Moreno and Sanchez v. Minister of Employment and Immigration, (1993) 159 N.R. 210 (FCA)

• Judge: Mahoney, Robertson and McDonald, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 04, 1993
• Jurisdiction: Canada (Federal)
• Citations: (1993), 159 N.R. 210 (FCA);1993 CanLII 2993 (FCA);107 DLR (4th) 424;159 NR 210;[1993] FCJ No 912 (QL);21 Imm LR (2d) 221;42 ACWS (3d) 1048

Moreno v. MEI (1993), 159 N.R. 210 (FCA)

MLB headnote and full text

Jose Rodolfo Moreno and Edith Francisca Parada Sanchez (appellants) v. The Minister of Employment and Immigration (respondent)

(A-746-91)

Indexed As: Moreno and Sanchez v. Minister of Employment and Immigration

Federal Court of Appeal

Mahoney, Robertson and McDonald, JJ.A.

September 14, 1993.

Summary:

A 16 year old member of the Salvadoran army deserted and fled with his wife to Canada. The Convention Refugee Determi­nation Division of the Immigration and Refugee Board rejected their Convention refugee claims. The Board held that they were excluded from the definition of "Con­vention refugees" because the husband had committed crimes against humanity during his army service (Immigration Act, s. 2(1) and the United Nations Conven­tion Relating to the Status of Refugees, art. 1, s. F). The couple appealed.

The Federal Court of Appeal allowed the appeal, set aside the decision of the Board and ordered that the matter be reconsidered by a differently constituted panel on the basis that art. 1, s. F of the Conven­tion did not apply to these aliens.

Aliens - Topic 1330.1

Admission - Refugees - Disqualifications - General - The Immigration Act, s. 2(1), defined "Convention refugee" as including certain persons, but excluded those to whom the United Nations Convention Relating to the Status of Refugees did not apply pur­suant to art. 1, s. F thereof - The Con­vention Ref­ugee Determination Divi­sion of the Immi­gration and Refugee Board held that an alien was not eligible for Conven­tion refugee status because of the exclu­sion clause - However, the Board did not rule alternatively on whether the alien could be considered a Convention refugee had the exclusion clause not applied - The Federal Court of Appeal opined that it would be prefer­able for the Board to have also made an alter­nate ruling on the refu­gee claim under the inclusion clause in s. 2(1) - See para­graphs 56 to 60.

Aliens - Topic 1330.1

Admission - Refugees - Disqualifications - General - The definition of "Convention refugee" in s. 2(1) of the Immigration Act excluded any person to whom the United Nations Conven­tion Relating to the Status of Refugees did not apply pursuant to art. 1, s. F thereof - Article 1, s. F, pro­vided that the Convention was not appli­cable to those in respect to whom there were "seri­ous reasons for consider­ing" that they had committed crimes against hu­manity etc. - The Federal Court of Appeal held that the words "serious reasons for considering" established a "less-than-civil-law" stan­dard of proof - However, the "less-than-civil-law" stan­dard was applicable only to questions of fact and was irrelevant when the issue being addressed was essentially a question of law - See paragraphs 14 to 28.

Aliens - Topic 1330.2

Admission - Refugees - Disqualifications - Crimes against humanity - [See second Aliens - Topic 1330.1 ].

Aliens - Topic 1330.2

Admission - Refugees - Disqualifications - Crimes against humanity - A 16 year old Salvadoran was forced to join the army - He served for four months before de­serting - He and his pregnant wife fled to Canada - Their refugee claim was rejected under the exclusion clause in s. 2(1) of the Immigration Act and in the United Nations Convention Relating to the Status of Refu­gees, art. 1, s. F, because of the husband's par­ticipation in crimes against humanity - The Federal Court of Appeal set aside the decision where the evidence fell signifi­cantly short of estab­lishing that there were "ser­ious reasons for considering" that the husband or mem­bers of his platoon par­ticipated in the killing of civilians - See paragraphs 1 to 42.

Aliens - Topic 1330.2

Admission - Refugees - Disqualifications - Crimes against humanity - A 16 year old Salvadoran was forced to join the army - He served for four months before de­serting - He and his pregnant wife fled to Canada - Their refugee claim was rejected under the exclusion clause in s. 2(1) of the Immigration Act and the United Nations Convention Relat­ing to the Status of Refu­gees, art. 1, s. F, because of the husband's partici­pation in crimes against humanity - The Federal Court of Appeal held that the Convention Refugee Determination Divi­sion of the Immigration and Refugee Board erred in determining that the wife's claim was dependent on that of her hus­band and too should fail because of the application of the exclusion clause - See paragraphs 61 to 66.

Aliens - Topic 1330.2

Admission - Refugees - Disqualifications - Crimes against humanity - A 16 year old Salvadoran was forced to join the army - During his four months of service before he deserted, he was in a unit which al­legedly killed civilians, although he claimed not to have done so himself - The army member and his pregnant wife fled to Canada - Their refugee claim was rejected under the ex­clusion clause in s. 2(1) of the Immigra­tion Act and the United Nations Con­ven­tion Relating to the Status of Refu­gees, art. 1, s. F, because of the hus­band's par­ticipation in crimes against hu­manity - The Federal Court of Appeal held that mere member­ship in an organiz­ation involved in inter­national offences was not sufficient basis for invoking the exclusion clause - See para­graph 44.

Aliens - Topic 1330.2

Admission - Refugees - Disqualifications - Crimes against humanity - On one occasion a conscripted member of the Salvadoran army watched without objec­tion while a prisoner he was guarding was tortured - The army member and his wife fled to Canada - Their refugee claim was rejected under the exclu­sion clause in s. 2(1) of the Im­migration Act and art. 1, s. F of the United Nations Refugee Conven­tion because of the hus­band's partici­pation in crimes against hu­manity - The Federal Court of Appeal held that the exclusion clause was inap­plicable, stating, inter alia, that "... a per­son forcibly con­scripted into the mili­tary, and who on one occasion witnessed the torture of a prisoner while on assigned guard duty, cannot be con­sidered at law to have com­mitted a crime against humanity" - See paragraphs 45 to 55.

Cases Noticed:

Canada v. Mehmet, [1992] 2 F.C. 598; 149 N.R. 375 (F.C.A.), refd to. [paras. 12, 56].

Ramirez v. Canada, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), consd. [para. 15].

Canada (Attorney General) v. Jolly, [1975] F.C. 216; 7 N.R. 271 (F.C.A.), refd to. [para. 16].

McMullen v. I.N.S. (1986), 788 F.2d 591 (9th Cir.), refd to. [para. 23].

Fedorenko v. United States (1981), 449 U.S. 490, refd to. [para. 28].

Ababio v. Ministre de l'Emploi et de l'Im­migration (1988), 90 N.R. 28; 5 Imm. L.R.(2d) 174 (F.C.A.), refd to. [para. 29].

Rabira (No. 2) v. Minister of Employment and Immigration (1989), 8 Imm. L.R.(2d) 179 (F.C.A.), refd to. [para. 29].

Armson v. Minister of Employment and Immigration (1989), 101 N.R. 327; 9 Imm. L.R.(2d) 150 (F.C.A.), refd to. [para. 29].

Sebaratnam v. Minister of Employment and Immigration (1991), 131 N.R. 158; 13 Imm. L.R.(2d) 264 (F.C.A.), refd to. [para. 29].

Hilo v. Minister of Employment and Im­migration (1992), 130 N.R. 236; 15 Imm. L.R.(2d) 199 (F.C.A.), refd to. [para. 12].

Ward v. Canada (Attorney General) (1993), 153 N.R. 321 (S.C.C.), refd to. [para. 31].

Musial v. Minister of Employment and Immigration, [1982] 1 F.C. 290; 38 N.R. 55 (F.C.A.), refd to. [para. 31].

Padilla v. Minister of Employment and Immigration (1991), 13 Imm. L.R.(2d) 1 (F.C.A.), refd to. [para. 31].

Zolfagharkhani v. Minister of Employment and Immigration (1993), 155 N.R. 311 (F.C.A.), refd to. [para. 31].

Laipenieks v. I.N.S. (1985), 750 F.2d 1427 (9th Cir.), refd to. [para. 44].

Naredo and Arduengo v. Minister of Em­ployment and Immigration (1990), 37 F.T.R. 161; 11 Imm. L.R.(2d) 92 (T.D.), refd to. [paras. 44, 58].

R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881; 27 N.R. 153; 47 C.C.C.(2d) 93; 12 C.R.(3d) 339 (Fr.); 8 C.R.(3d) 349 (Eng.), refd to. [para. 45].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281; 60 C.R.(3d) 289, refd to. [para. 48].

Cruz v. Minister of Employment and Im­migration (1989), 10 Imm. L.R.(2d) 47 (Imm. App. Bd.), refd to. [para. 58].

Caballero et al. v. Minister of Employment and Immigration (1993), 154 N.R. 345 (F.C.A.), refd to. [para. 59].

Astudillo v. Minister of Employment and Immigration (1979), 31 N.R. 121 (F.C.A.), refd to. [para. 62].

Gonzalez v. Minister of Employment and Immigration (1991), 129 N.R. 396; 14 Imm. L.R.(2d) 51 (F.C.A.), refd to. [para. 62].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(d) [para. 47].

Immigration Act, R.S.C. 1985, c. I-2, sect. 2(1) [para. 1].

United Nations Convention Relating to the Status of Refugees, art. 1, sect. F [para. 1].

Authors and Works Noticed:

Bassiouni, M. Cherif, Crimes Against Humanity in International Criminal Law (1992), p. 343 [para. 52].

Goodwin-Gill, G.S., The Refugee in In­ternational Law (1983), pp. 61-62 [para. 12].

Hathaway, James C., The Law of Refugee Status (1987), pp. 214-217 [paras. 12, 16].

Jaffe, L.L., Judicial Control of Adminis­trative Action (1965), p. 548 [para. 22].

Salmond on Jurisprudence (12th Ed. 1966), p. 10 [para. 22].

United Nations High Commissioner for Refugees Handbook, Handbook on Pro­cedures and Criteria for Determining Refugee Status (1979), p. 35, para. 149 [para. 12].

United Nations High Commissioner for Refugees Handbook, Legal Project in Canada, Paper 5, p. 4, para. 16 [para. 12].

Wade, Administrative Law (6th Ed. 1988), pp. 938, 939 [para. 22].

Waldman, Lorne, Immigration Law and Practice (1992), p. 8.108 [para. 12].

Counsel:

Barbara Jackman, for the appellants;

Claire LeRiche, for the respondent.

Solicitors of Record:

Hoppe and Jackman, Toronto, Ontario, for the appellants;

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

This appeal was heard in Toronto, Ontario, on June 4, 1993, and at Ottawa, Ontario, on September 2, 1993, before Mahoney, Robertson and McDonald, JJ.A., of the Federal Court of Appeal. The decision of the court was delivered by Robertson, J.A., in Vancouver, British Col­umbia, on Septem­ber 14, 1993.