Date: 20060929
Docket: IMM-3940-05
Citation: 2006
FC 1163
Ottawa, Ontario, September 29, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
TARIQ SYED
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Tariq Syed, the Applicant, is a
citizen of Pakistan who first came to Canada as a refugee claimant in
1997. In 1999, his refugee claim was refused by a panel of the Immigration and
Refugee Board, Convention Refugee Determination Division (CRDD). The CRDD
concluded that Mr. Syed was excluded from being a refugee under Article 1 F(a)
of the United Nations Convention Relating to the Status of Refugees (the
Convention), on the basis that he had been complicit in the commission of
crimes against humanity. On July 4, 2000, the Applicant was deported from
Canada to Pakistan. In August 2001, the
Applicant returned to Canada, using a fake passport, and
sought to file another refugee claim. An admissibility hearing was held before
a panel of the Immigration and Refugee Board, Immigration Division (ID).
[2] In its decision, dated June 6, 2005, the
ID determined that:
- Mr. Syed is a person described in s.
41 and s. 52(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) “in that he is a
person who was previously deported from Canada and he returned to Canada
without the required consent of the [Minister]”; and
- Mr. Syed is a person described in s.
35(1)(a) of IRPA “in that there are reasonable grounds to believe
that he has been complicit in crimes against humanity.”
[3] The ID issued a Deportation Order against
Mr. Syed.
[4] Mr. Syed does not dispute the first of
these determinations but seeks to overturn the Deportation Order on the basis
that the ID erred in its conclusion that there are reasonable grounds to
believe that he was complicit in crimes against humanity.
Issues
[5] Mr. Syed raises the following issues:
Did the ID err in relying on
the findings made by the CRDD without engaging in an independent analysis of
the facts and whether the facts constituted a crime against humanity within the
meaning of sections
4 to 7 of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c.
24 (Crimes Against Humanity Act)?
[6] In his written submissions, Mr. Syed also
raised an issue based on s. 7 of the Canadian Charter of Rights and Freedoms,
s. 7, Part I of the Constitution Act, 1982, being Schedule
B to the Canada Act, 1982, (U.K.), 1982, c. 11. Mr. Syed
abandoned this issue at the hearing of this application.
Relevant Statutory Provisions
[7] Section 35(1)(a) of IRPA provides
that a foreign
national is inadmissible as a permanent resident of Canada on grounds of
violating human or international rights “for committing an act outside of Canada that constitutes an offence
referred in sections 4 to 7 of the Crimes Against Humanity and War Crimes
Act.”
[8] Section 15(b) of the Immigration and Refugee
Protection Regulations,
S.O.R./2002-227 (IRP Regulations) applies in situations, such as that
before me, where a foreign national has previously been found to be
inadmissible to Canada.
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(b) a determination by
the Board, based on findings that the foreign national or permanent resident
has committed a war crime or a crime against humanity, that the foreign
national or permanent resident is a person referred to in section F of
Article 1 of the Refugee Convention; or
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b) toute décision de la Commission, fondée sur les conclusions que
l’intéressé a commis un crime de guerre ou un crime contre l’humanité, qu’il
est visé par la section F de l’article premier de la Convention sur les
réfugiés;
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CRDD Decision
[9] Since the ID must accept as conclusive
those findings of fact set out in the CRDD decision, it will be helpful to
describe what those “findings of fact” were. As noted, the CRDD, in its
decision of June 30, 1999, determined that Mr. Syed was excluded from the
refugee definition pursuant to Article 1F(a) of the Convention. In coming to
this determination, the CRDD made a number of findings, the most important of
which were the following:
- Mr. Syed was a member of the Karachi
Police Force and a member of the Pakistani Criminal Investigation Agency
(CIA);
- Mr. Syed knowingly and freely joined
these organizations and remained freely in the organizations as a
policeman for 11 years;
- The Karachi Police Force and CIA are
“two of the most brutal forces in the world”, whose members tortured and
killed 40% of the prisoners in their custody;
- The fact that Mr. Syed was aware
that 40% of prisoners were being killed in fake encounters and yet
continued to arrest members of the MQM was “evidence of the claimant’s
complicity in crimes against humanity”.
[10] Mr. Syed filed an application for leave
and judicial review of the CRDD decision; leave was denied on September 23,
1999 (Court file no. IMM-3648-99).
ID Decision
[11] The question of reliance on the CRDD
findings of fact was considered in an interim decision dated May 14, 2003. In
that interim decision, the ID reviewed the findings of fact referred to in the
CRDD decision and concluded as follows:
The findings of fact that are binding on
the Immigration Division in this case are those set out on page 8 of the CRDD
Decision . . . I am bound by Regulation 15 to accept them as conclusive
findings of fact.
[12] One of those “findings of fact” was that
Mr. Syed was complicit in crimes against humanity. In its final decision, dated
June 6, 2005, the ID concluded that “Tariq Syed is a person described under s.
35(1)(a) of IRPA in that there are reasonable grounds to believe that he
has been complicit in crimes against humanity”.
Analysis
[13] The first argument of Mr. Syed is that
the ID erred in finding that the definition of crimes against humanity in s.
35(1)(a) of IRPA includes persons found to be complicit in those crimes.
That question has now been directly answered by the Court of Appeal in Zazai
v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J.
No. 1567. In Zazai, the Court of Appeal confirmed that complicity is
included in the crimes against humanity and that complicity in such crimes
makes an individual inadmissible pursuant to s. 35(1)(a) of IRPA. This
argument of Mr. Syed fails.
[14] The second argument by Mr. Syed is that
the ID erred in its analysis by accepting the CRDD’s finding of complicity as a
finding of fact. In Mr. Syed’s view, the CRDD was to undertake its own analysis
to make an independent finding on the question of whether acts engaged in
constituted crimes against humanity and whether complicity was established. To
do so, in Mr. Syed’s submission, the ID was required to undertake the analysis
set out in Mugesera v. Canada (Minister of Citizenship and
Immigration), [2005] 2 S.C.R. 100; [2005] S.C.J. No. 39 at para. 119.
[15] Fundamentally,
this second question is one of statutory interpretation. What is the proper
meaning of s. 15 of the IRP Regulations? Under s. 15, is the ID to treat
the CRDD’s finding that Mr. Syed was complicit in crimes against humanity as a
“conclusive finding of fact”? If the ID was not permitted to treat the
complicity finding as conclusive, it follows that the ID was required to
undertake an analysis to determine that issue. However, if the CRDD’s finding
that Mr. Syed was complicit in crimes against humanity was to be accepted by
the ID, the only question for the ID was whether this finding resulted in
inadmissibility under s. 35 of IRPA.
[16] The
intent of s. 15 of the IRP Regulations is obvious; once a foreign
national is adjudged to be inadmissible, the underlying findings of the
adjudicator are settled. At the time of the original inadmissibility hearing,
the foreign national has had every opportunity to present evidence and argument
related to the questions in issue. The foreign national has also had access to
judicial review. As noted above, Mr. Syed sought judicial review of the
original inadmissibility decision.
[17] Given
this overarching purpose of s. 15, I turn to what is meant by the words used in
that provision that “the findings of fact set out in that decision or
determination shall be considered as conclusive findings of fact”.
[18] It
is well established that the meaning of a statutory provision cannot be
established by reading the words in isolation. In the decision R. v. Jarvis,
[2002] 3 S.C.R. 757, at para. 77, Justices Major and Iacobucci wrote:
The
approach to statutory interpretation can be easily stated: one is to seek the
intent of Parliament by reading the words of the provision in context and
according to their grammatical and ordinary sense, harmoniously with the scheme
and the object of the statute.
[19] Mr.
Syed argues that the CRDD’s finding that he was complicit in crimes against
humanity is not a question of fact but a question of law (Mugesera at
para. 116). Section 15 expressly allows the ID to rely only on determinations
of fact. Accordingly, Mr. Syed concludes, the ID erred by relying on the
decision of the CRDD that he was complicit in crimes against humanity.
[20] The
problem with this interpretation is that it ignores the intent of s. 15 and
fails to consider the words in the context of the entire provision.
[21] On
Mr. Syed’s interpretation, the ID would be forced to revisit the same arguments
that were before the CRDD on whether the Karachi Police and the CIA were
implicated in crimes against humanity and whether Mr. Syed was complicit in
those crimes. In Mr. Syed’s view, the ID was required to apply the factors set
out in Mugesera to reach its own separate determination of the issues of
crimes against humanity and complicity in those crimes. In other words, Mr.
Syed argues that the ID is required to duplicate the analysis already carried
out by the CRDD. In my view, this is precisely the undesirable result that s.
15 is intended to overcome.
[22] Next,
I turn to the words of the paragraphs of s. 15, where the actual decisions
subject to the conclusive finding of facts are described. The class of decision
applicable to this review is set out in paragraph (b) as a “determination by
the Board, based on findings that the foreign national . . . has committed a
war crime or crime against humanity, that the foreign national . . . is a
person referred to in section F of Article 1 of the Refugee Convention”. In
other words, the “findings” that are referred to in this paragraph explicitly
include the findings that the foreign national has committed a crime against
humanity. In my view, the earlier reference in the section to “findings of
fact” must be read together with this paragraph. The result is that, for
purposes of s. 15 of the IRP Regulations, a finding by the CRDD
that a foreign national has been complicit in crimes against humanity is a
finding of fact and, thus, a finding that must be accepted as conclusive by the
ID in assessing admissibility under s. 35(1)(a) of IRPA. This leads to
an interpretation that is consistent with the intent of the provision, that
avoids duplication and that respects the language used.
[23] My
conclusion that a finding of complicity in or commission of crimes against
humanity is a finding of fact is limited to the interpretation of s. 15 of the IRP
Regulations. It may be that a different characterization of such a finding
is required when considering, for example, the standard of review of an
inadmissibility decision of a visa officer or by the Refugee Protection
Division of the Immigration and Refugee Board. As another example, the Supreme
Court in Mugesera, in describing a finding of crimes against humanity as
a question of law, was considering the "reasonable grounds to
believe" standard set out in s. 35 of IRPA. In the application
before me, I am not dealing with those issues.
[24] Even
if I accept a more restrictive meaning for the term “finding of fact” in s. 15,
the result is not, in my view, an automatic revisit of the question of
complicity or commission of crimes against humanity. In Abdeli v. Canada (Minister of Public Safety
and Emergency Preparedness), 2006 FC 1047, Justice Kelen was faced with a
similar situation. In that case, the applicant had been found by the CRDD to be
inadmissible on the basis of crimes against humanity. In a decision dealing
with the applicant’s application for permanent residence, a visa officer
concluded that the applicant was inadmissible pursuant to s. 35(1)(b). With
respect to the effect of s. 15, Justice Kelen stated the following, at para 22:
In
this case, we are dealing with a later case where Parliament has intended that
the earlier factual findings of the CRDD must be adopted by the immigration
officer. Accordingly, officer Siaflekis was obliged to accept as conclusive the
CRDD’s findings that the applicant had served in the Iranian army at a time
when it committed activities “principally directed to a limited, brutal
purpose” and that the applicant had “personal and knowing participation” of
those atrocities. In sum, the officer was bound to accept as fact the acts upon
which the applicant was found complicit in war crimes or crimes against
humanity.
[25] Almost
identical facts are presented in the application before me. Thus, at the very
least, the ID was obliged to accept as conclusive the CRDD’s findings that Mr.
Syed:
- had
served, knowingly and freely, in “two brutal police organizations”;
- was
aware of the abuses committed by the police forces; and
- continued
to arrest and detain individuals knowing that 40% of prisoners were killed
in custody.
[26] On
these facts, there is no doubt that Mr. Syed’s behaviour amounts to complicity
in the commission of crimes against humanity. Given the facts in this case and
the operation of s. 15 of the IRP Regulations, the ID was compelled to
find that Mr. Syed is inadmissible under s. 35(1)(a) of IRPA. There was
no error in the analysis performed by the CRDD (as confirmed by the
unsuccessful application for judicial review); there is no error by the ID.
Conclusion
[27] In conclusion, for these reasons, Mr.
Syed has failed to persuade me that there was any error in the decision of the
ID.
[28] Parties will have until October 13, 2006
to propose any question for certification and seven days thereafter to respond.
ORDER
This
Court orders that:
- The
application for judicial review is dismissed; and
- The
parties will have until October 13, 2006 to propose any question for
certification and seven days thereafter to respond.
“Judith A. Snider”
____________________________
Judge
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