Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FC 1356

• Judge: Layden-Stevenson, J.
• Court: Federal Court (Canada)
• Case Date: August 12, 2004
• Jurisdiction: Canada (Federal)
• Citations: 2004 FC 1356;(2004), 262 F.T.R. 246 (FC)

Zazai v. Can. (M.C.I.) (2004), 262 F.T.R. 246 (FC)

MLB headnote and full text

Temp. Cite: [2004] F.T.R. TBEd. OC.044

Nasrullah Zazai (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-377-02; 2004 FC 1356)

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

Federal Court

Layden-Stevenson, J.

October 1, 2004.

Summary:

An adjudicator determined that Zazai, a native of Afghanistan, was inadmissible to Canada under s. 19(1)(j) of the Immigration Act because there were reasonable grounds to believe that he was complicit in crimes against humanity. Zazai applied for judicial review.

The Federal Court of Canada, Trial Division, in a decision reported [2003] F.T.R. Uned. 702, allowed the application and set aside the adjudicator's decision. The Minister of Citizenship and Immigration appealed.

The Federal Court of Appeal, in a decision reported 318 N.R. 365, allowed the appeal where the parties were in agreement that the applications judge erred in finding that the adjudicator committed an error in law in considering herself bound by certain findings of the Convention Refugee Determination Division. The court set aside the order of the applications judge and referred the matter to the Federal Court for redetermination. Two matters were in issue: (1) whether the adjudicator erred in arriving at her credibility determinations; and (2) whether complicity in crimes against humanity by reason of membership in an organization with a limited brutal purpose, which had its genesis in refugee law, had any application in relation to the admissibility provisions of the Immigration Act.

The Federal Court, in the decision reported below, dismissed the application, but certified the following question for consideration by the Court of Appeal:

"Does the definition of 'crime against humanity' found at s. 6(3) of the Crimes Against Humanity and War Crimes Act include complicity therein?"

Aliens - Topic 1323.4

Admission - Refugee protection, Convention refugees and persons in need of protection - Credible basis for claim - An adjudicator determined that Zazai, a native of Afghanistan, was inadmissible to Canada under s. 19(1)(j) of the Immigration Act because there were reasonable grounds to believe that he was complicit in crimes against humanity - When he first came to Canada he said that he served in a secret intelligence organization (KHAD) - However, before the adjudicator, he led evidence of two witnesses who claimed that he was not a member of KHAD, but rather was, at the relevant time, a student at the University of Kabul and a member of its volleyball team - The adjudicator found that the witnesses were not credible noting inconsistencies in their testimony - Zazai argued that the adjudicator erred in her credibility findings - The Federal Court rejected this argument - The court stated that findings of fact, including those of credibility, were best left to the trier of fact and that the applicable standard of review regarding findings of fact and credibility was that of patent unreasonableness - However, intervention was warranted in circumstances where the decision-maker arrived at a finding of fact having misconstrued or ignored relevant evidence and then relied on those findings when making an adverse determination as to credibility - See paragraphs 11 to 23.

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 stated that "the burden of establishing that international offences have been committed is on the Minister and, with respect to exclusion from refugee status, it must be shown that there are serious reasons for considering that a claimant committed international crimes ... The standard applies to factual determinations. Whether the acts or omissions in question constitute international crimes is a question of law ..." - See paragraph 26.

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 stated that "accomplices as well as principal actors may be found to have committed international crimes ... The court accepted the notion of complicity defined as a personal and knowing participation in Ramirez [v. M.E.I.] and complicity through association whereby individuals may be rendered responsible for the acts of others because of their close association with the principal actors in Sivakumar [v. M.E.I.]. Complicity rests on the existence of a shared common purpose and the knowledge that all of the parties may have of it ..." - See paragraph 27.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - An adjudicator determined that Zazai, a native of Afghanistan, was inadmissible to Canada under s. 19(1)(j) of the Immigration Act because there were reasonable grounds to believe that he was complicit in crimes against humanity - Zazai applied for judicial review, arguing that the jurisprudence respecting complicity within the meaning of the definition of Convention refugee did not apply to the admissibility provision in s. 19(1)(j) and therefore the adjudicator's decision should be set aside - The Federal Court rejected Zazai's argument and dismissed his application for judicial review.

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 reviewed the jurisprudence respecting complicity in war crimes and crimes against humanity which was developed in the context of refugee exclusion (i.e., in the context of the definition of Convention refugee in s. 2(1) of the Immigration Act and art. 1F of the Convention Relating to the Status of Refugees) - The court stated that this jurisprudence also was relevant and applicable to the inadmissibility provision in s. 19(1)(j) of the Immigration Act - Section 19(1)(j) provided that admission to Canada would not be granted for any person for whom there were reasonable grounds to believe had committed an offence referred to in any of ss. 4 to 7 of the Crimes Against Humanity and War Crimes Act - See paragraphs 25 to 54.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - [See Aliens - Topic 1323.4 ].

Aliens - Topic 1651

Exclusion and expulsion - Immigration - Deportation - Grounds for - War crimes or crimes against humanity - [See fourth Aliens - Topic 1330.2 ].

Aliens - Topic 1744.2

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons who have committed war crimes or crimes against humanity - [See fourth Aliens - Topic 1330.2 ].

Cases Noticed:

Chen v. Canada (Minister of Citizenship and Immigration) (1999), 240 N.R. 376 (F.C.A.), refd to. [para. 14].

Aguebor v. Ministre de l'Emploi et de l'Immigration (1993), 160 N.R. 315 (F.C.A.), refd to. [para. 14].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 14].

Lai v. Minister of Employment and Immigration, [1992] F.C.J. No. 906 (F.C.A.), 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. 25].

Gonzalez v. Minister of Employment and Immigration, [1994] 3 F.C. 646; 170 N.R. 302 (F.C.A.), refd to. [para. 25].

Moreno and Sanchez v. Minister of Employment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210 (F.C.A.), refd to. [para. 25].

Sivakumar v. Minister of Employment and Immigration, [1994] 1 F.C. 433; 163 N.R. 197 (F.C.A.), refd to. [para. 25].

Bazargan v. Ministre de l'Emploi et de l'Immigration (1996), 205 N.R. 282 (F.C.A.), refd to. [para. 25].

Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66; 252 N.R. 380 (F.C.A.), refd to. [para. 25].

Harb v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2003), 302 N.R. 178 (F.C.A.), refd to. [para. 25].

Penate v. Minister of Employment and Immigration, [1994] 2 F.C. 79; 71 F.T.R. 171 (T.D.), refd to. [para. 28].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2004] 1 F.C. 3; 309 N.R. 14 (F.C.A.), refd to. [para. 37].

Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), refd to. [para. 37].

Qu v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 3; 284 N.R. 201 (F.C.A.), refd to. [para. 37].

Andeel v. Canada (Minister of Citizenship and Immigration) (2003), 240 F.T.R. 1 (F.C.), refd to. [para. 37].

Gariev et al. v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 297; 2004 FC 531, refd to. [para. 38].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 41].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 41].

Yuen v. Canada (Minister of Citizenship and Immigration) (2000), 267 N.R. 87 (F.C.A.), refd to. [para. 41].

Zrig v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2003] 3 F.C. 761; 307 N.R. 201 (F.C.A.), refd to. [para. 44].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 46].

Rudolph v. Minister of Employment and Immigration, [1992] 2 F.C. 653; 142 N.R. 62 (F.C.A.), refd to. [para. 49].

Murillo v. Canada (Minister of Citizenship and Immigration) - see Morales Murillo v. Canada (Ministre de la Citoyenneté et de l'Immigration).

Morales Murillo v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2003] 3 F.C. 287; 230 F.T.R. 206 (T.D.), refd to. [para. 50].

Figueroa v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2000), 181 F.T.R. 242 (T.D.), refd to. [para. 54].

Statutes Noticed:

Immigration Act, R.S.C. 1985, c. I-2, sect. 2(1), sect. 19(1)(j), sect. 27(2)(a) [para. 24].

United Nations Convention Relating to the Status of Refugees, art. 1F(a) [para. 24].

Authors and Works Noticed:

Driedger - see Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes.

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 169 [para. 42].

Counsel:

Lorne Waldman, for the applicant;

Marcel Larouche, for the respondent.

Solicitors of Record:

Waldman & Associates, Toronto, Ontario, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on August 12, 2004, by Layden-Stevenson, J., of the Federal Court, who filed the following decision at Ottawa, Ontario, on October 1, 2004.