Toronto, Ontario, August 24, 2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
JORGE HUMBERTO BELTRAN VELASQUEZ
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
and MINISTER OF FOREIGN AFFAIRS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant Jorge Humberto Beltran Velasquez is a Columbian national. He resides in Columbia and never has been to Canada. In Columbia the Applicant applied for a visa to enter Canada as a permanent resident. By letter dated September 29, 2005, the First Secretary of the Canadian Embassy in Columbia refused that application. Judicial review by this Court of that refusal is now sought.
[2] The decision as communicated to the Applicant is a one page letter. That letter, in its substantive position, simply states that there are reasonable grounds to believe that the Applicant is a member of an inadmissible class as set out in subsection 35(1)(a) of the Immigration and Refugee Protection Act (IRPA), namely that he is a foreign national who has violated human or international rights for committing an act that constitutes an offence under sections 4 to 7 of the Crimes Against Humanity and War Crimes Act. The letter does not set out what the alleged acts were or what constituted the reasonable grounds for belief that the acts were committed by the Applicant. It says nothing that would support or clarify the basis for the decision made.
[3] A review of the affidavits provided by the Applicant in support of the present application and that of the First Secretary submitted by the Respondent as well as the record provided by the Canadian Embassy in Columbia reveals the following facts.
1. The Applicant joined the military service in Columbia as a cadet in January 1981.
2. The Applicant rose in rank in the military, achieving the rank of Captain in December, 1990. He retained the rank thereafter.
3. From December 1990 until September 1992, the Applicant was in command of a company of eighty persons comprising sub-officers and soldiers. That company was part of Mobile Brigade #2 and was engaged in anti-guerrilla activity.
4. The Applicant left military service in December 1992 at his own request. There is some evidence that the Applicant was engaged as a businessman and an instructor at a military school after that date. He has lived in Bogota Columbia since 1992, has a college degree in management and some savings. The Applicant’s wife was in the military from 1983 to 1988 and now works as a secretary.
5. Early in May 2002, the Applicant applied to the Canadian Embassy in Columbia for a visa to enter Canada on the basis that he feared reprisal from members of the guerrilla group against which he operated while in the military. That application was refused.
6. Later in May 2002, the Applicant’s wife approached the Canadian Embassy and asked for reconsideration. The matter was reconsidered and the application was processed to a point where it was delivered over to the First Secretary in 2004.
7. The First Secretary reviewed the file and became troubled by the fact that the Applicant stated that he belonged to the Mobile Brigade #2. Data based searches conducted on behalf of the First Secretary revealed information to the effect that in 1992 Mobile Brigade #2 carried out certain human rights violations including beating, raping and torturing civilians.
8. At the request of the First Secretary another member of the Embassy staff conducted a telephone interview of the Applicant. That interview consisted simply of asking whether the Applicant was present with Mobile Brigade #2 at certain locations in Columbia during certain time periods from 1990 through to the end of 1992. Of the ten locations and times which were the subject of questioning, the Applicant answered no to nine and yes to one. No other questions were asked. In respect of the one “yes” answer, the Applicant was not asked what he did, or saw other s doing or any other question at all.
9. The internal file provided by the Embassy shows that the Embassy contacted the Canadian Government War Crimes Unit who advised the First Secretary that in their opinion, there were reasonable grounds to believe that the Applicant may have been involved or complicit in crimes against humanity. The First Secretary’s affidavit, paragraph 21, states: “This is why I refused the application.”
10. Without further communication with the Applicant the letter, which constitutes the decision under review, was sent to the Applicant denying his request for a visa.
[4] It is clear from the evidence that, following the disclosure by the Applicant to the Embassy staff member during a telephone interview that he was with Mobile Brigade #2 in a particular location in Columbia in October 1992, the First Secretary adopted the opinion expressed by the War Crimes Unit that the Applicant was involved or complicit in crimes against humanity and that is why a visa was refused. The Applicant was never confronted with the opinion formed, and was never asked any questions as to what he was doing or what others known to him were doing at the relevant time or place. In short, the Applicant was never notified as to the specific concerns that the First Secretary had about him, nor was he given an opportunity to respond.
[5] This Court in J.A.O. v. Canada (MCI) 2006 FC 178 at paragraph 26 and 28 has held that a person is not complicit in the commission of a crime against humanity by simple membership in an organization which is guilty of such behaviour unless the organization has a limited brutal purpose. There is no evidence in the present case that Mobile Brigade #2 has such a limited purpose. It is not a person’s membership status that is important, rather, it is the nature and scope of one’s activity in support of an organization engaged in criminal behaviour that is the measure of his complicity. In the case now before this Court, the applicant was never given notice as to the concerns respecting the nature and scope of his activities nor was he given a reasonable opportunity to respond to them.
[6] This case is about the duty of fairness and, if there has been a failure in such duty, there has been a denial of national justice. In such an instance, no deference can be given to the decision under review (Suresh v. Canada (M.C.I.), [2002] 1 S.C.R. 3 at para. 115).
[7] This Court has recently reviewed the duty of fairness imposed upon a Visa Officer and concluded that the Officer must give notice to an applicant of the particular concerns that the Officer has, and provide an applicant with a meaningful opportunity to respond. (Khwaja v. Canada (Minister of Citizenship and Immigration), 2006 FC 922 particular at paragraph 17). There was no such notice given in the present case and as a result, no opportunity afforded to the Applicant to respond.
[8] It may be that, once the Applicant is given an opportunity to respond to the concerns raised here, that the answer will not satisfy the Officer considering the matter. That is not the question here. I do note however that the Applicant’s affidavit filed in support of these proceedings carefully avoids any discussion as to his involvement or complicity in the activities of Mobile Brigade #2.
[9] Thus the matter must be returned for consideration by a different Officer. That Officer must give notice of any concerns to the Applicant and afford the Applicant a reasonable opportunity to respond. There is no question for certification as the issues raised do not rise above the immediate party and fact situation at hand (see Khwaja supra at para 34).
JUDGMENT
UPON application made to this Court for judicial review of a decision of the First Secretary of the Canadian Embassy in Columbia dated September 29, 2005 wherein the Applicant’s application for a visa was refused;
AND UPON reviewing the Records filed herein and hearing oral submissions by counsel for the parties;
AND for the Reasons delivered herewith;
THIS COURT ADJUDGES that
1. The Application is allowed;
2. The matter is referred back for decision by a different Officer, who must give notice to the Applicant as to any concerns that the Officer has and must afford the Applicant a reasonable opportunity to respond;
3. There is no question for certification; and
4. There is no Order as to costs.
“Roger T. Hughes”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6530-05
STYLE OF CAUSE: Jorge Humberto Beltran Velasquez
v. Minister of Citizenship and Immigration and
Minister of Foreign Affairs
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 23, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: HUGHES J.
DATED: August 24, 2006
APPEARANCES:
|
Joel Etienne |
FOR THE APPLICANT
|
|
Bernard Assan |
FOR THE RESPONDENTS |
SOLICITORS OF RECORD:
|
Joel Etienne Toronto, Ontario |
FOR THE APPLICANT
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENTS |