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CHAPTER 10
10. EXCLUSION CLAUSES
10.1. ARTICLE 1E
Article 1E of the Convention has
been considered by the Federal Court in a number of cases. The interpretation
of this provision is still evolving and it is not as clear as one would
hope, therefore, paragraphs 144 to 146 of the UNHCR
Handbook constitute a helpful starting point.
For this ground of exclusion to operate,
a person must have already been recognized as having the rights and obligations
which are attached to the possession of nationality of the country in
which he or she has taken up residence.1
10.1.1. Ability to Return and Remain
At a minimum, the claimant must be able
to return to,2
and remain in,3
the putative Article 1E country before this provision can be invoked
to exclude him or her from the Convention refugee definition. The provision
is not limited to a consideration of those countries in which the claimant
took up residence as a refugee.4
In Madhi,5
in the context of a vacation application before the CRDD,
the Court of Appeal dismissed the appeal against the decision of the Trial
Division which overturned the CRDD's
decision to vacate the claimant's status. In doing so, the Court of Appeal
held that the real question that had to be determined was whether the
claimant was, when she applied for admission to Canada, a person who was
still recognized by the competent authorities of the putative Article 1E
country as a permanent resident of that country. That issue was to be
decided on a balance of probabilities. In that case, after becoming a
permanent resident of the United States, the claimant had returned to
Somalia, her country of nationality, and thereby renounced her U.S.
status. The Court of Appeal noted that this was not a case where the claimant
had voluntarily renounced the protection of one country in order to seek
refuge elsewhere, and held that she was not precluded from later claiming
Convention refugee status in Canada.
As for the standard of proof required
to meet the test of "on a balance of probabilities", the Court of Appeal
in Mahdi instructed the CRDD
to take into account any "serious possibility" that the American authorities
would no longer recognize the claimant as a permanent resident and would,
for that reason, deny her the right to return to the United States.6
In Wassiq,7
the Trial Division pointed out that the correct test is whether the putative
Article 1E country recognizes the claimant's right to return there,
even if his or her travel documents have expired, and not whether in international
law, or from Canada's perspective, that country has formal or legal responsibility
for the claimant.
In Agha,8
the Trial Division concluded that the claimant, an Iranian national, had
not adduced any evidence showing that he no longer had status in the United
States, aside from the suggestion that he might lose his status because
of his extended absence since 1985 and the voluntary departure order he
received in 1995 when he was there on his way to Canada. According to
an INS official, loss of status due to an extended absence was not automatic
and the claimant continued to be a permanent resident until a U.S.
immigration judge determined otherwise.
The issue of the operative time for
the right to return appears to be somewhat fluid and murky, with one of
the concerns apparently being asylum shopping and allowing status to lapse.9
In Hibo Farah Mohamed,10
the claimants made refugee claims in Sweden, left for Canada while their
claims were still pending, and were granted permanent residence status
in Sweden one month later. The Trial Division upheld the CRDD's
exclusion finding. In this case, the relevant time to determine if the
claimants had status elsewhere was at the time of the hearing, and not
when the refugee claims were made. Although the Swedish permanent residence
certificate had to be periodically renewed, there was no evidence that
permanent residence in Sweden was subject to some form of arbitrary cancellation.
10.1.1.1. Onus to Renew Status
The case of Shamlou,11
as well as other decisions of the Trial Division, suggests that there
is an onus on the claimant to renew his or her status in the putative
Article 1E country, if it is renewable.
In Shahpari,12
the claimant, an Iranian citizen, moved to France in 1984. In 1991, she
acquired permanent residence and was issued a carte de résident,
valid to 2001. In 1993, she returned to Iran, but in 1994, came back to
France, and two months later came to Canada. At her CRDD
hearing in 1997, her exist/re-entry visa for France had expired, but the
panel found that Article 1E applied because that visa could be renewed.
The Trial Division held that: (1) the onus is on the Minister in Article 1E
cases, but once prima facie evidence is adduced, the onus shifts
to the claimant to demonstrate why, having destroyed her carte de
résident, she could not apply for a new one; and (2) that
the evidence before the panel reasonable allowed it to conclude that the
visa could be renewed.
Mr. Justice
Rothstein also added:
[Claimants] should also remember that actions they themselves
take which are intended to result in their not being able to return to
a country which has already granted them Convention refugee status may
well evidence an absence of the subjective fear of persecution in their
original country from which they purport to be seeking refuge.
10.1.2. Rights and Obligations of a National
In determining whether the claimant
falls within the ambit of Article 1E, the Trial Division in Kroon13
endorsed a consideration of the basic rights to which the claimant is
entitled under the constitution and the laws of the putative Article 1E
country and a comparison of those with the rights acknowledged for that
country's nationals. The Court stated:
Here, the tribunal
sought to assess whether the [claimant]
would be recognized under the Estonian Constitution and its laws as having
basic rights and obligations which attach to nationals of that country.
It found, with some important exceptions, that was the case and that in
certain key respects the [claimant] would enjoy, in Estonia, a status
comparable to that of Estonian nationals and consistent with international
conventions and treaties relating to rights and obligations of individuals.
In particular, it found
that the [claimant] could be expected to
be restored to his rights of residency in Estonia as a registered non-citizen,
upon his return, that within a reasonable time he would be entitled to
apply for citizenship and in the meantime had a right to remain there
with rights similar to most of those enjoyed by citizens.14
The Court found this approach to be
reasonable and one supported by legal writers such as Grahl-Madsen and
Hathaway.15
The Trial Division, in Shamlou,16
accepted as "an accurate statement of the law" the following four criteria
that the Board should follow in undertaking an analysis of the "basic
rights" enjoyed by a claimant, as outlined by Lorne Waldman in Immigration
Law and Practice:17
(a) the right to return to the country of residence;
(b) the right to work freely without restrictions;
(c) the right to study, and
(d) full access to social services in the country of residence.
If the [claimant] has some sort of temporary status which must
be renewed, and which could be cancelled, or if the [claimant] does not
have the right to return to the country of residence, clearly the [claimant]
should not be excluded under Art. 1E.
The Court was satisfied the CRDD
had come to a reasonable conclusion in determining that the claimant,
an Iranian who had become a permanent resident of Mexico, enjoyed substantially
the same rights as Mexican nationals, even if he had chosen not to renew
his Mexican travel documents (there was some evidence they were no longer
renewable after his absence of more than three years) and not to wait
for his Mexican citizenship status to be formalized. Although not entitled
to vote, these rights included the ability to leave, re-enter and reside
anywhere in the country, access to free health care, the right to purchase
and own property, and the ability to seek, obtain and change employment.
Furthermore, the Mexican authorities had at no time attempted to return
him to Iran and there was no allegation of persecution in Mexico.18
It does not appear that determinations
under Article 1E necessarily entail a rigid consideration of all
of the criteria identified in the Shamlou case. In Hamdan,19
the Trial Division stated as follows:
It is not necessary to comment on whether the criteria laid
out in Shamlou must all be satisfied for exclusion under Article 1(E),
or whether other criteria may be relevant in some cases. The relevant
criteria will change depending on the rights which normally accrue to
citizens in the country of residence subject to scrutiny.
In Juzbasevs,20
the Trial Division noted that the case law is not clear as to what factors
need to be considered. It would appear that determinations under Article 1E
do not necessarily involve a strict consideration of all factors regarding
residency, as the analysis depends on the particular nature of the case
at hand. International standards and practices may allow a state to limit
government employment, political participation and some property rights
to non-nationals. In Latvia, the country in question, certain professions
were also closed to non-nationals, but this did not negate the application
of Article 1E.
In Kamana,21
the claimant had acquired refugee status in Burundi. The evidence indicated
that refugee status in Burundi included the right not to be deported from
that country. Except for the right to vote, he had the same rights as
did Burundi citizens, namely, the right to education and to work. The
Court held that Article 1E therefore applied.
10.1.3. Fear of Persecution in the Article 1E
Country
In Choovak,27
the Trial Division held that the CRDD
erred in not turning its mind to the specific claim made by the claimant,
an Iranian national, against Germany, where she was given asylum and had
a special temporary residence status before coming to Canada.
ARTICLE 1F
10.2. ARTICLE 1F(a): Crimes Against Peace,
War Crimes and Crimes Against Humanity28
In order to define Article 1F(a)
crimes, reference must be had to the international instruments29
that deal with these crimes. The international instrument most frequently
used to define these crimes is the Charter of the International Military
Tribunal.30
10.2.1. Crimes Against Peace
Since a crime against peace historically
may only be committed in the context of an international war, there have
been no Federal Court or CRDD
decisions involving this aspect of the exclusion clause.
10.2.2. War Crimes
Numerous international instruments may
be referred to when defining these crimes, including the Charter of
the International Military Tribunal, the Geneva Conventions
and the Additional Protocol. In Ramirez,31
the Court of Appeal noted that crimes committed during the civil war in
El Salvador were either war crimes or crimes against humanity.
The Supreme Court of Canada in Finta32
set out the requisite mens rea (mental state) and actus reus
(physical element) of a war crime or a crime against humanity under section 7(3.71)
of the Canadian Criminal Code. The Court did not consider Article 1F(a).33
10.2.3. Crimes Against Humanity
Crimes against humanity may be committed
during a war - civil or international - as well as in times of peace.34
The crime must be committed in a "widespread systematic fashion".35
In addition, when "barbarous cruelty"
is an additional component of kidnapping, unlawful confinement, robbery
and manslaughter, such offences can achieve the level of crimes against
humanity.36
The perpetrator of a crime against humanity
may be an individual acting independently of a State, especially those
involved in paramilitary or armed revolutionary movements, or a person
acting in conjunction with the authorities of a State.37
It is crucial that the CRDD,
in making a decision to exclude under Article 1F(a), provide findings
of fact as to specific crimes against humanity which the claimant is alleged
to have committed. The CRDD
should make findings as to: acts committed by the immediate perpetrators;
the claimant's knowledge of the acts; his sharing in the purpose of the
acts; and whether the acts constituted crimes against humanity.38
10.2.4. Balancing
There is no requirement to balance the
nature of the Article 1F(a) crime with the degree of persecution
feared.39
10.2.5. Defences
There may be circumstances where a claimant
will invoke successfully certain defences which absolve him or her from
criminal responsibility and thus he or she will not be excluded from refugee
status, despite the claimant's commission of a war crime or crime against
humanity.
10.2.5.1. Duress
The defence of duress may be used to
justify participation in certain offences providing the perpetrator was
in danger of imminent harm,40
the evil threatened him or her was on balance greater than or equal to
the evil which he or she inflicted on the victim41
and he or she was not responsible for his own predicament.42
10.2.5.2. Superior Orders
A claimant may raise the defence that
he or she was ordered to commit the offence by his military superior and
that under military law, such orders must be obeyed. The Supreme Court
of Canada in Finta, citing numerous international law decisions,
held that this defence will not be successful if the military order was
"manifestly unlawful" or "patently and obviously wrong", in other words,
if it "offends the conscience of every reasonable, right thinking person".43
If this defence is raised in conjunction
with the defence of duress, in that the claimant feared punishment if
he or she disobeyed the order, then the principles relating to the defence
of duress would apply.
10.2.5.3. Military Necessity
A claimant may raise the defence that
the military action carried out was justified by the general circumstances
of battle. However, if the deaths of innocent civilians are as a result
of intentional, deliberate and unjustified acts of killing, such acts
may constitute war crimes or crimes against humanity.44
10.2.5.4. Remorse
Remorse is immaterial in determining
the culpability of a perpetrator of a war crime or a crime against humanity.45
10.2.6. Complicity
Where a claimant has not in a "physical"
sense committed a crime, but has aided, instigated or counselled a perpetrator
in the commission of a war crime or crime against humanity, he or she
may, as an accomplice, be held responsible for the crime and thus subject
to being excluded from the refugee definition. An accomplice is as culpable
as the principal perpetrator.46
When determining the culpability of a claimant who has had a prior association
with a group responsible for excludable crimes, regard should be had to
the following factors: method of recruitment; nature of the organization;
the claimant's rank; knowledge of atrocities; opportunity to leave the
organization and period of time spent in the organization.47
The Court of Appeal held in Ramirez
that "no one can commit international offences without personal and knowing
participation".48
In Solomon,49
the Court referred the case back for rehearing as the claimant had been
a member of an organization whose actions may have ultimately resulted
in the mistreatment of others; although the claimant was found not to
have engaged in acts of violence, he might have been excluded through
association. In contrast, in Ledezma50
the Court found that the CRDD
erred in its conclusion that the claimant, a member of the military, was
an accomplice to crimes against humanity as the evidence revealed it was
the police, not the military who was responsible for the abuses.
10.2.6.1. Mere Membership in an Organization
In Ramirez the Court of Appeal
stated:
mere membership in an organization which from time to time
commits international offences in not normally sufficient for exclusion
from refugee status.51
(emphasis added)
In contrast the Court held that:
where an organization is principally directed to a limited,
brutal purpose, such as a secret police activity, mere membership
may by necessity involve personal and knowing participation in
persecutorial acts.52
(emphasis added)
Membership in these organizations, does
not automatically result in exclusion; the CRDD
must determine whether the claimant had knowledge of the crimes being
committed by the members of the organization.53
There is a "presumption of complicity" when the claimant was a member
of such a group whereby
it can generally be assumed that its members intentionally
and voluntarily joined and remained in the group for the common purpose
of actively adding their personal efforts to the group's cause.54
This presumption is clearly rebuttable.55
10.2.6.2. Presence at the Scene
The Court of Appeal has held that "mere presence at the scene of an offence
is not enough to qualify as personal and knowing participation",57
The Court concluded that
complicity rests in such cases
on the existence
of a shared common purpose and the knowledge that all of the parties in
question may have of it.58
(emphasis added)
The culpability of a claimant was rejected where the claimant, shortly
after being forcibly recruited, had witnessed on only one occasion, the
torture of a prisoner.59
In that case, however, the claimant had had no prior knowledge of the
acts to be perpetrated.
10.2.6.3. Rounding Up of Dissidents
A claimant's activities in rounding
up suspects may constitute personal involvement in the commission of any
offences that follow providing the claimant had knowledge that such atrocities
were being committed.60
10.2.6.4. Responsibility of Superiors
In Sivakumar the Court of Appeal
held that "a commander may be responsible for international crimes committed
by those under his command, but only if there is knowledge or reason to
know about them."61 In addition,
the closer one is to being a leader rather than an ordinary
member, the more likely it is that an inference will be drawn that one
knew of the crime and shared the organization's purpose in committing
that crime.62
In Mohammad,63
the Court held that the claimant was complicit in Article 1F(a) crimes
since, as prison director, he knew or should have known of the crimes
committed against prisoners.
10.3. ARTICLE 1 F(b): Serious Non-Political
Crimes
10.3.1. "Serious Crimes"
In Brzezinski,64
the Trial Division considered for the first time what is meant by "serious
crime" within the context of Article 1 F(b). In this case the claimants
acknowledged that they supported their family by stealing, namely shoplifting,
both before and after coming to Canada. While the convictions in Canada
are not relevant as they were not committed "outside the country
of refuge", the Court, after a review of the travaux preparatoires,
held that the intention of the Convention was not to exclude persons who
committed minor crimes, even "an accumulation of petty crimes."
Thus, while shoplifting was recognized by the Court as being a serious
social problem, it was not a "serious" crime within the meaning
of Article 1F(b), despite evidence of the claimant's recidivism.
The Court certified two questions involving the concept of habitual involvement
in crimes.
A misdemeanour probably lacks the requisite
seriousness to be considered under Article 1F(b).65
Article 1F(b) is not applicable
to refugee claimants who have been convicted of a crime committed outside
Canada and who have served their sentence prior to coming to Canada.66
10.3.2. "Non-Political Crimes"
The Court of Appeal has held that in
order for a crime to be characterized as political, and thus to fall outside
the ambit of Article 1F(b), it must meet a two-pronged "incidence"
test which requires first, the existence of a political disturbance related
to a struggle to modify or abolish either a government or a government
policy; and second, a rational nexus between the crime committed and the
potential accomplishment of the political objective sought.67
The Court of Appeal considered and rejected
the notion of balancing the seriousness of the persecution the claimant
is likely to suffer against the gravity of the crime he committed.
One final point. Another panel of this Court has already rejected
the suggestion made by a number of authors that paragraph 1F(a) requires
a kind of proportionality test which would weigh the persecution likely
to be suffered by the refugee claimant against the gravity of this crime.
Whether or not such a test may be appropriate for paragraph 1F(b) seems
to me to be even more problematical. As I have already indicated, the
claimant to whom the exclusion clause applies is ex hypothesi
in danger of persecution; the crime which he has committed is by definition
"serious" and will therefore carry with it a heavy penalty which at a
minimum will entail a lengthy term of imprisonment and may well include
death. This country is apparently prepared to extradite criminals to face
the death penalty and, at least for a crime of the nature of that which
the [claimant] has admitted committing, I can see no reason why we should
take any different attitude to a refugee claimant. It is not in the public
interest that this country should become a safe haven for mass bombers.68
(footnotes omitted)
Proportionality is a factor in the characterization
of a crime. The gravity of the crime committed to effect change must be
commensurate with the degree of repressiveness of the government in question
for the crime to be considered a political one.
Where it is appropriate to use a proportionality test under
Article 1F(b) is in the weighing of the gravity of the crime as part
of the process of determining if we should brand it as "political". A
very serious crime, such as murder, may be accepted as political if the
regime against which it is committed is repressive and offers no scope
for freedom of expression and the peaceful change of government or government
policy. Under such a regime the claimant might be found to have had no
other option to bring about political change. On the other hand, if the
regime is a liberal democracy with constitutional guarantees of free speech
and expression (assuming that such a regime could ever produce a genuine
refugee) it is very difficult to think of any crime, let alone a serious
one, which we would consider to be acceptable method of political action.
To put the matter in concrete terms, the plotters against Hitler might
have been able to claim refugee status; the assassin of John F. Kennedy
could never do so.69
A plea of guilty to a charge of possession
for the purpose of trafficking and trafficking in cocaine constitutes
a sound basis for having serious reasons for considering that a person
has committed a serious non-political crime.70
The words "admission to that country
as a refugee" refer to the admission into Canada of a person intending
to claim recognition as a Convention refugee.71
10.3.3. Complicity
In Zrig,72
the Trial Division agreed with the CRDD
that the claimant, because of his important involvement in the movement,
could not have been unaware that acts of violence were taking place and
that he was complicit in serious non-political crimes. The Court certified
the following question:
Are the rules laid down by the Federal Court of Appeal in Sivakumar
on complicity by association for purposes of implementing Art. 1F(a)
of the United Nations Convention Relating to the Status of Refugees,
applicable for purposes of an exclusion under 1F(b) of the said Convention?
10.4. ARTICLE 1F(c): Acts Contrary To The Purposes
And Principles Of The United Nations
On June 4, 1998 the Supreme Court of
Canada released the decision in Pushpanathan 73
overturning the decision by the Federal Court of Appeal. The Supreme Court
of Canada found no indication in international law that drug trafficking
on any scale is to be considered contrary to the purposes and principles
of the United Nations74
and thus is not subject to exclusion under Article 1F(c).
Mr.
Justice Bastarache, writing on behalf of the majority, held that:
the purpose of Article 1F(c) can be characterized
in the following terms: to exclude those individuals responsible for serious,
sustained or systemic violations of fundamental human rights which amount
to persecution in a non-war setting.75
The Court noted that in dealing with
Article 1F(c),
The guiding principle is that where there is consensus in international
law that particular acts constitute sufficiently serious and sustained
violations of fundamental human rights as to amount to persecution, or
are explicitly recognized as contrary to the purposes and principles of
the United Nations, then Article 1F(c) will be applicable.76
The Court set out two categories of
acts which fall within this exclusion clause. The first category
is:
where a widely accepted international agreement or United
Nations resolution declares that the commission of certain acts is contrary
to the purposes and principles of the United Nations.77
Enforced disappearances, torture and
international terrorism were examples offered by the Court as falling
in the first category as corresponding international instruments exist
which specifically designate such acts as being contrary to the purposes
and principles of the United Nations.78
The Court noted that "other sources of international law may be relevant
in a court's determination of whether an act falls within 1F(c)"
and noted that "determinations by the International Court of Justice
may be compelling."79
The second category of
acts which fall within the scope of Article 1F(c) are:
those which a court is able, for itself, to characterize as
serious, sustained and systemic violations of fundamental human rights
constituting persecution.80
This second category was also described
by the Court as including any act whereby an international instrument
has indicated it is a violation of fundamental human rights.81
As a result, the Court determined that
"conspiring to traffic in a narcotic is not a violation of Article 1F(c)."82
Even though international trafficking in drugs in an extremely
serious problem that the United Nations has taken extraordinary measures
to eradicate, in the absence of clear indications that the international
community recognizes drug trafficking as a sufficiently serious and sustained
violation of fundamental human rights so as to amount to persecution,
either through a specific designation as an act contrary to the purposes
and principles of the United Nations (the first category), or through
international instruments which otherwise indicate that trafficking is
a serious violation of fundamental human rights (the second category)
individuals should not be deprived of the essential protections contained
in the Convention for having committed those acts.83
The Court also noted that exclusion
under Article 1F(c) is not limited to persons in positions of power
and indicated that non-state actors may fall within the provision.84
The Federal Court of Appeal had ruled
in Pushpanathan85
and in Malouf86
that the CRDD
is not required to balance the seriousness of the claimant's conduct against
the alleged fear of persecution when considering any of the paragraphs
of Article 1F. Since the Supreme Court of Canada did not comment
on this aspect of the exclusion clauses, the dicta as regards the balancing
can still be considered as good law. Nothing in the decision of the Supreme
Court in Pushpanathan suggests that the Court intended to overrule
or modify this point of law.
10.4.1. Complicity
In Bazargan,87
the Court of Appeal, citing MacGuigan J.A. in Ramirez, adopted
the position that personal and knowing participation in persecutorial
acts is the only criterion to be applied in order to determine if a claimant
is guilty of acts contrary to the purposes and principles of the United
Nations. Formal membership in an organization whose members are guilty
of such acts is not a prerequisite to the application of Article 1F(c).
It is not working within an organization that makes someone
an accomplice to the organization's activities, but knowingly contributing
to those activities in anyway or making them possible whether from within
or from outside the organization.88
Whether Article 1F(a), 1F(b) or
1F(c) is involved, the same principles regarding complicity apply (see
Chapter 10, section 10.2.6.)89
10.5. BURDEN AND STANDARD OF PROOF
The burden of establishing serious reasons
for considering that international offences have been committed falls
on the Government.
Aside from avoiding the proving of a negative by a claimant,
this also squares with the onus under paragraph 19(1)(j) of the Immigration
Act, according to which it is the Government that must establish
that it has reasonable grounds for excluding claimants. For all these
reasons, the Canadian approach requires that the burden of proof be on
the Government, as well as being on a basis of less than the balance of
probabilities.90
The Minister does not have to be present
at the hearing in order for the Refugee Division to consider exclusion
clauses.91
The interpretation of "serious reasons
for considering" has established the standard of proof92
at less than the balance of probabilities.93
The Federal Court of Appeal in Moreno elaborated on the standard
it had earlier enunciated:
In Ramirez,
this Court canvassed this aspect
of refugee law and concluded that the standard was one well below that
required under either the criminal law ("beyond a reasonable doubt") or
the civil law ("on a balance of probabilities" or "preponderance of evidence").94
In Ramirez
MacGuigan J.A. stated that serious
reasons for considering constitutes an intelligible standard on its own
which need not be assimilated to the reasonable standard in section 19
of the Immigration Act. This conclusion was echoed by Mr. Justice Robertson in Moreno,
although Robertson, J.A.
indicated, that for practical purposes, there was no difference between
the standards. I agree that there is little, if any difference of meaning
between the two formulations of the standard. Both of these standards
require something more than suspicion or conjecture, but something less
than the balance of probabilities.95
The Court also added that it "is universally
accepted that the applicability of the exclusion clause does not depend
on whether a claimant has been charged or convicted of the acts set out
in the Convention."96
- Aden, Ahmed Abdulkadir v.
M.C.I.
(F.C.T.D.,
no. IMM-2912-95), MacKay,
August 14, 1996. Reported: Aden v.
Canada (Minister of Citizenship and Immigration) (1996), 35 Imm.
L.R. (2d) 40 (F.C.T.D.)
- Agha, Sharam Pahlevan Mir v.
M.C.I.
(F.C.T.D.,
no. IMM-4282-99), Nadon,
January 12, 2001
- Albuja, Jorge Ernesto Echeverria v.
M.C.I.
(F.C.T.D.,
no. IMM-3562-99), Pinard,
October 23, 2000
- Alza, Julian Ulises v. M.C.I.
(F.C.T.D.,
no. IMM-3657-94), MacKay,
March 26, 1996
- Arica, Jose Domingo Malaga v.
M.E.I.
(F.C.A.,
no. A-153-92), Stone, Robertson,
McDonald, May 3, 1995. Reported: Arica v.
Canada (Minister of Employment and Immigration) (1995), 182 N.R.
(2d) 34 (F.C.A.)
- Ariri, Ojere Osakpamwan v.
M.C.I.
(F.C.T.D.,
no. IMM-2111-01), Dawson,
March 6, 2002; 2002 FCT
251
- Asghedom, Yoseph v. M.C.I.
(F.C.T.D.,
no. IMM-5406-00), Blais,
August 30, 2001
- Ashari, Morteza Asna v.
M.C.I.
(F.C.T.D.,
no. IMM-5205-97), Reed, August
21, 1998
- Ashari, Morteza Asna v.
M.C.I.
(F.C.T.D.,
no. IMM-525-98), Decary,
Robertson, Noel, October 26, 1999
- Bahamin, Fardin v. M.E.I.
(F.C.A.,
no. A-115-92), Hugessen,
MacGuigan, Linden, June 20, 1994. Reported: Bahamin v.
Canada (Minister of Employment and Immigration) (1994), 171 N.R.
79 (F.C.A.)
- Balta, Dragomir v. M.C.I.
(F.C.T.D.,
no. IMM-2459-94), Wetston,
January 27, 1995, at 5. Reported: Balta v.
Canada (Minister of Citizenship and Immigration) (1995), 27 Imm.
L.R. (2d) 226 (F.C.T.D.)
- Bamlaku, Mulualem v.
M.C.I.
(F.C.T.D.,
no. IMM-846-97), Gibson,
January 16, 1998
- Baqri, Syed Safdar Ali v.
M.C.I.
(F.C.T.D.,
no. IMM-4211-00), Lutfy,
October 9, 2001
- Bazargan: M.C.I.
v. Bazargan, Mohammad Hassan
(F.C.A.,
no. A-400-95), Marceau, Décary,
Chevalier, September 18, 1996
- Bermudez, Ivan Antonio v.
M.C.I.
(F.C.T.D.
no. IMM-1139-99), MacKay,
June 13, 2000
- Brzezinski, Jan v. M.C.I.
(F.C.T.D.,
no. IMM-1333-97), Lutfy,
July 9, 1998
- Cardenas, Roberto Andres Poblete v.
M.E.I.
(F.C.T.D.,
no. 93-A-171), Jerome, February 4,
1994. Reported: Cardenas v.
Canada (Minister of Employment and Immigration) (1994), 23 Imm.
L.R. (2d) 244 (F.C.T.D.)
- Castillo, Lourdes Abigail v.
M.C.I.
(F.C.T.D.,
no. IMM-430-95), Jerome,
January 16, 1996
- Chan v.Canada (Minister of Citizenship and Immigration),
[2000] 4 F.C.390 (C.A.)
- Chan, San Tong v. M.C.I.
(F.C.T.D.,
no. IMM-2154-98), MacKay,
April 23, 1999
- Chitrakar, Narayan Lal v.
M.C.I.
(F.C.T.D.,
no. IMM-2769-01), Lemieux,
August 19, 2002; 2002 FCT
888
- Choovak: M.C.I.
v. Choovak, Mehrnaz (F.C.T.D.,
no. IMM-3080-01), Rouleau,
May 17, 2002; 2002 F.C.A.
573
- Cibaric, Ivan v. M.C.I.
(F.C.T.D.,
no. IMM-1078-95), Noël,
December 18, 1995
- Coomaraswamy, Ranjan v.
M.C.I.
(F.C.A.,
no. A-104-01), Rothstein,
Sexton, Evans, April 26, 2002; 2002 F.C.A.
153
- Cordon: M.C.I.
v. Cordon, Jose Anibal Cortez
(F.C.T.D.,
no. IMM-3042-94), Pinard,
April 20, 1995
- CRDD
M92-10972/5, Gilad, Sparks, May 7, 1993
- Dawlatly, George Elias George v.
M.C.I.
(F.C.T.D.,
no. IMM-3607-97), Tremblay-Lamer,
June 16, 1998
- Diaz, Cesar Martin v M.C.I..
(F.C.T.D.,
no. IMM-1562-94), Muldoon,
April 24, 1995
- El-Hasbani, Georges Youssef v.
M.C.I.
(F.C.T.D.,
no. IMM-3891-00), Muldoon,
August 17, 2001
- Equizbal v. Canada (Minister
of Employment and Immigration), [1994] 3 F.C.
514 (C.A.)
- Feimi, Jani Ardian v. M.C.I.
(F.C.T.D.,
no. IMM-2934-98), Teitelbaum,
June 11, 1999
- Finta: R. v. Finta,
[1994] 1 S.C.R.
701
- Gil v. Canada (Minister
of Employment and Immigration), [1995] 1 F.C.
508 (C.A.)
- Goncalves, Lenvo Miguel v.
M.C.I.
(F.C.T.D.,
no. IMM-3144-00), Lemieux,
July 19, 2001
- Gonzalez v. Canada (Minister
of Employment and Immigration), [1994] 3 F.C.
646 (C.A.)
- Gracias-Luna, Juan Ramon v.
M.C.I.
(F.C.T.D.,
no. A-1139-92), Simpson,
May 25, 1995
- Grewal, Harjit Singh v.
M.C.I.
(F.C.T.D.,
no. IMM-4674-98)
- Guardano, Roberto v. M.C.I.
(F.C.T.D.,
no. IMM-2344-97), Heald,
June 2, 1998
- Gutierrez, Luis Eduardo v.
M.E.I.
(F.C.T.D.,
no. IMM-2170-93), MacKay,
October 11, 1994. Reported: Gutierrez v.
Canada (Minister of Employment and Immigration) (1994), 30 Imm.
L.R. (2d) 106 (F.C.T.D.)
- Hadissi, Fetneh v. M.C.I.
(F.C.T.D.,
no. IMM-5210-94), Jerome,
March 29, 1996
- Hajialikhani: Canada (Minister of Citizenship and Immigration)
v. Hajialikhani [1999] 1
F.C. 181 (T.D.)
- Hamdan, Kadhom Abdul Hu v.
M.C.I.
(F.C.T.D.,
no. IMM-1346-96), Jerome,
March 27, 1997. Reported: Hamdan v.
Canada (Minister of Citizenship and Immigration) (1997), 38 Imm.
L.R. (2d) 20 (F.C.T.D.)
- Hovaiz, Hoshyar v. M.C.I.
(F.C.T.D.,
no. IMM-2012-01), Pinard,
August 29, 2002; 2002 FCT
908
- Hurt v. Canada (Minister
of Manpower and Immigration), [1978] 2 F.C.
340 (C.A.)
- Hussain: M.C.I.
v. Hussain, Jassem Abdel
(F.C.T.D.,
no. IMM-906-01), Pinard,
March 1, 2002; 2002 FCT
209
- Imama, Lofulo Bofaya v.
M.C.I.
(F.C.T.D.,
no. IMM-118-01), Tremblay-Lamer,
November 6, 2001
- Juzbasevs, Rafaels v. M.C.I.
(F.C.T.D.,
no. IMM-3415-00), McKeown,
March 30, 2001; 2001 FCT
262
- Kamana, Jimmy v. M.C.I.
(F.C.T.D.,
no. IMM-5998-98), Tremblay-Lamer,
September 24, 1999
- Kanesharan, Vijeyaratnam v.
M.C.I.
(F.C.T.D.,
no. IMM-269-96), Heald, September 23,
1996. Reported: Kanesharan v.
Canada (Minister of Citizenship and Immigration) (1996), 36 Imm.
L.R. (2d) 185 (F.C.T.D.)
- Khera, Daljinder v. M.C.I.
(F.C.T.D.,
no. IMM-4009-97), Pinard,
July 8, 1999
- Kroon, Victor v. M.E.I.
(F.C.T.D.,
no. IMM-3161-93), MacKay,
January 6, 1995. Reported: Kroon v.
Canada (Minister of Employment and Immigration) (1995), 28 Imm.
L.R. (2d) 164 (F.C.T.D.)
- Kudjoe, Rommel v. M.C.I.
(F.C.T.D.,
no. IMM-5129-97), Pinard,
December 4, 1998
- Ledezma, Jorge Ernesto Paniagua v.
M.C.I.
(F.C.T.D.,
no. IMM-3785-96), Simpson,
December 1, 1997
- Loordu, Joseph Kennedy v.
M.C.I.
(F.C.T.D.,
no. IMM-1258-00), Campbell,
January 25, 2001
- M. v. M.C.I.
(F.C.T.D.,
no. IMM-1689-01), Dawson,
July 31, 2002; 2002 FCT
833
- Mahdi, Roon Abdikarim v.
M.C.I.
(F.C.T.D.,
no. IMM-1600-94), Gibson,
November 15, 1994. Reported: Mahdi v.
Canada (Minister of Citizenship and Immigration) (1994), 26 Imm.
L.R. (2d) 311 (F.C.T.D.)
- Mahdi: M.C.I.
v. Mahdi, Roon Abdikarim
(F.C.A.,
no. A-632-94), Pratte, MacGuigan,
Robertson, December 1, 1995. Reported: Canada (Minister
of Citizenship and Immigration) v.
Mahdi (1995), 32 Imm.
L.R. (2d) 1 (F.C.A.)
- Malouf v. Canada (Minister
of Citizenship and Immigration), [1995] 1 F.C.
537 (T.D.)
- Malouf: M.C.I.
v. Malouf, François
(F.C.A.,
no. A-19-95), Hugessen, Décary,
Robertson, November 9, 1995. Reported: Canada (Minister
of Citizenship and Immigration) v.
Malouf (1995), 190 N.R.
230 (F.C.A.)
- Mehmoud, Sultan v.
M.C.I.
(F.C.T.D.,
no. IMM-1734-97), Muldoon,
July 7, 1998
- Mohamed, Hibo Farah v. M.C.I.
(F.C.T.D.,
no. IMM-2248-96), Rothstein,
April 7, 1997
- Mohammad, Zahir v. M.C.I.
(F.C.T.D.,
no. IMM-4227-94), Nadon,
October 25, 1995
- Mohamud: M.C.I.
v. Mohamud, Layla Ali (F.C.T.D.,
no. IMM-4899-94), Rothstein,
May 19, 1995
- Moreno Florian, Carlos Eduardo Moreno v.
M.C.I.
(F.C.T.D.,
no. IMM-2159-01), Tremblay-Lamer,
March 1, 2002; 2002 FCT
231
- Moreno v. Canada (Minister
of Employment and Immigration), [1994] 1 F.C.
298 (C.A.)
- Musansi, Clara Lussikila v.
M.C.I.
(F.C.T.D.,
no. IMM-5470-99), Pinard,
January 23, 2001
- Muto: M.C.I.
v. Muto, Antonio-Nesland
(F.C.T.D.,
no. IMM-518-01), Tremblay-Lamer,
March 6, 2002; 2002 FCT
256
- Nagra: M.C.I.
v. Nagra, Harjinderpal Singh
(F.C.T.D.,
no. IMM-5534-98), Rouleau,
October 27, 1999
- Nejad, Saeed Javidani-Tabriz v.
M.C.I.
(F.C.T.D.,
no. IMM-4624-93), Richard,
November 16, 1994
- Nepete, Firmino Domingos v.
M.C.I.
(F.C.T.D.,
no. IMM-4471-99), Haneghan,
October 11, 2000
- Olschewski, Alexander Nadirovich v.
M.E.I.
(F.C.T.D.,
no. A-1424-92), McGillis,
October 20, 1993
- Ordonez, Luis Miguel Castaneda v.
M.C.I.
(F.C.T.D.,
no. IMM-2821-99), McKeown,
August 30, 2000
- Osman, Abdirizak Said v.
M.E.I.
(F.C.T.D.,
no. IMM-261-93), Nadon, December 22,
1993
- Paz, Lazaro Cartagena v.
M.C.I.
(F.C.T.D.,
no. IMM-226-98), Pinard,
January 6, 1999
- Penate v. Canada (Minister
of Employment and Immigration), [1994] 2 F.C.
79 (T.D.)
- Pushpanathan v. Canada (Minister
of Citizenship and Immigration), [1996] 2 F.C.
49 (C.A.)
- Pushpanathan v. Canada
(Minister of Citizenship and Immigration), [1998] 1 S.C.R.
982
- Pushpanathan, Veluppillai v.
M.C.I.
(F.C.T.D.,
no. IMM-4427-01), Blais,
September 3, 2002; 2002 FCT
867
- Quinonez, Hugo Arnoldo Trejo v.
M.C.I.
(F.C.T.D.,
no. IMM-2590-97), Nadon,
January 12, 1999
- Ramirez v. Canada (Minister
of Employment and Immigration), [1992] 2 F.C.
306 (C.A.)
- Ramirez v. Canada (Minister
of Employment and Immigration), [1992] 2 F.C.
306 (C.A.)
- Ramirez, Mayor Javier Quinonez v.
M.C.I.
(F.C.T.D.,
no. IMM-4683-94), Nadon,
April 24, 1995
- Randhawa, Rana Partap Sing v.
M.E.I.
(F.C.T.D.,
no. IMM-5540-93), Simpson,
August 31, 1994
- Rasuli, Nazir Ahmad v. M.C.I.
(F.C.T.D.,
no. IMM-3119-95), Heald,
October 25, 1996
- Saridag, Ahmet v. M.E.I.
(F.C.T.D.,
no. IMM-5691-93), McKeown,
October 5, 1994
- Say, Chea v. M.C.I.
(F.C.T.D.,
no. IMM-2547-96), Lutfy,
May 16, 1997
- Shahpari, Khadijeh v. M.C.I.
(F.C.T.D.,
no. IMM-2327-97), Rothstein,
April 3, 1998. Reported: Shahpari v.
Canada (Minister of Citizenship and Immigration) (1998), 44 Imm.
L.R. (2d) 139 (F.C.T.D.)
- Shakarabi, Seyed Hassan v.
M.C.I.
(F.C.T.D.,
no. IMM-1371-97), Teitelbaum,
April 1, 1998
- Shamlou, Pasha v. M.C.I.
(F.C.T.D.,
no. IMM-4967-94), Teitelbaum,
November 15, 1995. Reported: Shamlou v.
Canada (Minister of Citizenship and Immigration) (1995), 32 Imm.
L.R. (2d) 135 (F.C.T.D.)
- Sifuentes Salazar, Gerardo Florentino et
al. v. M.C.I.
(F.C.T.D.,
no. IMM-977-98), Tremblay-Lamer,
April 16, 1999
- Singh, Gurpal v. M.C.I.
(F.C.T.D.,
no. IMM-5116-97), Strayer,
September 2, 1998
- Sivakumar v. Canada (Minister
of Employment and Immigration), [1994] 1 F.C.
433 (C.A.)
- Solomon: M.C.I.
v. Solomon, Yohannes (F.C.T.D.,
no. IMM-326-95), Gibson,
October 26, 1995. Reported: Canada (Minister of Citizenship
and Immigration) v. Solomon
(1995), 31 Imm.
L.R. (2d) 27 F.C.T.D.
- Srour, Immad v. S.G.C.
(F.C.T.D.,
no. IMM-1778-94), Rouleau,
January 26, 1994
- Sulemana, Halilu v. M.C.I.
(F.C.T.D.,
no. IMM-3355-94), Muldoon,
March 17, 1995
- Suliman, Shakir Mohamed v.
M.C.I.
(F.C.T.D.,
no. IMM-2829-96), McGillis,
June 13, 1997
- Sumaida, Hussein Ali v.
M.C.I.
(F.C.T.D.,
no. A-94-92), Simpson, August 14,
1996. Reported: Sumaida v.
Canada (Minister of Citizenship and Immigration) (1996), 35 Imm.
L.R. (2d) 315 (F.C.T.D.)
- Sumaida: M.C.I.
v. Sumaida, Hussein Ali
(F.C.A.,
no. A-800-95), Letourneau,
Strayer, Noel, January 7, 2000
- Szekely, Attila v. M.C.I.
(F.C.T., no. IMM-6032-98),
Teitelbaum, December 15, 1999
- Taleb, Ali et
al. v. M.C.I.
(F.C.T.D.,
no. 1449-98), Tremblay-Lamer,
May 18, 1999
- Tarkchin, Shahram v. M.E.I.
(F.C.A.,
no. A-159-92), Hugessen,
Strayer, Robertson, January 24, 1995
- Vergara, Marco Vinicio Marchant v.
M.C.I.
(F.C.T.D.,
no. IMM-1818-00), Pinard,
May 15, 2001
- Wajid, Rham v. M.C.I.
(F.C.T.D.,
no. IMM-1706-99), Pelletier,
May 25, 2000
- Wassiq, Pashtoon v. M.C.I.
(F.C.T.D.,
no. IMM-2283-95), Rothstein,
April 10, 1996. Reported: Wassiq v.
Canada (Minister of Citizenship and Immigration) (1996), 33 Imm.
L.R. (2d) 238 (F.C.T.D.)
- Yang, Jin Xiang v. M.C.I.
(F.C.T.D.,
no. IMM-1372-98), Evans,
February 9, 1999
- Yogo, Gbenge v. M.C.I.
(F.C.T.D.,
no. IMM-4151-99), Hansen,
April 26, 2001
- Zadeh, Hamid Abass v. M.C.I.
(F.C.T.D.,
no. IMM-3077-94), Wetston,
January 21, 1995
- Zamora, Miguel Angel v.
M.E.I.
(F.C.A.,
no. A-771-91), Stone, Létourneau,
Robertson, July 5, 1994
- Zrig, Mohamed v. M.C.I.
(F.C.T.D.,
no. IMM-601-00), Tremblay-Lamer,
September 24, 2001
- In Dawlatly, George Elias George v.
M.C.I.
(F.C.T.D.,
no. IMM-3607-97), Tremblay-Lamer,
June 16, 1998 the claimant, a citizen of Sudan, was eligible for temporary
resident status in Greece, a country where he had never resided, because
of his marriage to a Greek national. The Court held that the CRDD
erred in excluding the claimant under Article 1E on the ground
that he should have sought asylum in Greece.
- Olschewski, Alexander Nadirovich v.
M.E.I.
(F.C.T.D.,
no. A-1424-92), McGillis,
October 20, 1993 (although the claimants could re-apply for Ukrainian
citizenship, their applications would be dealt with on a "case-by-case"
basis and it was not clear that they would be able to return); Mahdi,
Roon Abdikarim v. M.C.I.
(F.C.T.D.,
no. IMM-1600-94), Gibson,
November 15, 1994. Reported: Mahdi v.
Canada (Minister of Citizenship and Immigration) (1994), 26 Imm.
L.R. (2d) 311 (F.C.T.D.),
affirmed on appeal M.C.I.
v. Mahdi, Roon Abdikarim
(F.C.A.,
no. A-632-94), Pratte, MacGuigan,
Robertson, December 1, 1995. Reported: Canada (Minister
of Citizenship and Immigration) v.
Mahdi (1995), 32 Imm.
L.R. (2d) 1 (F.C.A.).
- See M.C.I.
v. Mohamud, Layla Ali (F.C.T.D.,
no. IMM-4899-94), Rothstein,
May 19, 1995, where the Court noted at 3, that the permit given
to the Somali claimant by the Italian authorities, which was renewable
annually, "does not give her rights analogous to Italian nationals.
While the [claimant] had many rights, such as the right to work and
travel in, and leave and return to Italy, she did not have the right
to remain in Italy once the war was over and conditions [in Somalia]
returned to normal." While Mr. Justisce
Rothstein was "not prepared to say that section E of Article 1 of the
Convention means that a person
must have rights that are identical
in every respect to those of a national," it did, in his view, "mean
that an important right such as the right to remain (in the absence
of unusual circumstances such as a criminal conviction) must be afforded."
In Kanesharan, Vijeyaratnam v.
M.C.I.
(F.C.T.D.,
no. IMM-269-96), Heald, September 23,
1996. Reported: Kanesharan v.
Canada (Minister of Citizenship and Immigration) (1996), 36 Imm.
L.R. (2d) 185 (F.C.T.D.),
although the Sri Lankan claimant had been given extended permission
to remain in the United Kingdom, the Court found, at 6-7, that the CRDD
erred in excluding him because the U.K. Home Office reserved the right
to remove persons to their country of nationality "should the prevailing
circumstances change significantly in a positive manner" and their eligibility
to remain in the U.K. indefinitely after seven years was not a certainty.
The "tentative and conditional language" used by the Home Office did
not entitle the CRDD
to conclude as it did. See also Hurt v.
Canada (Minister of Manpower and Immigration), [1978] 2 F.C.
340 (C.A.), at
343, where the claimant, a Polish national, was advised by the German
authorities that his temporary visa, which was soon due to expire, would
not be renewed and that he would be deported.
- Kroon, Victor v.
M.E.I.
(F.C.T.D.,
no. IMM-3161-93), MacKay,
January 6, 1995, at 3. Reported: Kroon v.
Canada (Minister of Employment and Immigration) (1995), 28 Imm.
L.R. (2d) 164 (F.C.T.D.),at
167.
- Mahdi ((F.C.A.)
supra, footnote 2, at 6. This decision does not answer clearly
the question of whether a refugee claimant can be excluded under Article 1E
when this person voluntarily abandons a country where the person had
most of the rights and privileges of a national. As for what evidence
regarding this matter may be considered by the CRDD
(now the RPD)
at a vacation hearing, see also Coomaraswamy, Ranjan v.
M.C.I.
(F.C.A.,
no. A-104-01), Rothstein,
Sexton, Evans, April 26, 2002; 2002 F.C.A.
153.
- See also Hadissi, Fetneh v.
M.C.I.
(F.C.T.D.,
no. IMM-5210-94), Jerome,
March 29, 1996, at 5.
- Wassiq, Pashtoon v.
M.C.I.
(F.C.T.D.,
no. IMM-2283-95), Rothstein,
April 10, 1996, at 6-7. Reported: Wassiq v.
Canada (Minister of Citizenship and Immigration) (1996), 33 Imm.
L.R. (2d) 238 (F.C.T.D.),
at 242. The Court also opined, at 240, that the relevant time for consideration
of the validity and subsistence of a travel document is the time
of the hearing before the CRDD,
whereas the Court of Appeal in Mahdi, at 6, referred to the
time the claimant applied for admission to Canada, and the Trial
Division referred, at 315, to the date of the vacation hearing. The
issue of the relevant date was not, however, squarely before the Court
of Appeal and is not discussed in its reasons for judgment.
- Agha, Sharam Pahlevan Mir v.
M.C.I.
(F.C.T.D.,
no. IMM-4282-99), Nadon,
January 12, 2001.
- n M.C.I.
v. Choovak, Mehrnaz (F.C.T.D.,
no. IMM-3080-01), Rouleau,
May 17, 2002; 2002 F.C.A.
573, the Court cited the statement of the Court of Appeal in Mahdi
(as noted in footnote 7) with approval, and concluded (at paragraph
40): "the [claimant's] status when she claimed refugee status was that
her permanent resident status was active and valid at the time, and
that she enjoyed the "basic rights" identified in Shamlou.
Any subsequent change of status at the date of the hearing and the underlying
reasons for this change should be considered when assessing whether
the [claimant] demonstrated why she should nevertheless not be excluded
from the refugee definition. The fact that the [claimant] caused its
[sic] permanent resident status to expire by the time of the hearing
of her refugee claim cannot avail to her benefit."
- Mohamed, Hibo Farah v.
M.C.I.
(F.C.T.D.,
no. IMM-2248-96), Rothstein,
April 7, 1997.
- Shamlou, Pasha v.
M.C.I.
(F.C.T.D.,
no. IMM-4967-94), Teitelbaum,
November 15, 1995. Reported: Shamlou v.
Canada (Minister of Citizenship and Immigration) (1995), 32 Imm.
L.R. (2d) 135 (F.C.T.D.).
- Shahpari, Khadijeh v.
M.C.I.
(F.C.T.D.,
no. IMM-2327-97), Rothstein,
April 3, 1998. Reported: Shahpari v.
Canada (Minister of Citizenship and Immigration) (1998), 44 Imm.
L.R. (2d) 139 (F.C.T.D.).
This case was applied in Kamana, Jimmy v.
M.C.I.
(F.C.T.D.,
no. IMM-5998-98), Tremblay-Lamer,
September 24, 1999; Nepete, Firmino Domingos v.
M.C.I.
(F.C.T.D.,
no. IMM-4471-99), Haneghan,
October 11, 2000; Juzbasevs, Rafaels v.
M.C.I.
(F.C.T.D.,
no. IMM-3415-00), McKeown,
March 30, 2001; 2001 FCT
262; M.C.I.
v. Choovak, supra,
footnote 9.
- Kroon, supra, footnote 4, at
167.
- Kroon, supra, footnote 4, at
167. The particular rights and obligations at issue in Kroon
were discussed at considerable length by the CRDD
in M92-10972/5, Gilad, Sparks, May 7, 1993. The Court itself did
not delineate clearly the extent and nature of the rights and obligations
which must exist at a minimum. It simply agreed with the approach taken
by the CRDD
in this case.
- Kroon, supra, footnote 4, at
168. See Atle Grahl-Madsen, The Status of Refugees in International
Law, (Leyden: A W. Sijthoff, 1966), Volume 1, pages 269-270, and
James C. Hathaway, The Law of Refugee Status, (Toronto: Butterworths,
1991), pages 211-214.
- Shamlou, supra, footnote 11,
at 152.
- (Toronto: Butterworths, 1992), vol.
1, §8.218 at 8.204-8.205 (Issue 17/2/97).
- Shamlou, supra, footnote 11
at 142.
- Hamdan, Kadhom Abdul Hu v.
M.C.I.
(F.C.T.D.,
no. IMM-1346-96), Jerome,
March 27, 1997. Reported: Hamdan v.
Canada (Minister of Citizenship and Immigration) (1997), 38 Imm.
L.R. (2d) 20 (F.C.T.D.),
at 23. In this case, the Court found it critical that the claimant could
neither work nor access social services in the Philippines.
- Juzbasevs, supra, footnote
12.
- Kamana, supra, footnote 12.
- Kroon, supra, footnote 4, at
168. The Court upheld the finding of the CRDD
that the claimant enjoyed the rights and obligations of a national of
Estonia but disagreed with its decision to nevertheless consider the
merits of the claim against Estonia after having determined Estonia
to be an Article 1E country.
- Kroon, supra, footnote 4, at
167-168. Quaere whether there is an internal contradiction in the judgment
or whether MacKay J. might be simply suggesting that in considering
whether a country is in fact an Article 1E country, the CRDD
should consider whether the claimant faces a threat of persecution there
(as opposed to considering the issue of persecution after determining
the country to be an Article 1E country). See also Shamlou,
supra, footnote 11, at 142, where the Court notes
that both the CRDD,
in its reasons, and the respondent, in his arguments, referred to the
lack of persecution in Mexico (the Article 1E country) as one of
the factors taken into consideration in concluding that the claimant
enjoyed most of the rights and obligations of a national in that country.
The Court itself does not list this factor in its conclusions, at 151-152,
however, it is arguably implied in that it finds the CRDD
conclusions reasonable.
- Olschewski, supra, footnote
2.
- Olschewski, supra, footnote
2, at 2. See also Napete, supra, footnote 12 where the Court
upheld the CRDD's
finding that the claimant, an Angolan national, did not establish a
well-founded fear of persecution in his country of residence (the Czech
Republic). A similar approach was taken by the Court in Juzbasevs,
supra, footnote 12.
- Feimi, Jani Ardian v.
M.C.I.
(F.C.T.D.,
no. IMM-2934-98), Teitelbaum,
June 11, 1999.
- M.C.I.
v. Choovak, supra,
footnote 9. See also Nepete, supra, footnote 12, where
the Court upheld the CRDD's
finding that the claimant, an Angolan national, did not establish a
well-founded fear of persecution in his country of residence (the Czech
Republic). A similar approach was taken by the Court in Juzbasevs,
supra, footnote 12.
- For further reading see Research Paper on
Article 1F of the 1951 Convention Relating to the Status of Refugee
in Canadian Law, IRB
Legal Services, (Manon Brassard & Nancy Weisman), December 14,
1994, and Weisman, N., "Article 1F(a) of the 1951 Convention Relating
to the Status of Refugees in Canadian Law", International Journal
of Refugee Law, Volume 8, no. 1/2,
Oxford University Press, 1996.
- See Annex VI of the UNHCR
Handbook for a partial list of applicable international instruments.
- 82 UNHCR
279. See Annex V of the UNHCR
Handbook.
- Ramirez v.
Canada (Minister of Employment and Immigration), [1992] 2 F.C.
306 (C.A.), at
310. In Bermudez, Ivan Antonio v.
M.C.I.
(F.C.T.D.
no. IMM-1139-99), MacKay,
June 13, 2000, the Court held that a "war crime" is limited to the ill-treatment
of civilians in another country in the course of an international war.
- R. v.
Finta, [1994] 1 S.C.R.
701.
- The Supreme Court in Finta, at 819,
indicated that the mens rea standard for a crime against humanity
or a war crime is met if "there is an element of subjective knowledge
on the part of the accused of the factual conditions which render the
actions a crime against humanity." This standard, which is consistent
with the domestic mens rea standard, seems to be at odds with
the international law doctrine of command responsibility, referred to
in Sivakumar v. Canada (Minister
of Employment and Immigration), [1994] 1 F.C.
433 (C.A.), where
a superior is responsible for crimes committed by his or her subordinates
not only if he or she was aware of or willfully blind to the crimes,
but also if he or she ought to have known about them. See also Moreno
v. Canada (Minister of Employment
and Immigration), [1994] 1 F.C.
298 (C.A.).
- Sivakumar, ibid. Crimes against humanity
are defined in the Charter of the International Military Tribunal as
"
murder, extermination, enslavement, deportation and other inhumane
acts committed against any civilian population
" The Court in Sumaida,
Hussein Ali v. M.C.I.
(F.C.T.D.,
no. A-94-92), Simpson, August 14,
1996. Reported: Sumaida v.
Canada (Minister of Citizenship and Immigration) (1996), 35 Imm.
L.R. (2d) 315 (F.C.T.D.),
questioned whether members of a terrorist organization could be considered
"civilians" in the context of a crime against humanity. This was not
an issue in Rasuli, Nazir Ahmad v.
M.C.I.
(F.C.T.D.,
no. IMM-3119-95), Heald,
October 25, 1996, where the Court upheld the exclusion of a claimant
for being complicit in acts of torture directed against "dangerous persons".
See also Bamlaku, Mulualem v.
M.C.I.
(F.C.T.D.,
no. IMM-846-97), Gibson,
January 16, 1998. In Yang, Jin Xiang v.
M.C.I.
(F.C.T.D.,
no. IMM-1372-98), Evans,
February 9, 1999 the Court found that participation in the implementation
of China's one-child policy which included forced sterilization and
forced abortion constituted crimes against humanity.
- Sivakumar, supra, footnote
33, at 443. See also Suliman, Shakir Mohamed v.
M.C.I.
(F.C.T.D.,
no. IMM-2829-96), McGillis,
June 13, 1997, which held that when determining whether certain activities
of the police constitute crimes against humanity, the CRDD
must consider whether the victims of the police abuse were "
members
of a group which has been targeted systematically and in a widespread
manner."
- Finta, supra, footnote 32.
In Wajid, Rham v. M.C.I.
(F.C.T.D.,
no. IMM-1706-99), Pelletier,
May 25, 2000 the Court held that "not every domestic crime and act of
violence may be considered a crime against humanity.
- Sivakumar, supra, footnote
33, at 444.
- Sivakumar, supra, footnote
33, at 449; Cardenas, Roberto Andres Poblete v.
M.E.I.
(F.C.T.D.,
no. 93-A-171), Jerome, February 4,
1994. Reported: Cardenas v.
Canada (Minister of Employment and Immigration) (1994), 23 Imm.
L.R. (2d) 244 (F.C.T.D.),
at 251-252. In Cibaric, Ivan v.
M.C.I.
(F.C.T.D.,
no. IMM-1078-95), Noël,
December 18, 1995, the Court found that the claimant's participation
in certain actions during the war in the former Yugoslavia were reasonably
characterized by the Refugee Division as crimes against humanity and
as actions which were a regular part of the army's operation. In Baqri,
Syed Safdar Ali v. M.C.I.
(F.C.T.D.,
no. IMM-4211-00), Lutfy,
October 9, 2001, the Court set aside the exclusion decision of the CRDD
because the panel had not stated what specific crimes the claimant was
complicit in and had not questioned him about the specific crimes. See
also M.C.I.
v. Muto, Antonio-Nesland
(F.C.T.D.,
no. IMM-518-01), Tremblay-Lamer,
March 6, 2002; 2002 FCT
256, where the Court held that a description of the acts committed by
the organization is essential to determine the degree of participation
or complicity of an individual in those acts.
- Gonzalez v.
Canada (Minister of Employment and Immigration), [1994] 3 F.C.
646 (C.A.), at
657. See also M.C.I.
v. Malouf, François
(F.C.A.,
no. A-19-95), Hugessen, Décary,
Robertson, November 9, 1995. Reported: Canada (Minister
of Citizenship and Immigration) v.
Malouf (1995), 190 N.R.
230 (F.C.A.).
- Ramirez, supra, footnote 31,
at 327-328. In Asghedom, Yoseph v.
M.C.I.
(F.C.T.D.,
no. IMM-5406-00), Blais,
August 30, 2001, the Court upheld the finding of duress as it agreed
there was an imminent, real and inevitable threat to the claimant's
life if he deserted the army or disobeyed an order. It further found
that the law does not function at the level of heroism and does not
require a person to desert or disobey an order at the risk of his life.
- Ramirez, supra, footnote 31,
at 328.
- Ramirez, supra, footnote 31,
at 327-328, referring to the treatment of duress in the draft Code
Of Offences Against the Peace and Security of Mankind, in process
by the International Law Commission since 1947. See also, The United
Nations War Crimes Commission, Law Reports of Trials of War Criminals
(London, H.M.S.O., 1949), Volume XV, at page 132. In Moreno Florian,
Carlos Eduardo Moreno v. M.C.I.
(F.C.T.D.,
no. IMM-2159-01), Tremblay-Lamer,
March 1, 2002; 2002 FCT
231, the Court held that if the CRDD
had found the claimant credible, it should have considered the issue
of duress before finding that the claimant was guilty of a crime against
humanity. The claimant had alleged that he had become a prisoner of
the Shining Path and had been forced to remain with them and participate
in acts of kidnapping.
- Finta, supra, footnote 32,
at 834. Since historically the superior orders defence has only served
to mitigate punishment rather than absolve the perpetrator from responsibility,
the usefulness of this defence in refugee law is questionable. However,
the Court in Equizbal v. Canada
(Minister of Employment and Immigration), [1994] 3 F.C.
514 (C.A.), at
524, referred to the principles relating to superior orders in Finta
and found that "torturing the truth out of someone is manifestly unlawful".
- Gonzalez, supra, footnote 39,
(see concurring reasons of Mr. Justisce
Létourneau, at 661).
- Ramirez, supra, footnote 31,
at 328.
- Moreno, supra, footnote 33,
at 320; Penate v. Canada
(Minister of Employment and Immigration), [1994] 2 F.C.
79 (T.D.), at 84.
In Pushpanathan, Veluppillai v.
M.C.I.
(F.C.T.D.,
no. IMM-4427-01), Blais,
September 3, 2002; 2002 FCT
867, the Court upheld the findings of the CRDD
to exclude the claimant under Articles 1F(a) and (c) for crimes against
humanity and complicity in terrorist activities associated with the
LTTE. The Court found that the CRDD
did not err in concluding that the LTTE was a terrorist organization
with a limited and brutal purpose and, although there was a lack of
evidence of specific harm that came about due to the claimant's involvement
with the LTTE, the claimant financed the LTTE through drug trafficking
in Canada and therefore was complicit in the crimes against humanity
committed by the LTTE.
- Bahamin, Fardin v.
M.E.I.
(F.C.A.,
no. A-115-92), Hugessen,
MacGuigan, Linden, June 20, 1994. Reported: Bahamin v.
Canada (Minister of Employment and Immigration) (1994), 171 N.R.
79 (F.C.A.).
In M.C.I.
v. Nagra, Harjinderpal Singh
(F.C.T.D.,
no. IMM-5534-98), Rouleau,
October 27, 1999, the Court upheld the decision of the CRDD
that the claimant should not be found complicit because he was unaware
of the violence of the group in which he was a member. In Sifuentes
Salazar, Gerardo Florentino et
al. v. M.C.I.
(F.C.T.D.,
no. IMM-977-98), Tremblay-Lamer,
April 16, 1999, the Court did not uphold the exclusion of the claimant
as the evidence did not reveal that the claimant had knowledge of the
crimes committed. In Musansi, Clara Lussikila v.
M.C.I.
(F.C.T.D.,
no. IMM-5470-99), Pinard,
January 23, 2001, the Court was of the view that there was not sufficient
evidence establishing the complicity of the claimant.
- Ramirez, supra, footnote 31,
at 317. See also Cardenas, supra, footnote 38, where
the Court set aside the decision of the CRDD
because it erroneously inculpated the claimant in the crimes against
humanity committed by a faction of the claimant's organization of which
the claimant was not a member. As the Court pointed out in M.C.I.
v. Bazargan, Mohammad Hassan
(F.C.A.,
no. A-400-95), Marceau, Décary,
Chevalier, September 18, 1996, "personal and knowing participation"
can be direct or indirect, and does not require formal membership in
the group concerned. One need not be a member of a group in order to
be an accomplice to its acts. In M.C.I.
v. Sumaida, Hussein Ali
(F.C.A.,
no. A-800-95), Letourneau,
Strayer, Noel, January 7, 2000, the Court stated that there was no requirement
that a claimant be linked to specific crimes as the actual perpetrator
or that crimes against humanity committed by an organization be necessarily
and directly attributable to specific acts or omissions of a claimant.
See also Albuja, Jorge Ernesto Echeverria v.
M.C.I.
(F.C.T.D.,
no. IMM-3562-99), Pinard,
October 23, 2000.
- M.C.I.
v. Solomon, Yohannes (F.C.T.D.,
no. IMM-326-95), Gibson,
October 26, 1995. Reported: Canada (Minister of Citizenship
and Immigration) v. Solomon
(1995), 31 Imm.
L.R. (2d) 27 F.C.T.D.
- Ledezma, Jorge Ernesto Paniagua v.
M.C.I.
(F.C.T.D.,
no. IMM-3785-96), Simpson,
December 1, 1997.
- Ramirez, supra, footnote 31,
at 317.
- Ramirez, supra, footnote 31,
at 317. In Balta, Dragomir v.
M.C.I.
(F.C.T.D.,
no. IMM-2459-94), Wetston,
January 27, 1995, at 5. Reported: Balta v.
Canada (Minister of Citizenship and Immigration) (1995), 27 Imm.
L.R. (2d) 226 (F.C.T.D.),
the Court disagreed with the conclusion of the CRDD
that the national army in question was a "terrorist organization" and
therefore principally directed to a limited, brutal purpose. In Shakarabi,
Seyed Hassan v. M.C.I.
(F.C.T.D.,
no. IMM-1371-97), Teitelbaum,
April 1, 1998, the Court concluded that the Shah's secret police, the
Savak,, was an organization principally directed to a limited brutal
purpose even though it was also involved in domestic and foreign security.
As an informant for this organization the claimant was found to be complicit
in the abuses. In Imama, Lofulo Bofaya v.
M.C.I.
(F.C.T.D.,
no. IMM-118-01), Tremblay-Lamer,
November 6, 2001, the Court agreed that the evidence left no doubt that
the many violent acts committed by the Mobutu regime met the definition
of crimes against humanity and the claimant was complicit through association.
However, in Yogo, Gbenge v.
M.C.I.
(F.C.T.D.,
no. IMM-4151-99), Hansen,
April 26, 2001, the finding of exclusion was not upheld because the
panel failed to highlight the evidence on which it based its characterization
of the organization as one principally directed to a limited, brutal
purpose, even though the claimant had been in the service of the Mobutu
regime. In upholding the CRDD
decision in Hovaiz, Hoshyar v.
M.C.I.
(F.C.T.D.,
no. IMM-2012-01), Pinard,
August 29, 2002; 2002 FCT
908, the Court held the fact that the claimant asserted before the CRDD
that he had altered his participation in the Patriotic Union Kurdistan
(PUK) after learning of an attempted assassination by that group does
not remedy his continued participation in the organization.
- Saridag, Ahmet v.
M.E.I.
(F.C.T.D.,
no. IMM-5691-93), McKeown,
October 5, 1994, at 4. The issue of knowledge may be a matter of
credibility. See Zamora, Miguel Angel v.
M.E.I.
(F.C.A.,
no. A-771-91), Stone, Létourneau,
Robertson, July 5, 1994 where the Court upheld the decision of
the CRDD
to reject the claimant's contention that he had no knowledge of the
acts of torture perpetrated by his group. In Mehmoud, Sultan v.
M.C.I.
(F.C.T.D.,
no. IMM-1734-97), Muldoon,
July 7, 1998 the claimant was found complicit in crimes against humanity
even though he never took part in violence. Although he claimed to be
merely a supporter of its religious and charitable activities, given
his rank as a deputy commander in a militant organization it was determined
he must have had knowledge of the violent attacks and was therefore
excluded as an accomplice. See also Singh, Gurpal v.
M.C.I.
(F.C.T.D.,
no. IMM-5116-97), Strayer,
September 2, 1998, involving the claimant's time of service with the
Punjab Armed Police. In Goncalves, Lenvo Miguel v.
M.C.I.
(F.C.T.D.,
no. IMM-3144-00), Lemieux,
July 19, 2001, the Court did not uphold the exclusion of the claimant
as the claimant was not initially aware of the harmful consequences
of his actions. In contrast, however, the Court, in Lalaj,
Genci v. M.C.I.
(F.C.T.D.,
no. IMM-4779-99), Simpson,
December 19, 2000, agreed with the CRDD
that it was implausible that a person in the claimant's position could
be unaware of the purposes for which his department's surveillance was
being used. In Ariri, Ojere Osakpamwan v.
M.C.I.
(F.C.T.D.,
no. IMM-2111-01), Dawson,
March 6, 2002; 2002 FCT
251, the Court upheld the exclusion of the claimant and found that the
CRDD
had evidence to conclude that the claimant, as a member of the Nigerian
Army for a number of years, was complicit in the international offences
committed by the military.
- Saridag, ibid., at 4. See Zadeh, Hamid
Abass v. M.C.I.
(F.C.T.D.,
no. IMM-3077-94), Wetston,
January 21, 1995, at 4, where the Court upheld the finding of the
CRDD
that the claimant's organization, which routinely used torture, was
an "organization with a limited, brutal purpose". The Court then considered
whether the claimant had the requisite "personal and knowing participation".
See also Randhawa, Rana Partap Sing v.
M.E.I.
(F.C.T.D.,
no. IMM-5540-93), Simpson,
August 31, 1994; Nejad, Saeed Javidani-Tabriz v.
M.C.I.
(F.C.T.D.,
no. IMM-4624-93), Richard,
November 16, 1994, at 5; Tarkchin, Shahram v.
M.E.I.
(F.C.A.,
no. A-159-92), Hugessen,
Strayer, Robertson, January 24, 1995; Srour, Immad v.
S.G.C. (F.C.T.D.,
no. IMM-1778-94), Rouleau,
January 26, 1994; Sulemana, Halilu v. M.C.I.
(F.C.T.D.,
no. IMM-3355-94), Muldoon,
March 17, 1995; M.C.I.
v. Cordon, Jose Anibal Cortez
(F.C.T.D.,
no. IMM-3042-94), Pinard,
April 20, 1995; Diaz, Cesar Martin v.
M.C.I.
(F.C.T.D.,
no. IMM-1562-94), Muldoon,
April 24, 1995; Gracias-Luna, Juan Ramon v.
M.C.I.
(F.C.T.D.,
no. A-1139-92), Simpson,
May 25, 1995; Ramirez, Mayor Javier Quinonez v.
M.C.I.
(F.C.T.D.,
no. IMM-4683-94), Nadon,
April 24, 1995; Castillo, Lourdes Abigail v.
M.C.I.
(F.C.T.D.,
no. IMM-430-95), Jerome,
January 16, 1996; Aden, Ahmed Abdulkadir v.
M.C.I.
(F.C.T.D.,
no. IMM-2912-95), MacKay,
August 14, 1996. Reported: Aden v.
Canada (Minister of Citizenship and Immigration) (1996), 35 Imm.
L.R. (2d) 40 (F.C.T.D.);
and Sumaida, supra, footnote 34. In Grewal, Harjit
Singh v. M.C.I.
(F.C.T.D.,
no. IMM-4674-98), Reed, July
23, 1999 and Khera, Daljinder v.
M.C.I.
(F.C.T.D.,
no. IMM-4009-97), Pinard,
July 8, 1999, the Court found that although the Punjab Police force
has a legitimate purpose - the maintaining of law and order - the Court
upheld the CRDD
findings that the claimants were complicit in crimes against humanity
because of their knowledge of the atrocities committed by that police
force. See also, Say, Chea v.
M.C.I.
(F.C.T.D.,
no. IMM-2547-96), Lutfy,
May 16, 1997; Guardano, Roberto v.
M.C.I.
(F.C.T.D.,
no. IMM-2344-97), Heald,
June 2, 1998; Paz, Lazaro Cartagena v.
M.C.I.
(F.C.T.D.,
no. IMM-226-98), Pinard,
January 6, 1999; Canada (Minister of Citizenship and Immigration)
v. Hajialikhani [1999] 1
F.C. 181 (T.D); and
Quinonez, Hugo Arnoldo Trejo v.
M.C.I.
(F.C.T.D.,
no. IMM-2590-97), Nadon,
January 12, 1999. In Ordonez, Luis Miguel Castaneda v.
M.C.I.
(F.C.T.D.,
no. IMM-2821-99), McKeown,
August 30, 2000, the Court found that the claimant knowingly provided
maintenance for planes that bombed civilians and therefore there was
a shared purpose with the pilots. In M.C.I.
v. Hussain, Jassem Abdel
(F.C.T.D.,
no. IMM-906-01), Pinard,
March 1, 2002; 2002 FCT
209, the Court did not uphold the finding of the CRDD
not to exclude the claimant because there was evidence indicating that
the claimant had knowledge about the crimes against humanity committed
by the Iraqi army while he was a member of that army. The Court indicated
that the CRDD
is obliged to ask itself questions concerning the issue of complicity
and the duress defence. In upholding the decision of the CRDD
in M. v. M.C.I.
(F.C.T.D.,
no. IMM-1689-01), Dawson,
July 31, 2002; 2002 FCT
833, the Court found that there was evidence to support the CRDD's
conclusion that the claimant, as a former member of SAVAK, had knowledge
of the systematic and widespread nature of that organization's crimes.
In Chitrakar, Narayan Lal v.
M.C.I.
(F.C.T.D.,
no. IMM-2769-01), Lemieux,
August 19, 2002; 2002 FCT
888, the Court found that it was open to the CRDD
to exclude the claimant as an accomplice in the crimes against humanity
committed by the United People's Front Party (UPF) because the claimant
had knowledge of the organization and he failed to withdraw his financial
support at the earliest opportunity.
- Saridag, supra, footnote 53,
at 4. In Balta, supra, footnote 52, the Court did
not uphold the decision of the CRDD
that there was sufficient evidence that the claimant had sufficient
knowledge or personal participation. See also Aden ibid., and
Sumaida, supra, footnote 34.
- Ramirez, supra, footnote 31,
at 317.
- Ramirez, supra, footnote 31,
at 317.
- Ramirez, supra, footnote 31,
at 318. See also Alza, Julian Ulises v.
M.C.I.
(F.C.T.D.,
no. IMM-3657-94), MacKay,
March 26, 1996. See also Kudjoe, Rommel v.
M.C.I.
(F.C.T.D.,
no. IMM-5129-97), Pinard,
December 4, 1998 where the Court held that the claimant was not an "innocent
bystander" given his knowledge of the human rights abuses and the
fact he continued to work for the organization even after gaining this
knowledge. In Loordu, Joseph Kennedy v.
M.C.I.
(F.C.T.D.,
no. IMM-1258-00), Campbell,
January 25, 2001, the Court found that the claimant was merely at the
scene of persecutorial acts but this presence was not coupled with being
an associate of the principal offenders, therefore, there was no sharing
in the common purpose of the persecutorial acts. In El-Hasbani,
Georges Youssef v. M.C.I.
(F.C.T.D.,
no. IMM-3891-00), Muldoon,
August 17, 2001, the exclusion of the claimant for his past employment
with the South Lebanon Army was not upheld as the claimant, rather than
being complicit in crimes against humanity, had actually risked his
own life and safety to make the territory safe for civilians.
- Moreno, supra, footnote 33,
at 323. A claimant is under no obligation to prevent acts of torture
being perpetrated by others.
- Ramirez, supra, footnote 31,
at 324. In Gutierrez, Luis Eduardo v.
M.E.I.
(F.C.T.D.,
no. IMM-2170-93), MacKay,
October 11, 1994, at 11. Reported: Gutierrez v.
Canada (Minister of Employment and Immigration) (1994), 30 Imm.
L.R. (2d) 106 (F.C.T.D.),
the claimant was found complicit because he know that his work in transporting
detainees led to the persecution of individuals. Similarly in Rasuli,
supra, footnote 34, the claimant was excluded because he informed
on individuals to an organization known for it commission of crimes
against humanity.
- Sivakumar, supra, footnote
33, at 439.
- Sivakumar, supra, footnote
33, at 440.
- Mohammad, Zahir v.
M.C.I.
(F.C.T.D.,
no. IMM-4227-94), Nadon,
October 25, 1995.
- Brzezinski, Jan v.
M.C.I.
(F.C.T.D.,
no. IMM-1333-97), Lutfy,
July 9, 1998. In Taleb, Ali et
al. v. M.C.I.
(F.C.T.D.,
no. 1449-98), Tremblay-Lamer,
May 18, 1999 the Court found that the offence of attempted kidnapping
is punishable by a maximum of 14 years imprisonment and therefore is
a "serious" offence within the meaning of Article 1F(b).
In Chan, San Tong v. M.C.I.
(F.C.T.D.,
no. IMM-2154-98), MacKay,
April 23, 1999 the Court found that a conviction in the United States
for using a communication facility to facilitate trafficking in a substantial
volume of narcotics was a "serious" offence.
- Osman, Abdirizak Said v.
M.E.I.
(F.C.T.D.,
no. IMM-261-93), Nadon, December 22,
1993, at 4.
- Chan v.Canada (Minister of Citizenship and
Immigration), [2000] 4 F.C.390 (C.A.).
- Gil v.
Canada (Minister of Employment and Immigration), [1995] 1 F.C.
508 (C.A.) at 528-529
and 533. Mr. Justisce Hugessen
followed the evolution of the incidence test in British extradition
case law, added some elements of American and other foreign jurisprudence,
to form a composite test which he applied to the case at bar. It is
by looking at the elements of the decisions which he underlined for
emphasis and the terms of his final analysis at 532 that one can deduce
the formulation of the test. In Zrig, Mohamed v.
M.C.I.
(F.C.T.D.,
no. IMM-601-00), Tremblay-Lamer,
September 24, 2001, the Court found that the act in question was so
barbaric and atrocious it was difficult to describe it as a political
crime. Applying the "incidence test" the Court concluded that despite
the repressive nature of the government in place, the act of violence
was totally out of proportion to any legitimate political objective.
Similarly in Vergara, Marco Vinicio Marchant v.
M.C.I.
(F.C.T.D.,
no. IMM-1818-00), Pinard,
May 15, 2001, the Court upheld the finding of the CRDD
that the crimes in question were "non-political crimes" as there was
no relationship between the sabotage and armed robbery directed at civilians
with risk of death, and the political objective.
- Gil, ibid., at 534-5. A subsequent
decision of the Trial Division took the opposite view, without referring
to this precedent; see Malouf v.
Canada (Minister of Citizenship and Immigration), [1995] 1 F.C.
537 (T.D.), at 556-557,
but note that the Federal Court of Appeal stated in Malouf,
supra, footnote 39, that paragraph (b) of Article 1F should
receive no different treatment than paragraphs (a) and (c). None of
them requires the Refugee Division to balance the seriousness of the
claimant's conduct against the alleged fear of persecution.
- Gil, supra, footnote 67, at
535.
- Malouf, supra, footnote 68,
at 551.
- Malouf, supra, footnote 68,
at 553.
- Supra, footnote 67.
- Pushpanathan v.
Canada (Minister of Citizenship and Immigration), [1998]
1 S.C.R.
982.
- Ibid, at 1032.
- Ibid, at 1029.
- Ibid, at 1030. In Szekely, Attila
v. M.C.I.
(F.C.T., no. IMM-6032-98),
Teitelbaum, December 15, 1999, the Court upheld the exclusion of a claimant
under Article 1F(c) who, while acting as an informer for the Romanian
secret police (la Securitate), had been part of an organization that
committed serious, sustained and systematic violations of fundamental
human rights constituting persecution.
- Ibid, at 1030.
- Ibid, at 1030.
- Ibid, at 1032.
- Ibid, at 1032.
- Ibid, at 1035.
- Ibid, at 1035.
- Ibid, at 1035.
- Ibid, at 1031.
- Pushpanathan v.
Canada (Minister of Citizenship and Immigration), [1996] 2 F.C.
49 (C.A.).
- Gonzalez, s upra, footnote 39.
- Bazargan, supra, footnote 48.
- Bazargan, supra, footnote 48,
at 4.
- In Bazargan, supra, footnote
48, where complicity was an issue in the application of Article 1F(c),
the Court of Appeal relied on several decisions where complicity was
dealt with in the context of Article 1F(a), namely, Ramirez,
supra, footnote 31; Gutierrez, supra, footnote
60; Sivakumar, supra, footnote 33; and Moreno,
supra, footnote 33.
- Ramirez, supra, footnote 31,
at 314. Bazargan, supra, footnote 48, at 4:The Minister
does not have to prove the respondent's guilt. He merely has to show
- and the burden of proof resting on him is less than the balance of
probabilities - that there are serious reasons for considering that
the respondent is guilty.
- Although this principle was clear from the case
law even before the decision in Arica, Jose Domingo Malaga v.
M.E.I.
(F.C.A.,
no. A-153-92), Stone, Robertson,
McDonald, May 3, 1995. Reported: Arica v.
Canada (Minister of Employment and Immigration) (1995), 182 N.R.
(2d) 34 (F.C.A.),
leave to appeal to S.C.C.
refused: (1995), 198 N.R.
239 (S.C.C.),
the Court of Appeal therein unequivocally stated: "The fact that
the Minister does not participate in the hearing, either because he
does not wish to do so or because he is not entitled to notice under
Rule 9(3), does not alter the right of the Board to render a decision
on the issue of exclusion." (At 6, unreported). See also Ashari,
Morteza Asna v. M.C.I.
(F.C.T.D.,
no. IMM-5205-97), Reed, August
21, 1998. The Federal Court of Appeal in Ashari, Morteza Asna v.
M.C.I.
(F.C.T.D.,
no. IMM-525-98), Decary,
Robertson, Noel, October 26, 1999, confirmed the decision of the Trial
Division.
- In Moreno, supra, footnote
33, at 309, Mr. Justisce
Robertson wrote: "However, it may well be that in strict legal theory
the exclusion clause should be construed as erecting a threshold test
to be met by the Minister rather than prescribing a standard of proof
per se."
- Ramirez, supra, footnote 31,
at 311-4.
- Moreno, supra, footnote 33,
at 308.
- Sivakumar, supra, footnote
33, at 445. In Pushpanathan, supra, footnote 46 the
Trial Division held that the Supreme Court of Canada decision in Pushpanathan
did not increase the standard of proof for exclusion.
- Moreno, supra, footnote 33,
at 308.
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