Ottawa, Ontario, November 18, 2005
PRESENT: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The Applicant is a 41-year-old citizen of Iraq. He left Iraq for Jordan in September 2001. He then moved to Turkey in January 2005. He does not have legal status in either Turkey or Jordan. He left Iraq due to the situation facing the Iraqi Christian community as he is an Assyrian Christian. The Applicant married Ferial Jabou on January 19, 2002 in Jordan. His wife is now a Canadian citizen and wishes to sponsor her husband to become a permanent resident in Canada.
[2] The Applicant was conscripted into the Iraqi army in December 1989 and was required to serve for two years. He was stationed as a guard at Al Mahawil military base from January 1991 to December 1991. It appears that his role was to guard an ammunitions room. During this time period, between 3000 to 15,000 Shi'as were detained, murdered and then buried in mass graves on or near the Al Mahawil military base. The Applicant denies having any knowledge that these events took place.
[3] After five interviews at the Canadian Embassy in Jordan on September 25, 2002; June 10, 2003; April 8, 2004; June 17, 2004; and October 28, 2004, the Visa officer rendered her negative decision in writing to the Applicant. The key part of her decision read:
Specifically, you were assigned to Al-Mahawil military base in Iraq from January 1991 to December 1991 while you were doing your military service. You stated at four of the five interviews conducted, that you were assigned only to guard an abandoned military base with only 7 other persons. However, publicly available information [published by The Guardian newspaper, on the BBC website, the Human Rights Watch website and Radio Free Europe website] details that the AI Mahawil military base was taken over for several weeks in March 1991 by paramilitary and military groups that committed the crime against humanity of unlawful detention and murder against Shi'a muslins, including women and children. Estimates of the numbers of bodies in nearby mass graves, found in May 2003, are over 3000 and possibly as high as 15,000. At your interview on 28 October 2004, I brought to your attention that these mass graves had been found and that it was known that paramilitary and military groups had taken over the Al Mahawil base at that time and committed these crimes. You denied any knowledge whatsoever that this had occurred. However, from the public information available to me, it is clear that these events occurred and that your denial of all knowledge of these events is not credible. You were clearly present at Al Mahawil military base as a guard at the time that these detentions and murders occurred. As a result, there are reasonable grounds to believe that you, by your denial and silence, are complicit in these crimes against humanity.
[4] The Applicant is seeking judicial review of this decision by arguing:
a) that the visa officer applied an incorrect legal standard to the issue of complicity;
b) that there was no evidence constituting reasonable grounds on which to conclude that the Applicant was complicit in crimes against humanity; and
c) that there was a breach of procedural fairness or natural justice as the decision appears to have been made by someone in the war crimes office rather than by the visa officer.
[5] The applicable standard of review is to be found in the unanimous Supreme Court of Canada decision of Mugesera v. Canada(Minister of Citizenship and Immigration), 2005 SCC 40 at para. 116:
When applying the "reasonable grounds to believe" standard, it is important to distinguish between proof of questions of fact and the determination of questions of law. The "reasonable grounds to believe" standard of proof applies only to questions of fact: Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), at p. 311. This means that in this appeal the standard applies to whether Mr. Mugesera gave the speech, to the message it conveyed in a factual sense and to the context in which it was delivered. On the other hand, whether these facts meet the requirements of a crime against humanity is a question of law. Determinations of questions of law are not subject to the "reasonable grounds to believe" standard, since the legal criteria for a crime against humanity will not be made out where there are merely reasonable grounds to believe that the speech could be classified as a crime against humanity. The facts as found on the "reasonable grounds to believe" standard must show that the speech did constitute a crime against humanity in law.
Recently, in Bedoya v. Canada (Minister of Citizenship and Immigration), 2005 FC 1092, Hughes J. explained that the standard of review of decisions involving crimes against humanity in light of Mugesera, supra, is as follows (at para. 5):
A Court, in reviewing a decision of the Board in circumstances such as this, must deal with factual findings on a basis as to whether they are patently unreasonable; legal findings are to be reviewed on the basis of correctness.
It is also well established that the standard of review regarding issues of credibility is patently unreasonable. (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315).
Issue a) Did the visa officer apply an incorrect legal standard to the issue of complicity?
[6] The test for complicity was clearly laid down by the Federal Court of Appeal in Ramirez v. Canada(Minister of Employment and Immigration),[1992] 2 F.C. 306 (C.A.) at paragraphs 16-18:
What degree of complicity, then is required to be an accomplice or abettor? A first conclusion I come to is that mere membership in an organization which from time to time commits international offences is not normally sufficient to exclusion from refugee status. Indeed, this is in accord with the intention of the signatory states, as is apparent from the post-war International Military Tribunal already referred to. Grahl-Madsen, supra, at page 227, states:
It is important to note that the International Military Tribunal excluded from the collective responsibility 'persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the State for membership, unless they were personally implicated in the commission of acts declared criminal by Article 6 of the Charter as members of the organization. Membership alone is not enough to come within the scope of these declarations' [International Military Tribunal, I. 256].
It seems apparent, however, that where an organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts.
Similarly, mere presence at the scene of an offence is not enough to qualify as personal and knowing participation (nor would it amount to liability under section 21 of the Canadian Criminal Code), though, again, presence coupled with additional facts may well lead to a conclusion of such involvement. In my view, mere on-looking, such as occurs at public executions, where the on-lookers are simply by-standers with no intrinsic connection with the persecuting group, can never amount to personal involvement, however humanly repugnant it might be. However, someone who is an associate of the principal offenders can never, in my view, be said to be mere on-looker. Members of a participating group may be rightly considered to be personal and knowing participants, depending on the facts.
At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it [shared common purposes]. Such a principle reflects domestic law (e.g., subsection 21(2) of the Criminal Code), and I believe is the best interpretation of international law.
[7] Similarly, in Penate v. Canada(Minister of Employment and Immigration,[1994] 2 F.C. 79 Madam Justice Reed stated at para. 6 that:
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 take 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.
[8] The visa officer here stated: "you were clearly present at Al Mahawil military base as a guard at the time these detentions and murders occurred. As a result, there are reasonable grounds to believe that you, by your denial and silence, are complicit in these crimes against humanity."
[9] This is clearly an incorrect conclusion in light of Ramirez, supra and Penate, supra. Denial and silence are valid reasons for questioning credibility but they do not amount to evidence of complicity in crimes against humanity.
Issue b) Was there evidence constituting reasonable grounds on which to conclude that the Applicant was complicit in crimes against humanity?
[10] Here the visa officer in her CAIPS notes and in her affidavit pointed to several other inconsistencies and improbabilities in his interviews, such as:
a) the Applicant was not involved in any fighting while being in the army and in Kuwait during the first gulf war;
b) the applicant was guarding an ammunition depot that was never accessed during the 11 months while he was there and while a war was going on around him;
c) the applicant could not remember the name or rank of his superior officers; and
d) there were only nine soldiers at the massive base while he was guarding the ammunition depot; and
e) he was in such close proximity to the atrocities yet he never heard anything, saw anything, nor noted the buses transporting the victims for slaughter.
All of these findings she construed as being sufficient circumstantial evidence to allow her to infer complicity.
[11] In Ali v. Canada(Solicitor General), 2005 FC 1306 Shore, J. at paragraph 20 held that:
"whether one is complicit depends on the facts of the case, particularly the extent of knowledge of an organization's crimes and the degree of participation in or support of those crimes".
[12] The Respondent bears the burden of proof in this case. (Penate, supra) This burden is less than the civil standard of balance of probabilities and has been described as having "serious reasons for considering" that the individual committed or was complicit in crimes against humanity. (Penate, supra) This was described in Chiau v. Canada(Minister of Citizenship and Immigration), [1998] 2 F.C. 642 at paragraph 27 as a "bona fide belief in a serious possibility based on credible evidence".
[13] I cannot find that the visa officers finding in this case meet that standard. While all of the findings of the visa officer further underscore her reasonable decision that the Applicant lacks credibility, I fail to see how these findings in any way are indicative of complicity. They admittedly could be consistent with a shared common purpose and knowledge as required by Ramirez, supra, but they could also be consistent with a host of other inferences.
[14] Having found in favour of the Applicant in respect of issue a) and b), there is no need to consider issue c). Accordingly, this Court reluctantly feels compelled to set a decision aside. The visa officer has acted most conscientiously, interviewed the Applicant five times and consulted with the war crimes unit. Unfortunately, notwithstanding that admirable diligence and the reasonable finding of lack of credibility, she drew an inference of complicity that has no foundation and thus this decision cannot stand.
ORDER
THIS COURT ORDERS that the decision of the visa officer of December 5, 2004 be set aside and the matter referred to another visa officer for redetermination.
" Konrad W. von Finckenstein "
JUDGE
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-788-05
STYLE OF CAUSE: FAHMI MATTI
And
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Saskatoon, Saskatchewan
DATE OF HEARING: November 16, 2005
REASONS FOR ORDER
AND ORDER : Mr. Justice von Finckenstein
APPEARANCES:
MR. CHRISTOPHER G. VEEMAN FOR APPLICANT
MS. NATASHA CROOKS
MS. GLYNNYS BEMBRIDGE FOR RESPONDENT
SOLICITORS OF RECORD:
MacPherson, Leslie & Tyerman LLP FOR APPLICANT
Saskatoon, SK
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON