Date: 20030521
Docket: IMM-377-02
Citation: 2003 FCT 639
Toronto, Ontario, May 21st, 2003
Present: The Honourable Mr. Justice Campbell
BETWEEN:
NASRULLAH ZAZAI
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is a citizen of Afghanistan who, in 1994, made a claim for refugee status before the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"). The CRDD rejected the Applicant's claim and excluded him pursuant to Art. 1F(a) of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, due to his membership in KHAD, the secret police. The Applicant was made the subject of a report under s.19(1)(j) of the Immigration Act, (now s.35(1) of the Immigration and Refugee Protection Act). At the inquiry conducted before an Adjudicator of the Immigration and Refugee Board, Adjudication Division, the Applicant repudiated his earlier testimony concerning his membership in KHAD. The Adjudicator did not accept his repudiation.
[2] The issue before the Adjudicator, which is also the central issue in the present judicial review application, was whether she was bound by the CRDD's earlier determination. The Adjudicator's decision makes numerous references to the CRDD's findings and, in particular, states as follows:
Over all I am satisfied that the evidence that was given at the CRDD hearing in 1994 and 1995, and in your application for landing made in 1996, is more credible then [sic] that evidence which has been presented here at this inquiry with respect to your involvement in the organization known as KHAD. Therefore, and especially in light of the courts comments in Figeroa (phonetic), I conclude that the evidence does indeed establish that you were complicit in crimes against humanity in Afghanistan as part of the organization known as KHAD. (Adjudicator's Decision, p. 10).
[3] On the basis of the statement just quoted, I find that the Adjudicator determined she was bound by the CRDD's decision. There are conflicting decisions of this Court with respect to this determination. Most recently, in an effort to answer the question of whether an Adjudicator is bound by a CRDD determination, Justice Gibson in Canada (Minister of Citizenship and Immigration) v. Varela, [2002] F.C.J. No. 230 at paragraphs 23 to 26 said as follows:
I am satisfied that it is beyond doubt that neither the former paragraph 19(1)(j) of the Act, nor the re-enactment of that paragraph, provides any direction to an Adjudicator that an earlier decision of the Convention Refugee Determination Division to exclude an individual from Convention refugee status, by reason of a conclusion that there are serious reasons for considering that the individual has committed a war crime or a crime against humanity, is determinative of an issue before the Adjudicator; that is to say, whether there are reasonable grounds to believe that the same individual has committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of former subsection 7(3.76) [as enacted by R.S.C., 1985 (3rd Supp.), c. 30, s. 1] of the Criminal Code, or an offence referred to in any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act. If Parliament had intended that an earlier decision of the CRDD be binding on the Adjudicator, it could easily have said so. The Immigration Act provides a number of instances where Parliament has achieved a parallel outcome.
The decision of Mr. Justice Pinard in Figueroa, [(2000) 181 F.T.R. 242 (F.C.T.D.)] earlier referred to, was taken on different facts, and in the context of a matter that was before an immigration officer, not an Adjudicator. [See Note 10 below] Also as previously indicated in these reasons, 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 Madam 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.
I am satisfied that counsel for the Minister invites the Court to read more into the Federal Court of Appeal's denial of leave to seek judicial review of the decision of the CRDD regarding the respondent than is warranted. At the relevant time, as now, the test for leave to seek judicial review was that set out in Bains v. Canada (Minister of Employment and Immigration) where Mr. Justice Mahoney wrote that the only question on an application for leave to seek judicial review is whether a "fairly arguable case" was disclosed for the relief proposed to be sought on judicial review. The denial of leave by the Federal Court of Appeal did not tell us that the CRDD's decision was correct, reasonably open to it, or not patently unreasonable. More specifically, denial of leave did not tell the Adjudicator whose decision is here under review that the Court of Appeal found the CRDD's decision to exclude the respondent from Convention protection by virtue of Article 1F(a) of the Convention was appropriate under any particular standard of review.
In the result, against a standard of review of correctness, I am satisfied that the Adjudicator committed no error of law, and indeed no reviewable error whatsoever, in concluding as he did in the decision here under review that he was not bound by the earlier determination by the CRDD. That is not to say that it would not be open to the Adjudicator, or any other adjudicator, to take into account the earlier decision of the CRDD. It is simply to say that the Adjudicator committed no reviewable error in deciding as he did.
I agree with Justice Gibson's finding of law as just quoted. As a result, since I find an Adjudicator is not bound by an earlier determination of the CRDD, I find that the Adjudicator in the present case made a reviewable error in law.
ORDER
Accordingly, I set aside the Adjudicator's decision and refer the matter back for redetermination before a different Adjudicator.
In Varela, Mr. Justice Gibson certified a question which went to the Appeal Division but, on a determination that the judicial review from which it emanated was premature, was not answered (Neutral Citation: 2003 FCA 42). In my opinion, and it is agreed between counsel for the Applicant and Respondent, Justice Gibson's question is very appropriate to be certified in the present case. Therefore, I certify the following question of general of importance for determination by the Appeal Division:
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 offences at international law under section 18(1)(j) of the Immigration Act so that an Adjudicator conducting an inquiry into 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?
In a letter dated May 16, 2003, counsel for the Respondent also advances the following argument as the basis for a further certification:
Section 19(1) (j) of the former Immigration Act states:
19.(1) No person shall be granted admission who is a member of the following classes:
(i) No person shall be granted admission who is a member of the following classes:
The definition of a crimes against humanity, as set out in the Crimes Against Humanity and War Crimes Act reads:
"crimes against humanity" means murder, extermination ... that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to general principles of law recognized by the community of nations whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
This question has broad significance to both present and future cases because both the former Immigration Act and the Immigration and Refugee Protection Act directly refer to this definition in their inadmissibility provisions. Thus, it is important to have clarity on the meaning of this definition as it has not yet been challenged in this way in the courts.
The Adjudicator found that since the Applicant had been complicit in crimes against humanity as identified in s. 4(3) of the Crimes Against Humanity and War Crimes Act, then the Applicant is inadmissible to Canada. If it is found that complicity is implied in this definition, then her finding would be correct.
As a result, I certify the following question as proposed:
Does the definition of "crime against humanity", found at section 4(3) of the Crimes Against Humanity and War Crimes Act, include complicity therein?
And finally, with respect to certification, counsel for the Respondent further argues as follows:
Justice Campbell held that since the Adjudicator felt she was bound by the decision of the CRDD, it was an error in law according to the decision of Gibson J. in Varela, supra. The Adjudicator's decision was made on January 16, 2002 and Gibson J.'s decision was made on February 14, 2002. Consequently, there was no way the Adjudicator could have known the outcome in Varela, supra. As Campbell J. found an error of law, which could not have been known to the Adjudicator, it is submitted that it raises a question of broad significance since decisions of this Honourable Court directly affect the decisions of tribunals. Not only does the question address the interests of the immediate parties, but the implication of retroactive application has a significant impact in the administration of justice and the procedures followed by tribunals.
As a result, I also certify the following question as proposed:
Can a reviewing Judge apply a Federal Court Trial Division case retroactively to a decision of an Adjudicator which pre-dated the case?
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-377-02
STYLE OF CAUSE: NASRULLAH ZAZAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, MAY 7, 2003
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: WEDNESDAY, MAY 21, 2003
APPEARANCES:
Mr. Lorne Waldman
For the Applicant
Mr. Marcel Larouche, and
Ms. Jillian Siskind
For the Respondent
SOLICITORS OF RECORD:
Waldman & Associates
Barristers & Solicitors
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030521
Docket: IMM-377-02
BETWEEN:
NASRULLAH ZAZAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER