Cardenas v. Canada ( Minister of Employment and Immigration )
93-A-171
Jerome A.C.J.
4/2/94
10 pp.
Application for judicial review of CRDD decision applicant not Convention refugee -- Although concluding applicant having well-founded fear of persecution, CRDD holding not Convention refugee because accomplice in crimes against humanity committed by military branch of Manuel Rodriguez Patriotic Front -- Immigration Act, s. 2 definition of "Convention refugee" excluding, by reference to Convention, persons committing crime against humanity -- Applicant from Chile -- Commissioned by Socialist party to join Front in attempt to unify leftist parties -- Front divided into military faction advocating use of violence, terror and political faction denouncing use of force -- Applicant not involved with military faction -- Local vice-president in charge of recruiting and entrusted with keeping track of membership lists -- Board inferring (1) applicant having advance knowledge of military faction's activities based on position of trust, leadership in organization; (2) applicant sharing common purpose with military faction, i.e. violent overthrow of government -- Application allowed -- Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.); Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.) applied -- Inference advance knowledge may have been reasonable if clear distinction between military and political factions not existing -- As one of several local, non-military leaders, applicant at most only very remotely connected to criminal activities attributed to dissident faction of organization -- Uncontradicted evidence military faction kept separate membership lists, chain of command independent of political faction -- Military faction clandestine organization within clandestine organization -- Board unreasonably equating membership in Front with belief in use of violence to achieve political goals -- Assumption not supported by material before Board -- Board making little effort to link applicant to specific criminal activities -- Referring only in general terms to shootings, bombings carried out by military faction -- Given serious consequences to applicant, Board should have carefully detailed criminal acts -- Board erring by failing to recognize use of violence not advocated by Front but by dissident faction -- To implicate claimant as accomplice to international crimes, Board must be satisfied claimant having knowledge of commission of international crimes, sharing organization's purpose in committing them -- Applicant's mere membership in Front not attracting culpability -- In light of potential danger faced by claimant (well-founded fear of persecution), Board must base decision to exclude only on clear and convincing evidence, not simply on suspicion, speculation -- Immigration Act, R.S.C., 1985, c. I-2, s. 2, Schedule.