Nsika v. Canada (Minister of Citizenship and Immigration), (2012) 417 F.T.R. 133 (FC)

• Judge: Gleason, J.
• Court: Federal Court (Canada)
• Case Date: June 20, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 417 F.T.R. 133 (FC);2012 FC 1026

Nsika v. Can. (M.C.I.) (2012), 417 F.T.R. 133 (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. AU.040

Claude Armel Mfoutou Nsika (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-8775-11; 2012 FC 1026; 2012 CF 1026)

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

Federal Court

Gleason, J.

August 29, 2012.

Summary:

Nsika was a citizen of the Republic of Congo. The Refugee Protection Division of the Immigration and Refugee Board denied Nsika's refugee claim under s. 98 of the Immigration and Refugee Protection Act and art. 1F(a) of the United Nations Convention Relating to the Status of Refugees on the ground that there were serious reasons to believe that Nsika had been complicit in war crimes and crimes against humanity by reason of the role he played in the Congolese army.

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 - Nsika was a citizen of the Republic of Congo - He joined the Congolese army in 1991 and served until 1998, when he deserted following a coup d'état - The Refugee Protection Division (RPD) of the Immigration and Refugee Board denied Nsika's refugee claim under s. 98 of the Immigration and Refugee Protection Act and art. 1F(a) of the United Nations Convention Relating to the Status of Refugees on the ground that there were serious reasons to believe that Nsika had been complicit in war crimes and crimes against humanity by reason of the role he played in the Congolese army - In finding that Nsika was complicit in the crimes the army committed, the RPD applied the six Bahamin factors (Bahamin v. Minister of Employment and Immigration (1994 FCA)) - Nsika applied for judicial review - He argued that the correctness standard of review was applicable and that the Board applied the incorrect test to determine his complicity - Nsika argued that instead of focussing on the Bahamin factors, the RPD should have considered whether Nsika participated in any of the Congolese army's crimes in a manner analogous to that of a criminal accomplice - Nsika referred to Ezokola v. Canada (MCI) (2011 FCA) - The Federal Court dismissed the application - The correctness standard of review was applicable to the Board's enunciation of the test to be applied to determine complicity and the reasonableness standard was applicable to its application of that test to the facts - The decision in Ezokola did not mandate a new test for the determination of complicity, nor did it indicate that the Bahamin factors were inapplicable in assessing complicity - Rather, Ezokola upheld and applied the previous case law setting the parameters of the notion of complicity for purposes of s. 98 of the IRPA and art. 1F of the Convention - The Board applied the correct test - It was not an error for the Board to apply the Bahamin factors - The manner in which the Board applied the test to the facts was also reasonable - There was ample evidence from which it could reasonably conclude that Nsika was complicit in the war crimes and crimes against humanity committed by the Congolese army.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - [See Aliens - Topic 1330.2 ].

Cases Noticed:

Bahamin v. Minister of Employment and Immigration (1994), 171 N.R. 79 (F.C.A.), consd. [para. 5].

Ezokola v. Canada (Minister of Citizenship and Immigration), [2011] 3 F.C.R. 417; 420 N.R. 279; 2011 FCA 224, leave to appeal granted (2012), 435 N.R. 390 (S.C.C.), consd. [para. 12].

Ardila v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 892; 143 A.C.W.S.(3d) 1072; 2005 FC 1518, dist. [para. 12].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 14].

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 14].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 14].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 14].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

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].

Doré v. Barreau du Québec (2012), 428 N.R. 146; 343 D.L.R.(4th) 193; 2012 SCC 12, refd to. [para. 14].

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), refd to. [para. 19].

Sivakumar v. Minister of Employment and Immigration), [1994] 1 F.C. 433; 163 N.R. 197 (F.C.A.), refd to. [para. 19].

Penate v. Minister of Employment and Immigration, [1994] 2 F.C. 79; 71 F.T.R. 171 (T.D.), refd to. [para. 19].

Moreno and Sanchez v. Minister of Employment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210; 107 D.L.R.(4th) 424 (F.C.A.), refd to. [para. 19].

Mohammad v. Canada (Ministre de la Citoyenneté et de l'Immigration) (1995), 115 F.T.R. 161 (T.D.), refd to. [para. 19].

Bazargan v. Ministre de l'Emploi et de l'Immigration (1996), 205 N.R. 282 (F.C.A.), refd to. [para. 19].

Canada (Minister of Citizenship and Immigration) v. Hajialkihani, [1999] 1 F.C. 181; 156 F.T.R. 248 (T.D.), refd to. [para. 19].

Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66; 252 N.R. 380; 183 D.L.R.(4th) 713 (F.C.A.), refd to. [para. 19].

Sungu v. Canada (Minister of Citizenship and Immigration), [2003] F.C. 192; 2002 FCT 1207 (T.D.), refd to. [para. 19].

Harb v. Canada (Minister of Citizenship and Immigration) (2003), 238 F.T.R. 194; 2003 FCA 39, refd to. [para. 19].

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

Zazai v. Canada (Minister of Citizenship and Immigration) (2005), 339 N.R. 201; 2005 FCA 303, 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].

Sidna v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 969; 2007 FC 1046, refd to. [para. 19].

Bouasla v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. A52; 2008 FC 930, refd to. [para. 19].

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

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

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 98 [para. 2].

United Nations Convention Relating to the Status of Refugees, art. 1F(a) [para. 2].

Counsel:

Paul VanderVennen, for the applicant;

Martin Anderson, for the respondent.

Solicitors of Record:

VanderVennen Lehrer, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard on June 20, 2012, at Toronto, Ontario, before Gleason, J., of the Federal Court, who delivered the following decision on August 29, 2012.