Date: 20021002
Docket: IMM-4593-01
Neutral citation: 2002 FCT 1029
BETWEEN:
BILLAL AHMAD YASSIN
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
KELEN J.:
This is an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, for judicial review of the decision of Immigration Officer Mary C. Bennett, dated September 21, 2001, refusing Mr.Yassin's application for landing because he was inadmissible under paragraph 19(1)(j) of the Immigration Act (the "Act") for the reason that he was complicit in crimes against humanity while a member of the police force in Afghanistan.
[2] The issues raised in this case are whether the immigration officer breached the duty of procedural fairness by:
- (ii) not granting the applicant an oral interview; and
- (iii) failing to give adequate reasons;
and whether the immigration officer committed an error of law by:
- (iv) not applying the defence of superior orders raised by the applicant to the allegation; and,
- (v) applying the Immigration and Refugee Board, Convention Refugee Determination Division's ("CRDD") finding the applicant was excluded from the protection of the Convention under article 1F(a) as establishing the applicant was inadmissible under paragraph 19(1)(j) of the Act.
FACTS
[3] The applicant is a citizen of Afghanistan who claimed refugee status upon his arrival in Canada, but was found not to be a Convention refugee by the CRDD in a decision dated May 16, 1996, on the ground there was no credible or trustworthy evidence to support a finding of a well-founded fear of persecution. The CRDD also excluded the applicant pursuant to article 1F(a) because he was a member of the Sarandoy, the police force under the former communist regime in Afghanistan, and was complicit in the torture of detainees by the secret police known as the Khad. At page 20 of the decision, the CRDD stated:
The panel finds that the totality of the foregoing evidence shows that there are serious reasons for considering that the claimant was complicit in the torture of detainees; that, contrary to his inconsistent and implausible allegations, his participation was personal and knowing; and that he shared a common purpose with Khad. Accordingly, the panel finds that the government has met its burden of showing that the claimant falls within the purview of article 1F(a).
Leave to appeal this decision was denied by this Court.
[4] At the time of Applicant's refusal the Immigration Regulations, 1978, SOR/78-172, as amended, deemed a refused refugee claimant to have submitted an application for landing as a member of the Post Determination Refugee Claimants in Canada (PDRCC) class, effective on the day of the refusal. These Regulations were amended on May 1, 1997. Under the amended Regulations, refugee claimants refused by reason of article 1F(a) are excluded from the PDRCC class.
[5] While the applicant made risk submissions for his PDRCC application on November 15, 1996, his application was not considered until May 30, 1997. His application was automatically denied pursuant to the amended regulation. This decision was successfully appealed to this Court and Madame Justice Tremblay-Lamer made a Court Order deeming the applicant was to have applied to the PDRCC class (see Yassin v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 909 (T.D.)(QL)).
[6] The applicant subsequently made an application for landing and his case was referred to the Regional War Crimes Unit of the respondent to determine if he was inadmissible pursuant to paragraph 19(1)(j) of the Act. He was informed of his right to make submissions in relation to his inadmissibility in a letter dated September 15, 2000. The applicant's counsel made submissions on his behalf contained in a letter dated November 15, 2000. In the interim, the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, came into force on October 23, 2000 and paragraph 19(1)(j) was replaced by a new paragraph that made reference to the Crimes Against Humanity and War Crimes Act, as opposed to the Criminal Code. The substantive changes included a more extensive definition of "crimes against humanity" and certain defences. The new paragraph 19(1)(j) also set out a single test for inadmissibility, as opposed to the two-pronged test in the old 19(1)(j).
This meant that it was no longer necessary to demonstrate that if the alleged offence had been committed in Canada, it would have constituted an offence against the laws of Canada in force at the time of the act or omission.
[7] On September 21, 2001 the applicant was deemed inadmissible to Canada and his application for landing refused. In her decision, the immigration officer dealt with the applicant's case under the Crimes Against Humanity and War Crimes Act and the amended wording of paragraph19(1)(j).
RELEVANT LEGISLATION
[8] Paragraph 19(1)(j) of the Immigration Act prior to the coming into force of the Crimes Against Humanity and War Crimes Act read:
Inadmissible Classes
Inadmissible persons
19. (1) No person shall be granted admission who is a member of any of the following classes:
[...]
(j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission.
Personnes non admissibles
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_:
[...]
(j) celles don't on peut penser, por des motifs raisonnables, qu'elles ont commis, à l'étranger, un fait constituant un crime de guerre ou un crime contre l,humanité au sens du paragraphe 7(3.76) du Code criminel et qui aurait constitué, au Canada, une infraction au droit canadien en son état à l'époque de la perpétration;
[9] Paragraph 19(1)(j) of the Immigration Act, as amended by the Crimes Against Humanity and War Crimes Act read:
Inadmissible Classes
Inadmissible persons
19. (1) No person shall be granted admission who is a member of any of the following classes:
[...]
(j) persons who there are reasonable grounds to believe have committed an offence referred to in any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
Personnes non admissibles
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_:
[...]
j) celles dont on peut penser, pour des motifs raisonnables, qu'elles ont commis une infraction visée à l'un des articles 4 à 7 de la Loi sur les crimes contre l'humanité et les crimes de guerre;
[10] The Act has now been replaced by the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and paragraph 19(1)(j) has been incorporated into paragraph 35 of the new act.
[11] Section 14 of the Crimes Against Humanity and War Crimes Act is also relevant to this application. It reads as follows:
Defence of superior orders
14. (1) In proceedings for an offence under any of sections 4 to 7, it is not a defence that the accused was ordered by a government or a superior - whether military or civilian - to perform the act or omission that forms the subject-matter of the offence, unless
(a) the accused was under a legal obligation to obey orders of the government or superior;
(b) the accused did not know that the order was unlawful; and
(c) the order was not manifestly unlawful.
Moyen de défense -- ordre d'un
supérieur
14. (1) Ne constitue pas un moyen de défense contre une accusation fondée sur l'un des articles 4 à 7 le fait que l'accusé ait reçu d'un gouvernement ou d'un supérieur -- militaire ou civil -- l'ordre de commettre l'acte ou l'omission qui lui est reproché, à moins que:
a) l'accusé n'ait eu l'obligation légale d'obéir aux ordres du gouvernement ou du supérieur en question;
b) l'accusé n'ait pas su que l'ordre était illégal;
c) l'ordre n'ait pas été manifestement illégal.
Interpretation - manifestly unlawful
(2) For the purpose of paragraph (1)(c), orders to commit genocide or crimes against humanity are manifestly unlawful.
Limitation - belief of accused
(3) An accused cannot base their defence under subsection (1) on a belief that an order was lawful if the belief was based on information about a civilian population or an identifiable group of persons that encouraged, was likely to encourage or attempted to justify the commission of inhumane acts or omissions against the population or group.
Interprétation de "manifestement
illégal"
(2) Pour l'application de l'alinéa (1)c), l'ordre de commettre un génocide ou un crime contre l'humanité est manifestement illégal.
Limite: croyance de l'accusé
(3) Ne constitue pas un moyen de défense fondé sur le paragraphe (1) le fait que l'accusé croyait que l'ordre était légal en raison de renseignements qui portaient sur une population civile ou un groupe identifiable de personnes et qui incitaient ou étaient susceptibles d'inciter à la perpétration -- ou tentaient de la justifier -- d'omissions ou actes inhumains contre cette population ou ce groupe.
STANDARD OF REVIEW
[12] Reasonableness simpliciter is the appropriate standard to review the officer's decision in this case. The Court will not set aside a discretionary decision of an immigration officer, nor substitute its decision for an officer's, unless that decision was unreasonable or clearly wrong, see Liu v. Canada (Minister of Citizenship and Immigration),2001 FCT 751 .
[13] On questions of law, the standard of review is correctness.
AMENDMENT TO PARAGRAPH 19(1)(j)
[14] At the hearing, counsel for the applicant did not take issue with the application of the amended paragraph 19(1)(j) by the immigration officer decision in this case. However, the applicant submitted that the immigration officer erred in failing to advise the applicant that the new section was applicable.
[15] The applicant made submissions based on the old version of paragraph 19(1)(j) of the Act. While the wording of the amended version is different, it is "in substance" the same as the old version, see Canada (Minister of Citizenship and Immigration) v. Varela, 2002 FCT 167 at paragraph 19. The differences that exist do not come into play in this case and the parties agreed that there is no substantive difference for the purpose of this matter between the two versions. Accordingly, if the immigration officer committed a breach of fairness, it would not vitiate her decision because the decision would have been the same had the breach not occurred, see Mobil v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 at 228.
PROCEDURAL FAIRNESS
Oral Interview
[16] The applicant submits the immigration officer erred by failing to conduct an oral interview. Applicants do not have the right to an oral interview in every case. I dealt with this issue in Singh v. Canada (Minister of Citizenship and Immigration), 2002 FCT 588 at paragraph 28:
The Supreme Court of Canada in [Baker v. Canada (Minister of Citizenship and Immigration), [1995] 2 S.C.R. 817] stated at paragraph 34 that immigration officer decisions are "very different from judicial decisions". The Supreme Court recognized that the Immigration Act provides the Minister with flexibility on practice and procedure, and that immigration officers do not conduct interviews in many cases. This Court held that an oral hearing is not always necessary to ensure a fair hearing. However, the applicant must be provided with a full opportunity to know the case he has to meet and to respond before the decision is made. The applicant must have a meaningful opportunity to present the various types of evidence relevant to his or her case and have it fully and fairly considered. See Baker, supra., paragraphs 31 to 34.
[17] In this case, the applicant did have a meaningful opportunity to make representations and to respond to the case against him before the immigration officer made her decision. On November 15, 2000, the applicant made detailed and thorough written representations in an eleven-page letter plus attached affidavits and letters of support. The applicant also made later representations dated January 21, 2000. Further, the immigration officer's memorandum to file contains an extensive, detailed and thorough analysis of the issues raised by the applicant. Accordingly, I conclude the immigration officer carefully considered these representations before making her decision, and that no oral hearing was necessary.
Adequacy of the Officer's Reasons
[18] The applicant submits the officer breached procedural fairness by failing to provide adequate reasons. The decision of the immigration officer is contained in a two-page letter to the applicant dated September 21, 2001 and in a six-page memorandum to file from the immigration officer dated September 21, 2001. In Baker, supra., the Supreme Court of Canada held that an immigration officer's memorandum to file can constitute the reasons for the immigration officer's decision. The six-page memorandum provides detailed and adequate reasons in addition to the two-page letter sent to the applicant on the same date.
ERRORS OF LAW
Defence of Superior Orders
[19] The applicant submits the immigration officer erred in law by failing to consider the defence of superior orders. The Supreme Court of Canada examined the defence of superior orders in R. v. Finta, [1994] 1 S.C.R. 701. Mr. Justice La Forest acknowledged at page 778 that obedience to a superior order could not provide a valid defence when the act in question was "so outrageous as to be manifestly unlawful." As he felt the "flavour of the defence and the circumstances under which it may apply" were captured by a number of authorities on the matter, he quoted from Oppenheim's International Law (6th ed. 1944), vol. 2, at pages 452-53:
. . . a Court confronted with the plea of superior orders adduced in justification of a war crime is bound to take into consideration the fact that obedience to military orders, not obviously unlawful, is the duty of every member of the armed forces and that the latter cannot, in conditions of war discipline, be expected to weigh scrupulously the legal merits of the order received. . . . However, . . . the question is governed by the major principle that members of the armed forces are bound to obey lawful orders only and that they cannot therefore escape liability if, in obedience to a command, they commit acts which both violate unchallenged rules of warfare and outrage the general sentiment of humanity.
The common law defence of superior orders was codified in section 14 of the Crimes Against Humanity and War Crimes Act.
[20] The immigration officer did refer to the defence of superior orders in her memorandum to file as follows:
The defence of superior orders is based on a recognition that the military requires strict compliance with superior orders. Mr. Yassin's evidence is that he would be perceived as a traitor, if he failed to act, as well as having derelicted his duty.
[...]
I am satisifed that Mr. Yassin was aware of the reputation of KHAD and that he would have known the treatment the Mujahedeen terrorist would have received when turned over to KHAD.
[...]
I am satisfied that Mr. Yassin was aware of the existence of KHAD, that KHAD was part of the Ministry of State Security and that KHAD was a known human rights abuser.
Counsel stated in his submssions that Mr. Yassin was not one of the Sarandoy who assisted the KHAD, however, the CRDD transcript showed Mr. Yassin testified that the Mujahedeen terrorist he arrested was turned over KHAD. I am satisfied that Mr. Yassin's Sarandoy detachment did assist the KHAD.
[21] The immigration officer then considered the defence of duress and the defence of necessity. To a large extent, these defences overlap with the defence of superior orders. In reviewing her memorandum to file, I am satisfied that the immigration officer did consider the defence of superior orders and rejected the defence on the same basis that she rejected the defence of duress and the defence of necessity. She said in her memorandum:
He [the applicant] never indicated that he was forced to carry out his police duties with the Sarandoy in order to avoid grave and imminent peril to himself. Mr. Yassin never stated that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong.
This finding of fact implies that the defence of superior orders contained in section 14 of the Crimes Against Humanity and War Crimes Act would not apply to the applicant because he knew that the Khad was a brutal organization which committed acts of torture that are "manifestly unlawful" or, in the words of customary international law, "outrage the general sentiment of humanity". Accordingly, the immigration officer properly considered the defence of superior orders in determining the applicant was inadmissible under paragraph 19(1)(j) of the Act.
Reliance on the CRDD's determination
[22] In determining that the applicant was inadmissible under paragraph 19(1)(j). the officer relied in part on the earlier determination of the CRDD that the applicant was a person excluded from the protection of the Convention under article 1F(a). The applicant submits the officer erred in law by treating the CRDD's finding as establishing that the applicant was inadmissible under paragraph 19(1)(j).
[23] The officer referred to the decision of this Court in Figueroa v. Canada (Minister of Citizenship and Immigration) (2001), 181 F.T.R. 242, [2000] F.C.J. 250 (QL), as authority for this action. In Figueroa, Mr. Justice Pinard stated at paragraph 15:
In my opinion a finding that a refugee is excluded from the protection of the Convention under paragraph 1(F)(a) demonstrates the first part of the test under paragraph 19(1)(j) of the Act has been fulfilled.
The applicant argues that the officer's reliance on the Trial Division's decision in Figueroa was misplaced because the case was appealed and while the decision was affirmed, the Court of Appeal was silent on this particular issue, see Figueroa v. Canada (Minister of Citizenship and Immigration), 2001 FCA 112, [2001] F.C.J. No. 589 (QL).
[24] The effect of the Court of Appeal's decision in Figueroa was considered by Mr. Justice Gibson in Varela, supra. At paragraph 24 he stated:
. . . the Federal Court of Appeal, on the appeal of Mr. Justice Pinard's decision in Figueroa, was at best ambivalent on Mr. Justice Pinard's expression of his opinion at paragraph [15] of his reasons to the effect that "...a finding that a refugee is excluded from the protection of the Convention under paragraph 1F(a) demonstrates that the first part of the test under s.19(1)(j) of the Act has been fulfilled." It can at least be argued that Madame Justice Desjardins' reasons in Figueroa, as cited earlier in these reasons, imply that the issue remains open for determination by an Immigration Officer in the circumstances of Figueroa and, a fortiori in light of the terms of subsection 80.1(1) of the Act, when the issue is before an Adjudicator.
The Federal Court of Appeal in Figueroa relied upon the findings of the CRDD as reasonable evidence on the record about the role Mr. Figueroa played in the Guatemalan secret police, a police force known for human rights abuses and torture. Madame Justice Desjardins determined that the immigration officer had "ample evidence" on which to conclude that Mr. Figueroa was a person described in paragraph 19(1)(j) of the Act. For this reason, I am satisfied that the Federal Court of Appeal implicitly held that an immigration officer can rely upon findings of fact by the CRDD. However, this does not mean a refugee claimant excluded under article 1F(a) is automatically inadmissible under paragraph 19(1)(j) of the Act. As Mr. Justice Gibson stated in Varela, an immigration officer is not bound by the CRDD's decision to reject the claimant's refugee claim on the basis of article 1F(a) when determining inadmissibility under paragraph 19(1)(j).
[25] In any event, the immigration officer in this case did not rely solely on the CRDD's decision excluding the applicant as evidence that the applicant was inadmissible under paragraph 19(1)(j) of the Act. Her six-page memorandum to file and her "Case Review Notes" show that matters not raised before the CRDD were considered. Accordingly, there is no error of law with respect to this issue.
CERTIFIED QUESTIONS
[26] At the hearing, the applicant submitted four certified questions, the first two of which were withdrawn. The two remaining certified questions are as follows:
1. Does the exclusion of a Convention refugee under article 1F(a) of the Refugee Convention mean it has been established that there are reasonable grounds to believe that the refugee status claimant has committed an offence at international law under section 19(1)(j) of the Immigration Act so that an Immigration Officer considering allegations made under section 19(1)(j) of the Act would be bound by the Convention Refugee Determination Division's exclusion under article 1F(a) of the Convention; and,
2. Does the amendment of section 19(1)(j), incorporating the provisions the Crimes Against Humanity and War Crimes Act, override an order of the Court that the defences must be considered.
[27] The Court finds that the first proposed certified question is not relevant to, or dispositive of, the application because the immigration officer did not consider herself bound by the CRDD decision wherein the applicant was excluded under Article 1F(a). This is evident from the immigration officers six-page memorandum to file dated September 21, 2001.
[28] The second certified question is also not relevant to, or dispositive of, this application because the immigration officer did clearly consider the defences of duress, necessity and superior orders.
[29] For the foregoing reasons, this application for judicial review is denied.
(signed) Michael A. Kelen _________________________
JUDGE
OTTAWA, ONTARIO
October 2, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4593-01
STYLE OF CAUSE: BILLAL AHMED YASSIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, SEPTEMBER 26, 2002
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: WEDNESDAY, OCTOBER 2, 2002
APPEARANCES BY: Mr. Micheal Crane
For the Applicant
Ms. Mary Matthews
For the Respondent
SOLICITORS OF RECORD: Mr. Micheal Crane
Barrister & Solicitor
166 Pearl Street, Suite 100
Toronto, Ontario
M5H 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20021002
Docket: IMM-4593-01
BETWEEN:
BILLAL AHMED YASSIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER