Caballero v. Canada ( Minister of Citizenship and Immigration )
IMM-272-96
Heald D.J.
13/11/96
13 pp.
Judicial review of Adjudicator's decision applicant member of inadmissible class i.e. person reasonably believed to have committed crime against humanity-Applicant forcibly recruited into Honduran army-Repeated requests for permission to legally leave military refused-Believed would be killed if deserted-Acting under orders, participated in several kidnappings-Initially unaware victims would "disappear"-Present on four occasions when torture took place, but denying torturing, killing anyone-Discharged in 1984-Left Honduras in 1986 after attempt to kill him-Witnesses testifying applicant bringing forth evidence of human rights abuses in Honduras, testified against Honduran government at hearing at Inter-American Court-Application dismissed-(1) Persecution must be directed to identifiable group or race to constitute crime against humanity: R. v. Finta, [1994] 1 S.C.R. 701-Adjudicator finding any person or persons suspected by applicant's superiors of being subversive or who were perceived as threat to established authorities constituted "identifiable group"-Interpretation too narrow if "identifiable group" only applying to identifiable races or groups united by inalienable characteristic-As race inalienable characteristic, reference to identifiable group must refer to other characteristics-Otherwise one could never commit crime against humanity against group of persons racially or ethnically diverse, but united by political opinion or membership in particular social group since latter not inalienable characteristics-Adjudicator entitled to find existence of identifiable group subject to persecution-(2) Adjudicator holding defence of obedience to superior orders available unless act so outrageous as to be manifestly unlawful-Adjudicator holding threat to applicant not imminent and immediate throughout entire period and applicant could have avoided participating in crimes by leaving military and country-Also holding while applicant would have been punished if caught leaving military, likelihood of this happening slim-Adjudicator's assessment of risk to applicant accords with Supreme Court's explanation that there must be such air of compulsion and threat to accused that accused had no alternative but to obey orders-While assessment of moral choice not as clear as might ideally be, evident Adjudicator turned mind to issue of superior orders, determined applicant could have disobeyed-Decision maker not required to employ precise language of Supreme Court-(3) Whether person in "imminent harm" question of fact, based on circumstances surrounding particular case-Adjudicator required to determine question on evidence adduced-Entitled to conclude as did-Having regard to evidence in arriving at conclusion-Citing evidence of applicant's witnesses, Adjudicator holding had little bearing on issues-Not ignoring evidence.