Ottawa, Ontario, September 29, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
[1] Mr. Tariq Syed, the Applicant, is a citizen of Pakistan who first came to Canada as a refugee claimant in 1997. In 1999, his refugee claim was refused by a panel of the Immigration and Refugee Board, Convention Refugee Determination Division (CRDD). The CRDD concluded that Mr. Syed was excluded from being a refugee under Article 1 F(a) of the United Nations Convention Relating to the Status of Refugees (the Convention), on the basis that he had been complicit in the commission of crimes against humanity. On July 4, 2000, the Applicant was deported from Canada to Pakistan. In August 2001, the Applicant returned to Canada, using a fake passport, and sought to file another refugee claim. An admissibility hearing was held before a panel of the Immigration and Refugee Board, Immigration Division (ID).
[2] In its decision, dated June 6, 2005, the ID determined that:
- Mr. Syed is a person described in s. 41 and s. 52(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) “in that he is a person who was previously deported from Canada and he returned to Canada without the required consent of the [Minister]”; and
- Mr. Syed is a person described in s. 35(1)(a) of IRPA “in that there are reasonable grounds to believe that he has been complicit in crimes against humanity.”
[3] The ID issued a Deportation Order against Mr. Syed.
[4] Mr. Syed does not dispute the first of these determinations but seeks to overturn the Deportation Order on the basis that the ID erred in its conclusion that there are reasonable grounds to believe that he was complicit in crimes against humanity.
Issues
[5] Mr. Syed raises the following issues:
Did the ID err in relying on the findings made by the CRDD without engaging in an independent analysis of the facts and whether the facts constituted a crime against humanity within the meaning of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 (Crimes Against Humanity Act)?
[6] In his written submissions, Mr. Syed also raised an issue based on s. 7 of the Canadian Charter of Rights and Freedoms, s. 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, (U.K.), 1982, c. 11. Mr. Syed abandoned this issue at the hearing of this application.
Relevant Statutory Provisions
[7] Section 35(1)(a) of IRPA provides that a foreign national is inadmissible as a permanent resident of Canada on grounds of violating human or international rights “for committing an act outside of Canada that constitutes an offence referred in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act.”
[8] Section 15(b) of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (IRP Regulations) applies in situations, such as that before me, where a foreign national has previously been found to be inadmissible to Canada.
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(b) a determination by the Board, based on findings that the foreign national or permanent resident has committed a war crime or a crime against humanity, that the foreign national or permanent resident is a person referred to in section F of Article 1 of the Refugee Convention; or
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b) toute décision de la Commission, fondée sur les conclusions que l’intéressé a commis un crime de guerre ou un crime contre l’humanité, qu’il est visé par la section F de l’article premier de la Convention sur les réfugiés;
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CRDD Decision
[9] Since the ID must accept as conclusive those findings of fact set out in the CRDD decision, it will be helpful to describe what those “findings of fact” were. As noted, the CRDD, in its decision of June 30, 1999, determined that Mr. Syed was excluded from the refugee definition pursuant to Article 1F(a) of the Convention. In coming to this determination, the CRDD made a number of findings, the most important of which were the following:
- Mr. Syed was a member of the Karachi Police Force and a member of the Pakistani Criminal Investigation Agency (CIA);
- Mr. Syed knowingly and freely joined these organizations and remained freely in the organizations as a policeman for 11 years;
- The Karachi Police Force and CIA are “two of the most brutal forces in the world”, whose members tortured and killed 40% of the prisoners in their custody;
- The fact that Mr. Syed was aware that 40% of prisoners were being killed in fake encounters and yet continued to arrest members of the MQM was “evidence of the claimant’s complicity in crimes against humanity”.
[10] Mr. Syed filed an application for leave and judicial review of the CRDD decision; leave was denied on September 23, 1999 (Court file no. IMM-3648-99).
ID Decision
[11] The question of reliance on the CRDD findings of fact was considered in an interim decision dated May 14, 2003. In that interim decision, the ID reviewed the findings of fact referred to in the CRDD decision and concluded as follows:
The findings of fact that are binding on the Immigration Division in this case are those set out on page 8 of the CRDD Decision . . . I am bound by Regulation 15 to accept them as conclusive findings of fact.
[12] One of those “findings of fact” was that Mr. Syed was complicit in crimes against humanity. In its final decision, dated June 6, 2005, the ID concluded that “Tariq Syed is a person described under s. 35(1)(a) of IRPA in that there are reasonable grounds to believe that he has been complicit in crimes against humanity”.
Analysis
[13] The first argument of Mr. Syed is that the ID erred in finding that the definition of crimes against humanity in s. 35(1)(a) of IRPA includes persons found to be complicit in those crimes. That question has now been directly answered by the Court of Appeal in Zazai v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1567. In Zazai, the Court of Appeal confirmed that complicity is included in the crimes against humanity and that complicity in such crimes makes an individual inadmissible pursuant to s. 35(1)(a) of IRPA. This argument of Mr. Syed fails.
[14] The second argument by Mr. Syed is that the ID erred in its analysis by accepting the CRDD’s finding of complicity as a finding of fact. In Mr. Syed’s view, the CRDD was to undertake its own analysis to make an independent finding on the question of whether acts engaged in constituted crimes against humanity and whether complicity was established. To do so, in Mr. Syed’s submission, the ID was required to undertake the analysis set out in Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100; [2005] S.C.J. No. 39 at para. 119.
[15] Fundamentally, this second question is one of statutory interpretation. What is the proper meaning of s. 15 of the IRP Regulations? Under s. 15, is the ID to treat the CRDD’s finding that Mr. Syed was complicit in crimes against humanity as a “conclusive finding of fact”? If the ID was not permitted to treat the complicity finding as conclusive, it follows that the ID was required to undertake an analysis to determine that issue. However, if the CRDD’s finding that Mr. Syed was complicit in crimes against humanity was to be accepted by the ID, the only question for the ID was whether this finding resulted in inadmissibility under s. 35 of IRPA.
[16] The intent of s. 15 of the IRP Regulations is obvious; once a foreign national is adjudged to be inadmissible, the underlying findings of the adjudicator are settled. At the time of the original inadmissibility hearing, the foreign national has had every opportunity to present evidence and argument related to the questions in issue. The foreign national has also had access to judicial review. As noted above, Mr. Syed sought judicial review of the original inadmissibility decision.
[17] Given this overarching purpose of s. 15, I turn to what is meant by the words used in that provision that “the findings of fact set out in that decision or determination shall be considered as conclusive findings of fact”.
[18] It is well established that the meaning of a statutory provision cannot be established by reading the words in isolation. In the decision R. v. Jarvis, [2002] 3 S.C.R. 757, at para. 77, Justices Major and Iacobucci wrote:
The approach to statutory interpretation can be easily stated: one is to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute.
[19] Mr. Syed argues that the CRDD’s finding that he was complicit in crimes against humanity is not a question of fact but a question of law (Mugesera at para. 116). Section 15 expressly allows the ID to rely only on determinations of fact. Accordingly, Mr. Syed concludes, the ID erred by relying on the decision of the CRDD that he was complicit in crimes against humanity.
[20] The problem with this interpretation is that it ignores the intent of s. 15 and fails to consider the words in the context of the entire provision.
[21] On Mr. Syed’s interpretation, the ID would be forced to revisit the same arguments that were before the CRDD on whether the Karachi Police and the CIA were implicated in crimes against humanity and whether Mr. Syed was complicit in those crimes. In Mr. Syed’s view, the ID was required to apply the factors set out in Mugesera to reach its own separate determination of the issues of crimes against humanity and complicity in those crimes. In other words, Mr. Syed argues that the ID is required to duplicate the analysis already carried out by the CRDD. In my view, this is precisely the undesirable result that s. 15 is intended to overcome.
[22] Next, I turn to the words of the paragraphs of s. 15, where the actual decisions subject to the conclusive finding of facts are described. The class of decision applicable to this review is set out in paragraph (b) as a “determination by the Board, based on findings that the foreign national . . . has committed a war crime or crime against humanity, that the foreign national . . . is a person referred to in section F of Article 1 of the Refugee Convention”. In other words, the “findings” that are referred to in this paragraph explicitly include the findings that the foreign national has committed a crime against humanity. In my view, the earlier reference in the section to “findings of fact” must be read together with this paragraph. The result is that, for purposes of s. 15 of the IRP Regulations, a finding by the CRDD that a foreign national has been complicit in crimes against humanity is a finding of fact and, thus, a finding that must be accepted as conclusive by the ID in assessing admissibility under s. 35(1)(a) of IRPA. This leads to an interpretation that is consistent with the intent of the provision, that avoids duplication and that respects the language used.
[23] My conclusion that a finding of complicity in or commission of crimes against humanity is a finding of fact is limited to the interpretation of s. 15 of the IRP Regulations. It may be that a different characterization of such a finding is required when considering, for example, the standard of review of an inadmissibility decision of a visa officer or by the Refugee Protection Division of the Immigration and Refugee Board. As another example, the Supreme Court in Mugesera, in describing a finding of crimes against humanity as a question of law, was considering the "reasonable grounds to believe" standard set out in s. 35 of IRPA. In the application before me, I am not dealing with those issues.
[24] Even if I accept a more restrictive meaning for the term “finding of fact” in s. 15, the result is not, in my view, an automatic revisit of the question of complicity or commission of crimes against humanity. In Abdeli v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1047, Justice Kelen was faced with a similar situation. In that case, the applicant had been found by the CRDD to be inadmissible on the basis of crimes against humanity. In a decision dealing with the applicant’s application for permanent residence, a visa officer concluded that the applicant was inadmissible pursuant to s. 35(1)(b). With respect to the effect of s. 15, Justice Kelen stated the following, at para 22:
In this case, we are dealing with a later case where Parliament has intended that the earlier factual findings of the CRDD must be adopted by the immigration officer. Accordingly, officer Siaflekis was obliged to accept as conclusive the CRDD’s findings that the applicant had served in the Iranian army at a time when it committed activities “principally directed to a limited, brutal purpose” and that the applicant had “personal and knowing participation” of those atrocities. In sum, the officer was bound to accept as fact the acts upon which the applicant was found complicit in war crimes or crimes against humanity.
[25] Almost identical facts are presented in the application before me. Thus, at the very least, the ID was obliged to accept as conclusive the CRDD’s findings that Mr. Syed:
- had served, knowingly and freely, in “two brutal police organizations”;
- was aware of the abuses committed by the police forces; and
- continued to arrest and detain individuals knowing that 40% of prisoners were killed in custody.
[26] On these facts, there is no doubt that Mr. Syed’s behaviour amounts to complicity in the commission of crimes against humanity. Given the facts in this case and the operation of s. 15 of the IRP Regulations, the ID was compelled to find that Mr. Syed is inadmissible under s. 35(1)(a) of IRPA. There was no error in the analysis performed by the CRDD (as confirmed by the unsuccessful application for judicial review); there is no error by the ID.
Conclusion
[27] In conclusion, for these reasons, Mr. Syed has failed to persuade me that there was any error in the decision of the ID.
[28] Parties will have until October 13, 2006 to propose any question for certification and seven days thereafter to respond.
ORDER
This Court orders that:
- The application for judicial review is dismissed; and
- The parties will have until October 13, 2006 to propose any question for certification and seven days thereafter to respond.
“Judith A. Snider”
____________________________
Judge
Names of Counsel and Solicitors of Record
DOCKET: IMM-3940-05
STYLE OF CAUSE: tARIQ SYED v. THE MINISTER OF PUBLIC
SAFETY and EMERGENCY PREPAREDNESS
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 7, 2006
REASONS FOR ORDER
AND ORDER BY: Snider, J.
APPEARANCES:
Mr. Lorne Waldman FOR THE APPLICANT
Ms. Ann Margaret Oberst FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada