Gutierrez v. Canada ( Minister of Employment and Immigration )
IMM-2170-93
MacKay J.
11/10/94
18 pp.
Application for judicial review of CRDD decision principal applicant excluded from Convention refugee definition as serious reason to believe had committed crime against humanity-Applicants, from Uruguay, claimed refugee status fearing persecution for political opinion, membership in particular social group-Principal applicant feared arrest as deserter-Had voluntarily joined Defence Ministry-Administrative duties included transmitting orders to security officials re: surveillance of dissidents-Later worked at police station as driver transporting detainees-Signed referendum against Impunity Law-Denied discharge from forces-Repeatedly detained for such reasons as refusing to vote for Colorado party, seeking transfer to Interior Ministry-In PIF admitted while driver saw detainees beaten by officers-Once transported package thought to contain body to desolate military property-When applicant questioned officers, told someone had gotten carried away during interrogation-Told to forget about incident or would end up at same place-Refugee Division found applicant was aware of acts of brutality by police, had helped transport corpse-Applied principles in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), found applicant not simple on-looker but participating member of military force having objective to torture prisoners and did not distance himself-Could have deserted sooner-Whether tribunal misapplied complicity test set out by MacGuigan J.A. in Ramirez or misconstrued evidence-Argued that record not disclosing applicant had close association with principal actors or encouraged commission of international crimes-Panel did not err in formulating and applying principles to facts of case-Three requirements for complicity: (1) membership in organization committing international crimes as regular part of operation; (2) knowing participation; (3) failure to disassociate at earliest safe opportunity-Evidence on which panel could conclude serious reasons for considering applicant participated in crime against humanity-Unnecessary applicant directly participate in torture if knew international crimes committed: Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.)-Factors to be considered as to disassociation: (1) how long member; 2) earliest date had chance to get out; (3) consequences of speaking out, disobeying orders, desertion; (4) circumstances of leaving-Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), distinguished-Even one in low-ranking position may share common purpose-Facts herein similar to Ramirez-While bothered by conscience, continued to play active part in forces committing international crimes-Not unreasonable to conclude applicant never decided would not participate in international crimes-Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (C.A.), authority for proposition CRDD does not err in proceeding directly to finding applicant excluded under Art. 1F(a) without considering whether inclusionary requirements of Convention refugee definition met-Sufficient to assess dependent claim on own merits, taking into account circumstances on which principal claim was based-Dependant's evidence not found credible-Application dismissed-United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a).