Date: 20050922
Docket: IMM-1187-05
Citation: 2005 FC 1300
Toronto, Ontario, September 22nd, 2005
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION;
THE SOLICITOR GENERAL OF CANADA
Applicants
and
ABDULCADIR ABDU FARAH
Respondent
REASONS FOR ORDER AND ORDER
[1] The Respondent was a Major in the Somali Military from 1974 to 1989. He came to Canada and claimed refugee status on January 12, 2004. With respect to his claim for refugee status, on May 12, 2004, the Solicitor General of Canada filed a Notice of Intent to Intervene to argue for the exclusion of the Respondent based on the Minister's view that "matters involving Article 1(F)(a) of the Convention have been raised by this claim". The Notice further stated:
Mr. Farah has indicated in his personal information form and immigration documents that he was in the Somali military from 1974-1989 as a "Major". The Siad Barre government between the years of 1969-1991 committed, serious, egregious human rights violations. In fact, the Siad Barre regime has been designated as a government responsible for committing war crimes or crimes against humanity by the then Minister responsible for Canada Immigration, Douglas Lewis on October 12, 1993.
Accordingly by virtue of Mr. Farah's membership in the Somali military as a Major, there are serious reasons for considering that Mr. Farah committed, or was complicit in war crimes or crimes against humanity. Consequently, exclusion pursuant to UN Article 1FA will be an issue for the Minister.
Applicant's Application Record, p. 33-34
[2] Article 1(F)(a) of the United Nations Convention Relating to the Status of Refugees (the "Convention") reads as follows:
F. The provisions of this Convention shall not apply to any person with respect to whom there are serous reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.
[3] The Refugee Protection Division ("RPD") heard the case and rejected the Applicant's argument with respect to the applicability of Article 1(F)(a), and accepted the Respondent's claim for protection. The primary issue in the present judicial review is whether the RPD's finding regarding Article 1(F)(a) discloses a failure to properly consider the criteria for determining to exclude under Article 1(F)(a).
[4] The criteria for a finding under Article 1(F)(a) is well settled. The Court of Appeal decision in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (F.C.A.) sets them out as follows:
[...] Mere membership in an organization which from time to time commits international offences is not normally sufficient for exclusion from refugee status.
...
[...] 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.
...
[...] 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.
[Emphasis added]
Paras. 16-18.
Of particular concern in the present Application is the Respondent's membership in an organization directed to a limited brutal purpose ("the membership issue").
[5] Both the Applicant and Respondent addressed the membership issue before the RPD in post-hearing written argument. In this regard, the Applicant argued as follows:
It is submitted that his membership in the military of Somalia, a regime directed to a limited brutal purpose, would suffice for exclusion pursuant to United Nations Convention 1F(a). I say this given the widespread and systematic destruction and looting by the Siad Barre military and the millions of land mines laid by the military which have maimed and killed many.
Applicant's Post Hearing Submissions, p. 4.
To this argument, the Respondent replied:
If the claimant had been a member of the National Security Services or if he had been a member of the Red Berets, or another of the elements of the Barre regime concerned with suppression of political opposition and hence aimed toward a particular brutal purpose then some complicity might be inferred. As mentioned above those organizations were led by Barre's family members. People who did not belong to the President's clan were clearly not trusted with power or influence in his regime. The claimant's circumstances do not even come close to complicity. Respondent's Post Hearing Submissions, p. 2.
[6] With respect to the Ramirez criteria, the RPD found as follows:
The panel received the counsel for the Solicitor General of Canada's submissions arguing exclusion, on the fact of his rank in the military alone; no reference to any further research was made. I find that the Minister did not fulfil his onus in this particular claim and he had more than ample time to establish his case. I read the claimant's counsel's submissions very carefully and concur with his submissions that in this particular claim, membership in the military alone, even at the rank of a major, does not suffice to warrant exclusion. I find that in this case the evidence does not establish that the claimant committed human rights abuses or was aware of them, while serving in the military and therefore, the application for exclusion is denied..
Tribunal Record, p. 5.
[7] It is obvious that the RPD's decision is cryptic, however the Respondent argues that it discloses that the Respondent's argument is incorporated by reference and, consequently, each of the Ramirez criteria were addressed. The Applicant disagrees that the words used support this conclusion.
[8] I agree with the arguments advanced by the Applicant. It is clear that the RPD read the argument advanced by the Respondent, but it is also clear that, while the Respondent's personal involvement, purpose and personal knowledge arguments were addressed, the Respondent's membership in the Somali army as a unit dedicated to brutal purpose argument was not specifically addressed.
[9] In my opinion, given the significance of the arguments advanced before the RPD, the failure of the RPD to specifically address the membership issue advanced by the Applicant as a feature of Article 1(F)(a) constitutes a reviewable error which renders the RPD's decision as patently unreasonable.
ORDER
Accordingly, I set aside the RPD's decision, and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND
IMMIGRATION, THE SOLICITOR GENERAL OF CANADA
Applicants
and
ABDULCADIR ABDU FARAH
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 21, 2005
APPEARANCES:
Lorne McClenaghan For the Applicants
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Applicants
South Ottawa Community Legal Services
Ottawa, ON For the Respondent