Arica v. Canada (Solicitor General), 2005 FC 907

• Judge: Campbell, J.
• Court: Federal Court (Canada)
• Case Date: April 30, 2005
• Jurisdiction: Canada (Federal)
• Citations: 2005 FC 907;(2005), 276 F.T.R. 124 (FC)

Arica v. Can. (2005), 276 F.T.R. 124 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. JL.011

Jose D. Malaga Arica (applicant) v. The Solicitor General of Canada (respondent)

(IMM-1188-04; 2005 FC 907)

Indexed As: Arica v. Canada (Solicitor General)

Federal Court

Campbell, J.

June 27, 2005.

Summary:

The Ontario Regional War Crimes and Public Security Unit found that the applicant was inadmissible pursuant to s. 35(1)(a) of the Immigration and Refugee Protection Act (crimes against humanity). The applicant applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1744.2

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons who have committed war crimes or crimes against humanity - Section 35(1)(a) of the Immigration and Refugee Protection Act (IRPA) provided that a permanent resident or a foreign national was inadmissible for "committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act" - The applicant argued that once the facts were found on reasonable grounds under s. 33 of the IRPA, they were applied to the inadmissibility test under s. 35(1), and the standard of proof for that legal test was a balance of probabilities - The respondent argued that a finding under s. 35(1)(a) was a finding of law, and as such, the applicant's standard of proof on the basis of a balance of probabilities argument did not apply - The respondent submitted that in reaching the finding of law, all that was required of the tribunal was to find whether the facts established that the applicant had committed a crime against humanity - The Federal Court rejected the applicant's argument, finding that the respondent's interpretation was correct - See paragraphs 10 to 13.

Aliens - Topic 1744.2

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons who have committed war crimes or crimes against humanity - The applicant applied for permanent residence - Based on his actions as a member of the Peruvian military, the Ontario Regional War Crimes and Public Security Unit (the Tribunal) found that the applicant was inadmissible pursuant to s. 35(1)(a) of the Immigration and Refugee Protection Act (crimes against humanity) - The Convention Refugee Determination Division (CRDD) had previously found that the applicant was excluded from refugee protection by art. 1F(a) of the United Nations Convention Relating to the Status of Refugees because of complicity in crimes against humanity - In reaching its decision, the Tribunal relied on the CRDD's findings of fact - The applicant applied for judicial review of the Tribunal's decision - The Federal Court dismissed the application - By operation of s. 15(b) of the Immigration and Refugee Protection Regulations, the Tribunal was required to make its decision on the basis of the CRDD's finding of fact with respect to the applicant's participation in the crimes - The facts found by the CRDD clearly provided the Tribunal with the basis to find that the applicant's culpability was established by personal and knowing participation in the crimes - See paragraphs 14 to 22.

Aliens - Topic 1744.2

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons who have committed war crimes or crimes against humanity - The applicant applied for permanent residence - Based on his actions as a member of the Peruvian military, the Ontario Regional War Crimes and Public Security Unit (the Tribunal) found that the applicant was inadmissible pursuant to s. 35(1)(a) of the Immigration and Refugee Protection Act (crimes against humanity) - The applicant applied for judicial review - The Federal Court dismissed the application - The Tribunal correctly applied the test for complicity and was correct in finding that the applicant was complicit in the commission of the crimes - The Tribunal also correctly applied the law in holding that the defence of duress was not available - The applicant's argument that he was acting on superior orders was irrelevant since it was only of importance to a person charged with a crime against humanity - See paragraphs 23 to 26.

Cases Noticed:

Arica v. Minister of Employment and Immigration (1995), 182 N.R. 392 (F.C.A.), leave to appeal denied (1995), 198 N.R. 239 (S.C.C.), refd to. [para. 4].

Ramirez v. Minister of Employment and Immigration (1992), 135 N.R. 390 (F.C.A.), refd to. [para. 8].

Moreno and Sanchez v. Minister of Employment and Immigration (1993), 159 N.R. 210 (F.C.A.), refd to. [para. 12].

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), refd to. [para. 28].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 33, sect. 35(1)(a) [para. 10].

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 15(b) [para. 19].

Counsel:

Patricia Wells, for the applicant;

Bridget O'Leary and Matina Karvellas, for the respondent.

Solicitors of Record:

Patricia Wells, Toronto, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on April 30, 2005, at Toronto, Ontario, before Campbell, J., of the Federal Court, who delivered the following decision on June 27, 2005.