Zrig v. Canada (Ministre de la Citoyenneté et de l'Immigration), (2003) 307 N.R. 201 (FCA)

• Judge: Décary, Létourneau and Nadon, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: December 17, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2003), 307 N.R. 201 (FCA);2003 FCA 178;229 DLR (4th) 235;307 NR 201;[2003] FCJ No 565 (QL);239 FTR 319

Zrig v. Can. (M.C.I.) (2003), 307 N.R. 201 (FCA)

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: [2003] N.R. TBEd. AP.041

Mohamed Zrig (appelant) v. Le Ministre de la Citoyenneté et de l'Immigration (intimé)

(A-33-02; 2003 FCA 178; 2003 CAF 178)

Indexed As: Zrig v. Canada (Ministre de la Citoyenneté et de l'Immigration)

Federal Court of Appeal

Décary, Létourneau and Nadon, JJ.A.

April 7, 2003.

Summary:

Zrig, a citizen of Tunisia, applied for Convention refugee status. The Refugee Division of the Immigration and Refugee Board held that Zrig was excluded from the definition of refugee based on arts. 1F(b) and 1F(c) of the United Nations Convention Relating to the Status of Refugees. Zrig applied for judicial review.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at 211 F.T.R. 219, dismissed the application. The court certified two questions for appeal. Zrig appealed.

The Federal Court of Appeal dismissed the appeal.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Apprehension of - The Refugee Division denied the applicant's claim for Convention refugee status - The panel's decision was overturned and the matter was remitted to a different panel - Shore, the coordinating member of the panel sitting at the first hearing, named two new members to conduct the rehearing - The new panel denied the applicant's claim - The trial judge held that the fact that Shore appointed the new members did not create an apprehension of bias - Shore's decisions were made in the ordi­nary course of his duties as coordinating member - He was never involved in, nor did he exercise any control over, the panel's decision on the merits, as the latter was not in any way under the coordinating member's control - The Federal Court of Appeal upheld the decision - See para­graphs 45 to 47.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Apprehension of - The applicant applied for Convention refugee status - Administrative personnel of the Immigration and Refugee Board temporar­ily paid the costs relating to the security of two of the Crown's witness - This occurred without the panel members' knowledge - The trial judge held that the payment of the security costs did not raise a reasonable apprehension of bias - Bias meant the state of mind or attitude of the decision-makers, not a tribunal's staff - It could not be said that an act done by staff could influence the state of mind or atti­tude of panel members who were not aware of it and took no part in the dis­cussions on the matter - Further, the costs were only paid temporarily because the Board was reimbursed - Finally, the panel attached no value to the two witnesses' testimony because they failed to appear for cross-examination - The Federal Court of Appeal upheld the decision - See para­graphs 45 to 47.

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal - Bias - Institutional or systemic bias - The applicant applied for Conven­tion refugee status - During the hearing by the Refugee Division, one member's as­signment ended - The Governor in Coun­cil renewed his assignment - The appli­cant's application was denied - The appli­cant alleged bias, arguing that the pro­cedure for renewing a member's mandate was a mat­ter for Cabinet, which included the Minis­ter of Citizenship and Immigra­tion, who was a party before the panel - The trial judge held that administrative indepen­dence was not infringed - Members of the Refugee Division were appointed during good behaviour for a maximum term of seven years - The term of office and its renewal was a matter for the Gov­ernor in Council, not the Minister of Citi­zenship and Immigration - The Federal Court of Appeal upheld the decision - See para­graphs 45 to 47.

Administrative Law - Topic 8868

Boards and tribunals - Members - Indepen­dence and impartiality - [See Administra­tive Law - Topic 2093 ].

Aliens - Topic 3.2

Definitions and general principles - Inter­national Conventions and obligations - In interpreting art. 1F(b) of the United Nations Convention Relating to the Status of Refugees, the Federal Court of Appeal considered decisions by the British Court of Appeal and the Federal Court of Austra­lia - The court recognized that it was not bound by the British and Australian judg­ments, but stated that "it is preferable, where possible, for the courts of signatory countries to an international Convention to adopt the same interpretation of the provi­sions of that Convention" - See paragraph 97.

Aliens - Topic 1326.3

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Refugee Division - Composition of panel - [See first Administrative Law -Topic 2088 and Administrative Law - Topic 2093 ].

Aliens - Topic 1330.3

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Disqualifications - Serious non-political crime - Article 1F(b) of the United Nations Convention Relating to the Status of Refugees provided that the Con­vention did not apply to a person with respect to whom there were serious reasons for considering that he had committed a "serious non-political crime" outside the country of refuge - The Federal Court of Appeal affirmed that the concept of com­plicity by association applied for purposes of an exclusion under art. 1F(b) - There­fore, an individual could be held respon­sible for serious non-political crimes com­mitted by others on account of his close association with those others - The court rejected the position that the exclusion in art. 1F(b) was limited to fugitives evading prosecution or to crimes that were extradit­able by treaty - See paragraphs 54 to 98.

Aliens - Topic 1330.3

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Disqualifications - Serious non-political crime - MTI/Ennahda was a movement that supported the use of viol­ence and had an armed branch that used terrorist methods - The ultimate aim of MTI/Ennahda was the creation of an Islamic state in Tunisia - The applicant became associated with MTI/Ennahda in 1983 - He eventually took on a leadership role in the movement - He subsequently sought Convention refugee status in Canada, claiming a fear of persecution for his political views - The Refugee Division held that applicant was excluded because there were serious reasons for considering that he was an accomplice by association in the commission of 12 serious non-politi­cal crimes attributed to MTI/Ennahda (United Nations Convention Relating to the Status of Refugees, art. 1F(b)) - The Fed­eral Court of Appeal upheld the Board's decision - By the duties the applicant performed, he knowingly tolerated, if not encouraged, the serious political crimes attributed to MTI/Ennahda - See para­graphs 99 to 103.

Aliens - Topic 4088

Practice - Hearings - Constitution of board - [See first Administrative Law - Topic 2088 and Administrative Law - Topic 2093 ].

Courts - Topic 108

Stare decisis - Authority of judicial deci­sions - English, American and foreign authorities - Decisions respecting interna­tional conventions - [See Aliens - Topic 3.2 ].

Cases Noticed:

Sivakumar v. Minister of Employment and Immigration, [1994] 1 F.C. 433; 163 N.R. 197 (F.C.A.), appld. [paras. 3, 133].

Gil v. Minister of Employment and Immi­gration, [1995] 1 F.C. 508; 174 N.R. 292 (F.C.A.), refd to. [paras. 30, 111].

T. v. United Kingdom, [1996] 2 All E.R. 865; 198 N.R. 174 (H.L.), refd to. [paras. 30, 112].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 37].

Bazargan v. Ministre de l'Emploi et de l'Immigration (1996), 205 N.R. 282 (F.C.A.), refd to. [paras. 56, 154].

Harb v. Canada (Ministre de la Citoyen­neté et de l'Immigration) (2003), 302 N.R. 178 (F.C.A.), refd to. [paras. 57, 149].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, consd. [paras. 60, 112].

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, consd. [paras. 60, 112].

Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390; 260 N.R. 376 (F.C.A.), consd. [paras. 60, 111].

B., Re, [1997] E.W.J. No. 700 (C.A.), folld. [paras. 73, 156].

Ovcharuk v. Minister for Immigration and Multicultural Affairs (1998), 158 A.L.R. 289 (F.C.), folld. [paras. 81, 112].

Malouf v. Canada (Minister of Citizenship and Immigration) (1995), 190 N.R. 230 (F.C.A.), refd to. [para. 111].

Brezinski et al. v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 525; 148 F.T.R. 296 (T.D.), refd to. [para. 111].

Minister for Immigration and Multicultural Affairs v. Singh, [2002] H.C.A. 7, refd to. [para. 112].

Immigration and Naturalization Service v. Aguirre-Aguirre (1999), 526 U.S. 415; 119 S. Ct. 1439 (Aust. S.C.), refd to. [para. 112].

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), refd to. [para. 132].

Moreno and Sanchez v. Minister of Em­ployment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210 (F.C.A.), refd to. [para. 153].

Sumaida v. Canada (Minister of Citizen­ship and Immigration), [2000] 3 F.C. 66; 252 N.R. 380 (F.C.A.), refd to. [para. 154].

R. v. Greyeyes (E.R.), [1997] 2 S.C.R. 825; 214 N.R. 43; 152 Sask.R. 294; 140 W.A.C. 294, refd to. [para. 166].

Preston v. R., [1949] S.C.R. 156, refd to. [para. 167].

R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881; 27 N.R. 153, refd to. [para. 168].

R. v. Kirkness, [1990] 3 S.C.R. 74; 116 N.R. 81; 69 Man.R.(2d) 81, refd to. [para. 169].

Statutes Noticed:

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

Authors and Works Noticed:

Bassiouni, M.C., Crimes Against Humanity in International Law (1999), generally [para. 110].

Bassiouni, M.C., International Criminal Law (2nd Ed. 1999), vol. 1, generally [para. 110]; p. 766 [para. 179].

Bliss, Michael, Serious Reasons for Con­sidering: Minimum Standards of Pro­cedural Fairness in the Application of the Article 1F Exclusion Clauses, in Interna­tional Journal of Refugee Law, Special Supplementary Issue of Exclusion (2000), vol. 12, p. 125, note 134 [para. 145].

Gilbert, Geoff, Current Issues in the Appli­cation of the Exclusion Clauses, une étude préparée à la demande de Haute Commissariat et destinée à une table ronde organisée en 2001 à l'occassion du 50e anniversaire de la Convention (2001), generally [para. 110]; p. 14 [para. 139].

Goodwin-Gill, Guy S., The Refugee in International Law (2nd Ed. 1996), gen­erally [paras. 84, 110]; p. 104 [paras. 123, 141].

Grahl-Madsen, Atle, The Status of Refugee Law (1966), pp. 291 [para. 124]; 297 [para. 144].

Hathaway, James C., The Law of Refugee Status (1991), pp. 221, 222 [para. 71]; 224 [para. 142].

International Journal of Refugee Law, Special Supplementary Issue on Exclu­sion (2000), generally [para. 110]; vol. 12, p. 125, note 134 [para. 145]; pp. 32, 33 [para. 143].

Rose, Parties To An Offence (1982), gen­erally [para. 169].

Takkenberg, Alex, and Tahbaz, Christopher C., The Collected Travaux Préparatoires of the 1951 Geneva Con­vention Relating to the Status of Refu­gees (1990), vols. 1 to 3 [para. 110]; vol. 1, p. 175 [para. 121].

United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refu­gees (1992), generally [para. 110]; para. 149 [para. 94]; pp. 151, 155, 157 [para. 140].

United Nations, Convention de Genève du 28 juillet 1951 relative au statut des réfugiés 50 ans après: Bilan et Perspec­tives (2001), generally [para. 110].

van Krieken, Peter J., Refugee Law in Context: The Exclusion Clause (1999), generally [para. 110].

Counsel:

Daniel Paquin, for the appellant;

Normand Lemyre and François Joyal, for the respondent.

Solicitors of Record:

Alarie, Legault, Beauchemin, Paquin, Jobin, Brisson & Philpot, Montreal, Quebec, for the appellant;

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

This appeal was heard at Montreal, Que­bec, on December 17, 2002, before Décary, Létourneau, and Nadon, JJ.A., of the Federal Court of Appeal. The judgment of the Fed­eral Court of Appeal was delivered at Ottawa, Ontario, on April 7, 2003, and the following opinions were filed:

Nadon, J.A. (Létourneau, J.A., concur­ring) - see paragraphs 1 to 105

Décary, J.A. - see paragraphs 106 to 183.