Bouasla v. Canada (Citizenship and Immigration)

Bouasla v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2008-07-31
Neutral citation
2008 FC 930
File numbers
IMM-2646-07
Notes
Digest
Decision Content
Federal Court
Cour fédérale
Date: 20080731
Docket: IMM-2646-07
Citation: 2008 FC 930
Ottawa, Ontario, the 31st day of July 2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
ALI BOUASLA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction and Preamble
[1] On June 12, 2007, the Refugee Protection Division (the panel) determined that Ali Bouasla (the applicant), an Algerian citizen born in 1970, was excluded from the protection of the United Nations Convention Relating to the Status of Refugees (the Convention) by Article 1F(a) of the Convention (exclusion) and, in the alternative, that his fear of returning to Algeria was not well‑founded and he was therefore not a Convention refugee (inclusion). Article 1F(a) of the Convention provides that protection under the Convention is not available “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”. [Emphasis added]
[2] Before the panel, Mr. Bouasla was represented by counsel; in this Court, he represented himself.
[3] His application for judicial review relates solely to the panel’s decision on exclusion; he is not challenging the panel’s conclusion that he was not included because it could not find from the evidence that, if he returned to Algeria, there was a reasonable chance he would be persecuted by his country’s authorities or an Islamic terrorist group.
[4] Before Mr. Bouasla began his argument, the Court questioned him about his choice not to challenge his non‑inclusion. The Court wanted to know whether he understood the consequences of that choice. He explained to me that he wanted this Court to set aside the finding on exclusion because, if that finding were upheld, he would be inadmissible under section 35 of the new Immigration and Refugee Protection Act (IRPA) that came into force on June 22, 2002, and his spouse would therefore be unable to sponsor him.
[5] The Court accepted that explanation; the debate before it was therefore limited to exclusion and the panel’s general conclusion that it was “of the opinion that there are substantial grounds to believe that Ali Bouasla was complicit through association in crimes against humanity and war crimes”.
[6] The panel based that conclusion on what Justice Décary of the Federal Court of Appeal had stated in Harb (Harb v. Minister of Citizenship and Immigration, 2003 FCA 39):
[19] 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. [Emphasis added]
[7] After assessing the applicant’s testimony, which it considered credible, from the standpoint of his knowledge, rank and dissociation, the panel stated the following:
In light of the evidence adduced, the panel determines that the claimant, through the positions he occupied, had “personal and knowing awareness” of the acts committed by the authorities of his country. The panel considers that the claimant has established his active, consistent and confident support for his government, whose security forces and penitentiary administration he joined voluntarily and knowingly and in which he occupied positions until leaving the country. After rising to various high‑level positions, he took no action to dissociate himself from them even though he was aware of the exactions committed. Quite the contrary: he remained in those positions and even continued to offer his services. The panel is therefore of the opinion that, because the claimant was complicit through association in serious crimes against humanity, there are “serious reasons for considering” that he personally and knowingly participated in the crimes committed by the security forces and the penitentiary administration of his country under the authority of the Algerian government. [Emphasis added]
The panel determines that there are serious reasons for considering that the claimant was complicit in crimes against humanity and in war crimes, and that, under Article 1F(a) of the Convention, he is excluded from the protection offered to “Convention refugee” claimants.
Facts
[8] Mr. Bouasla arrived in Canada on May 11, 2000 to claim this country’s protection. The path taken by his claim in the Refugee Division and then the Refugee Protection Division was complex. I will describe what he went through:
· On November 20, 2001, the first hearing was held before two members under the former Act. The Minister of Citizenship and Immigration (the Minister) intervened to argue that the applicant was excluded by Article 1F(a) of the Convention, incorporated into Canadian law by the former Immigration Act and section 98 of the IRPA.
· On March 27, 2002, after several hearings, the evidence and part of the argument were completed, but the case was adjourned to April 16, 2002 to receive the written submissions of counsel for the applicant and an expert appraisal of certain documents.
· Two years later, on April 29, 2004, the Minister’s representative sent the panel the results of the expert appraisal. The panel decided that the hearing would continue on June 30, 2004, but the hearing was postponed owing to the absence of a member who was seriously ill.
· On July 29, 2004, the coordinating member of the Immigration and Refugee Board of Canada (the Board) ordered that a de novo hearing be held on administrative grounds because it was unlikely that the absent member could return to work.
· On December 20, 2004, the applicant’s claim was considered again by a single member (Member Jobin) under the provisions of the IRPA. Mr. Bouasla was not represented by counsel.
· On January 25, 2005, Member Jobin determined that the applicant was excluded under Article 1F(a) and (c) of the Convention. That panel did not rule on inclusion. The panel noted that the applicant “has responded directly and openly to the various questions put to him. . . . the claimant answered various questions directly and without evasion, even providing more details than the occasion called for.” The panel found that the Algerian army, police and prisons were organizations established for a limited, brutal purpose. The applicant applied to the Federal Court for judicial review of that decision.
· On November 18, 2005, this Court set aside Member Jobin’s decision on the ground that the applicant’s claim should have been considered by two members under the former Act (see Ali Bouasla v. Minister of Citizenship and Immigration, 2005 FC 1544).
· On February 12, 2007, the applicant’s claim was considered on the merits for half a day. The delay resulted partly from two pre‑hearing conferences and from the instructions Mr. Bouasla gave his new counsel. At the pre‑hearing conference held on January 29, 2007, Mr. Girard asked that all the transcripts of the previous hearings and the many exhibits previously admitted into evidence be entered into the panel’s record. The panel approved this procedure, and a single witness, Mr. Bouasla, who had already testified before, was heard viva voce on February 12, 2007. On that date, neither the Minister’s representative nor the Protection Officer (RPO) questioned Mr. Bouasla about exclusion, since they were of the opinion that the record had been complete for some time. The Minister’s representative did not make any further arguments, and the RPO’s comments were very brief; he did not impugn Mr. Bouasla’s credibility.
[9] The parties confirmed before me that the panel and this Court had to decide the applicant’s claim under the provisions of the former Act. Accordingly, the panel did not have to determine whether Mr. Bouasla was a person in need of protection under section 97 of the IRPA, a provision not found in the former Act.
[10] I note that the Minister’s representative and the RPO questioned the credibility of some aspects of Mr. Bouasla’s testimony before the first panel that considered his claim. However, that panel made no decision.
[11] The essential parts of his history in Algeria between 1988 and the end of 1999 are as follows:
· September 1988 - he enlisted voluntarily as an officer cadet at the Algerian air force’s military college in Regaya with the goal of becoming an officer after a three‑year training period;
· October 1988 - there were violent riots in Algiers at the beginning of the month. In restoring order, the army killed several hundred citizens. Mr. Bouasla claims that, after these events in which he did not participate, he disagreed with the army’s shooting of civilians and asked to resign, but his resignation was rejected several times;
· May 1989 - he deserted, was arrested after 15 days and was given a one‑month suspended prison sentence;
· August 1990 - his resignation was granted and he was therefore removed from the military college;
· September 1990 to December 1992 - studies in philosophy at Constantine University;
· Late 1991 and early 1992 - civil war (dirty war) broke out in Algeria;
· December 1992 - he was successful in a recruitment competition and underwent nine months of training (eight months of studies and a one‑month training period) as a student police inspector at the police college in Châteauneuf, a district of Algiers;
· October 9, 1993 - active employment with the Direction générale de la Sûreté nationale (DGSN) (the national police) with the rank of student inspector at the DGSN’s headquarters in the village of Bab El Oued in Algiers; he did administrative work, mainly preparing reports;
· October 1993 - he witnessed torture for an hour and a half at the central police station after a sweep for which he did not volunteer; this was the first time he saw torture being inflicted; he did not participate in the torture;
· October 1993 - he refused to transfer to the Service régional de la répression du banditisme (SRRB) (regional unit responsible for fighting banditry) in Constantine, an anti‑terrorism unit that became operational only in October 1994, with a unit made up of Ninjas; this was the start of his irregular absence from his position with the DGSN, although he continued to be paid until July 1995. In the meantime, he went on with his studies at Constantine University and obtained a degree in philosophy in 1995; he never went to work for the SRRB in Constantine because the Ninjas tortured people;
· January 1996 - he was dismissed from the DGSN;
· March 1996 - he managed a business in his hometown of Collo;
· March 1997 - he was a candidate in the municipal election of October 23, 1997;
· May 1997 - he wrote an article in El Kahabar criticizing the authorities and particularly General Zérouel. He signed the article as Inspector Bouasla;
· January 1998 - his friend and his cousin were killed; he feared for his life; he fled Algeria with his brother’s Belgian visa but was stopped at the Tunis airport in February 1998 and returned to Algiers;
· March 1998 - he received a notice from the penitentiary administration asking him to train as a re‑education officer; he agreed;
· July 1998 - after a few months of training, he worked as a re‑education officer at the Skikda prison for three months, where he had the job of storeskeeper; he was transferred to the Constantine prison in November 1998, where he was assigned first to the stores unit and then, in May 1999, to the detention unit;
· November 1999 - the penitentiary administration offered Mr. Bouasla a position as the warden of a prison in the “death triangle”, that is, the Bouira/Medea area; he never held that position;
· December 1999 - he fled Algeria and stayed in France;
· May 11, 2000 - he arrived in Canada and made his claim.
The Panel’s Decision
[12] In its decision, the panel generally accepted Mr. Bouasla’s history as described in the preceding paragraph. After setting out and commenting on the facts, the panel began its analysis by looking at two issues: (1) Did the Algerian government commit crimes against humanity? and (2) Was the claimant complicit in the acts committed by the Algerian government?
[13] On the first issue, the panel noted that Mr. Bouasla had “stated that the authorities of his county [sic] practised torture. As well, in light of the evidence available to the panel, there is no doubt that the numerous exactions committed by the Algerian government during the time the claimant was living in Algeria correspond to the definition of crimes against humanity” developed by the Supreme Court of Canada and the Federal Court of Appeal. The panel looked at the documentary evidence and quoted several reports, including a March 1993 report by Amnesty International, as well as Exhibit M‑2, “Human Rights Calls on Algeria to Set Up Independent Investigation of Atrocities”, among other documents. According to the panel, Exhibit M‑2 described numerous dreadful and atrocious forms of torture, particularly at the Bab El Oued police station. The panel also cited Exhibit P‑20, which stated that the Ninjas of the anti‑terrorist police were “actual death squads” and that the forms of torture described in the documentary evidence were “simply appalling”.
[14] The panel concluded: “Obviously, the Algerian government is not an organization with limited, brutal purposes. . . . [I]n the panel’s opinion, there is no doubt that the numerous exactions committed by the Algerian government through its security forces during the time before the claimant left Algeria correspond to the definition of crimes against humanity set out in the international instruments and in [the case law]. Those exactions are serious crimes, inhuman acts systematically and broadly committed against a civilian population. The evidence has clearly established that the Algerian government engaged in the repression of human rights and in massacres of the civilian population during the time the claimant was working for it. This finding is corroborated by the admissions made by the claimant in his narrative.” [Emphasis added]
[15] In this Court, Mr. Bouasla qualified the panel’s analysis by stating that his membership in the army and the national police had been very limited in time and that there had been only isolated occurrences of torture in the two prisons where he had worked as a public servant.
[16] The panel dealt with the second issue, namely whether Mr. Bouasla was complicit through association in a crime against humanity, in two stages: (a) overview of the case law and (b) application of the case law to the facts.
[17] The panel cited with approval the following passage from Justice Reed in Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79, at pages 84‑85:
6 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. [Emphasis added]
[18] Relying on the judgment of the Federal Court of Appeal in Sivakumar v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 872 (Sivakumar), the panel identified the following principles relating to “complicity through association”:
· 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. [Emphasis added.]
[19] With regard to the scope of the concept of “personal and knowing participation”, the panel quoted the decision of the Federal Court of Appeal in Bazargan v. Minister of Citizenship and Immigration (1997), 205 N.R. 282 (Bazargan), at paragraph 11, per Justice Décary:
11 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 [F.C., in Ramirez], MacGuigan J.A. said 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. [Emphasis added]
[20] The panel applied Collins v. Canada (Minister of Citizenship and Immigration), 2005 FC 732, a decision by my colleague Justice de Montigny, at paragraph 24, to describe the required mental element:
24 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 disassociate oneself. [Emphasis added]
[21] I will look in greater detail at the panel’s analysis of the three factors it assessed in support of its conclusion.
(i) Knowledge
[22] The panel acknowledged that it had no evidence that Mr. Bouasla had himself participated in the commission of a crime as a perpetrator or associate. The panel wrote the following about his knowledge:
Contrary to the claimant’s allegations, the panel need not link him directly to the crimes committed by the authorities of his country in order to find him complicit through association. The claimant knew about the crimes committed, and the common purpose that may be inferred from his voluntary association with the Algerian authorities suffices for the panel to determine that he was complicit through association, as set out in Bazargan. [Emphasis added]
[23] To support this conclusion, the panel relied on the following facts and reasoning.
[24] First, it found the following:
· Mr. Bouasla knew that the Algerian police tortured people before becoming a student at the police college in Châteauneuf and later being “employed by the DGSN”;
· In October 1993, his unit participated in a major “sweep” and, once he returned to the central police station, he witnessed reports being falsified and torture being inflicted for an hour and a half;
· He testified that the unit to which he had been assigned in the DGSN directorate in Bab El Oued was a non‑operational unit and that his job was to process files and facsimile messages, but “the evidence has established that that allegedly ‘non‑operational’ unit could become ‘operational’”. The panel was referring to the October 1993 sweep in which his unit was ordered to participate.
The panel added:
The claimant did not hesitate to enter the competition to become a member of the police forces and, although he witnessed torture practised by the security forces of his country, he entered another competition in order to work in the prisons in Algeria. It is clear, after reading and hearing the claimant’s testimony, that he was aware of the exactions committed by the authorities of his country during the time he was working for them. He has established impressive knowledge of the organizational structure and the operations of the various security forces in his country. The panel also notes that his career path demonstrates the confidence that the Algerian government had in him. [Emphasis added]
[25] Second, the panel described Mr. Bouasla’s experiences in the penitentiary administration in Algeria. It quoted his testimony “that he witnessed torture and drug dealing in the prisons where he worked” and that:
One prisoner died because the warden and the unit chief did not do their job. He suffocated to death in the room because there was no ventilation.
[26] According to the panel, Mr. Bouasla “also stated that he witnessed a prisoner being killed after being released by the SM” (the military security force) and said:
that torture was not systematic in Constantine as it was in Lambese, where torture was systematic and a daily occurrence. According to the claimant, occurrences of torture were isolated in Constantine. However, he testified that actual torture was practised in the police stations, gendarmerie stations and security forces premises.
[27] Third, the panel quoted Mr. Bouasla’s answer to the following question put to him by Member Jobin during the de novo hearing in December 2004: “why were you in places . . . in a police force or a penitentiary administration, where torture is practised or where there is the possibility of torture being practised . . . [i]f you are opposed to that principle”?
A.: It’s obvious. In the third world and in Algeria, power belongs to those who hold public force, to change things, in the third world, and you can see that in the history of humanity and the third world. Only governments change things, because there is no other way to change systems.
And inside, someone who wants to change from the inside has to get into circles, decision‑making circles, where there are, that’s it, decision‑making circles, like the political police, like the army, like the military security force. Eventually, I understood. I explained why I left the army, because I thought the army had power in Algeria; but it wasn’t the army, it was the military security force, to be exact ...
...
Personally, I think of my people, of changing things. I can sacrifice myself, finally, for example, for, in order to change things. But all that, all that is ... said that I was confronted with torture, at the central police station, I realized that I can’t, even if, for example, I want to change things, I can’t stay in that, with that power. You can’t, it’s impossible. Either you become involved, you become involved, or else ... you withdraw, for example. If you stay that way, between ... you might be killed or be ...
[28] The panel concluded as follows:
Although the claimant alleged that he neither was involved nor withdrew, on the contrary he remained and signed. Since he did not withdraw, it is reasonable to believe that he became involved.
[29] Fourth, according to the panel, Mr. Bouasla had admitted that Exhibit M‑14 indicated that torture was practised at the police college, although he claimed that that document did not distinguish sufficiently between the college and the Ninja centre and that he and his classmates had never seen any torture there. The panel determined the following:
The panel notes that the documentary evidence refers to the police college in Châteauneuf as one of the 13 centres for illegal and prolonged detention in Algiers and surrounding area. Exhibit M‑14 describes the centre in Châteauneuf as one [sic] five torture centres in Algiers. A document on torture and repression, adduced as Exhibit M‑4, reads as follows:
[translation] The torture methods vary little from the small local police stations to the “specialized” centres such as the police college in Châteauneuf – known to victims as the “torture college” – the central Algiers police station, and the military security force centres in Ben Aknoun and Bouzarea. These methods range from the “chiffon” to sodomization and include electric shock; pulling out nails; beating with sticks; burning with cigarette butts, blowtorches and soldering irons; ladder torture; suspension in handcuffs from the ceiling for several days; flagellation; and the use of electric drills.
The claimant alleged that people confused the police college in Châteauneuf with the centre in Châteauneuf. However, the evidence clearly distinguishes between these two entities. [Emphasis added]
(b) Rank
[30] Relying on well‑known case law, the panel stated, as a preamble to its analysis of this factor, that it is well established in Canadian law that a refugee claimant who is not identified as the direct perpetrator of a crime against humanity may still be subject to the application of the exclusion clause because of complicity and that the required extent of participation is established by the case law. Referring to the decision of my colleague Justice Tremblay‑Lamer in Zrig v. Canada (Minister of Citizenship and Immigration), [2002] 1 F.C. 559, the panel noted 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”.
[31] According to the panel:
The evidence has established that the claimant voluntarily enlisted in the army in order to become an officer and then voluntarily entered a competition in order to join the security forces of his country. He testified that, at the police college in Châteauneuf, police inspectors and officers followed the same program. He stated that police investigators conducted interrogations and investigations and were the pillars of the police stations. As for the claimant himself, the evidence has established that he worked at the DGSN, to which all of Algeria’s security forces reported. As well, the claimant testified that the members of the directorate for which he worked were called in as reinforcements during a sweep in October 1993. The claimant occupied a position, not in a mere local police station, but at the DGSN. His attempt to dissociate himself from the acts of torture committed by the security forces of his country by noting that he had begun to be absent from work is insufficient to attenuate his involvement. [Emphasis added]
[32] The panel quoted Exhibit P‑11, a letter dated August 31, 1996 from the human resources directorate of the Sûreté nationale (national security) that read as follows: [translation] “In response to your request dated March 20, 1995, in which you ask to return to the Sûreté nationale, I regret to inform you that, because of the reasons for the dismissal (irregular and prolonged absence, and refusal to report to your new assignment), no favourable response can be given to your request.” According to the panel, Mr. Bouasla claimed that this letter was inaccurate because he had made no request to return to the Sûreté nationale on March 20, 1995 but that the other part of the letter stating that he had been absent from work and had refused to report to his new assignment was accurate. The panel was of the opinion that the claimant had made a request to return to the SN “and gives Exhibit P‑11 all the weight it deserves”.
[33] The panel then added the following:
Next, the evidence has established the claimant’s rising career, from 1998 when he joined the penitentiary administration until he was offered a position as the warden of a prison in a particularly difficult area, at a time when he allegedly had little experience. The panel cannot ignore the claimant’s exceptional analytical capacity. To convince oneself of this fact, one need only read the lengthy argument that lasted for one and a half hours at his de novo hearing in December 2004, at which he represented himself. As well, the claimant himself pointed out that his superiors wanted to keep him in their unit because of his analytical capacity.
The claimant adduced as Exhibits P‑25 to P‑33 numerous complaints, grievances and proceedings not only against his former employers and two of the many lawyers who have represented him but also against the Assistant Deputy Chairperson of the Board. When asked to explain to the panel the relevance of these new exhibits adduced in advance of the hearing before this panel, the claimant’s counsel pointed out that he wanted to demonstrate the anti‑establishment profile of the claimant, who allegedly has been in trouble with the authorities. Obviously the claimant does not have the profile of a person who merely carries out orders and would be content to be a mere onlooker. In fact, all of the proceedings referred to in these exhibits establish the claimant’s standing and authority.
As well, with regard to the claimant’s candidacy in the October 23, 1997, municipal election, he stated:
[Translation] ... Personally, I was in the army, in the security forces. When I ran for office, that meant in a way that I had some degree of popularity; not just anybody could run for office.
This alleged popularity of the claimant cannot be reconciled with the subservient role of an administrative officer that he allegedly played for his country’s authorities.
After analyzing the preceding information, it is reasonable to determine that the claimant had “personal and knowing awareness” of the acts by the Algerian security forces, which is “the starting point for the existence of complicity.” [Emphasis added]
(c) Dissociation
[34] Relying on the following facts and analysis, the panel found that the claimant had taken no action to dissociate himself from the “security forces and penitentiary administration” of his country:
· “The claimant was asked whether he considered resigning after October 1993 when he witnessed torture. Although he answered in the affirmative, he alleged that not everyone in the police force was bad or committed atrocities and torture. He added that he wanted to change things and was unable to withdraw immediately. He then began to be absent from work. Did he submit an official resignation document? He stated that it was not very urgent to submit his resignation since he could resign at any time. [Emphasis added.]”
· The discussion between the panel and Mr. Bouasla about why a person with a degree in philosophy would agree to work in the Algerian penitentiary administration; the panel concluded from the claimant’s statements that, when he had been unsuccessful in the competition to join the penitentiary administration in 1996, he had thought he would gather evidence on a coup allegedly fabricated by the military security force;
· The panel’s question as to why he had not kept his arcade business, and the claimant’s answer “that he could not just fold his arms and leave his people in danger”;
· Why had Mr. Bouasla not reported the acts he had observed at the prison in Constantine or made complaints about what was happening there?
· The following passage by the panel: “The claimant stated that he did not send his superiors a notice of resignation. He attempted to extricate himself by stating that he witnessed torture in the summer of 1999 and was already preparing his visa file, and so there was no need to resign, and it would have served no purpose to attract the attention of the authorities. He added, [Translation] ‘It’s ... it’s really complicated; it’s ... that’s not how ... how the ... it was 1999, the summer of 1999; in Algeria, Constantine was completely devastated’”;
· The panel’s assessment of his previous testimony that his objective was to occupy positions of authority in order to change things; it wondered why, in this context, he had not accepted the prison warden position so he could “change things”. According to the panel, the applicant answered as follows: [translation] “No, in the penitentiary administration, no, you don’t change anything.” He added that nothing could be hoped for in an area like the death triangle.
[35] The panel concluded as follows on the dissociation factor:
If it is true, as the claimant has alleged, that he wanted to change things, the panel is obliged to note that he did nothing and attempted nothing whatsoever and that, despite this manifest failure of which he was well aware, he voluntarily continued to work at the DGSN without making the slightest effort to dissociate himself from it or to resign when he was entirely free to do so.
The claimant testified that, as a detention officer, he was responsible for supervising between 30 and 40 prison guards who reported to him. In the particular circumstances of the present case, his attempt to minimize his duties by stating that he had to watch these people in order to ensure that they did not abandon their positions is insufficient. [Emphasis added]
Issues Raised by Mr. Bouasla
[36] First, he argues that Member Michel Venne looked at him contemptuously because of his past and his conduct, thus giving rise to a reasonable apprehension that Member Venne was so biased that he could not render justice to his claim. The fact that the panel substituted itself for the Minister’s representative confirmed this apprehension. It was the panel that questioned the applicant; the Minister’s representative did not question him about exclusion during the hearing on February 12, 2007. Mr. Bouasla also argues that the Board is not an independent tribunal but is under the political influence of the Canadian government. In support of this argument, he refers to the February 2007 resignation of the Board’s Chairperson, who wanted to reform the method of appointing members, the lifting of the moratorium on deportations to Algeria after the Minister of Citizenship and Immigration Canada visited that country and, finally, Canada’s complicity with the Algerian police, who were given training by the RCMP.
[37] Second, Mr. Bouasla points to the accidental failure to record a decisive part of the hearing on February 12, 2007.
[38] Third, the panel exceeded its authority [translation] “by playing psychologist”. However, Mr. Bouasla acknowledges that the panel had the authority to analyse his conduct and attitude in the hearing room but had no expertise to assess him psychologically. He cites a passage from the panel’s decision stating that he “does not have the profile of a person who merely carries out orders and would be content to be a mere onlooker. In fact, all of the proceedings referred to in these exhibits establish the claimant’s standing and authority”.
[39] Fourth, the applicant reproaches the panel for not ruling on his credibility. He cites Exhibit P‑11 and the panel’s conclusion rejecting his testimony that the first part of the letter concerning his request to return to the DGSN was an administrative error. According to Mr. Bouasla, the panel should have ruled on the credibility of his explanation before deciding this point.
[40] Fifth, he submits that the panel improperly applied the test for complicity. I note the following points from his submissions:
1. He cites Bety Plaisir v. Minister of Citizenship and Immigration, 2007 FC 264, a decision by my colleague Justice Tremblay‑Lamer: “It is settled law that acts or omissions amounting to passive acquiescence are not a sufficient basis for invoking the exclusion clause.” In his memorandum, Mr. Bouasla writes the following:
[translation] In my case, I joined the Algerian police voluntarily, as in every police force in the world; I held an administrative position for 20 days at the DGSN, which is not an operational unit, and I worked in the field once during a sweep near the directorate, which took me to the central police station in Algiers because of transportation.
2. Next, he cites the decision of my colleague Justice Kelen in Ardila v. Minister of Citizenship and Immigration, 2005 FC 1518, and makes the following points in his memorandum:
[translation]
· Nature of the organization: the decision makers did not characterize my office at DGSN headquarters, since the central police station in Algiers was not my office in October 1993, the Skikda and Constantine prisons between July 1998 and December 1999;
· Method of recruitment: voluntary;
· Position or rank in the organization: student at the police college, student inspector at the DGSN, student at the school for re‑education officers, officer in the stores unit at the Skikda prison and re‑education officer and third assistant to the chief of detention in Constantine;
· Length of time in the organization: nine months at the police college, 20 days at the DGSN, about four and a half months at the school for re‑education officers, about four months at the Skikda prison, 14 months at the Constantine prison;
· Opportunity to leave the organization: in the case of my office at the DGSN, I began an irregular and prolonged absence after 20 days on the job, and I was subsequently dismissed. In the case of the two prisons, I was looking for a visa to leave the country, and no crimes against humanity were committed in those prisons;
· Knowledge of atrocities committed by the organization: I was aware that the police had a bad reputation, since I experienced it myself when I was 10 years old, but this was the case in certain police units.
[41] Mr. Bouasla argues that the panel, in applying the case law, obviously took no account of his testimony that he had never held a leadership position.
[42] Sixth, Mr. Bouasla argues that the panel made perverse findings. I will refer to the relevant extracts from his memorandum.
A. Career and Confidence
[43] He cites the following finding by the panel: “The panel . . . notes that his career path demonstrates the confidence that the Algerian government had in him.” He replies:
[translation]
Career: how can it be imagined that one year as an active officer cadet at a military college (the training lasts three years), desertion and then expulsion after another year of going back and forth between the college and my home represent a career? How can it be imagined that nine months as a student police inspector at the police college, 20 days as a student police inspector at the DGSN, an irregular and prolonged absence and dismissal represent a career? How can it be imagined that 22 months in the penitentiary administration represent a career? According to the decision make