[1] This is an appeal by the Minister of Citizenship and Immigration from a decision of Federal Court - Trial Division, as it then was, setting aside the determination by an adjudicator that the respondent Nasrullah Zazai, a native of Afghanistan, is inadmissible to Canada pursuant to paragraph 19(1)(j) of the Immigration Act ("the Act") because there are reasonable grounds to believe that he has committed an offence referred in sections 4 to 7 of theCrimes Against Humanity and War Crimes Act S.C. 2000 c. 24. The applications judge certified three questions for appeal:

1- Does the exclusion of a Convention refugee under Article 1F(a) of the Refugee Convention mean it has been established that there are reasonable grounds to believe that the refugee status claimant has committed offences at international law under section 18(1)(j) of the Immigration Act so that an adjudicator conducting an inquiry into allegations made under section 19(1)(j) of the Act would be bound by the Convention Refugee Determination Division's exclusion under Article 1F(a) of the Convention?

2- Does the definition of "crime against humanity" found at section 4(3) of the Crimes against Humanity and War Crimes Act include complicity therein?

3- Can a reviewing judge apply a Federal Court Trial Division case retroactively to a decision of an Adjudicator which pre-dated the case?

As will be seen, only the second question arises on the facts of this case.

[2] Prior to the proceedings before the adjudicator, the respondent had been refused refugee status when the Convention Refugee Determination Division ("CRDD") decided that he was excluded from claiming refugee protection by article 1F(a) of the United Nations Convention Relating to the Status of Refugees on the ground that there were serious reasons for considering that he had committed a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.

[3] Before the CRDD, the respondent testified that he had served as member of the 5^th Directorate of KHAD which, according to the documents before the CRDD, was a "secret intelligence organization with the purpose of eliminating anti-government activity, and which engaged in crimes, which could be characterized as crimes against humanity". On the basis of the respondent's own testimony, the CRDD found that he fell within the exclusion in article 1F(a) of the Convention. When the matter came before the adjudicator for a determination as to whether the respondent should be removed from Canada due to his inadmissibility under paragraph 19(1)(j) of the Act, the respondent led evidence from two witnesses to show that he was not, in fact, a member of KHAD. While the respondent testified briefly before the adjudicator as to his status in Canada, he was not asked about his membership in KHAD by the Minister's representative or by his own. The evidence of the two witnesses was essentially to the effect that they had known the respondent as a basketball player at the University of Kabul and that they had not known him to be a member of KHAD.

[4] The adjudicator considered the evidence of the two witnesses, the documentary evidence as well as the evidence given by the respondent before the CRDD. After carefully analyzing the evidence, she concluded:

Over all, I am satisfied that the evidence that was given at the CRDD hearing in 1994 and 1995, and in your application for landing made in 1996, is more creditable then [sic] that evidence which has been presented here at this inquiry with respect to your involvement in the organization known as KHAD. Therefore, and especially in light of the courts' comments in Figueroa, I conclude that the evidence does indeed establish that you were complicit in crimes against humanity in Afghanistan as part of the organization known as KHAD.

[5] In reliance on this passage, the applications judge concluded that the adjudicator considered herself bound by the CRDD's decision, which he characterized as a reviewable error of law. Before us, both parties agreed that this conclusion could not stand. It is apparent that the adjudicator did not consider herself bound by the factual findings of the CRDD. She considered the evidence before the CRDD to be more credible than the exculpatory evidence given before her and concluded that the respondent was indeed a member of KHAD. It is the conclusion which she drew from this finding, namely, that the respondent was therefore complicit in crimes against humanity which raises the real issue in this matter.

[6] The notion of complicity in crimes against humanity by reason of membership in an organization with a limited brutal purpose arises from the decision of this Court in Ramirez v. Canada (Minister of Employment and Immigration) (1992) 135 N.R. 390. The court decided that membership in an organization which existed for a limited brutal purpose was, for purposes of the Convention, sufficient complicity in the crimes committed by that organization to result in the exclusion of a member who had not personally committed any acts of atrocity.

[7] In Figueroa v. Canada (Minister of Citizenship and Immigration) (2000) 181 F.T.R. 242 (F.C.T.D), Pinard J. decided that a finding of exclusion under article 1F(a) of the Convention was sufficient to establish the first element of paragraph 19(1)(j) of the Act as it read at the time:

(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 en committed in Canada would have constituted an offence against the laws of Canada in force at the time of the act or omission; (emphasis added).

[8] Presumably, the adjudicator's reference to Figueroa led the applications judge to conclude that the adjudicator simply adopted the CRDD's conclusion as to the respondent's exclusion under article 1F(a) of the Convention and applied it to the current version of paragraph 19(1)(j) which resulted in her finding of complicity. But it is apparent that if the adjudicator had considered herself bound by the CRDD's decision, she would simply have referred to the CRDD's conclusion as to the application of article 1F(a) of the Convention, and applied Ramirez and Figueroa to conclude that there were serious grounds to believe that the respondent was complicit in the commission of an offence described in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act. Instead, the adjudicator took care to come to her own conclusion on the issue of whether the respondent was a member of KHAD and, on the basis of that conclusion, decided that the respondent was complicit in crimes against humanity. The important point here is that the basis of the adjudicator's conclusion was her finding that the respondent was a member of KHAD, and not the CRDD's finding that the respondent was excluded under article 1F(a) of the Convention.

[9] The question which the applications judge was called upon to decide was whether the rule as to complicity developed in Ramirez in relation to the Convention applied to crimes against humanity under the terms of the Crimes Against Humanity and War Crimes Act. Despite not having addressed the issue, the applications judge certified it as a question:

Does the definition of "crime against humanity" found at section 4(3) of the Crimes against Humanity and War Crimes Act include complicity therein?

In doing so, he was inviting this Court to decide at first instance a question which was properly before him, an invitation which we must decline.

[10] In Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] 1 S.C.R. 982, the Supreme Court held that the fact of a certified question did not prevent it from examining a fundamental question which had not been certified, namely the appropriate standard of review. In Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, the Supreme Court held that:

[12] ...The wording of s. 83(1) suggests, and Pushpanathan confirms, that if a "question of general importance" has been certified, this allows for an appeal from the judgment of the Trial Division which would otherwise not be permitted, but does not confine the Court of Appeal or this Court to answering the stated question or issues directly related to it. All issues raised by the appeal may therefore be considered here.

[11] Notwithstanding these decisions, the threshold for certifying a question remains the same. Is there a serious question of general importance which would be dispositive of an appeal? That principle is well established in the jurisprudence of the Federal Court itself. See Bath v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1207 (Reed J.) at para. 15; Di Biance v. Canada (Minister of Citizenship and Immigration) [2002] F.C.J. No. 1220 (Blanchard J.) at para. 22; Gallardo v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 352 (Kelen J.) at para. 35.

[12] The corollary of the fact that a question must be dispositive of the appeal is that it must be a question which has been raised and dealt with in the decision below. Otherwise, the certified question is nothing more than a reference of a question to the Court of Appeal. If a question arises on the facts of a case before an applications judge, it is the judge's duty to deal with it. If it does not arise, or if the judge decides that it need not be dealt with, it is not an appropriate question for certification.

[13] In this case, the certified question was not dealt with by the applications judge. This court was invited to address the question at first instance but in the end we have decided to remit the matter for a decision by a Federal Court judge. While this will result in an unfortunate delay in the resolution of this matter, it is our view that the parties will be best served by having the matter dealt with at first instance in the Federal Court. Should the matter require a second look, the parties will have access to this court. If this court deals with it at first instance, the parties lose the benefit of an appeal for all practical purposes, unless their case falls within the small group for which leave to appeal is granted by the Supreme Court of Canada.

[14] Consequently, there will be an order allowing the appeal, on the ground that the applications judge erred in finding that the adjudicator committed an error in law in considering herself bound by the CRDD's determination. The order of the applications judge will be set aside , and the matter will be remitted to the Federal Court for redetermination. However, in order to minimize the delay, it will be remitted to the Chief Justice with the direction that it need not be heard by the judge who heard it originally. The parties are free to approach the Chief Justice for an expedited hearing.

"J. D. Denis Pelletier"

J.A.

"I agree

Marshall Rothstein"

"I agree

B. Malone"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-283-03

STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Appellant

and

NASRULLAH ZAZAI

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: MARCH 2, 2004

REASONS FOR JUDGMENT: PELLETIER J.A.

CONCURRED IN BY: ROTHSTEIN J.A

MALONE J.A.

DATED: MARCH 4, 2004

APPEARANCES:

Mr. Marcel Larouche

Ms. Jillian Siskind

FOR THE APPELLANT

Mr. Lorne Waldman

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario

FOR THE APPELLANT

Waldman & Associates

Barristers and Solicitors

Toronto, Ontario

FOR THE RESPONDENT

You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.

Do not display this message anymore