LUIS ANGEL ROJAS ANGEL LUIS ROJAS GRATEROL NORA ISABEL GRATEROL DE ROJAS LUIS ANGEL ROJAS GRATEROL Applicants - v. -, 2003 FCT 394

Date: 20030402 Docket: IMM-539-02 Neutral citation: 2003 FCT 394 BETWEEN: LUIS ANGEL ROJAS ANGEL LUIS ROJAS GRATEROL NORA ISABEL GRATEROL DE ROJAS LUIS ANGEL ROJAS GRATEROL Applicants - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER MacKAY J. [ 1 ] The applicants seek judicial review and an order setting aside the decision of the Convention Refugee Determination Division dated December 5, 2001, which determined that none of the applicants were Convention refugees, and moreover that the principal applicant, Luis Angel Rojas, was excluded from the definition of a refugee by

Article 1F(

a) of the Convention included in the

Schedule to the Immigration Act , R.S.C. 1985, c. I-2, as amended (the "Act"). [ 2 ] Under the Act,

section 2 includes the definition of a "Convention refugee" which excludes, pursuant to the

Schedule incorporating

Article 1F of the Convention, "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". [ 3 ] The applicants are all members of a family, the principal applicant, his wife and their two minor children. The principal applicant claimed refugee status and fear of returning to his country, Venezuela, on the grounds of political opinion. His wife and children, in reliance on his claim, sought refugee status on the same ground. [ 4 ] The principal applicant served in the army in Venezuela from 1985 to 1992.

Thereafter, he ran his own business while teaching on a part-time basis at university level. He was a qualified engineer who completed a doctoral degree. [ 5 ] While serving in the army, he had initially been stationed with a unit patrolling the border and he had received special training with the Special Forces of the U.S. military. In part because of that training, he had been in charge of a small special unit called, in 1989, into Caracas to contain civil unrest. In the initial hearing before the CRDD, he commented that he had shot and believed he had killed one or more armed civilians.

This admission was the basis of subsequent intervention before the CRDD panel by the Minister. After an adjournment in the hearing, when the panel resumed the applicant stated that he was not sure whether he had killed any civilian. In his oral testimony he also acknowledged that he was aware some fishermen, killed by the military, had been found buried in a mass grave. [ 6 ] These incidents involved in suppression of civil unrest were not mentioned in his original PIF.

Investigation of the army's role in putting down civil unrest in 1989 was apparently long delayed in Venezuela, but was finally dealt with by the Supreme Court there and by the Inter-American Court on Human Rights which resulted in the government of Venezuela acknowledging wrongdoing on behalf of the military forces. [ 7 ] After the events of 1989, the principal applicant claims he was given responsibility, subject to the direction of certain senior officers, for reorganizing the army's communications systems.

In the course of that work he was harassed by other officers of the military, and though he reported this to his senior supervisors, nothing was done to correct the situation. This led to his resignation from the army late in 1991 which, after some delay, was accepted in 1992. Thereafter, he commenced his own business and part-time teaching. [ 8 ] In the course of his teaching, he says he was critical of the government of Mr. Chavez, now president of Venezuela, who had served a term in prison in the early 1990's for his role in the aborted revolutionary efforts in 1989.

While he did not claim a major political role or publish widely his views against the government, the applicant did not hesitate to express critical views to colleagues and students and to communicate his views on the internet. He believes that, as a result, he was known unfavourably by President Chavez and others in his government. He also believed that he was known to have uncovered corrupt practices in the military during the time he

was responsible for reorganizing the army's communications. Further, because of that work, he believed that President Chavez and his government blamed him for the failure of an earlier attempt to overthrow the government. [ 9 ] The applicant claimed he had been persecuted since 1999, some seven years after he left the army. In that year he began to receive threatening phone calls, he believes, from someone in the Chavez government.

Moreover, he claims he was kept under surveillance and that his car was stolen and vandalized on two occasions, on the last of which his life was threatened at gunpoint. [ 10 ] Two issues are raised by the application for judicial review. The first concerns the finding by the CRDD panel that his evidence was not credible and did not establish a genuine fear of persecution if he were to return to Venezuela. Since the claims of his wife and children were dependant upon his, they also did not qualify as Convention refugees.

The finding that he did not establish a genuine fear of persecution is said to be in error. [ 11 ] The second issue concerns the finding by the panel that the principal applicant was excluded from consideration as a Convention refugee under

Article 1F(a), a finding said to be in error. I deal with these issues in turn. The Issue of Credibility [ 12 ] In considering the issue of credibility, the standard of review for the Court is whether or not the panel's finding is patently unreasonable; see Rahaman v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 1800 (T.D.) (QL) . The findings of the panel which heard the applicant's testimony deserve deference where it has support in the evidence, and its assessment of its probability cannot be described as patently unreasonable. [ 13 ] Here, the panel set out numerous specific aspects of the principal applicant's evidence that it found inconsistent or improbable, including: (

i) travel leaving his own country on a valid Venezuelan passport when the applicant testified he was on a published list of persons perceived to be opposed to the government; (ii) failure to apply for asylum or refugee status in the U.S. en route to Canada, a failure inconsistent with his claimed fear for his and his family's lives; (iii) the inconsistency in evidence re his shooting of civilians in 1989, a matter not mentioned in his original PIF, referred to as having resulted in killing of civilians in his original testimony and later varied by affidavit and testimony that he had only wounded or shot a civilian in the knee, with no reasonable explanation for this inconsistency; (iv) the applicant's testimony that he had worked alone, from his home, without a computer, for several months in 1989-91 to revise the military's communication system; (

v) the inconsistency of his alleged mistreatment by military officers during the period when he was revising the communications system, a period during which he claimed to have been promoted and commended for his work; (vi) the principal applicant's claim that he alone was considered at fault for the failure of a 1992 attempted coup d'état by now President Chavez, because of his work on the military communications system, given that his supervising officers at that time were now senior officers in the Chavez government; (vii) the improbability that the government of President Chavez would pursue only the principal applicant some seven years after the failed coup attempt. [ 14 ] The panel's reasons for finding aspects of the applicant's evidence improbable or inconsistent, particularly with regard to key elements of his claim to fear persecution, are set out in its decision.

In my opinion, on considering the evidence reviewed by the panel and its reasons in assessing that evidence, it cannot be said that the panel's finding was patently unreasonable, i.e., that the principal applicant did not establish he had good grounds to fear persecution for a Convention reason: here, his political opinion opposing the government of Venezuela. Exclusion in Accord with

Article 1F(a) [ 15 ] For the applicant, it is submitted that he was denied fairness in the process of the panel in two respects. First, it was said that the notice of intervention by the Minister did not set out the basis for claiming that the applicant was excluded from recognition as a Convention refugee. Second, it is urged that the panel accepted allegations concerning the applicant's involvement in the killing of one Felipe Acosta at the stage for submissions in its process, after evidence was completed, so that the applicant had no opportunity to respond. [ 16 ] In Arica v.

Canada (Minister of Employment and Immigration) , [1995] F.C.J. No. 670 (C.A.) (QL) , Mr. Justice Robertson commented, in regard to the appellant's claim there, that there was inadequate notice: The real issue is whether the appellant and his counsel were at the time of the hearing apprised of and proceeded on the understanding that paragraph (

a) of

Article 1F was in issue. [ 17 ] Here, the Minister intervened after the first day of hearing when the applicant testified that he had participated with the army in restoring order in riots in Caracas in early 1989, and that in that service he had shot and killed a civilian. That involvement, arising from his own testimony, was the basis of the Minister's intervention and ultimately it was the basis of the panel's finding that he was

excluded. [ 18 ] As for the second aspect of fairness here raised, an examination of the panel's opinion indicates that its only reference to one Felipe Acosta was included in its assessment of the credibility of the applicant's testimony, and it played no

part in the reasoning leading to its finding that he was excluded. [ 19 ] The panel's decision on the application of the exclusion clause is clearly based on the applicant's involvement, with Venezuelan forces, in putting down civil unrest in 1989. From his own testimony he revealed his involvement, and as a specialist in the special services with sniper's training he considered himself an asset in the army at the time. While he played down the significance of his knowledge of the scope of that activity, he could not have been ignorant of its dire consequences.

The activities of the security forces and delays in investigating those led ultimately to the acknowledgement by the state of Venezuela of international responsibility for the armed forces' brutal suppression of civilians during the Caracas riots before the Inter-American Court on Human Rights as recorded in its judgment in 1999.

The killing of civilians by military personnel may be a basis for finding the commission of crimes against humanity on the basis of international standards, and that clearly was found by the decision of the Inter-American Court. [ 20 ] There is no doubt of the applicant's complicity in the commission of international offences by the armed forces in 1989. By his testimony he was personally involved, and knowingly, with military forces in putting down civilian demonstrators.

Those efforts by the military came to be recognized as having involved crimes against humanity by reason of the decision of the Inter-American Court and the Venezuelan government and courts. The applicant did not dissociate himself from the army after those events were completed. Rather, he continued service and thereafter claimed to be of special importance in reforming communications systems for the military.

While it was unclear quite why he resigned from the army late in 1991 and left it in 1992, it is clear he did not dissociate himself from it following the army's involvement in putting down civil unrest in 1989. [ 21 ] The panel reviewed the evidence about his complicity in the commission of crime contrary to

Article 1F(

a) including his membership in the military and his participation in its commission of international offences, and his failure to dissociate himself from that organization at the earliest safe opportunity. The panel was satisfied on the evidence that he was complicit in wrongful activities by the army against civilians. While I might not have reached the same conclusion as the panel, there clearly was evidence before it on which its finding was based. That finding was that there are serious reasons for considering that the principal applicant, by his involvement in the armed forces' activities in restraining civilian rioters in 1989, was excluded from the definition of Convention refugee by

Article 1F(

a) of the international convention. Conclusion [ 22 ] The panel found that the principal applicant did not establish a Convention basis for his claimed fear of returning to Venezuela. That finding was not patently unreasonable and it does not warrant intervention by this Court. The claims of his wife and children, dependent on his claim, were thus denied. [ 23 ] The panel's determination that the principal applicant was excluded from the definition of a Convention refugee because of

Article 1F(

a) of the international convention was not a finding that was unreasonable in light of the evidence before the panel. [ 24 ] In the circumstances, the Court dismisses by separate order this application for judicial review. [ 25 ] Following the hearing of this matter, the parties made separate submissions concerning possible serious questions of general importance to be considered pursuant to para. 74(

d) for certification for an appeal. For the applicant, the following questions concerning fairness of the process in considering

Article 1F(

a) are suggested. i. What are the minimum requirements in refugee proceedings where matters involving

Article 1F(

a) of the Convention are raised with respect to informing the refugee claimant of the position of the Minister and the case being made against him? ii. At what point in the hearing must such disclosure take place? iii. What are the minimum requirements to provide the refugee claimant with an opportunity to challenge the case being made against him? [ 26 ] The respondent does not agree that these questions raise a serious question of general importance. [ 27 ] On the facts of this case, I am not persuaded there was unfairness in failing to provide sufficient notice of matters from which concern about

Article 1F(

a) arose. In those circumstances, the questions proposed would not, if certified, provide a basis for determining an appeal of this decision. (Sgd.) "W. Andrew MacKay" Judge Vancouver, B.C. April 2, 2003

FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: IMM-539-02 STYLE OF CAUSE: Luis Angel Rojas et al. v. MCI PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: November 25, 2002 REASONS FOR ORDER: MacKAY J. DATED: April 2, 2003 APPEARANCES : Ms. Silvia R. Maciunas FOR APPLICANT Ms. Patricia Johnston FOR RESPONDENT SOLICITORS OF RECORD : Ms. Silvia R. Maciunas FOR APPLICANT Ottawa, Ontario Morris Rosenberg FOR RESPONDENT Deputy Attorney General of Canada