Docket: IMM-5514-13
Citation:
2015 FC 99
Ottawa, Ontario, January 26, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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HOMAYON AAZAMYAR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter and Background
[1]
Pursuant to subsection 25(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], the Applicant
requested exemptions from several requirements of the IRPA on
humanitarian and compassionate [H&C] grounds. A senior immigration officer
[Officer] refused that request on July 29, 2013. The Applicant now seeks
judicial review of that refusal under subsection 72(1) of the IRPA,
asking the Court to set aside the negative decision and return the matter to a
different officer for re-consideration.
[2]
The Applicant is now a 49 year-old citizen of Afghanistan who came to Canada with his wife and two daughters (then ages 1 and 3) on April 15, 2008.
They immediately sought refugee protection and, before their hearing, the
Applicant’s wife gave birth to another daughter in 2011. On June 1, 2012, the
Refugee Protection Division [the RPD] of the Immigration and Refugee Board
decided that the Applicant’s wife and his two older children were Convention
refugees.
[3]
However, the RPD determined that the Applicant
was not a Convention refugee since, between 1984 and 1989 or 1991, he had been
a member of the Afghan Air Force [the AAF], an organization which had committed
war crimes and crimes against humanity during that time. The Applicant had
voluntarily joined the AAF and eventually attained the rank of captain.
Although the Applicant claimed to just be an instructor who primarily trained
civilian pilots, the RPD did not consider him credible. The RPD also found that
the Applicant knew or should have known about the crimes the AAF was committing
and could have left at any time without repercussions. When the Applicant
eventually deserted from the AAF, the RPD determined it was only because it had
become too dangerous and not because he was uneasy about the human rights
abuses the AAF was committing. The RPD decided that there were serious reasons
to consider that the Applicant was complicit in war crimes and crimes against
humanity and, therefore, excluded from refugee protection pursuant to section
98 of the IRPA and article 1F (a) of the Convention Relating to the
Status of Refugees, 28 July 1951, 189 UNTS 150, Can TS 1969 No 6.
[4]
In November, 2012, the Applicant applied for a
pre-removal risk assessment [PRRA] pursuant to subsection 112(1) of the IRPA,
but that application was dismissed on February 13, 2013. The Applicant’s family
had only received refugee protection because of his wife’s employment, and the PRRA
officer did not believe that anyone would remember that the Applicant’s wife
had worked for a western organization over five years ago or target the
Applicant for that reason. The PRRA officer also determined that the Applicant
was only eligible for protection under section 97(1) of the IRPA, and
while there might be some risks to the Applicant in Afghanistan, the PRRA
officer was not convinced that any of them were personalized. Thus, the PRRA
officer dismissed the application, and this Court denied the Applicant leave to
apply for judicial review of that decision on June 20, 2013 (Aazamyar v
Minister of Citizenship and Immigration, IMM-1932-13).
[5]
Meanwhile, the Applicant had also applied for
humanitarian and compassionate [H&C] consideration on June 29, 2012, and he
submitted additional information on December 18, 2012.
II.
Decision under Review
[6]
On July 29, 2013, the Officer refused the
Applicant’s H&C application.
[7]
After summarizing the decisions of the RPD and
the PRRA officer, the Officer determined that the Applicant was fairly
well-established in Canada. He has a Bachelor degree, works a number of
part-time jobs, and plans to open a business with his wife. In the Officer’s
determination, the Applicant was thus financially self-sufficient and did not
depend on social assistance. The Officer also accepted that the Applicant
volunteers for the Salvation Army and helps his elderly neighbours. As well,
the Officer noted that the Applicant’s wife and two oldest children are
Convention refugees and had applied for permanent residence. The Officer
decided that these facts supported the Applicant’s H&C application.
[8]
The Officer next considered the best interests
of the Applicant’s three children. The Applicant had made some arguments with
respect to articles 9 and 18 of the Convention on the Rights of the Child,
1577 UNTS 3, Can TS 1992 No 3, but these were dismissed. The Officer found that
neither article governed when it could be acceptable to separate children from
their parents through incarceration or deportation. Nevertheless, the Officer
accepted that an indefinite separation of the children from their father was
the likeliest outcome of deporting the Applicant, since his wife and children
would face a serious risk of persecution if they returned with him to Afghanistan. The Officer accepted that this would be a severe disruption, since the family
was close-knit and the Applicant was a fine father. While the children may
eventually adjust, the Officer accepted that the absence of their father would
have a serious impact on them. The Applicant’s absence would also make life
difficult for his wife, who would be forced to care for all three children on
her own with reduced finances, which would probably delay or end her plans to
open a business or go to law school. The Officer concluded that “it is clearly in the children’s best interest that Mr.
Aazamyar remain in Canada with them.”
[9]
The Officer also observed that Afghanistan is a country to which Canada has temporarily stayed removals. Although the Applicant
cannot benefit from that stay, it was evidence that conditions are very
difficult in that country. Nevertheless, the Officer noted that millions of
Afghan refugees have returned to Afghanistan since the war ended, and 60% of
them reintegrated themselves into their home communities. As well, large cities
like Kabul and Herat were relatively safe, and the Officer noted that the
Applicant had lived in Kabul from 2002 to 2007 and only left for India in 2007 because of the risks faced by his wife. The Officer was unable to discern
what further hardships the Applicant would suffer if he returned to Afghanistan now, apart from the separation from his family. Despite this, the Officer
accepted that the Applicant would likely experience some hardship because of
the general conditions in Afghanistan.
[10]
The Officer then said that the question was
whether such hardship would be unusual, undeserved, or disproportionate.
Despite the findings of the RPD, the Officer noted that the Applicant continued
to deny and minimize his complicity in war crimes and crimes against humanity.
The Officer thus wrote as follows:
Here, Mr. Aazamyar does not come with clean
hands. He continues to deny or minimize or misrepresent his complicity with war
crimes or crimes against humanity. These self-serving statements show a
disregard for the gravity of the RPD findings or the nature of the conflict
with which he was involved. Even more seriously, it shows a disregard for the
many victims of the Afghan Air Force, in which he held an important post. This
is a strong negative factor and I give it considerable weight.
[11]
While this complicity ended over 20 years ago
and the Applicant presented no risk to Canada now, the Officer stated that the IRPA
typically intends that people like the Applicant be kept out of Canada. In this regard, the Officer stated:
Mr. Aazamyar’s complicity appears to have ended
in either 1989 or 1991. He appears to have a positive record since then. He
does not appear to be a security risk with respect to a forward-looking risk to
Canada.
However, given the CBSA submissions and RPD
findings, there are reasonable grounds to believe Mr. Aazamyar is inadmissible
under s. 35 for his complicity. Mr. Aazamyar acknowledges this, with his
request for a waiver of inadmissibility.
There are always exceptional situations but in
my understanding the goal of IRPA is to deny “access to Canadian territory” to
persons who are so described, notwithstanding that they are not a present
threat.
[12]
Thus, the Officer found that the Applicant’s
complicity was a strong negative factor that vastly outweighed the hardships
that his removal from Canada would cause him and his family. As the Officer
stated in section 5 of his decision:
The RPD conducted a thorough assessment and
found he was complicit in war crimes or crimes against humanity. He was not a
credible witness. Here, he repeats his misrepresentation about the nature of
his role with the Afghan Air Force (that he was a trainer of civilian pilots,
rather than a commander in a fighting unit) and does not engage the RPD’s
arguments. He is not being as candid about his past as he is about his family
life.
[13]
Ultimately, considering all of the
circumstances, the Officer concluded that “the potential
hardship in this case is not unusual, undeserved or disproportionate,”
and thus decided that this situation was not so exceptional that the Applicant
should be exempt from inadmissibility or any other requirements of the IRPA.
III.
The Parties’ Submissions
A.
The Applicant’s Arguments
[14]
The Applicant says that the Officer consulted a
number of documents that he neither submitted nor even possessed, and he argues
that it was unfair for the Officer not to disclose them to him and invite his
input.
[15]
The Applicant also argues that the Officer’s
decision with respect to the Applicant’s complicity in war crimes is
unreasonable since it was made without explicit reference to Ezokola v
Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 [Ezokola],
which was released some 10 days before the date of the Officer’s decision. The
Applicant notes that the Officer relied heavily upon the RPD’s reasons, and he
argues that the Officer did not properly consider the reduced scope of
complicity that was established by Ezokola.
[16]
Specifically, the Applicant submits that
although the Officer could rely upon the factual findings made by the RPD, the Officer
was wrong to adopt the RPD’s legal conclusion that the Applicant was complicit.
Accordingly, the Applicant argues that the Officer did not reasonably assess
the degree and scope of the Applicant’s complicity in war crimes. Moreover, the
Applicant submits that there is some doubt as to whether an H&C officer has
statutory authority or the requisite training to make a legal conclusion as to
the Applicant’s complicity.
[17]
Furthermore, the Applicant says it was
unreasonable for the Officer to conclude that the Applicant would not
experience undue hardship simply because he failed to grapple with the RPD’s findings
of complicity. The Applicant submits that the RPD’s factual findings speak for
themselves, so it was inappropriate for the Officer to focus upon the
Applicant’s lack of candour or failure to show any remorse for his complicity. As
that was the primary reason for the decision and his application was otherwise
supported by all the other factors outlined in section 5.11 of the Operational
Manual, IP5, Immigrant Applications in Canada made on Humanitarian and
Compassionate Grounds, the Applicant says that the Officer’s whole decision
was unreasonable.
[18]
Finally, the Applicant submits that the “nail in the coffin” in the Officer’s decision is the
fact that he cannot apply for permanent residency from abroad if he is
inadmissible for complicity in war crimes and crimes against humanity.
B.
The Respondent’s Arguments
[19]
The Respondent argues that it does not matter
that the Applicant cannot apply for permanent residency from abroad; this is an
H&C application for an exemption from the requirement of the IRPA,
and the Respondent says that separation of families is sometimes an inevitable
outcome in this process. According to the Respondent, the Officer had due and appropriate
regard to the best interests of the children in this case. That factor alone,
however, is not determinative. The Respondent also notes that this is not a
correctness review which allows the Court to assess whether the factors were
properly weighed. The fact of the matter, according to the Respondent, is that
the Applicant failed to fully and candidly deal with his complicity in the
AAF’s war crimes, which the Officer determined was a significant negative
factor.
[20]
Further, the Respondent says that the Officer
has jurisdiction to consider the factors surrounding the Applicant’s complicity
in the war crimes, and that it was necessary to address such issues because the
question of the Applicant’s inadmissibility was clearly in issue. Citing the
decision in Syed v Canada (Minister of Public Safety and Emergency
Preparedness), 2006 FC 1163 at para 23, 300 FTR 132 [Syed], the
Respondent states that the Officer was obliged to accept the RPD’s
determination that the Applicant was complicit in war crimes and crimes against
humanity.
[21]
The Respondent argues that the Supreme Court of
Canada’s decision in Ezokola does not change that, because it simply
refined the prior law concerning complicity; it did not radically depart from
it. According to the Respondent, one still needs to look to any culpable
complicity, and this is not a case of the Applicant’s guilt by association in
the war crimes committed by the AAF. On the contrary, the Applicant was a
senior officer. In the Respondent’s view, the Officer appropriately imported
the RPD’s factual findings concerning the Applicant’s complicity in such crimes,
and they support the Officer’s conclusion that the Applicant was complicit in
the AAF’s crimes. Thus, according to the Respondent, Ezokola does not
affect the Officer’s decision.
[22]
The Respondent therefore urges the Court, on the
basis of Kamanzi v Canada (Citizenship and Immigration), 2013 FC 1261
(available on CanLII) [Kamanzi], to apply the “futility
doctrine”, since it would be pointless to send the matter back to another
officer who, even applying the refined test set out in Ezokola, could
only find the Applicant was complicit in the AAF’s war crimes.
[23]
Finally, the Respondent also argues that the
process was fair. None of the allegedly undisclosed documents contained
information that was unknown to the Applicant, and the Officer did not rely on
them in any event. Rather, the RPD decision was the focus of the decision, and
that was something the Applicant clearly had.
IV.
Analysis
A.
Standard of Review
[24]
The appropriate standard of review for an
H&C decision is that of reasonableness since it involves questions of mixed
fact and law: see, e.g., Kisana v Canada (Minister of Citizenship and
Immigration), 2009 FCA 189 at para 18. The Federal Court of Appeal recently
confirmed in Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA
113 at paras 30, 32, 372 DLR (4th) 539, that an H&C decision is analogous
to the type of decision that attracted the reasonableness standard of review in
Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC
36, [2013] 2 S.C.R. 559.
[25]
The Court should not interfere, therefore, if an
H&C officer’s decision is intelligible, transparent, justifiable, and falls
within the range of possible, acceptable outcomes defensible in respect of the
facts and the law. It is not up to this Court to reweigh the evidence that was
before the Officer, and it is not the function of this Court to substitute its
own view of a preferable outcome: Dunsmuir v New Brunswick, 2008 SCC 9
at para 47, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at paras 59, 61, [2009] 1 S.C.R. 339. As a corollary, this means that the
Court does not have “carte blanche to reformulate a
tribunal’s decision in a way that casts aside an unreasonable chain of analysis
in favour of the court’s own rationale for the result” (Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para
54, [2011] 3 S.C.R. 654).
B.
Was the Officer’s Decision Reasonable?
[26]
Neither party argued that the Officer’s
determinations in respect of the best interests of the Applicant’s children and
the Applicant’s degree of establishment were not reasonable. Those factors
favoured the Applicant and, thus, the issue of complicity was the determinative
factor in the Officer’s mind.
[27]
The essential question to address, therefore, is:
was the Officer’s decision with respect to the Applicant’s complicity
reasonable? Although officers considering a request for an H&C exemption
are not necessarily responsible for finding foreign nationals inadmissible, an
important factor in this case was the Officer’s belief that the Applicant is
inadmissible to Canada by virtue of subsection 35(1) of the IRPA.
Therefore, it must first be determined whether the Officer was bound by the
RPD’s legal conclusion that the Applicant was complicit in the crimes against
humanity committed by the AAF.
[28]
Paragraph 15(b) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 [Regulations], provides
as follows:
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15. For the purpose of determining
whether a foreign national or permanent resident is inadmissible under
paragraph 35(1)(a) of the Act, if any of the following decisions or
the following determination has been rendered, the findings of fact set out
in that decision or determination shall be considered as conclusive findings
of fact:
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15. Les décisions ci-après ont, quant aux
faits, force de chose jugée pour le constat de l’interdiction de territoire
d’un étranger ou d’un résident permanent au titre de l’alinéa 35(1)a)
de la Loi :
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…
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…
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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; …
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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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[29]
In Syed, this Court suggested that not
only the factual findings of the RPD but also its determination of complicity
are binding “findings of fact” when making
admissibility findings under section 35 of IRPA (Syed at paras
14-23). In contrast, in Abdeli v Canada (Minister of Public Safety and
Emergency Preparedness), 2006 FC 1047 at para 19, [2006] FJC No 1322 (QL) [Abdeli],
the Court stated that an officer “must make the findings
of fact that the applicant committed crimes against humanity. These factual
findings are different from any conclusion the Board may have made with respect
to whether a person is excluded.”
[30]
Recently, in Johnson v Canada (Citizenship
and Immigration), 2014 FC 868, [2014] FCJ No 893 (QL) [Johnson], my
colleague Madam Justice Anne Mactavish determined that the interpretation of paragraph
15(b) of the Regulations in Abdeli is the correct one. In this
regard, Justice Mactavish stated as follows:
[24] Subsection 15(b) of the Regulations
stipulates that the findings of fact made by the Board in an exclusion
proceeding are to be considered as conclusive findings of fact in an
admissibility determination under section 35 of IRPA. This makes sense,
as it limits the potential for re-litigation of factual matters that have
already been assessed by an expert tribunal in the context of an oral hearing.
[25] Nothing in subsection 15(b) of the Regulations
suggests that officers are bound by findings of mixed fact and law that
have been made by the Board. Rather the task of immigration officers making admissibility
determinations is to take the findings of fact that have been made by the Board
and consider them in light of the provisions of section 35 of IRPA in
order to determine whether or not the individual in question is admissible to
Canada.
[Emphasis in original]
[31]
I agree with the foregoing conclusion which, in
turn, means that although an H&C officer making an admissibility
determination must accept and adopt the RPD’s findings of fact, he or she needs
also to independently make whatever findings of mixed fact and law that are
necessary to decide if the individual in question is inadmissible. Accordingly,
in the present case, while the Officer was bound by the RPD’s factual findings,
he was not bound by its conclusion that the Applicant was complicit in the
crimes against humanity committed by the AAF.
[32]
It is therefore necessary to consider whether it
was reasonable for the Officer to reject the Applicant’s application without
referring to Ezokola. In this regard, Mr. Justice Yves de Montigny said
the following in Sabadao v Canada (Citizenship and Immigration), 2014 FC
815 at para 22 (available on CanLII):
[A]n officer ought to consider recent
jurisprudential developments, not for the purpose of indirectly or implicitly
overturning a final decision, but for the purpose of balancing that factor with
other H&C grounds. … If, as a result of a new jurisprudential
interpretation of an inadmissibility provision, the Applicant's refugee claim
might have turned out differently, it is obviously a factor that the Officer
should have taken into consideration in assessing his H&C claim.
[33]
After the RPD’s determination of the Applicant’s
complicity and shortly before the Officer’s decision, the Supreme Court
determined in Ezokola that the Canadian approach to criminal participation
in crimes against humanity or war crimes had been overextended and it refined
the test to fix that problem.
[34]
Now, mere association becomes culpable
complicity only “when an individual makes a significant
contribution to the crime or criminal purpose of a group” (Ezokola at
para 87 (emphasis in original)). Furthermore, a claimant must be aware of the
organization’s crime or criminal purpose and be aware that “his or her conduct will assist in the furtherance of
the crime or criminal purpose” (Ezokola at para 89 (emphasis in
original)). When deciding if there are serious reasons for considering that
someone is complicit, the six guiding factors are to “be
weighed with one key purpose in mind: to determine whether there was a
voluntary, significant, and knowing contribution to a crime or criminal purpose”
(Ezokola at para 92).
[35]
It is clear from the record that the RPD
reviewed and applied the pre-Ezokola test for assessing the Applicant’s
complicity, notably with reference to the test in Ramirez v Canada (Minister
of Employment and Immigration), [1992] 2 FCR 306, 89 DLR (4th) 173 (CA) [Ramirez]
and Moreno v Canada (Minister of Employment and Immigration) (1993),
[1994] 1 FCR 298, 107 DLR (4th) 424 (CA). It is not clear, however, whether the
Officer did the same.
[36]
Although the Officer here did not specifically
refer to or apparently rely upon the test for complicity as refined by the
Supreme Court in Ezokola, that fact alone does not make his decision
unreasonable. As noted above, this Court should not interfere if the Officer’s
decision is intelligible, transparent, justifiable, and falls within the range
of possible, acceptable outcomes that are defensible in respect of the facts
and the law.
[37]
It cannot be said that the Officer did not
review and assess the Applicant’s complicity, nor can it be said that he simply
listed the factual findings made by the RPD and concluded that the Applicant
was inadmissible to Canada by reason of such complicity. On the contrary, the
Officer prefaced his assessment of the Applicant’s complicity by quoting the
Applicant’s following reason for seeking the H&C exemption:
“I am requesting this exemption as the rest of
my family were accepted as Convention refugees and because my role in the
Afghan military was as a result of my desire to be a pilot and the fact that
there were no civilian pilot training programs at that time in Afghanistan. I
have not been involved in the commission of war crimes, or crimes against
humanity and my desire was only to be a pilot and to train others as pilots.”
[38]
The Officer then remarked that the Applicant was
aware of the RPD’s assessment of his complicity, “yet he
did not engage with those findings here.” Thus, the Officer stated that
he preferred the RPD’s assessment over the Applicant’s “bland”
statements, which the Officer regarded as “an effort to
misrepresent his history.”
[39]
In making his determination as to the
Applicant’s complicity, however, the Officer adopted and quoted the following
finding by the RPD:
“On a balance of probabilities, I find that the
claimant knew, or ought to have known, that pilots he trained operated in
support of this goal [terrify, maim and kill civilians] and that he is not
credible when he alleged that he trained pilots for commercial purposes only,
nor did he provide evidence to that effect.”
[Insertions added by the Officer]
[40]
This finding by the RPD, that the Applicant “knew, or ought to have known” about the goal of the
AAF, is troublesome, in that it formed part of the factual matrix by which the
Officer assessed the Applicant’s complicity. Although the Officer reached his
own conclusion as to the Applicant’s complicity and resultant inadmissibility,
this conclusion was informed by the above finding which appears to be very much
like the sort of “guilt by association” that was
rejected by Ezokola.
[41]
It is impossible to ascertain from the reasons
for the Officer’s decision here as to whether the Applicant’s complicity and
inadmissibility may or may not have been assessed and based upon the refined
test set out by the Supreme Court in Ezokola. Accordingly, insofar as
the Officer’s decision was based upon the RPD’s legal conclusion that the
Applicant was complicit in war crimes and crimes against humanity (which was
clearly made in view of the Ramirez test), his decision is not
defensible in respect of the facts and the law.
[42]
The Respondent submits that this matter should
not be remitted back for re-determination as the outcome would inevitably be
the same given the RPD’s factual findings with respect to the Applicant’s role
and involvement with the AAF. According to the Respondent, another officer,
properly instructed as to the new test in Ezokola, would come to the
same conclusion dismissing the Applicant’s application on the basis of his
complicity with the AAF’s crimes.
[43]
I disagree. The facts in this case are not as
straight forward as was the case in Kamanzi (see para 10) and the
applicant’s credibility in that case was not seriously challenged. Moreover, it
is not the function of this Court to determine the Applicant's H&C application
but, rather, the responsibility for that determination is with an immigration
officer (Lemus v Canada (Citizenship and Immigration), 2014 FCA 114 at
paras 37-38, 372 DLR (4th) 567).
[44]
As the decision must therefore be set aside,
there is no reason to consider the Applicant’s argument that he was denied
procedural fairness.
V.
Conclusion
[45]
In view of the foregoing reasons, the
Applicant’s application for judicial review is allowed and the matter is
remitted to a different officer for re-determination in accordance with the
decision of the Supreme Court of Canada in Ezokola.
[46]
Neither party raised a question of general
importance for certification, so none is certified.
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