Docket: IMM-644-17
Citation:
2017 FC 941
[ENGLISH TRANSLATION]
Montréal, Quebec, October 20, 2017
PRESENT: The Honourable Mr. Justice Shore
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Between:
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JEAN DE DIEU
IKUZWE
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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.
Introduction
[1]
The officer found that, with respect to the
compelling and credible information provided by the applicant himself in his Personal
Information Form [PIF] about his involvement in the Rwandan Patriotic Army [RPA],
it was reasonable to believe (or to consider) that the applicant was complicit
(Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC
40 at para 114 [Mugesera]). In fact, the officer considered the evidence
submitted by the applicant about his involvement in, and contribution to, the RPA.
The officer therefore did not only consider the applicant’s mere membership in
the RPA (Zazai v Canada (Minister of Citizenship and Immigration), 2005 FCA
303 at paras 24 to 27). Accordingly, given the applicant’s direct involvement
in the RPA, as described in his initial story, it was certainly logical for the
officer to consider the first version of the applicant’s story on his arrival
in Canada.
II.
Nature of the Matter
[2]
This is an application for judicial review of a
decision dated December 16, 2016, by a senior immigration officer at Immigration,
Refugees and Citizenship Canada [officer]. In that decision, the officer found
that the applicant is inadmissible under paragraph 35(1)(a) of the Immigration
and Refugee Protection Act, SC 2001, c. 27 [IRPA].
III.
Facts
[3]
The applicant, 46 years old, is a citizen of Rwanda
of Tutsi origin.
[4]
In January 2001, he left Rwanda and made a
refugee claim in Canada. He is still living in Canada, and has lived here now
for 16 years.
[5]
On April 24, 2003, the Refugee Protection
Division [RPD] of the Immigration and Refugee Board denied the applicant’s
refugee claim because there were serious reasons for considering that the applicant
was complicit in crimes against humanity within the meaning of articles 1(F)(a)
and 1(F)(c) of the United Nations Convention relating to the Status of
Refugees, and that, therefore, he was not entitled to Canada’s protection
under section 98 of the IRPA. There was no application for judicial review of
this decision.
[6]
In its decision, the RPD essentially noted that
in his first PIF and at the Canadian border at Lacolle, the applicant had declared
during his interview for the refugee claim that he had joined the RPA from 1994
to 1997.
[7]
More than ten years later, specifically on
October 16, 2013, the applicant submitted an application to reopen his refugee
claim, which was dismissed by the RPD on December 3, 2013. The application for
judicial review of that decision, heard by Luc Martineau J. of this Court, was
dismissed on September 15, 2014, on the grounds that there had not been a
breach of natural justice.
[8]
The applicant had alleged that the RPD should
have considered the decision made in 2013 by the Supreme Court in Ezokola v Canada
(Citizenship and Immigration), 2013 SCC 40 [Ezokola], in which the
Supreme Court redefined the notion of complicity. The applicant had also
alleged that, suffering from schizophrenia (undiagnosed at the time), his
mental condition could have had an effect on the assessment of his credibility
at the time of the hearing before the RPD.
[9]
On March 6, 2012, the applicant also applied for
a Pre-Removal Risk Assessment. However, he voluntarily withdrew his application
on May 28, 2015.
[10]
On November 29, 2010, the applicant applied for
permanent residence on humanitarian and compassionate grounds [HC].
IV.
Decision
[11]
On December 16, 2016, the officer found that the
applicant was inadmissible following his application for permanent residence on
humanitarian and compassionate grounds. In arriving at her decision, the officer
conducted an analysis to determine whether there were reasonable grounds to
believe that the applicant was a person inadmissible to Canada under paragraph 35(1)(a)
of the IRPA.
[12]
Specifically, the officer found the following in
her analysis of the applicant’s admissibility to Canada:
[TRANSLATION]
I find that the tasks performed by applicant
within the RPA could have facilitated the perpetration of crimes committed by
that organization. In particular, the disclosure of information regarding the whereabouts
of the Hutus and the arms they possessed as well as regarding the transport of
ammunition and food are factors that directly contribute to the development of
a strategy and the ability to attack the perceived enemy, be it military or
civilian.
…
Finally, I am of the opinion that the applicant
could not satisfactorily establish that he was compelled to act or that his
mental state absolves him of criminal liability.
In this context, I find that the applicant’s
contribution to the crimes committed by the RPA was significant, conscious, and
voluntary.
Based on the preceding analysis, I am of the
opinion that there are reasonable grounds to believe that the applicant is
inadmissible under paragraph 35(1)(a) of the IRPA.
(Applicant’s Record, p. 17, Reasons for
Decision.)
[13]
It is that decision that is the subject of this application
for judicial review.
V.
Issues
[14]
As a preliminary issue, given that the applicant
filed his application for leave and judicial review outside the prescribed
fifteen-day time limit, indeed an application that was filed ten years later,
the respondent asks the Court whether the applicant raised a valid ground that enables
the Court to intervene under subsection 18.1(4) of the Federal Courts Act,
R.S.C., 1985, c. F‑7 [FCA].
[15]
The issue before the Court is whether the officer
made a reasonable decision in establishing that the applicant was inadmissible pursuant
to paragraph 35(1)(a) of the IRPA.
[16]
The parties do not dispute that the standard of
review that applies to the issue of the officer’s decision to find that a
person falls under paragraph 35(1)(a) of the IRPA is that of reasonableness (Khasria
v Canada (Public Safety and Emergency Preparedness), 2016 FC 773 at para 16
[Khasria]).
VI.
Relevant provisions
[17]
The officer decided that the applicant was inadmissible
to Canada pursuant to paragraph 35(1)(a) of the IRPA:
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35 (1)
A permanent resident or a foreign national is inadmissible on grounds of
violating human or international rights for
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35 (1) Emportent interdiction de
territoire pour atteinte aux droits humains ou internationaux les faits
suivants :
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(a) committing an act outside Canada that constitutes an offence
referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes
Act;
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a) commettre, hors du Canada, une des infractions visées aux
articles 4 à 7 de la Loi sur les crimes contre l’humanité et les crimes de
guerre;
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[18]
The standard of proof under paragraph 35(1)(a) of
the IRPA is the one provided under section 33 of the IRPA:
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33 The
facts that constitute inadmissibility under sections 34 to 37 include facts
arising from omissions and, unless otherwise provided, include facts for
which there are reasonable grounds to believe that they have occurred, are
occurring or may occur.
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33 Les faits — actes ou omissions —
mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés
sur la base de motifs raisonnables de croire qu’ils sont survenus,
surviennent ou peuvent survenir.
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[19]
There were reasonable grounds to believe that
the applicant was complicit in crimes against humanity and war crimes, pursuant
to the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24:
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6 (1)
Every person who, either before or after the coming into force of this
section, commits outside Canada
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6 (1) Quiconque commet à l’étranger
une des infractions ci-après, avant ou après l’entrée en vigueur du présent
article, est coupable d’un acte criminel et peut être poursuivi pour cette
infraction aux termes de l’article 8 :
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…
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[…]
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(b) a crime against humanity, or
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b) crime contre l’humanité;
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(c) a war crime,
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c) crime de guerre.
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is guilty of an indictable offence and may be prosecuted for that
offence in accordance with section 8.
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VII.
The parties’ observations
A.
The applicant’s submissions
[20]
With regard to the preliminary issue, counsel
for the applicant wants this application to be granted. In fact, counsel submits
that she had problems related to her client’s case. She explains that the
applicant did not err at all because he acted in good faith, that there is a
serious issue to decide in this application, and that the delay in serving and
filing this application for leave and judicial review has not caused any
prejudice to the respondent.
[21]
Second, the applicant submits that the officer’s
decision is unreasonable.
(1)
The applicant’s illness: a central element
[22]
The applicant alleges that he suffers from
paranoid schizophrenia and from an obsessive-compulsive disorder and that his
mental condition justifies why he first told a false story at the Canadian
border (that he had belonged to the RPA). In fact, the officer reportedly conducted
a detailed analysis of certain documents filed into evidence in the HC record, but
she apparently did not conduct the same analysis of the applicant’s mental
state. The officer erred in her analysis in finding that the judgment delivered
by Martineau J. in September 2014 justified assigning less weight to the
applicant’s mental condition. By conducting only an overview of the applicant’s
mental disorder, the officer failed to consider a central and significant
element in making her decision.
(2)
Notion of complicity
[23]
The applicant submits that the officer also
erred in her analysis that bears on the notion of complicity. In fact, the
officer noted in her analysis that the applicant never mentioned which section
of the RPA that he allegedly belonged to, or even what position or rank he
held. The applicant explained that this fact is entirely logical because he categorically
denies that he had any involvement with the Rwandan army. Therefore, the officer
should not have referred to an excerpt of Human Rights Watch to support
the allegation that the applicant was part of a special and identifiable brigade
involved within the RPA.
[24]
Finally, the applicant alleges that he could not
have been part of the RPA given that he was studying in 1996 and 1997. Therefore,
the applicant considers that the officer speculated by raising the idea that the
[TRANSLATION] “applicant could have been in the army
while pursuing his studies, or rather, he could have returned to full-time
studies in 1997 after he left the army, as he stated on several forms” (Applicant’s
Record, p. 10, Reasons for Decision).
B.
The respondent’s submissions
[25]
First, the respondent submits that the
application for leave and judicial review must be dismissed because the
applicant is out of time to file his application. As the contested decision was
delivered on December 16, 2016, the applicant had 15 days to file his
application. The respondent argues that error or inadvertence of counsel does
not, in general, justify an extension of time (Cornejo Arteaga v Canada (Citizenship
and Immigration), 2010 FC 868 at para 17 [Cornejo Arteaga]).
[26]
Second, the respondent submits essentially that
the officer’s decision is founded in fact and in law, and therefore that her
decision is reasonable.
(1)
The applicant’s illness: a central element
[27]
The respondent submits that the officer analyzed
all the medical evidence in the applicant’s record. The evidence indicates,
among other things, that the applicant was hospitalized for the first time in 2008
and that, therefore, there is nothing to indicate that the applicant was
suffering from schizophrenia in Rwanda in the 1990s, or during the hearing
before the RPD in 2003 (Ikuzwe v Canada (Citizenship and Immigration),
2014 FC 875 at para 9).
(2)
Notion of complicity
[28]
According to the respondent, the officer did not
err in finding that the applicant made a voluntary, conscious, and significant contribution
to crimes against humanity and to war crimes committed by the RPA. In fact,
individuals who personally commit crimes against humanity or who are complicit
in such offences may be found inadmissible under paragraph 35(1)(a) of the IRPA
(Khasria, above at para 25). In making her decision, the officer applied
the factors set out in Ezokola, above.
[29]
In fact, the officer specified that the RPA’s members
committed crimes against humanity. Further, the applicant did not state which
section of the organization that he belonged to or what position or rank he
held within the RPA; and he stated in his PIF and at the Canadian border that
he was a member of the RPA from 1994 to 1997, describing to the RPD his
functions and activities within the RPA. According to the evidence in the
record, the officer found that the applicant pursued his studies in 1997, that
he did not quit the army until 1997, therefore not leaving at the first
opportunity that he had to do so after 1994.
[30]
It was therefore reasonable for the officer to
find that the applicant should have been aware of the crimes committed by the RPA,
as well as of the role that he played or could have played in the chain of
events. Therefore, the respondent submits that the officer could not have
overlooked the fact that the applicant’s actions could have facilitated the
perpetration of murder and violent crimes.
[31]
Finally, the respondent argues that the officer did
not err in her analysis by considering the applicant’s initial story when he
arrived in Canada, because a person’s first story is usually the most genuine
and, accordingly, the most trustworthy (Athie v Canada (Public Safety and
Emergency Preparedness), 2016 FC 425 at para 49; Ishaku v Canada (Citizenship
and Immigration), 2011 FC 44 at para 53). It is therefore by relying on
this fact, among other things, that the officer found that the applicant was
complicit in crimes against humanity and, therefore, inadmissible pursuant to 35(1)(a)
of the IRPA.
VIII.
Analysis
[32]
For the reasons that follow, this application
for judicial review is dismissed.
A.
Preliminary issue
[33]
First, the Court must address the issue that
bears on the application for extension of time. This Court has already
established that “it is up to the applicant to provide
a valid reason for being late” (Kumar v Canada (Minister of
Citizenship and Immigration), 2005 FC 1196 at para 7 [Kumar]; Semenduev
v Canada (Minister of Citizenship and Immigration), [1997] FCJ No 70; Buhalzev
v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 1098).
In this case, the ten-year time period was not raised in a manner that would transform
the information submitted to the Canadian authorities on the applicant’s
arrival in Canada to such an extent that this information should be set aside.
[34]
The following questions enabled this Court to
exercise its discretionary power and extend the time prescribed by the FCA (Canada
(Attorney General) v Larkman, 2012 FCA 204 at para 61 [Larkman]; Monla
v Canada (Citizenship and Immigration), 2017 FC 668 at para 12):
1. Did the moving
party have a continuing intention to pursue the application?
2. Is there some potential merit to the
application?
3. Has the Crown been prejudiced from the
delay?
4. Does the moving party have a reasonable
explanation for the delay?
[35]
Even if these factors are established by the
jurisprudence, each case stands on its own merits and deserves to be treated as
a specific whole, knowing that each case has an encyclopedia of references, a
dictionary of terms, a gallery of portraits and the need to examine whether
there is harmony or dissonance in the inherent logic in the context and circumstances.
However, “[t]he overriding consideration is that the
interests of justice be served” (Larkman, above, at para 62).
[36]
The Court observes that the respondent was not
prejudiced by the delay. In fact, the respondent was able to make full and
complete submissions. As for the applicant, he was not able to provide a reason
for the delay caused by his counsel, because counsel’s error, good faith, and
ignorance of the Act are not valid grounds (Cornejo Arteaga, above, at para
17). Therefore, the Court is not persuaded that the delay resulted from an
unforeseen event, beyond the applicant’s control (Kumar, above, at para
8).
[37]
The applicant was also not able to establish that
the officer’s decision was unreasonable.
B.
The officer’s decision was reasonable
[38]
As stated, each case stands on its own merits, in
particular when an individual is declared inadmissible to Canada. In fact, “[c]aution must be exercised to ensure that such
findings are properly made” (Alemu v Canada (Minister of Citizenship
and Immigration), 2004 FC 997 at para 41 [Alemu]; cited in Bankole
v Canada (Citizenship and Immigration), 2011 FC 373 at para 25).
[39]
In this case, the Court must determine whether
it was reasonable for the officer to find that there were “reasonable grounds to believe” that the applicant was
complicit in crimes against humanity. This standard of proof requires more than
mere suspicion, but less than proof on the balance of probabilities (Mugesera,
above, at para 114). Therefore, the Court does not have to weigh the evidence
that the officer had before her when she found that the applicant was
inadmissible pursuant to paragraph 35(1)(a) of the IRPA, when the analysis and
the basis for the decision are reasonable. (Alemu, above, at para 41).
[40]
In fact, the officer found that, given the compelling
and credible information provided by the applicant himself in his PIF regarding
his involvement with the RPA, it was reasonable to believe (or consider) that the
applicant was complicit (Mugesera, above, at para 114). In fact, the officer
considered the evidence submitted by the applicant regarding his involvement in,
and his contribution to, the RPA. The officer therefore did not only consider
the applicant’s mere membership in the RPA (Zazai v Canada (Minister of
Citizenship and Immigration), 2005 FCA 303 at paras 24 to 27). Accordingly,
given the applicant’s direct involvement in the RPA, as described in his
initial story, it was certainly logical for the officer to consider the first
version of the applicant’s story on his arrival in Canada.
[41]
The courts have consistently held that RPD
decisions are res judicata on findings of fact. However, immigration
officers are not bound by RPD findings of mixed fact and law. Therefore, decision-makers
making determinations on admissibility to Canada must consider the findings of
fact in light of the provisions of section 35 of the IRPA (Johnson v Canada
(Citizenship and Immigration), 2014 FC 868 at para 25), based on the facts
of the story that are found in each record in accordance with the inherent
logic of the entire record. That is what the officer did in this case. She was
not required to repeat the RPD’s findings and so she took the trouble to
consider any new evidence submitted by the applicant, like the letter from his
brother Emmanuel, for example, in order to determine whether the applicant was
complicit in the actions perpetrated by the RPA.
[TRANSLATION]
Although it is a finding of fact of the RPD member
that the applicant belonged to the RPA during that period, I nonetheless
addressed the evidence filed by the representative on the subject because most
of it was not submitted to the RPD.
(Applicant’s Record, p. 9, Reasons for
Decision.)
[42]
Similarly, the Court finds that, according to
the entire record, the officer considered all of the evidence. Among other
things, she observed that the applicant’s pursuit of his studies, in 1996 and 1997,
did not prevent him, according to his statements, from continuing his
activities within the RPA. If the officer gave more probative value to certain documents
in particular, it is because, in her opinion, there were significant
contradictions regarding the essential facts in applicant’s record.
[43]
Therefore, the officer’s decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law. (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
IX.
Conclusion
[44]
This application for judicial review is
therefore dismissed.
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