Date: 20000225
Docket: IMM-1264-99
Between:
RONY DANILO FIGUEROA
MARITZA JUDITH MORALES de FIGUEROA
HEIDY FIGUEROA-MORALES
ELSA MARITZA FIGUEROA-MORALES
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision rendered on February 24, 1999 by Mr. Gilles Deslauriers, an immigration officer with Citizenship and Immigration Canada, denying landing to the applicants because one of the persons included in the application is a person described in paragraph 19(1)(j) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).
[2] The applicants, citizens of Guatemala, are Rony Danilo Figueroa (hereinafter the male applicant), his wife Maritza Judith Morales de Figueroa and their two daughers Heidy and Elsa Maritza Figueroa-Morales (hereinafter the female applicants).
[3] The applicants arrived in Canada on September 30, 1989. They claimed refugee status and a decision was rendered on April 2, 1992. The male applicant"s application was rejected, as the IRB considered he was excluded for having committed a crime against humanity. The IRB also denied the female applicants" claim.
[4] This decision was quashed by this Court on October 18, 1993. In accordance with that judgment, the case was heard again on November 19, 1996. In its decision, the reasons for which are dated March 12, 1997, the IRB recognized the female applicants as Convention refugees, but the male applicant was once again excluded. No application for judicial review has been made to this Court in opposition to the latter decision.
[5] Around May 1997, the applicant wife filed an application for permanent residency for herself, the male applicant and their two daughters. According to the male applicant"s affidavit, his family reported on February 5, 1998 for an interview with an immigration officer at the CIC in connection with the processing of this application. The male applicant claims that the officer said that if his wife did not withdraw his name from her application, the entire family would be rejected and deported to Guatemala. The applicant wife then signed the document that withdrew the male applicant"s name from the application.
[6] On May 25, 1998, the applicant wife asked the respondent to vacate this withdrawal and also asked that the question of the male applicant"s admissibility be referred to an adjudicator for investigation. On June 5, 1998, François Laberge, an investigation officer with CIC, informed her counsel that the vacation had been accepted but that the Deputy Minister"s delegate did not think an investigation was warranted.
[7] The immigration officer ultimately informed the applicant wife that her application for permanent residency in Canada as a Convention refugee was rejected, as is indicated in the third paragraph of his letter, dated February 24, 1999:
| [Translation] After a comprehensive review of all the items in your file, we have reached the conclusion that it would be contrary to section 46.04(3) of the Immigration Act to grant you landing since we have reasonable grounds to believe that one of the persons now included in your application (i.e. your husband referred to in the previous paragraph) is a person described in paragraph 19(1)(j) of the Act. This decision also applies to your husband and your two daughters.... |
[8] The applicants submit, first, that the immigration officer erred in declaring them inadmissible in the absence of an adjudicator"s ruling that the male applicant is covered by paragraph 19(1)(j ) of the Act. More specifically, the applicants cite the judgment in Gwala v. Minister of Citizenship and Immigration (May 21, 1999), A-375-98, in which the Federal Court of Appeal held that senior immigration officers are not implicitly vested with authority to rule on questions of law.
[9] It would be appropriate at this point to reproduce the relevant statutory provisions:
| 19. (1) No person shall be granted admission who is a member of any of the following classes:
| (j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission; |
46.04 (3) Notwithstanding any other provision of this Act, but subject to subsections (3.1) and (8), an immigration officer to whom an application is made under subsection (1) shall grant landing to the applicant, and to any dependant for whom landing is sought if the immigration officer is satisfied that neither the applicant nor any of those dependants is a person described in paragraph 19(1)(c.1), (c.2), (d), (e), (f), (g), (j), (k) or (l) or a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of
| (a) more than six months has been imposed; or |
| (b) five years or more may be imposed. |
|
19. (1) Les personnel suivantes appartiennent à une catégorie non admissible :
| j) celles dont on peut penser, pour des motifs raisonnables, qu"elles ont commis, à l"étranger, un fait constituant un crime de guerre ou un crime contre l"humanité au sens du paragraphe 7(3.76) du Code criminel et qui aurait constitué, au Canada, une infraction au droit canadien en son état à l"époque de la perpétration; |
46.04 (3) Malgré les autres dispositions de la présente loi mais sous réserve des paragraphes (3.1) et (8), l"agent d"immigration accorde le droit d"établissement à l"intéressé et aux personnes à sa charge visées par la demande, s"il est convaincu qu"aucun d"entre eux n"est visé à l"un des alinéas 19(1)c .1), c.2), d), e), f), g), j), k) ou l) ou n"a été déclaré coupable d"une infraction prévue par une loi fédérale :
| a) soit pour laquelle une peine d"emprisonnement de plus de six mois a été infligée; |
| b) soit passible d"un emprisonnement maximal égal ou supérieur à cinq ans. |
|
[10] I do not think the Gwala judgment, supra, in which subsection 45(1) of the Act was at issue, can be of assistance to the applicants in this instance. In fact, the language of subsection 46.04(3) of the Act is clear and expressly gives the immigration officer the power to grant landing to the applicant and to any dependent for whom landing is sought if he is satisfied that neither the applicant nor any of those dependents is a person described in, for example, paragraph 19(1)(j) of the Act. In the instant case, the decision at issue refers only to the application for permanent residency made by the applicant wife and in no way constitutes a removal order. The power of decision granted an immigration officer under subsection 46.04(3) of the Act is not implicit but express and clearly defined by the provision which, moreover, contains no expression of any intention by Parliament to involve an adjudicator as well. In Kaisersingh et al. v. Canada (M.C.I.), [1995] 2 F.C. 20, at pages 32 to 34, my colleague Madam Justice Reed takes the same approach:
| Counsel for the applicants asserts that it was not for the immigration officer to make a decision as to whether the applicants fall within paragraph 19(1)(b), that only an adjudicator can make that decision. He relies for his argument on paragraph 19(1)(b), subsections 20(1), 23(3),(4),(7), 29(1), 32(1), and (3) of the Act. ... |
| Counsel for the respondent, in my view, easily answered this contention. The provisions to which counsel for the applicants refers all relate to the process of removing a person from Canada. They do not relate to the procedure for making a decision with respect to a person"s application for permanent resident status. Counsel for the respondent notes that in order to remove the present applicants from Canada an inquiry will have to be undertaken and the adjudicator, at that stage, will have to agree that the applicants are not entitled to remain in Canada. That does not, however, mean that the immigration officer was without jurisdiction to make the decision she did on June 28, 1993. That decision was made in the context of reviewing and deciding upon the applicants" application for admission. I accept that argument. |
[11] The applicants further submit that the immigration officer erred in treating paragraphs 1F(a) of the United Nations Convention Relating to the Status of Refugees (the Convention) and 19(1)(j) of the Act as equivalent.
[12] In this regard, paragraph 19(1)(j) of the Act seems to me to contemplate a two-pronged test: a person belongs to an inadmissible class if it is conceivable, on reasonable grounds, that his or her actions constitute a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and if those actions would constitute an offence in Canada. Subsection 7(3.76) incorporates by reference in Canadian law the international customary and treaty law. In regard to the requisite standard under paragraph 19(1)(j), the Federal Court of Appeal decision in Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306, is instructive, at page 312 (per MacGuigan J.A.):
While I see no great difference between the phrases "serious reasons for considering" and "reasonable grounds to believe," I find no necessity exactly to equate the one with the other, although I believe both require less than the balance of probabilities. "Serious reasons for considering" is the Convention phrase and is intelligible on its own. Nevertheless, the comparison with paragraph 19(1)(j ) shows that Parliament was prepared to contemplate a standard lower than the usual civil standard in this kind of case. Moreover, it also leads me to think that it would be extremely awkward to place one standard at the ordinary civil level, and another, for what is essentially the same thing, at a lower level.
[13] In the same case, MacGuigan J.A., at page 320, also makes the following comment regarding the application of the Convention:
In my view, it is undesirable to go beyond the criterion of personal and knowing participation in persecutorial acts in establishing a general principle. The rest should be decided in relation to the particular facts.
[14] This is also confirmed in another judgment of the Federal Court of Appeal dealing with the Convention, Moreno v. Canada (M.E.I.) (1993), 21 Imm.L.R. (2d) 221, in which Robertson J.A. notes, at pages 239 and 240:
It is well settled that mere membership in an organization involved in international offences is not sufficient basis on which to invoke the exclusion clause; see Ramirez, at p. 317, and Laipenieks v. Immigration & Naturalization Service, 750 F.2d 1427 (9th Cir. 1985), at p. 1431. An exception to this general rule arises where the organization is one whose very existence is premised on achieving political or social ends by any means deemed necessary. Membership in a secret police force may be deemed sufficient grounds for invoking the exclusion clause; see Naredo v. Canada (Minister of Employment & Immigration) (1990), 11 Imm.L.R. (2d) 92 (Fed. T.D.), but see Ramirez at pp. 318 et seq. Membership in a military organization involved in armed conflict with guerilla forces comes within the ambit of the general rule and not the exception.
He continues, at pages 241 and 242:
Applying the above reasoning, we must determine whether the appellant"s conduct satisfied the criterion of "personal and knowing participation in persecutorial acts." Equally important, however, is the fact that complicity rests on the existence of a shared common purpose as between "principal" and "accomplice". . . .
[15] In my opinion, a finding that a refugee is excluded from the protection of the Convention under paragraph 1F(a) demonstrates that the first part of the test under paragraph 19(1)(j) of the Act has been fulfilled.
[16] In its reasons, dated April 2, 1992, the Refugee Division based its finding that the male applicant was subject to the 1F(a) exclusion clause on a number of considerations. It states that the male applicant admitted having attended at the torture of a person on at least three occasions in Le Petan [El Petén], where he worked for the Army"s Intelligence Division in 1985, and also admitted that he had witnessed the torture of arrested persons in the Department of Technical Investigations. For its part, the Refugee Division"s second panel held:
In respect of the exclusion of the principal claimant, this panel has come to the same conclusion as the previous panel, Doray and Brown in its summary of facts and decision of April 2nd, 1992 (annexed), except that the principal claimant"s wife and children are not excluded with the principal claimant. Therefore, this panel includes all that has been previously written on this matter in that aforementioned decision, except the last paragraph of page 6 and the first paragraph of page 7.
[17] As indicated earlier, no application has been made to this Court in opposition to this latter decision.
[18] In so far as the second prong of the test under paragraph 19(1)(j) is concerned, it seems to me that the acts of torture committed by the male applicant would have constituted, in Canada, an offence under Canadian law as it was at the time of perpetration. The Criminal Code in force in Canada during 1985 was chapter C-34 of the Revised Statutes of 1970. In my opinion, the findings of fact by both panels of the Refugee Division to the effect that the male applicant had attended at the torture of a person on at least three occasions is a reasonable ground for finding that he committed one or more of the following crimes: assault (section 244), assault causing bodily harm (section 245.1(1)(b) or aggravated assault (245.2).
[19] Consequently, the application for judicial review is dismissed.
[20] The only question that warrants certification, in view of the principles set out in Liyanagamage v. M.C.I., 176 N.R. 4, at page 5, is indicated in the questions proposed by the parties, and it is as follows:
| [Translation] Under the power of decision granted to him in paragraph 46.04(3) of the Immigration Act, may an immigration officer, without the intervention of an adjudicator, refuse to grant landing to the applicant and to any dependant for whom landing is sought, on the ground that he is not satisfied that neither the applicant nor any of those dependants is a person described in paragraph 19(1)(j) of that Act? |
OTTAWA, ONTARIO
February 25, 2000
Certified true translation
Bernard Olivier
Date: 20000225
Docket: IMM-1264-99
Ottawa, Ontario, the 25th day of February, 2000
Present: The Honourable Mr. Justice Pinard
Between:
RONY DANILO FIGUEROA
MARITZA JUDITH MORALES de FIGUEROA
HEIDY FIGUEROA-MORALES
ELSA MARITZA FIGUEROA-MORALES
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review is dismissed.
The following question is certified under subsection 18(1) of the Federal Court Immigration Rules, 1993:
Under the power of decision granted to him in paragraph 46.04(3) of the Immigration Act, may an immigration officer, without the intervention of an adjudicator, refuse to grant landing to the applicant and to any dependant for whom landing is sought, on the ground that he is not satisfied that neither the applicant nor any of those dependants is a person described in paragraph 19(1)(j) of that Act?
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: RONY DANILO FIGUEROA et al. v. MCI |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: JANUARY 25, 2000 |
REASONS FOR ORDER OF PINARD J.
DATED: FEBRUARY 25, 2000
APPEARANCES:
WILLIAM SLOAN FOR THE APPLICANTS
NORMAND LEMYRE FOR THE RESPONDENT
SOLICITORS OF RECORD:
WILLIAM SLOAN FOR THE APPLICANTS
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA
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