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX [7] On March 22 and 23, 2007, the Presidential guard and certain elements of the Forces Armées de la République Démocratique du Congo (FARDC) [Armed Forces of the DRC] clashed in Kinshasa with members of the guard of ex-Vice President Jean-Pierre Bemba, who had become a senator, and forced Bemba to flee into exile, where he remains today. These clashes involving heavy weapons claimed many victims and led to persecution of Bangalas and people from the province of Équateur, where the male claimant and his mother are from. [8] When he returned from XXXXX in early August 2007, the male claimant noticed a hostile working environment. Every proposal, suggestion or request that he formulated was purely and simply rejected. His rights were respected less and less. For example, his transportation expenses and everything else given to staff were often reimbursed late. Similarly, when he requested office supplies, he often had to wait longer than others to receive them. Moreover, the male claimant was not listed on a travel order signed by the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX when his name should normally have been on the order, given that the same XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [9] On XXXXX, 2007, the XXXXX also sent instructions regarding the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX including the male claimant, were to abstain from making any statements during the session. The male claimant felt particularly targeted, since he had been the only delegate from the XXXXX sitting on this Committee for almost three years. Furthermore, the XXXXX refused to involve the male claimant in two meetings held by the team in the context of preparing for the arrival of the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX as well as two other meetings following the same stay. He was also refused the badge given to people with access to the hallway of XXXXX XXXXX XXXXX XXXXX, despite his normal role in this type of event. [10] Before the presidential plane arrived in New York, the male claimant heard people saying in Swahili, [translation] "XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX." After checking, the male claimant found that the group was composed partly of XXXXX XXXXX XXXXX XXXXX XXXXX. [11] In XXXXX 2007, the current XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, with whom the male claimant had a good relationship, and whom the male claimant had met during the former's two trips to XXXXX when he was XXXXX XXXXX XXXXX XXXXX, asked, [translation] "Are you from Équateur?" [12] On XXXXX, 2007, two officers of the XXXXX intelligence services informed the male claimant that XXXXX XXXXX XXXXX was at the XXXXX and asked him whether he had met with XXXXX and whether he could tell them in which hotel XXXXX was staying. When the male claimant stated he had not and could not, they insisted and threatened him, among other reasons, because he, like XXXXX XXXXX XXXXX, is from Équateur. After this incident, the male claimant noticed on three occasions that he was being followed by officers of the XXXXX intelligence services. [13] On XXXXX, 2008, the male claimant had a heated discussion with the XXXXX regarding the organization of a conference XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. Since the XXXXX trip in XXXXX 2007, which was accompanied by demonstrations of hostility from the Congolese community against the government, officers of the government services were frequently present in the offices of the XXXXX XXXXX and surrounding area, and the male claimant often received anonymous telephone calls at home. He did not inform the police because he knew that the calls were from XXXXX government officers and knew their system. He wanted to avoid harming his family and himself, because he feared the XXXXX reaction if he accused the Congolese officers. [14] Thus, the male claimant began to go to his office less often and more carefully. On XXXXX, 2008, he wrote a letter of resignation, which he mailed to his department. [15] The male claimant alleges that his resignation was considered an act of treason because he was XXXXX XXXXX XXXXX XXXXX, which undermines the performance of the XXXXX XXXXX XXXXX XXXXX XXXXX. He claims that, given his mother's Mongala origins from the province of Équateur, which the current government's repression forces have been persecuting since the events of XXXXX, 2007, given the moral accusations and threats against him, and given the methods of the Congolese system, he is convinced that he and his family would be arrested and subjected to inhuman and degrading treatment, tortured, or even killed if they had to return to his country of citizenship. The police services, army, intelligence services and the system in place ensure that he would not have any protection if he returned to the country. The male claimant and his family presented themselves at the Canadian border on XXXXX, 2008, to seek refugee protection. MINISTER'S INTERVENTION [16] A notice of intention to intervene from the Minister's Representative on file, dated October 21, 2008, states that there are grounds to apply to the principal male claimant the provisions of Article 1F(a) and (c) of the Convention.1 The notice explains that the male claimant reportedly worked for the DRC government from XXXXX to XXXXX and that the existing documentary evidence shows that the country's government allegedly violated international and human rights. In this context, the Minister's Representative added that the principal male claimant could have participated in or been complicit in the commission of crimes against humanity or actions contrary to the purposes and principles of the United Nations. ANALYSIS Identity [17] To establish their identities, each of the claimants filed, among other documents, his or her diplomatic passport issued by the DRC, which were seized by Citizenship and Immigration Canada, except for their minor child named XXXXX XXXXX XXXXX, born in the United States as a result of the principal female claimant's extramarital relationship, for whom the claimants produced a XXXXX City birth certificate. The panel has certified true copies of these documents on file.2 The panel concludes that the claimants have provided identity documents that are acceptable under section 106 of the IRPA. Exclusion of the principal male claimant under Article 1F(a) of the Convention [18] Should the principal male claimant be excluded from Canada under the terms of section 98 of the IRPA,3 which incorporates Article 1F of the Convention?4 [19] The panel would like to explain that it was decided in Ramirez5 that the standard of proof to apply under Article 1F is lower than that required in criminal law (beyond a reasonable doubt) or civil law (on a balance of probabilities or a preponderance of evidence),6 and is described by the expression "serious reasons for considering". [20] The evidence has shown that the principal male claimant finished his university studies in 1994 and obtained his first public service job in XXXXX. The male claimant stated that he had submitted résumés more or less everywhere, but only once to his country's government, between three and six months before being hired. [21] When asked to inform the panel why he submitted a résumé to the government, the male claimant replied that a new regime had been in place since 1997, succeeding the Mobutu regime, and that many members of the former regime had left. He asserted that the government needed an XXXXX and that he was hired. The male claimant stressed that, at the time, there was a great deal of unemployment in the country and that this position was a career opportunity for him. Thus, he was appointed as a XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX in XXXXX 1999. The male claimant stated that, at this point, he was not appointed to the XXXXX, but was rather an XXXXX XXXXX XXXXX of finance and, according to him, he did not have any employees under him, not even a secretary. [22] In XXXXX 1999, the principal male claimant was appointed a XXXXX XXXXX, then a XXXXX XXXXX in the XXXXX XXXXX XXXXX XXXXX. In this position, the male claimant XXXXX XXXXX XXXXX XXXXX. The principal male claimant indicated that he asked to be transferred to the newly created and publicized XXXXX XXXXX XXXXX, which aimed to XXXXX XXXXX XXXXX. [23] The male claimant explained that, beginning in XXXXX as XXXXX XXXXX XXXXX, he XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. He also prepared the XXXXX XXXXX because he was the XXXXX XXXXX in the office, the others being legal specialists. At the port of entry (Exhibit A-2), the male claimant stated, [translation] "XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX". Again, the principal male claimant stated that he did not have authority over any staff. Despite the position that he occupied, the principal male claimant stated that he did not deal with the XXXXX XXXXX XXXXX XXXXX. According to the male claimant, this XXXXX was the responsibility of XXXXX XXXXX XXXXX who worked in collaboration with the people XXXXX XXXXX XXXXX XXXXX where these vulnerable persons were living. He stated that managing vulnerable persons was also not his responsibility. According to him, he was limited to contacting the two specialists to obtain their XXXXX XXXXX and XXXXX XXXXX XXXXX XXXXX. [24] In XXXXX 2000, the principal male claimant was promoted to XXXXX XXXXX to the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, a position that he held until XXXXX 2003. The principal male claimant testified that his duties were the same as they were at the XXXXX XXXXX XXXXX, in addition to the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. During his interview with an immigration officer upon his arrival in Canada (Exhibit A-2), the male claimant stated that, during this period, he dealt with XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. He also told the Border Services Officer that, at the time, he had taken part in certain XXXXX meetings, XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX (Exhibit A-2). During his oral testimony, the principal male claimant stated that, at his level, he did not deal with XXXXX relations, even though he attended XXXXX meetings in XXXXX for the XXXXX and other meetings in XXXXX, all of which involved XXXXX of his country and XXXXX XXXXX staff. According to the male claimant, his actions were limited to keeping an XXXXX XXXXX XXXXX XXXXX that the XXXXX had to make. [25] Following a ministerial reorganization in June 2003, the male claimant lost his position and became XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, becoming at the same time a state employee since he worked at the XXXXX XXXXX. The male claimant stated that he did not work much at that time because he was sick. [26] The principal male claimant stated that the XXXXX XXXXX XXXXX in XXXXX needed someone to take over the XXXXX XXXXX XXXXX XXXXX, therefore as an XXXXX, and since he spoke a little English and had worked in the XXXXX XXXXX XXXXX XXXXX, he had the required profile. The principal male claimant stated that, when the transitional government arrived in power, the XXXXX XXXXX XXXXX had told him to contact the XXXXX XXXXX . [27] The principal male claimant arrived in XXXXX as the XXXXX XXXXX XXXXX XXXXX, where he took responsibility for the XXXXX XXXXX, the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. He was also responsible for the XXXXX XXXXX, the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. Furthermore, he was responsible for XXXXX, in addition to being a focal point for the XXXXX XXXXX XXXXX (XXXXX). The principal male claimant stated that, in this regard, he represented the XXXXX at the meeting of XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX (Exhibit A-2). The principal male claimant also liaised with the XXXXX XXXXX agencies responsible for XXXXX XXXXX. [28] XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [29] At this stage of his career, the male claimant stated that he did not deal with the XXXXX of the XXXXX XXXXX XXXXX, a responsibility that had been assumed by the XXXXX, who then reported to the XXXXX XXXXX XXXXX XXXXX XXXXX. However, the principal male claimant on two occasions performed the duties of XXXXX XXXXX XXXXX when the XXXXX head XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX He even spoke before a meeting of the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [30] At this stage, for the purpose of its analysis, the panel must examine the following two questions: 1. Did the Congolese government commit crimes against humanity? 2. Was the principal male claimant complicit in acts committed by the DRC government? 1. Did the Congolese government commit crimes against humanity? (Article 1F(a)) [31] Given the evidence available to the panel, there is no doubt that the many violent actions committed by the Congolese government, even before the 2006 elections, fall under the definition of crimes against humanity as defined by the Rome Statute of the International Criminal Court,7 as well as by Mugesera,8 Sivakumar,9 Gonzalez10 and Sumaida.11 [32] In Sumaida, Justice Létourneau stated the following: Basically, the definitions of crimes against humanity refer to serious crimes or other inhumane acts committed against "any civilian population". [33] The extensive documentary evidence filed denounces the many crimes committed by the DRC governments, whether under Laurent-Désiré Kabila, his son Joseph Kabila, the transitional government prior to the election of Joseph Kabila in 2006, or even after his election. [34] The male claimant stated that he had submitted résumés to, among other places, the government of his country from three to six months before being hired in XXXXX. The documentation is unequivocal regarding the particularly horrible and violent events that were taking place during this period. [35] A newspaper article filed as Exhibit M-6112 states: [translation] Shortly after Kabila sent Rwandan soldiers home on July 27, 1998, Kabila's security services (military police and rapid response police) began to hunt down all of the Congolese Tutsis commonly known as Banyamulenge while the government, through the words of Mwenze Kongolo, among others, warned the population against anti-Rwandan xenophobia. Thus, on Friday, July 31, I witnessed a pursuit by military police of Banyamulenge that ended with the execution of two Banyamulenge soldiers. At the same time, Banyamulenge civilians had been arrested and then released .... The beginning of the terror. On Sunday, August 2, when the cities of Bukavu and Goma declared war against Kabila, Banyamulenge soldiers in Kinshasa clashed with the regular army at Camp Tchatchi before fleeing toward Brazzaville. The next day, Monday, August 3, Munene, Vice-Minister of the interior, declared a "dead city" day and asked people to stay in their homes so that a "hunt for antisocial elements" could begin. Thus began the generalized police roundup and execution of Tutsis and supposed Tutsis in the capital, civilian and military alike. That's when I was arrested. Liaison-Rwanda: Do you think that the calls to murder Congolese Tutsis that were broadcast on the radio led to numerous massacres organized by the army and by Kinshasa residents? Jean-Bernard Gervais: In general, it could be said that there were two waves of calls for massacres. The first wave, during the beginning of the war on August 2 was when, while on the air, President Kabila personally called for the murder of Tutsis. These calls for murder resulted in the arbitrary arrest and execution of Tutsis in Kinshasa and elsewhere. It is very difficult to count these killings. The second wave followed the rebel attack in the suburbs of Kinshasa in mid-August. Recall, for example, the words of Ndombasi, the head of Kabila's cabinet, who called for the eradication of the "Tutsi vermin." Then, Kinshasa's population "went to work," burning anyone suspected of belonging to the Tutsi ethnic group. These people often had nothing to do with Tutsis. As for me, I was imprisoned at the Kokolo camp, where we were entitled to nothing. Every day, five or six prisoners would disappear. One night, we heard gunshots and horrible screams, and understood what was happening to the disappearing prisoners. The hateful calls of the leaders undoubtedly served to support the mass executions of Tutsis. Liaison-Rwanda: Was this a voluntary strategy on the part of the Congolese authorities at that point? Were these pogroms confined to Kinshasa, or were they occurring throughout the country? Are we dealing with genocide or attempted genocide? Jean-Bernard Gervais: I don't think there was any strategy to these executions. Leaders were irresponsible. Everything was very confused. On one hand, Tutsis were being imprisoned in military camps, and on the other hand, people were being incited to "eradicate" them. Mass graves were discovered all over the country, such as in Kisangani, Kalemie and Bas-Congo province. The massacres were widespread but, until an investigation is conducted, it is difficult to determine the number of people killed. It must not be more than 10 000 people. The situation since August 2, 1998, has been much more comparable to what happened in Rwanda in 1990 when the Front patriotique rwandais (FPR) [Rwandan patriotic front] started the war; namely, a large portion of the Tutsi population was imprisoned in camps, stadiums, etc., ... all of which led to executions. You could say that we are on the path to genocide. It is even more worrying that a few thousand Tutsi civilians are still being held throughout the country, primarily in the Kokolo camp in Kinshasa, and in the Kigoma convent in Lubumbashi. Kabila will use them as human shields, in case the rebels attempt to take one of these cities. One small detail: when I was imprisoned in the Kokolo camp, there were 600 of us. Now, there are only 130. How many will be there tomorrow? [36] Another document, filed as Exhibit M-62,13 from reliable and well-informed sources, also details the mass arrests of and acts of violence toward Tutsis, the arbitrary arrest of journalists, political opponents and human rights activists. This same document also states the following: 5.5.1. Children According to Human Rights Watch, the DRC authorities have urged children between 12 and 20 years of age to join the FAC, which are involved in fighting against the rebellion in the DRC (AFP 12 Aug. 1998; Info-Congo Kinshasa 31 Aug. 1998, 7). As of early September 1998, many children were already serving as soldiers, both in the FAC and in the rebel forces, and both sides were continuing to recruit children to fight in the war (ibid.; ASADHO 9 Sept. 1998, 3). In its report on human rights violations committed by the two sides between 2 August and 17 September 1998, the Groupe Justice et Libération, indicates that the government forces in Kisangani [translation] "have used anti-Rwandan propaganda and the promise of good wages to enrol numerous youths, including children under 15 years of age" (18 Sept. 1998, 11). The report adds that the rebel forces also included children under 15 (ibid.). Rebel military leaders estimated that a total of some 5,000 children were fighting in the current war for one side or the other (AFP 8 Oct. 1998; M2 Presswire 24 Aug. 1998). [37] The U.S. Department of State's report for 1999 (Exhibit M-48) also details arbitrary arrests, violations of human rights and even extrajudicial killings of people with Tutsi facial features. [38] The panel did not find any notable change in the modus operandi of Laurent-Désiré Kabila's government in the reports of Amnesty International or Human Rights Watch, or in the documents produced by the United Nations for 1999 and 2000, filed as Exhibits M-3, M-4, M-18, M-19, M-37 and M-49. [39] It must be noted that no significant change appeared in the documentation when Joseph Kabila succeeded his father following the latter's assassination in January 2001. A document produced by Amnesty International in 2003, entitled Democratic Republic of Congo - On the precipice: the deepening human rights and humanitarian crisis in Ituri (Exhibit M-8), makes for convincing reading. The U.S. Department of State's report for 2002 (Exhibit M-51) makes the same observations. Furthermore, a Human Rights Watch report dated January 18, 2006, (Exhibit M-23) states the following: In 2005, combatants from armed groups as well as government soldiers deliberately killed, raped, and abducted civilians and destroyed or looted their property in repeated attacks, particularly in eastern Congo. A feeble justice system failed to prosecute these recent crimes and did nothing to end impunity for war crimes and crimes against humanity committed during the previous two wars. The September 2005 discovery of mass graves from 1996 in the eastern region of Rutshuru served as a reminder of the unpunished mass slaughter of civilians in Congo in the last decade. Government Soldiers and Armed Groups Target Civilians The government failure to integrate troops of former belligerent groups into the national army and to properly train and pay its soldiers underlay some military abuses. Military abuses such as those that occurred in December 2004 in North Kivu where government soldiers and combatants refusing integration fought and killed at least one hundred civilians, many of them targeted on an ethnic basis, were repeated elsewhere in 2005. In Walungu, South Kivu, government soldiers raped civilians and looted property during operations against the FDLR in late 2004 and early 2005. In Equateur, poorly paid and undisciplined troops went on a rampage in July 2005, killing, raping, and stealing from civilians. As government soldiers tried to take control of Ituri and parts of North and South Kivu, Maniema and Katanga in late 2004 and 2005, both they and the combatants fighting them committed grave violations of international humanitarian and human rights law. In Ituri, which experienced widespread violence against civilians in previous years, more than fifteen thousand members of armed groups agreed to lay down their weapons, but others who refused to disarm increased attacks on MONUC peacekeepers and government soldiers. In February 2005 nine peacekeepers were killed in an ambush north of Bunia, the main town. Combatants refusing disarmament took control of areas near the towns of Boga and Kilo in August and September 2005, forcing thousands of civilians to flee their homes. In North Kivu, where authorities illegally distributed hundreds of firearms to civilians in late 2004, there was little progress in 2005 in recuperating the weapons, some of which were used by civilians to harm, rob, or intimidate others. Civil and Political Rights In January and June 2005, security forces killed dozens of men, women, and children protesting electoral delays in Kinshasa, Mbuyi Mayi, Goma and other towns. In May 2005, the national security service arrested over one hundred people, primarily from southern Katanga, supposedly suspected of planning a Katangan secession attempt. They detained some for months without charge. In hundreds of cases throughout the country, police and other agents of security services arbitrarily detained and tortured citizens with the intent of extorting payment from them. Authorities arrested and closed the operations of journalists who criticized those in power, such as a television station of Vice President Jean-Pierre Bemba, who is likely a chief challenger of President Kabila in the up-coming elections. [40] Regarding governance during the transition period from mid-2003 to the 2006 elections, the human rights situation in the DRC did not improve. Child soldiers continued to be recruited,14 and all forms of violent action by officers of the state continued.15 [41] Regarding the post-electoral period, when Joseph Kabila was returned to power, the male claimant alleges the following in his narrative report:16 [translation] After having analyzed the actions and decisions of the current system that resulted from the latest elections and has been in power for a year (the largely negative results, the repeated violations of human rights, including the repression of individual freedoms and the freedom of expression guaranteed in the constitution, the impunity, the political clientelism, the moral support for many anti-democratic events, the political police, the intolerance, the muzzling of the opposition, the consolidation of a growing dictatorship to the public's great displeasure, the killings, the imprisonment of people for their opinions, the increasingly frequent intrusions into homes that did not even spare elected officials despite their parliamentary immunity, the corruption, the arbitrariness of rule, etc.), I refused to serve as the relay or spokesman of a government that embodies these negative values, and I resigned. [42] It must be noted that this portion of the male claimant's written testimony is corroborated by the documentary evidence.17 [43] Although the Congolese government is not an organization principally directed to a limited, brutal purpose, the panel has no doubt that the many violent acts committed by this government correspond to the definition of crimes against humanity as defined in the international legal instruments,18 as well as in Mugesera,19 Sivakumar,20 Gonzalez21 and Sumaida.22 These acts are serious crimes, inhuman acts committed against a civilian population in a systematic and widespread manner. The evidence clearly shows that the Congolese government represses human rights, carries out civilian massacres and engages in governmental corruption.23 2. Was the principal male claimant complicit in acts committed by the DRC government? Preamble: Case law [44] Following an analysis of Ramirez,24 Moreno25 and Sivakumar,26 Justice Reed stated the following in Penate:27 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. [45] Moreover, in Sivakumar,28 the principles supporting "complicity by association" were stated in the following manner: * 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. [46] Justice Blanchard stated in Sungu29 that "'personal and knowing participation' may be direct or indirect".30 Among other things, he stated the following: ... 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, lay themselves open to the application of the exclusion clause in the same way as those who play a direct part in the operation. [47] Complicity by association was described in the following manner in Bazargan:31 In our view, it goes without saying that "personal and knowing participation" can 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. At p. 318, Justice MacGuigan said [in Ramirez] that "[a]t bottom, complicity rests . . . on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it". 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, lay themselves open to the application of the exclusion clause in the same way as those who play a direct part in the operation. [48] Justice Yves de Montigny in Collins32 describes the mental element required for there to be complicity in crimes against humanity in the following manner: The mental element required to establish complicity in crimes against humanity has been characterized variously as "shared common purpose", "personal and knowing participation or toleration of the crimes", and participation in an organization knowing it commits crimes against humanity, when combined with a failure to stop the crimes or dissociate oneself. Knowledge [49] First, the panel notes the dazzling rise of the principal male claimant's career from XXXXX, when he began working in the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX as a XXXXX XXXXX, to working as XXXXX XXXXX XXXXX XXXXX XXXXX to the United Nations in less than five years, in addition to the tremendous responsibilities assigned to him at the XXXXX XXXXX since his arrival in XXXXX 2004, all of which shows the Congolese government's trust in him. It must be noted that the male claimant did not hesitate to represent his country, whether by replacing the XXXXX in his absence, by participating in the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX (Exhibit P-88).33 [50] The evidence has shown that the principal male claimant held a very high-level position, and represented his country and his government abroad on a daily basis. He was also entrusted with important matters that led him to meet with representatives of the international community. [51] Upon reading the principal male claimant's written testimony, it is obvious that he was aware of the violent acts committed by his government while he held his position. However, he claimed that these violent actions took place in the eastern part of the country and that he was allegedly informed only recently of what was also taking place elsewhere in the DRC. [52] Since the beginning of the hearing, the male claimant has stated that he feared his country's political police which, in addition to the intelligence services and the armed forces, were being used by President Kabila for his own personal ends, and were inflicting degrading treatment, torture and even death on the Congolese people. He was asked when these officers began to perpetrate such harm against the population. He replied that, to his knowledge, it began in October 2007. According to him, before then, this situation existed in the eastern portion of the country but, still to the best of his knowledge, it was not a factor in Kinshasa. [53] When asked whether he had been informed of the atrocities that had been committed against Tutsis in Kinshasa, the principal male claimant replied yes, and that this was why the Tutsis came to seek refuge with the ministry of human rights, in order to be protected and sent to sites. However, the male claimant stated that he had never been an eyewitness to anything and did not know who had done these things. [54] When confronted with Exhibit M-61,34 which reports the above-mentioned statements of a journalist who had returned from the DRC, the male claimant attempted to justify his ignorance of this missing page of the DRC's history, and more specifically of the capital where he lived, by claiming that he did not know whether this article had been published in Kinshasa and that he had never heard his president in the media. He alleged that he had not been informed that Tutsis were being hunted down at the time. The principal male claimant stressed that he knew only that the population was unhappy with the Tutsis and that he was unaware they were being hunted down and killed. According to the male claimant, he was unaware of the presence of Tutsis in the Kokolo camp. [55] The principal male claimant was confronted with his statement to the Immigration Officer when he was questioned at the port of entry (Exhibit A-2), in which he claimed that he had an interest in human rights and therefore wanted to work for the XXXXX XXXXX XXXXX XXXXX. The principal male claimant stated that he was interested in being a XXXXX XXXXX at this ministry and emphasized that he knew nothing of XXXXX XXXXX, nor was he interested in that field. The principal male claimant stated that he managed this ministry's XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, and was unaware whether there was a budget to assist persons in need, who were instead taken care of on a day-to-day basis by the United Nations High Commissioner for Refugees. According to the male claimant, the ministry had made sites available where persons in need could assemble, in addition to publishing a leaflet explaining the possible recourse methods available to adversely affected citizens. According to the male claimant, XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, he never discussed files with them and had no information, nor any clue, of the human rights abuses that were taking place in his country at the time. Thus, he also did not have an example to provide to the panel. When confronted with the implausibility of his statements, the male claimant reiterated that he had not heard of anything. [56] The male claimant is obviously trying to establish wilful blindness to attempt to justify his completely implausible ignorance of the events that enfolded the capital in 1998 and resulted in Tutsis still being hunted down even later, when the male claimant was working in DRC ministries, including the ministry of XXXXX XXXXX. Furthermore, the male claimant obviously tried to extricate himself from his awkward position by stating that, even though he was unaware of cases of human rights abuse in Kinshasa, this ignorance did not mean that there were no such cases. [57] The male claimant maintained that, even after he was promoted to the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX in XXXXX 2000, he dealt exclusively with XXXXX XXXXX. He emphasized that there were policy advisors for everything else. He claimed that, even though he testified that he attended meetings where XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, he did not discuss international relations at his level. [58] However, the principal male claimant stated that he participated in XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. A document filed as Exhibit M-5835 states that the principal male claimant also attended an XXXXX conference XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX The male claimant has reiterated that, during his time in XXXXX XXXXX, he was uninterested in human rights, nor did he follow the political situation in his country, and that his contribution was limited to ensuring that XXXXX XXXXX XXXXX XXXXX. [59] The male claimant was asked whether, when Laurent-Désiré Kabila led the country, he took good care of citizens. The male claimant replied that he could not say yes 100 percent, but he noted that Kabila kept the streets clean and paid police officers. When asked to tell the panel whether the elder Kabila's government respected XXXXX XXXXX, the male claimant stated that what he knew about the XXXXX XXXXX situation had been set out in the white book (Exhibit P-86), but that neither he nor his family had been a victim. The male claimant stated that he did not listen to the radio or watch the television he purchased in 2001, and that he never read newspapers. When confronted with the fact that it was implausible that he worked at the ministry XXXXX XXXXX XXXXX and was unaware of anything and also did not inform himself, the male claimant stressed the long hours he worked at the ministry. [60] This alleged behaviour is absolutely incompatible with the male claimant's profile. For two and a half days, the panel heard an educated, curious and particularly erudite individual with undeniable charisma. In short, he is impressive. The panel cannot believe that he closed his eyes and ears to this degree regarding the situation in his country, particularly in the context of the duties that he carried out within a ministry XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [61] The principal male claimant also indicated that he had subsequently joined the public service to obtain permanent employment status; otherwise he would not have been able to be assigned to XXXXX. Despite the position he held at the XXXXX XXXXX XXXXX XXXXX XXXXX, the male claimant reiterated that he had never heard of human rights violations in the DRC. The principal male claimant was confronted with Exhibit M-56, a 2007 United Nations report that states that 86 percent of human rights violations in the DRC are committed by the army and the police, and with the implausibility of his testimony to the effect that he had not been informed of this information. The male claimant replied that human rights abuses by rebel groups were widespread, and that this could not be the case with government officers because that was beyond comprehension. According to him, these must be isolated cases; otherwise, they had to be condemned. The male claimant emphasized the fact that he was not a member of the government or the armed forces, which, in his words, were untouchable. The male claimant stated that he was responsible for XXXXX XXXXX and that he was unable to read everything. He indicated that the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX ,they never discussed controversial files, a situation the panel finds implausible, even in an African context. [62] However, when asked to explain to the panel how he could replace the XXXXX 36 if he was not up-to-date on the other files, the principal male claimant stated that, if he needed information, he could obtain it from another colleague. He emphasized that his acting status did not authorize him to commit the DRC or to receive people, since he was simply expediting ongoing files. [63] When asked how he could discuss and establish XXXXX XXXXX XXXXX XXXXX, including the XXXXX budget, without knowing what was happening on the ground, the principal male claimant replied that the transitional government had been supported by the international community and that this government, which aspired toward peace, had sent him to XXXXX, thus avoiding answering the question at the same time. [64] Again, the panel finds it implausible that the principal male claimant could have carried out such high-level duties without being informed about what was happening in his own country. Regarding the period following the election of Joseph Kabila in 2006, the male claimant admitted that he had begun to consult a Web site when he was posted to XXXXX and that his anxieties increased by several notches after the massacres of the followers of the Bundu Dia Congo in February 2007 and the events with Jean-Pierre Bemba's guards the following March. [65] During the second session of the hearing, the male claimant adjusted his statements. He stated that he knew that there were serious violations of human rights within the country, but that things were not serious in Kinshasa. He added that the violations had been going on for a long time and that they had to be combatted, hence the presence of the ministry of human rights. The principal male claimant emphasized the weakness of the legal system, which was not playing its role, particularly with regard to members of the military who were untouchable. According to the male claimant, President Kabila uses militias that answer only to him. The male claimant stated that, before the elections, the violent acts were isolated cases caused by the nature of soldiers. [66] The panel does not believe the male claimant's allegations that he was truly unaware of the violence occurring in his country before October 2007, because the news articles he had read before then had not yet been confirmed by an Amnesty International report that supposedly destroyed his confidence in the existing XXXXX institutions. [67] The evidence has shown that the male claimant represented his country's government abroad and that he had to respond to its actions. It is not plausible that he did not know what was happening in his country. His explanations to the effect that he represented the Congolese state as an officer of the public service rather than of the Kabila government responsible for these atrocities does not hold water because he admitted that the Congolese state is made up of the government and its administration. Furthermore, the principal male claimant's meteoric career and his strategic position at the XXXXX XXXXX XXXXX in XXXXX, as well as the fact that his resignation was considered an act of treason,37 are evidence of a shared vision in accomplishing his government's objectives. [68] The panel would like to cite Justice Yvon Pinard in Omar v. Canada,38 in which he concluded that the ambassador of a foreign country can be judged to be complicit by association in the crimes committed by his country's government, which he represents, even if he lives abroad because of the close association with the government that appointed him to this position. [69] Considering the principal male claimant's lack of credibility regarding his ignorance of the crimes against humanity committed by his country's authorities, the panel finds that he was aware of the events and a had shared common purpose, which can be deduced from his voluntary association with the Congolese authorities and is sufficient to find him complicit by association.39 Position [70] It has been established in Canadian law that, when a person claiming refugee protection has not been identified as the direct perpetrator of a crime against humanity, he or she can still be subject to the exclusion clause because of complicity.40 The principles applied to determine the degree of participation required were established in Ramirez,41 Sivakumar42 and Moreno,43 and summarized by Justice Nadon in Mohammad.44 Case law decided that "the closer one is to a position of leadership or command within an organization, the easier it will be to draw an inference of awareness of the crimes and participation in the plan to commit the crimes".45 [71] The principal male claimant had a successful career from 1999 to 2008, rising to XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, as he testified. His duties led him to represent his country at large-scale international organizations at a time when the DRC authorities were committing violent acts and human rights abuses against the civilian population. The principal male claimant has not established his ignorance of the crimes committed by the Congolese government that he represented abroad and for whose actions he had to answer.46 Therefore, it is reasonable to conclude that the principal male claimant had a "personal and knowing awareness" in the Congolese government's actions, which is the "element required to establish complicity". Dissociation [72] The male claimant testified that nothing would have happened to him if he had resigned from his position before his problems began in 2006. When he spoke before the XXXXX XXXXX XXXXX XXXXX XXXXX, he did not take advantage of the forum that was offered to him to denounce the violence in the XXXXX because, although he wrote his own speech, it was corrected by his Head of Mission. He did not resign until his own safety was threatened. [73] The panel is of the opinion that the words of Justice Décary in Harb47 apply to the current case, namely the following: As the Court noted in Bazargan at 286, membership in a group makes it easier to conclude that there was "personal and knowing participation" - which remains the first test - than when there was no membership, but the difference affects the evidence, not the principles. Counsel for the Respondent would like the Court to clarify what is meant by "membership in a group". I do not think this is necessary. The expression was used in Ramirez in the context of a member whom the Court described as "active". The expression suggests the existence of an institutional link between the organization and the person, accompanied by a more than nominal commitment to the organization's activities. As everything is a question of fact, at the end of the analysis I feel that it is better to speak in terms of participation in the group's activities than of membership in the group. [74] Justice Décary also stated in Harb:48 A simple denial - even if it was found credible, which it was not - cannot suffice to negate the presence of a common purpose. A plaintiff's actions can be more revealing than his testimony and the circumstances may be such that it can be inferred that a person shares the objectives of those with whom he is collaborating. [75] Upon examination of the evidence on file, the principal male claimant had "personal and knowing awareness"49 of the atrocities committed by the Congolese government and army through the duties he carried out. The evidence showed that the principal male claimant has always demonstrated his active, consistent and trusting support for his government, the ranks of which he joined voluntarily in XXXXX 1999. Once he had reached a high-level position, he did not take any action to dissociate himself from the government. On the contrary, he remained in place; he even continued to provide his services to the government until he feared for his own safety. Consequently, the panel finds that there are "serious reasons for considering"50 that the principal male claimant personally and knowingly participated in the DRC government's crimes by making himself complicit by association with these serious crimes against humanity. Although the principal male claimant obviously did not personally commit acts of violence against civilians, assuming important duties and responsibilities allows the Congolese government to perpetuate itself, and he did nothing to dissociate himself from the government. [76] The panel concludes that there are substantial grounds to believe that the principal male claimant was complicit in crimes against humanity and war crimes, and that he is excluded from the protection offered to "Convention refugees" and "persons in need of protection", under Article 1F(a) of the Convention. Consequently, the panel does not need to analyze the exclusion of the principal male claimant under Article 1F(c) of the Convention, and also does not need to process the principal male claimant's inclusion.51 Inclusion of the principal male claimant's family members, with the exception of the child named XXXXX XXXXX XXXXX [77] The male claimant's spouse testified that she fears to return to the DRC because of the problems her husband experienced at the XXXXX XXXXX XXXXX XXXXX. The principal female claimant stated that her country's authorities would persecute her and her children in the event that they return. The principal male claimant stated that his resignation [translation] "for obvious reasons", as mentioned in his letter to this effect,52 would be considered high treason because of the important tasks he carried out. [78] The panel finds that, in light of the situation prevailing in the DRC, which was detailed at length in the section regarding the exclusion of the principal male claimant and need not be repeated here, the fact that the principal male claimant resigned from his important duties so abruptly and without explanation to exile himself to Canada would put all of the members of this family in danger if they were to return to their country of citizenship. Therefore, the panel is of the opinion that the principal female claimant and seven of the eight children, who are citizens of the DRC, face a reasonable possibility of persecution and/or risks if they return to their country of citizenship. [79] Regarding the child XXXXX XXXXX XXXXX, an American citizen, the principal female claimant, who is also the designated representative, was asked whether she feared that anything would happen to her son if he returned to the United States. The principal female claimant responded that she did not. [80] Considering that his representative did not state any reason that could establish a fear of returning to this country, which is a signatory to the Convention, the panel concludes that no evidence has shown that there is a "reasonable possibility" that he will face persecution and/or risks if he returns to the United States of America. CONCLUSION [81] After analyzing all of the evidence, the panel determines that XXXXX XXXXX XXXXX is excluded from the Convention's protection. The panel finds that there are serious reasons for considering that XXXXX XXXXX XXXXX was complicit by association in crimes against humanity and war crimes, and that he is excluded from the protection offered to "Convention refugees" and "persons in need of protection" under Article 1F(a) of the Convention. [82] Regarding his spouse, XXXXX XXXXX XXXXX, and her children, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX XXXXX and XXXXX XXXXX XXXXX, the panel determines that they are "Convention refugees" because of their membership in a particular social group, namely the family, and allows their claim for refugee protection. [83] Regarding the child XXXXX XXXXX XXXXX, the panel determines that he is neither a "Convention refugee",53 nor a "person in need of protection",54 and rejects his claim for refugee protection. Ruth Delisle Ruth Delisle, Lawyer September 23, 2009 Date REFUGEE PROTECTION DIVISION / EMPLOYMENT / MINISTER'S INTERVENTION / EXCLUSION / ART. 1F(A) / CRIMES AGAINST HUMANITY / VOLUNTARY REPATRIATION / ACCOMPLICE / MALE / NEGATIVE / PARTICULAR SOCIAL GROUP / FAMILY / WELL-FOUNDED FEAR OF PERSECUTION / POSITIVE / SPOUSE / RIGHT TO RETURN / CHILDREN / NEGATIVE / DEMOCRATIC REPUBLIC OF CONGO / UNITED STATES 1 Exhibit M-1: Notice of intention to intervene. 2 Exhibit A-2: Immigration documents and port-of-entry notes. 3 Section 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. 4 Subsection 2(1) of the Immigration Act, R.S.C., 1985, c. I-2, defines the term "Convention refugee" but excludes any person to whom the Convention does not apply pursuant to Article 1(E) or (F) thereof. Sections E and F of this Convention are incorporated into the Act. In this case, Article 1(F) of the Convention applies. It reads as follows: F. 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. 5 Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.). 6 Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.); (1993), 21 Imm. L.R. (2d) 221 (F.C.A.). 7 ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, United Nations, Treaty Collection, volume 2187, page 3, entry into force July 1, 2002: Article 6 Genocide For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. Article 7 Crimes against humanity 1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 2. For the purpose of paragraph 1: (a) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (b) "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; (c) "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; (d) "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law, (e) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; (f) "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (g) "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; (h) "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; (i) "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above. Article 8 War crimes 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages. (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; (ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xi) Killing or wounding treacherously individuals belonging to the hostile nation or army; (xii) Declaring that no quarter will be given; (xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war; (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war; (xvi) Pillaging a town or place, even when taken by assault; (xvii) Employing poison or poisoned weapons; (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; (xxiii) utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (v) Pillaging a town or place, even when taken by assault; (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; (ix) Killing or wounding treacherously a combatant adversary; (x) Declaring that no quarter will be given; (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict; (f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. 3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means. 8 Mugesera v. Canada (Minister of Citizenship and Immigration), [2004] 1 F.C.R. 3; 2003 F.C.A. 325. 9 Sivakumar v. R., [1996] 2 F.C. 872 (C.A.); (1996), 33 Imm. L.R. (2d) 113 (F.C.A.). 10 Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (C.A.); (1994), 24 Imm. L.R. (2d) 229 (F.C.A.). 11 Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66 (C.A.); (2000), 3 Imm. L.R. (3d) 169 (F.C.A.). 12 Exhibit M-61: Interview d'un journaliste de retour du Congo [interview with a journalist returning from the Congo], March 1, 1999. 13 Exhibit M-62: Immigration and Refugee Board of Canada, Democratic Republic of Congo, The August 1998 Rebellion and Affected Groups, December 1998. 14 Exhibit M-10: Amnesty International, Democratic Republic of Congo (DRC): Still under the gun: More child soldiers recruited, 2004; and Amnesty International, Democratic Republic of Congo: Children at war, creating hope for the future, 2006. 15 Exhibit M-53: United States Department of State, Congo, Democratic Republic of the - Country Reports on Human Rights Practices - 2004, 2005; and Exhibit M-54: United States Department of State, Congo, Democratic Republic of the - Country Reports on Human Rights Practices - 2005, 2006. 16 Exhibit P-1: Personal Information Form (PIF), question 31. 17 Exhibit M-11: Amnesty International, Democratic Republic of Congo: Torture and killings by state security agents still endemic, 2007; Exhibit M-15: Human Rights Watch, Statement by Human Rights Watch to the DRC Parliamentary Commission Investigating Events in Bas-Congo, 2007; Exhibit M-24: Human Rights Watch, World Report 2008 - Democratic Republic of Congo, 2008; Exhibit M-56: United States Department of State, Congo, Democratic Republic of the - Country Reports on Human Rights Practices - 2007, 2008; et Exhibit M-57: United States Department of State, 2008 Human Rights Report: Democratic Republic of the Congo - 2008 Country Reports on Human Rights Practices, 2009. 18 Supra, footnote 8. 19 Supra, footnote 9. 20 Supra, footnote 10. 21 Supra, footnote 11, pages 653-654. 22 Supra, footnote 12. 23 Exhibit M-70: Package of documents. 24 Supra, footnote 5. 25 Supra, footnote 6. 26 Supra, footnote 10. 27 Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.), pages 84-85. 28 Supra, footnote 10. 29 Sungu, Adrien Dambana v. M.C.I. (F.C.T.D., No. IMM-1020-01), Blanchard, November 22, 2002. 30 Supra, footnote 28. 31 Bazargan, Mohammad Hassan v. M.E.I. (F.C.T.D., No. A-51-93), Tremblay-Lamer, May 30, 1995. 32 Collins v. Canada (Minister of Citizenship and Immigration), 2005 F.C. 732, paragraph 24. 33 Exhibit P-88: Document entitled "Compte rendu analytique provisoire de la 28ième Séance tenue au Palais des Nations, à Genève, le lundi 17 juillet 2006, à 10 heures" [draft analytical report of the 28th session held at the Palais des Nations in Geneva on Monday, July 17, 2006, at 10:00 a.m.], Economic and Social Council, Substantive Session 2006, humanitarian affairs debate. 34 Supra, footnote 13. 35 Exhibit M-58: XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, undated. 36 Exhibits P-22 and P-23: XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX 37 Exhibit P-1: Personal Information Form (PIF), question 31. 38 Omar, Idleh Djama v. M.C.I. (F.C., No. IMM-2452-03), Pinard, June 17, 2004, 2004 FC 861. 39 Supra, footnote 32. 40 Sivakumar v. R., [1996] 2 F.C. 872 (C.A.); (1996), 33 Imm. L.R. (2d) 113 (F.C.A.); Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (C.A.); (1994), 24 Imm. L.R. (2d) 229 (F.C.A.), pages 653-654; M.C.I. v. Bazargan, Mohammad Hassan (F.C.A., A-400-95), Marceau, Décary, Chevalier, September 18, 1996. 41 Supra, footnote 5. 42 Supra, footnote 10. 43 Supra, footnote 6. 44 Mohammad v. Canada (Minister of Citizenship and Immigration) (1995), 115 F.T.R. 161 (F.C.T.D.), page 178: 1. A person who commits a crime must be held responsible therefor. 2. A person may be responsible for a crime he or she did not personally commit, that is, as an accomplice. 3. The starting point for the existence of complicity is "personal and knowing participation" by the person in question. 4. Mere bystanders are not accomplices. 5. A person who aids in or encourages the commission of a crime may be responsible therefor. 6. A superior may be responsible for crimes committed by those under his or her command if the superior knew about them. 7. A person may be held responsible for crimes committed by others because of his or her close association with those who committed them. 8. The more important the position held by a person in an organization that has committed one or more crimes, the more likely his or her complicity. 9. A person who continues to hold a leadership position in such an organization with full knowledge that the organization is responsible for crimes may be considered an accomplice. 10. Evidence that the individual protested against the crime, tried to stop its commission or attempted to withdraw from the organization must be taken into consideration in determining whether he or she is responsible. 45 Zrig, Mohamed v. M.C.I. (F.C.T.D., No. IMM-601-00), Tremblay-Lamer, September 24, 2001. 46 Imama, Lofulo Bofaya v. M.C.I. (F.C.T.D., No. IMM-118-01), Tremblay-Lamer, November 6, 2001. 47 Harb, Shahir v. M.C.I. (F.C.A., No. A-309-02), Décary, Noël, Pelletier, January 27, 2003. 48 Idem. 49 Supra, footnote 5. 50 Supra, footnote 6. 51 Supra, footnote 11. 52 Supra, footnote 38. 53 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. 54 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. --------------- --------------- --------------- --------------- RPD File No. / No de dossier de la SPR : MA8-00814 MA8-00815 MA8-00816 MA8-00817 MA8-00818 MA8-00819 MA8-00820 MA8-00821 MA8-00822 MA8-00823 33

Response:
## Analysis of Refugee Decision: MA8-00814

### Key Issues
ust examine the following two questions: 1. Did the Congolese government commit crimes against humanity? 2. Was the principal male claimant complicit in acts committed by the DRC g

### Legal Analysis
The decision analyzes refugee protection criteria by examining: ciples of the United Nations. ANALYSIS Identity [17] To establish their identities, each of the claimants filed, among other documents, his or her diplomatic passport issued by the DRC, which were seized by Citizenship and Immigration Canada, except for their minor child named XXXXX XXXXX XXXXX, born in the United States as a re

### Implications for Immigration Practice
This decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses.