Docket: IMM-626-15
Citation:
2016 FC 544
Toronto, Ontario, May 16, 2016
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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ORLANDO
CONCEPCION
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NHORLEO
CONCEPCION
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NOEMI
CONCEPCION
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GABBY
CONCEPCION
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JACKIELYN
CONCEPCION
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CARL IAN ORDANZA
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Applicants
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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.
Overview
[1]
Ms Nelly Concepcion wished to sponsor her
husband, Orlando, for permanent residence in Canada. He currently resides in
the Philippines. A visa officer in Manila found Mr Concepcion to be
inadmissible to Canada for having committed crimes against humanity when he
served as a radio operator in the Philippine Army, citing s 35(1)(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] (provisions of IRPA cited
are set out in an Annex).
[2]
Mr Concepcion maintains that the officer treated
him unfairly by failing to give him adequate notice that his admissibility to
Canada was in issue, and by relying on sources of information unknown to Mr
Concepcion. He also submits that the officer applied an outdated and incorrect
test for inadmissibility, and rendered an unreasonable decision. He asks me to
quash the officer’s decision and order the respondent Minister to process his
permanent residence application and those of his children.
[3]
I find that the officer applied an incorrect
definition of inadmissibility and will allow this application for judicial
review on that basis. It is unnecessary to address the other issues Mr
Concepcion raised. I cannot, however, grant the relief Mr Concepcion seeks; I
can only order another officer to reconsider the question of his admissibility
to Canada. (Rafuse v Canada (Pension Appeals Board), 2002 FCA 31 at para
14).
[4]
Accordingly, the sole issue is whether the
officer applied the correct test for inadmissibility.
II.
The Officer’s Decision
[5]
In 2011, the officer interviewed Mr Concepcion
about his possible inadmissibility to Canada based on his service in the army.
The officer’s concerns arose from public sources about the army’s involvement
in crimes against humanity.
[6]
Two years later, the officer advised Mr
Concepcion that he might be inadmissible to Canada for having committed crimes
against humanity, referring to the Crimes Against Humanity and War Crimes
Act, SC 2000, c 24. The officer did not specify which provision of the Act
he was relying on. Mr Concepcion responded by telling the officer that he had
never been involved in a crime against humanity. His role as a radio operator,
he said, involved maintaining lines of communication in order to protect public
safety.
[7]
In 2014, the officer rendered her decision
finding that Mr Concepcion was inadmissible to Canada. She concluded that he
had been a member of units of the army that had been involved in atrocities –
the 7th Infantry Division and the 56th Infantry
Battalion. She found that he had been aware that some of his communications had
resulted in the arrest and interrogation of members of the enemy, the New
People’s Army. He knew that his battalion had been involved in combat in 1987,
although he had not been involved personally. Still, he had not taken any
action to stop the army’s atrocities or to disassociate himself from them.
[8]
The officer found that Mr Concepcion was
complicit in the army’s crimes by having been aware of them and contributing to
them by facilitating the transmission of communications. She relied primarily
on the analysis of complicity in Ramirez v Canada (Minister of Employment
and Immigration), [1992] 2 FC 306. She concluded that a person would be
inadmissible if he or she committed an international crime, or was involved as
a secondary party (eg, by aiding and abetting it). The officer
went on to state that an association with a group involved in international
crimes may amount to complicity, even if the person merely knew about them and
tolerated them.
III.
The Test for Inadmissibility
[9]
Under s 35(1)(a) of IRPA, a person is
inadmissible to Canada for violating human or international rights if he or she
has committed an act outside Canada that amounts to an offence under ss 4 to 7
of the Crimes Against Humanity and War Crimes Act.
[10]
The Supreme Court of Canada has held that, in
order to prove that a person was complicit in a war crime, it must be shown
that the person made a significant contribution to it; a person cannot be
considered complicit by mere association: Ezokola v Canada (Minister of
Citizenship and Immigration), [2013] 2 S.C.R. 678. In that case, the Court was
dealing provisions of IRPA relating to exclusion from refugee protection, while
this case deals with inadmissibility to Canada. Nonetheless, the language at
issue is identical. In addition, Ezokola dealt with the proper scope of
liability for international crimes, which is equally applicable both to
exclusion under Article 1F(a) of the Refugee Convention and to
inadmissibility under s 35(1)(a) of IRPA.
[11]
The Federal Court of Appeal has found that Ezokola
does not apply directly to the inadmissibility clause in s 34(1)(f)
of IRPA, which deals with membership in an organization engaged in terrorism (Kanagendren
v Canada (Minister of Citizenship and Immigration, 2015 FCA 86). However,
it specifically distinguished s 34(1)(f) from s 35(1)(a), noting
that s 35(1)(a) is “the domestic inadmissibility
provision that parallels Article 1F(a)”. Therefore, the Supreme Court’s
analysis will surely apply here. Indeed, in effect, the Minister concedes that
it does.
[12]
In Ezokola, the Supreme Court held that
complicity under Article 1F(a) requires a nexus between the person’s conduct
and the group’s purpose: “While individuals may be
complicit in international crimes without a link to a particular crime,
there must be a link between the individuals and the criminal purpose of
the group . . . ” (at para 8; emphasis in the original).
[13]
The Court applied a “contribution-based
approach” to replace the “knowing participation
test” developed in Ramirez. It emphasized the need to respect
rules of liability that have been developed in relation to international
crimes, given their “extraordinary nature” (para
44): “International criminal law, while built upon
domestic principles, has adapted the concept of individual responsibility to
this setting of collective and large-scale criminality, where crimes are often
committed indirectly, and at a distance” (para 45).
[14]
After looking to the Rome Statute and
other sources of international criminal law principles, the Court concluded:
At a minimum, complicity under international
criminal law requires an individual to knowingly (or, at the very least,
recklessly) contribute in a significant way to the crime or criminal purpose of
a group. (para 68)
[15]
Therefore, the test for inadmissibility under s
35(1)(a) requires serious reasons for considering that a person has voluntarily
made a significant and knowing contribution to an offence contrary to the Crimes
Against Humanity and War Crimes Act, or to a group’s criminal purpose.
IV.
Did the officer apply the correct test?
[16]
The Minister maintains that the officer made no
error in applying the test in Ramirez as it amounts, in substance, to
the same standard articulated and applied by the Supreme Court of Canada in Ezokola.
[17]
While I agree with the Minister that there are
many common elements in Ramirez and Ezokola, there are also, in
my view, some significant differences. Specifically, in Ezokola, the
Supreme Court explicitly departed from the concept of complicity by association
(a notion that derives not from Ramirez itself, but from its progeny;
See, eg, Sivakumar v Canada (Minister of Employment &
Immigration), [1994] 1 FC 433 at para 9). As discussed above, the test now
requires proof of a significant contribution to an international crime. The
Minister argues that that test was met in this case by evidence showing that Mr
Concepcion made a “voluntary, significant and knowing contribution to the Philippines Military
for many years when it was committing atrocities”. In my view, that is
not the proper test. The evidence must show, at least, that the person made a
significant contribution to a crime or the organization’s criminal purpose, not
just a contribution to the organization.
[18]
In any case, however, the officer applied even a
lesser test than that offered by the Minister. The officer found that an
association with an international crime group would amount to complicity if the
person knew about and acquiesced in the group’s activities. That standard can
no longer be applied after Ezokola, which requires evidence that a
person made a significant contribution to a crime or a group’s criminal
purpose.
[19]
Accordingly, the officer should have applied the
principles of liability set out in Ezokola. Failure to do so amounted to
an error of law.
V.
Conclusion and Disposition
[20]
The test applied by the officer did not
correspond to the principles set out by the Supreme Court of Canada in Ezokola.
I must, therefore, allow this application for judicial review. Given the
existing case law on this issue (eg, Kanagendren), no question of
general importance arises.
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