Monsieur MJS v. Canada (Minister of Citizenship and Immigration), (2013) 430 F.T.R. 18 (FC)

• Court: Federal Court (Canada)
• Case Date: August 19, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2013), 430 F.T.R. 18 (FC);2013 FC 293

Monsieur MJS v. Can. (M.C.I.) (2013), 430 F.T.R. 18 (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: [2013] F.T.R. TBEd. MR.061

« Monsieur MJS » (demandeur) v. Ministère de la Citoyenneté et de l'Immigration (défendeur)

(2013 CF 293; 2013 FC 293)

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

Federal Court

Crampton, C.J.

March 20, 2013.

Summary:

The applicant was a citizen of an African country and a member of that country's ethnic minority. He applied for refugee protection on the grounds that he feared being imprisoned, tortured or killed if he was forced to return to his country. The Refugee Protection Division found that the applicant was excluded from refugee protection because he had been complicit in crimes against humanity and war crimes committed by a rebel group in his country. The applicant applied for judicial review.

The Federal Court dismissed the application.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - MJS was a citizen of an African country and a member of that country's ethnic minority - He applied for refugee protection on the grounds that he feared being imprisoned, tortured or killed if he was forced to return to his country - The Refugee Protection Division (Panel) found that MJS was excluded from refugee protection because he had been complicit in crimes against humanity and war crimes committed by a rebel group (Group) - MJS was a member of the Group from 1999 to 2003, but alleged that he had only joined in order to act as a double agent for the government - MJS applied for judicial review, arguing, inter alia, that the Panel had applied the wrong test to determine complicity - He asserted that the Panel had erred by determining complicity without establishing the degree of his personal and knowing participation in the Group's crimes - The Federal Court dismissed the application - "Personal and knowing participation" could be established by showing the existence of a shared common purpose - A shared common purpose could be established by assessing certain factors - The Panel analyzed these factors - It found that MJS's recruitment efforts for the Group had been a valuable and visible contribution - It would have been preferable for the Panel to state more explicitly that MJS shared the Group's purpose - However, its discussion of his recruitment efforts demonstrated that the Panel believed that MJS shared this purpose - Moreover, the evidence confirmed that MJS told potential recruits that crimes committed by the Group could be tolerated in the context of the civil war - The Panel was therefore not obliged to discuss more thoroughly the relationship between the Group's political faction, to which MJS belonged, and its military faction - See paragraphs 16 to 27.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - MJS was a citizen of an African country and a member of that country's ethnic minority - He applied for refugee protection on the grounds that he feared being imprisoned, tortured or killed if he was forced to return to his country - The Refugee Protection Division (Panel) found that MJS was excluded from refugee protection because he had been complicit in crimes against humanity and war crimes committed by a rebel group (Group) - MJS was a member of the Group from 1999 to 2003, but alleged that he had only joined in order to act as a double agent for the government - MJS applied for judicial review, arguing, inter alia, that the Panel had failed to establish or identify a link between him and the specific crimes committed by the group - The Federal Court dismissed the application - The Panel clearly and precisely identified the crimes of which it found MJS to be complicit - It was entirely acceptable for the Panel to conclude that MJS had been complicit given that (1) MJS testified that he knew of the crimes; (2) the Panel found that MJS had made a visible and highly useful contribution to the group through his recruitment efforts; and (3) the Panel considered the relevant complicity factors - See paragraphs 28 to 39.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - MJS was a citizen of an African country and a member of that country's ethnic minority - He applied for refugee protection on the grounds that he feared being imprisoned, tortured or killed if he was forced to return to his country - The Refugee Protection Division (Panel) found that MJS was excluded from refugee protection because he had been complicit in crimes against humanity and war crimes committed by a rebel group (Group) - MJS was a member of the Group from 1999 to 2003, but alleged that he had only joined in order to act as a double agent for the government - MJS applied for judicial review, arguing, inter alia, that the Panel's analysis of the evidence and the complicity factors was unreasonable - The Federal Court dismissed the application - The Panel considered the manner in which MJS was recruited, his position in the Group, his knowledge of the crimes committed by the Group, his opportunity to leave the Group, and the length of time he spent with the Group - The Panel's analysis of these factors, both individually and as a whole, had a reasonable basis - See paragraphs 40 to 76.

Cases Noticed:

Sivakumar v. Minister of Employment and Immigration), [1994] 1 F.C. 433; 163 N.R. 197 (F.C.A.), dist. [para. 13].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2005), 335 N.R. 229; 2005 SCC 40, refd to. [para. 13].

Oberlander v. Canada (Attorney General) (2009), 396 N.R. 146; 2009 FCA 330, refd to. [para. 13].

New Brunswick (Board of Management) v. Dunsmuir (2008), 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), 385 N.R. 206; 2009 SCC 12, refd to. [para. 14].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 14].

Ezokola v. Canada (Minister of Citizenship and Immigration) (2011), 420 N.R. 279; 2011 FCA 224, refd to. [para. 14].

Thomas v. Canada (Minister of Citizenship and Immigration) (2007), 317 F.T.R. 6; 2007 FC 838, refd to. [para. 14].

Chowdhury v. Canada (Minister of Citizenship and Immigration) (2006), 287 F.T.R. 1; 2006 FC 139, refd to. [para. 15].

Rathinasigngam v. Canada (Minister of Citizenship and Immigration) (2006), 298 F.T.R. 236; 2006 FC 988, refd to. [para. 15].

Kathiripillai v. Canada (Minister of Citizenship and Immigration) (2011), 398 F.T.R. 178; 2011 FC 1172, refd to. [para. 18].

Ardila v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 892; 143 A.C.W.S.(3d) 1072; 2005 FC 1518, refd to. [para. 19].

Blanco v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 347; 2006 FC 623, refd to. [para. 19].

Ali v. Canada (Solicitor General) (2005), 279 F.T.R. 296; 2005 FC 1306, refd to. [para. 19].

Rutayisire v. Canada (Minister of Citizenship and Immigration) (2010), 379 F.T.R. 44; 2010 FC 1168, refd to. [para. 19].

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. 20].

Harb v. Canada (Minister of Citizenship and Immigration) (2003), 238 F.T.R. 194; 2003 FCA 39, refd to. [para. 20].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 27].

JMS v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 162; 2011 FC 208, refd to. [para. 34].

Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66; 252 N.R. 380 (F.C.A.), refd to. [para. 36].

Justino v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 688; 2006 FC 1138, refd to. [para. 36].

Teganya v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 856; 2006 FC 590, refd to. [para. 36].

Islam v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 334; 2010 FC 71, refd to. [para. 36].

Baqri v. Canada (Minister of Citizenship and Immigration), [2002] 2 F.C. 85; 212 F.T.R. 275; 2001 FCT 1096, dist. [para. 37].

Poblete-Cardenas v. Minister of Employment and Immigration (1994), 74 F.T.R. 214 (T.D.), dist. [para. 37].

Ishaku v. Canada (Minister of Citizenship and Immigration) (2011), 382 F.T.R. 169; 2011 FC 44, refd to. [para. 52].

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), refd to. [para. 59].

Moreno and Sanchez v. Minister of Employment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210 (F.C.A.), refd to. [para. 60].

Penate v. Minister of Employment and Immigration, [1994] 2 F.C. 79; 71 F.T.R. 171 (T.D.), refd to. [para. 61].

Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al. (2012), 437 N.R. 202; 2012 SCC 65, refd to. [para. 67].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al., [2012] 1 S.C.R. 364; 428 N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, refd to. [para. 74].

Counsel:

Mr. MJS, on his own behalf, for the applicant;

Philippe Alma, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application for judicial review was heard in Vancouver, British Columbia, on August 19, 2012, before Crampton, C.J., of the Federal Court, who issued confidential reasons for judgment on February 13, 2013, and the following public reasons for judgment on March 20, 2013.