Federal Court


Immigration

INADMISSIBLE AND REMOVABLE CLASSES
Claimant was personal and knowing participant in international crimes

Application for judicial review of denial of refugee claim. Applicant was citizen of Republic of Congo who voluntarily joined Congolese army in 1991 and served as sergeant until 1998, when he deserted following coup d’etat in Congo. Applicant fled Congo in 2000 and sought refugee protection in United Kingdom, which was eventually denied. Applicant returned to Congo in 2007 and was arrested upon his return. In November 2007, applicant fled to Canada and made claim for protection. Board denied applicant’s refugee claim under s. 98 of Immigration and Refugee Protection Act (Can.), determining that there were serious reasons to believe that applicant had been complicit in war crimes and crimes against humanity by reason of role he played in Congolese army. RPD determined that Congolese army committed crimes against humanity and war crimes over period from 1993 to 1997, time during which applicant was member of army. To consider whether applicant was complicit in crimes army committed board applied six so-called Bahamin factors, i.e. method of applicant’s recruitment, his position in Congolese army, nature of Congolese army, his knowledge of crimes or acts committed by Congolese army, length of his association with Congolese army and opportunity for him to have left army before date he deserted. RPD concluded that there were serious reasons to consider that applicant had been complicit in war crimes and crimes against humanity committed by Congolese army and, accordingly, was disentitled to protection under Act. Applicant contended that rather than focusing on Bahamian factors RPD ought to have considered whether applicant participated in any of Congolese army’s crimes in manner analogous to that of criminal accomplice. Application dismissed. Test applied by board was correct one. It was not error for board to apply Bahamian factors to gauge whether claimant was personal and knowing participant in international crimes committed by organization to which he or she belonged. These factors were meant to assess degree of applicant’s participation, have been often recognized by this court as being appropriate for board to apply and were consistent with case law of Federal Court of Appeal. Board did not commit reviewable error in applying this test. Board’s decision was reasonable, and accordingly application must be dismissed.

Nsika v. Canada (Minister of Citizenship and Immigration)

(Aug. 29, 2012, F.C., Gleason J., File No. IMM-8775-11) 221 A.C.W.S. (3d) 685.

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