Canada (Minister of Public Safety and Emergency Preparedness) v. Duroseau, 2012 FC 342

• Judge: Noël, J.
• Court: Federal Court (Canada)
• Case Date: March 20, 2012
• Jurisdiction: Canada (Federal)
• Citations: 2012 FC 342;(2012), 407 F.T.R. 30 (FC)

Can. v. Duroseau (2012), 407 F.T.R. 30 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] F.T.R. TBEd. AP.016

Le Ministre de la Sécurité Publique et de la Protection Civile (demandeur) v. Emmanuel Duroseau (défendeur)

(IMM-3095-11; 2012 CF 342; 2012 FC 342)

Indexed As: Canada (Minister of Public Safety and Emergency Preparedness) v. Duroseau

Federal Court

Noël, J.

March 22, 2012.

Summary:

The respondent, a citizen of Haiti, claimed refugee protection. He had allegedly been a member of the Volontaires de la sécurité nationale. The Minister of Public Safety and Emergency Preparedness applied for judicial review of a decision of the Refugee Protection Division (RPD) which determined that there were no serious reasons for considering that the respondent had committed or had been complicit in crimes described in the United Nations Convention Relating to the Status of Refugees.

The Federal Court allowed the application, set aside the RPD's decision and referred the matter back to the RPD for redetermination by a differently constituted panel.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - The respondent, a citizen of Haiti, claimed refugee protection - He had allegedly been a member of the Volontaires de la sécurité nationale (VSN) from 1968 to 1985 - The Minister of Public Safety and Emergency Preparedness applied for judicial review of a decision of the Refugee Protection Division (RPD) which determined that there were no serious reasons for considering that the respondent had committed or had been complicit in crimes described in the United Nations Convention Relating to the Status of Refugees - The Federal Court allowed the application, set aside the RPD's decision and referred the matter back to the RPD for redetermination by a differently constituted panel - The RPD made no determination on whether the respondent was a member of the VSN, stating that the key issue was whether he was complicit in the activities of that group - However, the question of membership had a significant impact since it determined who had the burden of proving that complicity - If the respondent was a member of the VSN, the burden was on him to rebut the presumption that he was complicit in those crimes - The RPD should have determined whether the respondent was a member of the VSN - Because it did not do so, it was impossible for the court to determine whether the complicity analysis was done in a reasonable manner.

Cases Noticed:

Jayasekara v. Canada (Minister of Citizenship and Immigration) (2008), 384 N.R. 293; 2008 FCA 404, refd to. [para. 11].

Ezokola v. Canada (Minister of Citizenship and Immigration) (2010), 373 F.T.R. 97; 2010 FC 662, refd to. [para. 12].

Ezokola v. Canada (Minister of Citizenship and Immigration) (2011), 420 N.R. 279; 2011 FCA 224, refd to. [para. 12].

Osagie v. Canada (Minister of Citizenship and Immigration) (2000), 186 F.T.R. 143 (T.D.), refd to. [para. 12].

Ndabambarire v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 25; 2010 FC 1, refd to. [para. 14].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 14].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 14].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 15].

Lai v. Canada (Minister of Citizenship and Immigration) (2005), 332 N.R. 344; 2005 FCA 125, refd to. [para. 15].

Savundaranayaga et al. v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 11; 2009 FC 31, refd to. [para. 16].

Ishaku v. Canada (Minister of Citizenship and Immigration) (2011), 382 F.T.R. 169; 2011 FC 44, refd to. [para. 19].

Ryivuze v. Canada (Minister of Citizenship and Immigration) (2007), 325 F.T.R. 30; 2007 FC 134, refd to. [para. 19].

Counsel:

Normand Lemyre, for the applicant;

Stéphanie Valois, for the respondent.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Montreal, Quebec, for the applicant;

Stéphanie Valois, Montreal, Quebec, for the respondent.

This application was heard on March 20, 2012, at Montreal, Quebec, before Noël, J., of the Federal Court, who delivered the following decision on March 22, 2012.