[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated March 15, 2002, wherein the CRDD determined that the applicant had committed crimes against humanity and was thus excluded, according to Article 1F(a) of the United Nations Convention Relating to the Status of Refugees (the "Convention"), Con. T.S. 1969 No. 6 pursuant to subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended.

[2] The applicant seeks an order referring the matter back for a new hearing by a differently constituted panel.

Background

[3] The applicant, Riad Muhsen Abou Alwan, is a Lebanese citizen who was a member of the South Lebanon Army ("SLA").

[4] The applicant claims that he was forced to join the SLA in 1995. After turning 18, he claims he was regularly harassed and on two occasions, was detained and beaten. The first time, he claims he was detained for 24 hours, and the second time, for 48 hours. He was told that if he did not join, he and his family would be thrown off their farm. He claims that in order to protect himself and his family, he joined the SLA, a month after his second detention.

[5] The applicant was an agent for the SLA. He was required to keep an eye on individuals and on resistance movements near his home, and to report back to the SLA authorities. He was required to spend one day a week in the office. He underwent over a month of training and was given a uniform, which he only wore in the office. He was never given a rank in the army. During this period, he continued work as a farmer and only worked as an agent on a part-time basis.

[6] The applicant claims that he made an effort to improve the lives of the local villagers. He states that he gave weekly reports which disclosed no pertinent information and that this was dangerous to do. However, on three occasions, he did report Hezbollah Resistance activity, which led to the arrest of Hezbollah members. He insists that none of his reports led to civilian arrests. On one occasion, his report led to the arrest of his cousin, a member of the Hezbollah Resistance. His cousin, he found out, was in detention for four years.

[7] In addition to refraining from reporting useful information, the applicant states that he also used his position to help local villagers get travel passes.

[8] The applicant states that he attempted to quit the SLA. However, when he tendered his resignation, the SLA threatened his life and his family's well-being. As a result, he continued to work for the SLA.

[9] The applicant claims that he had no knowledge of any crimes against humanity. He states that he did not know what happened to those who were arrested because of his reports.

[10] When the Israeli army withdrew its troops, the applicant claims that he had to flee Lebanon because the Hezbollah threatened to punish and kill all former SLA members and agents.

[11] On December 20, 1999, the applicant left Lebanon. He spent six days in the Czech Republic, six days in Ireland and four months in England, where he made a refugee claim after 40 days because, he states, he was afraid of being arrested. He obtained a fake French passport and came to Canada, where he has two brothers who are Convention refugees.

[12] On May 6, 2000, the applicant arrived in Canada, and on May 19, 2000, he made a claim for Convention refugee status. On March 15, 2002, the CRDD found the applicant had committed crimes against humanity and was not deserving of refugee protection.

[13] The CRDD relied on the United Nations Relief and Works Agency for Palestinians in the Near East ("UNRWA") report, which stated the following:

The security arm of the SLA ran the al-Khiam detention centre. According to an Amnesty International report, at least 150 people were still being held without charge or trial in al-Khiam by January 2000; some prisoners had been held for up to 14 years, and former detainees described torture and ill-treatment in the detention centre.

[14] The CRDD also stated:

He was asked whether he reported on civilians not associated with the Hezbollah and he said that he did not.

. . .

In response to more specific questions, it transpired that the applicant was issued an Identity Card, Military uniform, a gun and that he dressed in his uniform and worked in the SLA office once a week. . . .

The claimant was asked to be more specific about the kind of people he had reported on and he burst into tears. At this point he stated that he once reported a group of about four people who were by the river only to learn later that one of the people in this group was a cousin of his, a civilian not associated with the Hezbollah.

Applicant's Submissions

[15] The applicant submits that the CRDD erred in law in finding that he had knowledge of harm caused by his activities in association with the SLA so as to meet the test of "serious reasons for considering" that the applicant had been a participant in, or complicit in, crimes against humanity.

[16] Specifically, the applicant submits that the CRDD improperly inferred that the applicant's knowledge of the SLA and the detention centres extended to knowing that the SLA's security arm ran the al-Khiam detention centre, that prisoners had been held there for up to 14 years, and that some prisoners had been tortured there.

[17] As well, with regard to this issue, the applicant submits that the CRDD did not consider whether there existed of a shared common purpose, which was articulated as the test for complicity in Ramirez v. Canada [1992] 2 F.C. 306 (C.A.).

[18] The applicant submits that the CRDD erred in that it misapprehended the facts before it and relied upon this misapprehension in making a negative finding against the applicant.

[19] Specifically, the applicant submits that the CRDD erred in finding that the applicant's cousin was a civilian. This appeared to contradict his early testimony and damaged his credibility. As well, the applicant submits that a correct reading of the facts could not lead to the conclusion that the applicant knew that his reports resulted in extreme hardship to those who were subsequently arrested.

Respondent's Submissions

[20] As a preliminary matter, the respondent submits that the letter from the Mayor of Alhabaria was not before the CRDD and is not properly in evidence before the Court. As a result, it is submitted that it must be ignored. As well, the respondent submits that much of the applicant's affidavit must be ignored as it introduces new facts not before the CRDD.

[21] The respondent submits that the CRDD drew appropriate inferences leading to a conclusion of complicity, based on the documentary evidence and the testimony of the applicant. The respondent points out contradictions in the applicant's testimony. For example, the applicant stated that he had no knowledge of the extreme harm his reports caused, and yet he allegedly misled the SLA when reporting on people in his area.

[22] The respondent submits that paragraph 33 of the applicant's affidavit, where he states that his cousin was not a civilian, is new information. Since the applicant has not stated that this information was put to the CRDD, the respondent submits that it cannot be relied on by the Court. However, even if there was contradictory evidence before the CRDD, the respondent submits it was the applicant's fault and that inconsistencies can properly go to a finding of credibility. The respondent submits that the applicant has not satisfied the criteria necessary to set aside a finding of fact because the finding was not made in a perverse or capricious manner.

[23] Issues

1. Should the Court disregard the Mayor's letter and several paragraphs in the applicant's affidavit, including the paragraph where he swears that his cousin is a civilian? 2. Did the CRDD err in law in finding that the applicant had knowledge of harm caused by his activities so as to meet the test of "serious reasons for considering" that the applicant had been a participant in, or complicit in, crimes against humanity?

3. Did the CRDD misapprehend the facts before it and rely on this misapprehension in making a negative finding against the applicant?

Relevant Statutory Provisions

[24] Subsection 2(1) of the Immigration Act, supra states:

"Convention refugee" means any person who

(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or

(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

(b) has not ceased to be a Convention refugee by virtue of subsection (2),

but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;

« réfugié au sens de la Convention » Toute personne:

a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:

(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,

(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;

b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).

Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.

[25] Article 1(F)(a) of the United Nations Convention Relating to the Status of Refugees, supra, states:

Article 1

. . .

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

Article 1

. . .

F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser:

(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes;

. . .

a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un rime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes;

. . .

Analysis and Decision

[26] Issue 1

Should the Court disregard the Mayor's letter and several paragraphs in the applicant's affidavit, including the paragraph where he swears that his cousin is a civilian?

I have reviewed the tribunal record and I am satisfied that the Mayor's letter dated January 25, 2002, was before the CRDD. I have also reviewed the applicant's affidavit and I find that paragraphs 10, 13 and 18 contain new information that was not before the CRDD and therefore, will not be considered as part of this application.

[27] Issue 2

Did the CRDD err in law in finding that the applicant had knowledge of harm caused by his activities so as to meet the test of "serious reasons for considering" that the applicant had been a participant in, or complicit in, crimes against humanity?

The issue in this case is whether the applicant was complicit in crimes against humanity, not whether he committed crimes against humanity. In Ramirez v. Canada (Minister of Employment and Immigration), supra, the Court stated at page 318:

At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it. Such a principle reflects domestic law (e.g., subsection 21(2) of the Criminal Code), and I believe is the best interpretation of international law.

[28] Thus, it would appear that the CRDD is required to consider the legal issue of "common purpose" in order to make a finding regarding complicity by the applicant. I have reviewed the CRDD's decision and I cannot find that it considered the question of "common purpose". As a result, the CRDD has committed an error of law and the application for judicial review must be allowed.

[29] As this finding disposes of the application, I will not deal with the remaining issue.

[30] Neither party wished to certify a serious question of general importance.

ORDER

[31] IT IS ORDERED that the application for judicial review is allowed.

"John A. O'Keefe"

J.F.C.C.

Ottawa, Ontario

January 31, 2003

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-1582-02

STYLE OF CAUSE: RIAD MUHSEN ABOU ALWAN

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING: Edmonton, Alberta

DATE OF HEARING: Monday, October 7, 2002

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED: Friday, January 31, 2003

APPEARANCES:

Mr. Kevin Moore

FOR APPLICANT

Ms. Kerry Franklin

FOR RESPONDENT

SOLICITORS OF RECORD:

Mr. Kevin Moore

Suite 300, 10735 - 107 Avenue

Edmonton, Alberta

T5H 0W6

FOR APPLICANT

Department of Justice

211 Bank of Montreal Building

10199 - 101 Street N.W.

Edmonton, Alberta

T5J 3Y4

FOR RESPONDENT

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Alwan v. Canada (Minister of Citizenship and Immigration), 2003 FCT 109

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