Date: 20250129

Docket: IMM-9458-23

Citation: 2025 FC 172

[ENGLISH TRANSLATION]

Ottawa, Ontario, January 29, 2025

PRESENT: The Honourable Mr. Justice Roy

BETWEEN:

CAPRICES FIACRE BUMPUTU

Applicant

and

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

Respondent

JUDGMENT AND REASONS

[1] This is an application for judicial review brought under section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision rendered by the Immigration Division [ID] on July 4, 2023.

[2] The applicant arrived in Canada in April 2019 and made a claim for refugee protection. The Basis of Claim Form [BOC Form] is dated April 12 and was filed on April 23: it contains allegations of a serious possibility of persecution in the two countries where the applicant holds citizenship, namely, the Republic of the Congo and Mexico.

[3] However, the claim for refugee protection was never heard because the applicant was the subject of a report under subsection 44(1) of the IRPA declaring him inadmissible under paragraphs 34(1)(b), (c) and (f) of the IRPA. The case was referred to the ID for an admissibility hearing under subsection 44(2) of the IRPA. This decision by the ID is the subject of the application for judicial review.

I. Facts

[4] The facts leading to the decision declaring Mr. Bumputu inadmissible to Canada may be summarized as follows:

• He was born in Brazzaville, in the Republic of the Congo, on August 20, 1984.
• A civil war had been ongoing in his country of citizenship for several years when the applicant joined, on December 17, 1998, the “Ninjas”, a rebel group in the Republic of the Congo opposing the government then in power. The applicant was 14 years old at the time.
• The conflict involved the government, led by Denis Sassou Nguesso, a general, and his militia known as the “Cobras”, while the “Ninjas” constituted a militia supporting Bernard Kolélas. He was the Prime Minister of President Pascal Lissouba, whose government was overthrown in 1997.
• The applicant took part in the Ninjas’ fights in 1999, until November 15, 1999, when several Ninjas left the area where fighting was taking place, with a group of refugees.
• In February 2000, the applicant travelled to Kinshasa, where he stayed until he returned to Brazzaville in August 2000, once the situation had stabilized.
• The applicant continued with his studies. He left for Cuba in November 2005 and attended university until 2011.
• The applicant lived in Mexico from 2011 to 2019 and obtained Mexican citizenship.
• Mr. Bumputu arrived in Canada on April 3, 2019; he states that he fears a criminal group (“Union”) in Mexico that is allegedly looking for him. As stated above, the BOC Form was submitted on April 23.
• The Canada Border Services Agency [CBSA] interviewed the applicant on March 31, 2022. On June 2, 2022, a report was issued under section 44 of the IRPA concluding that Mr. Bumputu should be found inadmissible under paragraphs 34(1)(b), (c) and (f) of the IRPA. On June 29, 2022, the Minister (through his delegate) referred the applicant to the ID for an admissibility hearing.
• The hearing before the ID lasted three days. The decision was rendered on July 4, 2023.

II. The ID’s decision

[5] The ID performed a two-step analysis. First, it determined whether the applicant had become involved with the insurgent group despite being only 14 years old, which would have made him a “child soldier”. The ID concluded:

[28] In light of the evidence of the PC’s active involvement with this insurgent group, the Ninja rebels, the panel is of the opinion that he was a member of the group and that he did not demonstrate that he became a child soldier as a result of forced recruitment, or as a result of duress or out of fear of reprisals.

The ID next determined that there were reasonable grounds to believe that the Ninjas’ activities constituted terrorism with an intent to subvert by force the government in place at the time. The ID reached the following conclusion:

[50] The panel is of the opinion that the evidence in the Minister’s disclosure is credible and trustworthy and establishes that there are reasonable grounds to believe that the Ninjas engaged in terrorism and in the subversion by force of the government in place at the time, in a clearly intentional manner.

CONCLUSION

[51] For these reasons, there are reasonable grounds to believe that Mr. Bumputu was a member of the Ninja rebel militia and that they engaged in acts described under subsections 34(1)(b) and (c) of the Act. He was therefore inadmissible, and the panel issued a deportation order against him.

[6] The applicant focused his arguments on the first part of the analysis. It is not disputed that the atrocities committed by the Ninjas in which the applicant took part fall within paragraphs 34(1)(b), (c) and (f). The provisions read as follows:

Security

Sécurité

34 (1) A permanent resident or a foreign national is inadmissible on security grounds for

34 (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants :

(b) engaging in or instigating the subversion by force of any government;

b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force;

(c) engaging in terrorism;

c) se livrer au terrorisme;

(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c).

f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b), b.1) ou c).

The facts that constitute engagement in the subversion by force of a government are established on “reasonable grounds to believe that they have occurred, are occurring or may occur” (s 33 of the IRPA).

[7] The applicant expressly states that he does not dispute his participation in the acts of war or rebellion. As he himself says at paragraph 7 of his Memorandum of Fact and Law, [translation] “the issue is not whether the applicant participated, but rather in what capacity he participated, and whether his participation should then be interpreted in the same way as it would have been for an adult”. The argument therefore turns on the fact that the applicant was a child soldier. Accordingly, attention must be directed to the part of the ID’s analysis dealing with that aspect.

[8] After concluding that the applicant was a member of an organization within the meaning of paragraph 34(1)(f), the ID examined the issue of forced recruitment and participation of child soldiers, which had been raised by the applicant’s counsel.

[9] The ID cited several excerpts from the applicant’s written account [translation] (“My Story”), which, recounts in great detail the events of the civil war that he experienced. From these excerpts, the ID noted the applicant’s strong enthusiasm and the satisfaction expressed by the population at the victories achieved, which generated a sense of accomplishment.

[10] The ID inferred from the evidence submitted by the applicant that he consented to join the rebel group: he was not recruited by force or out of fear of reprisals. Although his [translation] “child soldier friends” eventually came to bring him back with them—something that did not surprise the applicant, who stated, [translation] “I knew they were going to show up sooner or later” (Exhibit D‑10 at 42)—the ID sees this as freedom of movement, indicating voluntary rather than coerced participation.

[11] Relying on R v Ryan, 2013 SCC 3, [2013] 1 SCR 14, at paragraph 55, the administrative decision maker found that there was no coercion. Paragraphs 22 and 23 read as follows:

[22] As stated above, the detailed account of his involvement with the rebels during a period of around six months does not reveal the existence of a risk of death or bodily harm if he refuses to take part in the Ninja rebels’ armed conflicts. The PC joined the Ninjas after they had released him. At that time, he did not request to reunite with his family. The evidence rather shows his passion to pursue his adventure with the Ninja militia. He did not indicate any danger, even implicit, if he were to decide to leave the rebels.

[23] He also had the opportunity to leave the militia to pursue business. When his friends came to bring him back to the rebels, his account does not mention any duress or fear if he did not oblige. His testimony at the hearing, as well as counsel’s arguments, are silent on the subject.

[12] Even when, toward the end of the conflict, the applicant rejoined his family and a group of displaced persons, was recognized by Ninja rebels and was mistreated for what was perceived as a defection, other members of the Ninjas let him go because of his reputation. According to the ID, this demonstrated influence within the rebel group. In any event, the ID could not disregard the applicant’s participation between December 1998 and May 1999.

[13] Ultimately, the ID found no indication in the evidence of any fear on the part of the applicant toward the rebels with whom he had been associated. After leaving the war zone, he led his family to Brazzaville, avoiding combat areas along the way. In Brazzaville, he met up with his former Ninja friends. He remained in the Republic of the Congo and resumed his studies until his departure in 2005. The ID stated that there was no indication of reprisals or any interest in the applicant on the part of the rebels (para 26). If any fears were expressed about a possible return to his country of origin, they related to the army, which considered him a rebel; no reference was made to a fear of return in relation to the Ninja rebels. According to the ID, this showed that [translation] “[e]ven at the age of 14, when maturity and informed consent may be affected, the tribunal sees no such indication” [fear of return where the Ninjas would be a concern] (para 27).

III. The parties’ positions

A. The applicant

[14] As noted above, the applicant made his status as a child soldier the cornerstone of his challenge to being found inadmissible to Canada and thus subject to deportation.

[15] The applicant readily acknowledges that the notion of a child soldier involves a child actively participating in a conflict within an armed organization; the central question, he argues, is whether that participation was voluntary or involuntary. In that regard, what is the quality of consent that a child can give? The applicant submits that participation must be assessed differently depending on whether the person is an adult or a child.

[16] The applicant remains focused on general principles rather than proposing specific criteria. He is therefore more engaged in criticizing the decision under judicial review, suggesting that the ID disregarded his status as a child.

[17] Indeed, rather than advancing specific arguments, the applicant turns to what he considers to be Canada’s position on child soldiers. He refers to the Prime Minister’s statement of February 12, 2023, on the International Day Against the Use of Child Soldiers. In that statement, the Prime Minister condemns the use of child soldiers: “On this International Day Against the Use of Child Soldiers, Canada reaffirms its unwavering commitment to end the recruitment and use of children in armed conflicts.”

[18] The applicant cites lengthy excerpts from the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict [Protocol], adopted by the United Nations General Assembly on May 25, 2002, and signed and ratified by Canada. The Protocol condemns the conscription and enlistment of children under the age of 15 into national armed forces and their active participation in hostilities. Similar condemnation can be found with respect to armed groups distinct from state armed forces. Indeed, article 4 of the Protocol specifically condemns the recruitment and use of child soldiers. It does not go further than condemning the recruitment and use of child soldiers by states, stating that armed groups other than state forces should also not “recruit or use in hostilities persons under the age of 18 years” (article 4).

[19] The applicant also relies on the Vancouver Principles. He was unable to provide the Court with any details on the legal scope of these principles.

[20] On their face, these principles are political commitments. The 17 principles focus on preventing the recruitment and use of child soldiers by armed forces or armed groups. It is states that make commitments regarding the recruitment and use of child soldiers. The applicant merely submitted certain statements by the Prime Minister and the Minister of National Defence in support of the following proposition, set out at paragraph 22 of his Memorandum of Fact and Law:

[translation]

22.- We submit that the respondent’s position, to the effect that the applicant voluntarily joined the rebels, is erroneous if one takes into account Canada’s position with respect to the use of child soldiers, which is consistent with that expressed in the treaties to which it is a signatory.

[21] Ultimately, the only actual authority cited by the applicant is Zigta v Canada (Citizenship and Immigration), 2023 FC 93. The applicant quotes very lengthy passages from that decision (at paras 20–25 and 31–37).

[22] A plain reading of Zigta reveals that the issue in that case was entirely different. In that case, the applicant alleged that he had been conscripted against his will, while still a minor, through force and coercion. The circumstances were such that the visa officer had allegedly disregarded key and fundamental evidence demonstrating his forced enlistment: the applicant stated that armed individuals had come to his home and forced him to join the ranks of an organization fighting for Eritrean independence. In other words, the Court found that the evidence presented by the applicant in that case revealed a deficient assessment by the administrative decision maker.

B. The respondent

[23] The respondent emphasizes that nearly 20 years ago, the Federal Court of Appeal held that being a minor does not, in itself, exempt a person from the application of section 34 of the IRPA. Rather, it is a factor to be taken into consideration. As was stated in Poshteh v Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 FCJ 487:

[51] For purposes of determining membership in a terrorist organization by a minor, the requisite knowledge or mental capacity should be viewed on a continuum. Just as there would be a presumption against the requisite knowledge or mental capacity in the case of young children, there would be a presumption that the closer the minor is to eighteen years of age, the greater will be the likelihood that the minor possesses the requisite knowledge or mental capacity.

[24] The administrative decision maker examined the applicant’s submissions and duly considered that he was a 14-year-old minor when he was recruited into the Ninjas. The ID specifically notes that Poshteh rejects the notion of a blanket exemption from the application of section 34 of the IRPA for minors; rather, minority status is a relevant factor in determining whether membership in a group that committed atrocities qualifying under paragraphs 34(1)(b), (c) and (f) was voluntary.

[25] According to the ID, there is no indication that the applicant was subjected to any coercion. Instead, he joined enthusiastically and felt a sense of accomplishment. According to the evidence, the applicant took up the cause, bore arms and carried out his role as a scout without any hesitation. According to the respondent, Mr. Bumputu understood the stakes and joined a rebel force because he wanted to fight against the government in power.

[26] The respondent refers to the interview conducted by the CBSA on March 31, 2022, in which the applicant expressed pride and an absence of coercion in joining the Ninjas and participating in front-line activities.

[27] Contrary to the applicant’s assertions, Canadian law does not establish that a 14-year-old cannot be found criminally responsible. In fact, the Criminal Code provides that a person must be at least 12 years old to be subject to criminal conviction. Under the Civil Code of Québec, a 14-year-old may consent alone to medical treatment.

[28] As for the Protocol invoked by the applicant, it is not binding on the administrative tribunal. Moreover, the Protocol provides that States Parties may permit voluntary enlistment in national armed forces before the age of 18, meaning that a minor could choose to join knowingly and with full capacity. Thus, a person who joins a rebel group to engage in terrorism and the violent overthrow of a government may be found inadmissible to Canada, provided they possess the requisite knowledge and mental capacity. This was the conclusion reached by the ID, and its decision is reasonable.

[29] Finally, the respondent argues that Zigta is inapplicable given the differences between the facts in that decision and those in this case. Mr. Zigta had been forced to join a rebel organization when armed men came to his home. There is no such evidence in Mr. Bumputu’s case.

IV. Analysis

[30] The applicant has the burden of demonstrating that the decision under review is unreasonable (Zigta at para 20). In my view, the applicant has not established, on a balance of probabilities, that the decision contains serious deficiencies such that it lacks the hallmarks of a reasonable decision, namely, justification, transparency and intelligibility; it is justified in relation to the relevant factual and legal constraints that clearly bear on the decision.

[31] The applicant advances two arguments: first, that certain international instruments have an impact on the analysis, and second, that Zigta is determinative of the matter before the Court. Neither argument disposes of the matter, as neither establishes that the decision under review is unreasonable.

[32] The starting point of the analysis is, of course, that minority status does not constitute an exemption from the application of section 34 of the IRPA. Minority is a factor to be considered but is not determinative. The minimum age for criminal responsibility in Canada is 12.

[33] The Vancouver Principles and the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict are of no assistance to the applicant. He has not attempted to establish how these instruments support his position, beyond adducing evidence that Canada has expressed deep concern about the compulsory recruitment and use of child soldiers. Few would view such concerns as illegitimate—and that is an understatement.

[34] However, these instruments are directed at states and serve to impose certain obligations on them. The Protocol addresses armed groups distinct from state armed forces, stating that such groups should under no circumstances recruit or use children under the age of 18. No provision has been presented that would exempt a child from being held responsible for voluntarily participating in armed conflict. In this case, it was the Minister, through his delegate, who chose to refer the matter to the ID. Subsection 44(2) of the IRPA reads as follows:

(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.

(2) S’il estime le rapport bien fondé, le ministre peut déférer l’affaire à la Section de l’immigration pour enquête, sauf s’il s’agit d’un résident permanent interdit de territoire pour le seul motif qu’il n’a pas respecté l’obligation de résidence ou, dans les circonstances visées par les règlements, d’un étranger; il peut alors prendre une mesure de renvoi.

[35] The attempt to rely on Zigta is equally doomed to fail. The facts of these two cases are completely different.

[36] I note in particular the interview conducted by the CBSA in March 2022. I have read the full 113‑page transcript. The applicant has not established that he was conscripted against his will; quite the opposite is true. The passages quoted by the ID in its decision (para 34) are a faithful reflection of Mr. Bumputu’s interview. They establish a conscious choice on his part to take part in hostilities in support of his ethnic group. The applicant has failed to show that the decision is unreasonable.

[37] Finally, I note that Zigta appears to rely on another decision of this Court in which, on the subject of enrolment under coercion or duress, duress was found to defeat mens rea (Jalloh v Canada (Public Safety and Emergency Preparedness), 2012 FC 317 at paras 36–38). Neither the Criminal Code nor the common law sees duress as an absence or nullification of mens rea. Instead, it is an excuse (rather than a justification) that “concedes the wrongfulness of the action but asserts that the circumstances under which it was done are such that it ought not to be attributed to the actor”: Perka v The Queen, 1984 CanLII 23 (SCC), [1984] 2 SCR 232 at 246. The analysis must therefore take into account the nature of the duress, which does not constitute an absence of mens rea.

V. Conclusion

[38] The application for judicial review is dismissed. The parties and the Court agree that there is no question to be certified.

JUDGMENT in IMM-9458-23

THIS COURT’S JUDGMENT is as follows:

1. The application for judicial review is dismissed.
2. No question is certified.

“Yvan Roy”

Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:

IMM-9458-23

STYLE OF CAUSE:

CAPRICES FIACRE BUMPUTU v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

PLACE OF HEARING:

HELD BY VIDEOCONFERENCE

DATE OF HEARING:

DECEMBER 20, 2024

JUDGMENT AND REASONS BY:

ROY J

DATED:

JANUARY 29, 2025

APPEARANCES:

Sira Coulibaly

FOR THE APPLICANT

Patricia Nobl

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Sira Coulibaly

Montréal, Quebec

FOR THE APPLICANT

Attorney General of Canada

Montréal, Quebec

FOR THE RESPONDENT