Ishaku v. Canada (Minister of Citizenship and Immigration), 2011 FC 44

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: January 10, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 44;(2011), 382 F.T.R. 169 (FC)

Ishaku v. Can. (M.C.I.) (2011), 382 F.T.R. 169 (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: [2011] F.T.R. TBEd. JA.034

Ambroise Mapangu Ishaku (demandeur) v. Le Ministre de la Citoyenneté et de l'Immigration (défendeur)

(IMM-3882-10; 2011 CF 44; 2011 FC 44)

Indexed As: Ishaku v. Canada (Minister of Citizenship and Immigration)

Federal Court

Shore, J.

January 14, 2011.

Summary:

Ishaku was a citizen of the Democratic Republic of the Congo. He sought refugee protection in Canada, claiming to fear for his life because of his political activities as a member of the Movement for the Liberation of the Congo. The Refugee Protection Division of the Immigration and Refugee Board rejected Ishaku's claim under s. 98 of the Immigration and Refugee Protection Act, finding that he was a person referred to in s. 1(F)(a) of the Refugee Convention ("serious reasons for considering that" he had committed crimes against humanity). Ishaku applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - The Federal Court discussed the standard of proof in an "exclusion" hearing under s. 1F of the Convention Relating to the Status of Refugees where the Minister had opposed an application for refugee protection on the basis that there were "serious reasons for considering" that the applicant had committed crimes against humanity - The Minister had the burden of proof - In general, the Refugee Protection Division of the Immigration and Refugee Board had to "assess and weigh the evidence that it has found to be credible or trustworthy in the case and decide whether the minimum test of 'serious reasons for considering' that the alleged crime(s) or act(s) were committed has been met. The standard of proof that must be used in applying the minimum test requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities. In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information. ... That standard applies to decisions as to the facts. The issue of whether the act or omission in question constitutes a crime referred to in paragraph 1F(a) is a question of law" - See paragraphs 27 to 30.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - Ishaku was a citizen of the Democratic Republic of the Congo (DRC) - He sought refugee protection in Canada, claiming to fear for his life because of his political activities as a member of the Movement for the Liberation of the Congo (MLC) - The Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected Ishaku's claim under s. 98 of the Immigration and Refugee Protection Act (IRPA), finding that he was a person referred to in s. 1(F)(a) of the Refugee Convention ("serious reasons for considering that" he had committed crimes against humanity) - The Federal Court dismissed Ishaku's application for judicial review - On the evidence before the RPD, it was not unreasonable to conclude that the MLC had, from 1999 to 2003, "systematically engaged in a very large number of barbarous and inhumane acts and severe persecution, and that the persecution was widespread and systematic against the civilian population and the groups targeted. These crimes, committed as part of a widespread or systematic attack directed against a civilian population and with knowledge of the attack, pursuant to or in furtherance of an organizational policy to commit such attack," were crimes against humanity - Ishaku had been a member of the MLC from 2000 to 2007, when he left the DRC - During those years, the MLC continuously and regularly engaged in crimes against humanity to achieve its political objective - It was "an organization with a limited, brutal purpose" - Membership in such an organization was generally sufficient to establish complicity - The RPD could, therefore, reasonably have presumed that Ishaku had the necessary mens rea for a finding of complicity - It was not unreasonable for the RPD to exclude Ishaku from the application of the Convention under s. 1F(a) - Accordingly, Ishaku could not be granted the protection of Canada, as set out in s. 98 of the IRPA - See paragraphs 31 to 102.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - Ishaku was a citizen of the Democratic Republic of the Congo - He sought refugee protection in Canada, claiming to fear for his life because of his political activities as a member of the Movement for the Liberation of the Congo (MLC) - The Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected Ishaku's claim under s. 98 of the Immigration and Refugee Protection Act (IRPA), finding that he was a person referred to in s. 1(F)(a) of the Refugee Convention ("serious reasons for considering that" he had committed crimes against humanity) - The Federal Court, in dismissing Ishaku's application for judicial review, discussed the case law on "complicity by association" where "individuals may be rendered responsible for the acts of others because of their close and voluntary association with the principal actors in an organization that commits international crimes" - The court set out the following factors to be taken into consideration in determining whether there genuinely were serious reasons for considering that an applicant might be considered to be complicit in the commission of crimes or acts referred to in section 1F of the Convention: the method of recruitment, the applicant's position and rank in the organization, the nature of the organization, the applicant's knowledge of the crimes or acts committed, the length of his or her participation in the organization's activities, and the opportunity to leave - Applying those factors here, Ishaku's complicity by association in the crimes committed by the MLC was confirmed - See paragraphs 57 to 89.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - Ishaku was a citizen of the Democratic Republic of the Congo - He sought refugee protection in Canada, claiming to fear for his life because of his political activities as a member of the Movement for the Liberation of the Congo - The Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected Ishaku's claim under s. 98 of the Immigration and Refugee Protection Act (IRPA), finding that he was a person referred to in s. 1(F)(a) of the Refugee Convention ("serious reasons for considering that" he had committed crimes against humanity) - The Federal Court, in dismissing Ishaku's application for judicial review, stated that "when an applicant is aware that the group to which he or she belongs is continuously and regularly committing crimes or acts referred to in section F of Article 1 of the Convention and does not try to disengage himself or herself from that group at the earliest opportunity, consistent with safety for himself or herself, the RPD may then reasonably conclude that the applicant cannot have status as a refugee or person in need of protection under section 98 of the IRPA." - See paragraph 98.

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - [See first Aliens - Topic 1330.2 ].

Cases Noticed:

Al Tayar v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 344; 2009 FC 567, refd to. [para. 17].

Noha v. Canada (Minister of Citizenship and Immigration) (2009), 347 F.T.R. 265; 2009 FC 683, refd to. [para. 17].

Harb v. Canada (Minister of Citizenship and Immigration) (2003), 238 F.T.R. 194; 2003 FCA 39, refd to. [para. 17].

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 280 N.R. 268; 2002 SCC 3, refd to. [para. 18].

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. 17].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 18].

Ndabambarire v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 25; 2010 FC 1, refd to. [para. 19].

Canada (Minister of Citizenship and Immigration) et al. v. Imeri (2009), 353 F.T.R. 230; 2009 FC 542, refd to. [para. 19].

Jayasekara v. Canada (Minister of Citizenship and Immigration) (2008), 324 F.T.R. 62; 2008 FC 238, affd. [2009] 4 F.C.R. 164; 384 N.R. 293; 2008 FCA 404, refd to. [para. 19].

Thanaratnam v. Canada (Minister of Citizenship and Immigration), [2006] 1 F.C.R. 474; 333 N.R. 233; 2005 FCA 122, refd to. [para. 21].

Rizwan v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 505; 2010 FC 781, refd to. [para. 21].

Mohammad v. Canada (Minister of Citizenship and Immigration) (2010), 361 F.T.R. 184; 2010 FC 51, refd to. [para. 21].

Howbott v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 587; 160 A.C.W.S.(3d) 856; 2007 FC 911, refd to. [para. 26].

Xie v. Canada (Minister of Citizenship and Immigration), [2005] 1 F.C.R. 304; 325 N.R. 255; 2004 FCA 250, refd to. [para. 26].

Gonzalez v. Minister of Employment and Immigration, [1994] 3 F.C. 646; 170 N.R. 302; 48 A.C.W.S.(3d) 388 (F.C.A.), refd to. [para. 26].

Arica v. Minister of Employment and Immigration (1995), 182 N.R. 392; 55 A.C.W.S.(3d) 1017 (F.C.A.), refd to. [para. 26].

Lai v. Canada (Minister of Citizenship and Immigration) (2005), 332 N.R. 344; 139 A.C.W.S.(3d) 113; 2005 FCA 125, refd to. [para. 28].

Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66; 252 N.R. 380 (F.C.A.), refd to. [para. 28].

Bazargan v. Ministre de l'Emploi et de l'Immigration (1996), 205 N.R. 282; 67 A.C.W.S.(3d) 132 (F.C.A.), refd to. [para. 28].

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. 29].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 29].

Zazai v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 78; 262 F.T.R. 246 (F.C.), affd. (2005), 339 N.R. 201; 142 A.C.W.S.(3d) 828; 2005 FCA 303, refd to. [para. 30].

Mohacsi v. Canada (Minister of Citizenship and Immigration) (2003), 231 F.T.R. 276; 2003 FCT 429, refd to. [para. 53].

Chavez et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 5; 159 A.C.W.S.(3d) 266; 2007 FC 10, refd to. [para. 53].

Ryivuze v. Canada (Minister of Citizenship and Immigration) (2007), 325 F.T.R. 30; 2007 FC 134, refd to. [para. 57].

Thomas v. Canada (Minister of Citizenship and Immigration) (2007), 317 F.T.R. 6; 2007 FC 838, refd to. [para. 58].

Sivakumar v. Minister of Employment and Immigration, [1994] 1 F.C. 433; 163 N.R. 197; 44 A.C.W.S.(3d) 563 (F.C.A.), refd to. [para. 60].

Sabadao v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 178; 146 A.C.W.S.(3d) 698; 2006 FC 292, refd to. [para. 61].

Escorcia et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 428; 158 A.C.W.S.(3d) 796; 2007 FC 644, refd to. [para. 62].

Collins et al. v. Canada (Minister of Citizenship and Immigration) (2005), 276 F.T.R. 60; 2005 FC 732, refd to. [para. 62].

Moreno and Sanchez v. Minister of Employment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210; 42 A.C.W.S.(3d) 1048 (F.C.A.), refd to. [para. 64].

Yogo v. Canada (Minister of Citizenship and Immigration) (2001), 205 F.T.R. 185; 2001 FCT 390, refd to. [para. 69].

Saridag v. Minister of Employment and Immigration (1994), 85 F.T.R. 307; 50 A.C.W.S.(3d) 1284 (T.D.), refd to. [para. 69].

Muchai v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 613; 160 A.C.W.S.(3d) 682; 2007 FC 944, refd to. [para. 70].

Shakarabi v. Canada (Minister of Citizenship and Immigration) (1998), 145 F.T.R. 297; 79 A.C.W.S.(3d) 133 (T.D.), refd to. [para. 83].

Zrig v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2003] 3 F.C. 761; 307 N.R. 201; 2003 FCA 178, refd to. [para. 91].

B., Re, [1997] E.W.J. No. 700 (C.A.), refd to. [para. 92].

Authors and Works Noticed:

Néel, Lison, La judiciarisation internationale des criminels de guerre: la solution aux violations graves du droit international humanitaire? (2000), 33(2) Criminologie 151, p. 166 [para. 32].

Counsel:

Alain Vallières, for the applicant;

Normand Lemyre, for the respondent.

Solicitors of Record:

Alain Vallières, Montreal, Quebec, for the applicant;

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

This application was heard at Montreal, Quebec, on January 10, 2011, by Shore, J., of the Federal Court, who delivered the following reasons for judgment on January 14, 2011.