Alwan v. Canada (Minister of Citizenship and Immigration)

EDMONTON, ALBERTA, WEDNESDAY, THE 2^ND DAY OF JUNE, 2004.

Present: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON

BETWEEN:

RIAD MUHSEN ABOU ALWAN

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1] Mr. Alwan, a twenty-nine-year-old Lebanese national, claims a well-founded fear of persecution based on his previous assistance to the South Lebanon Army (SLA). He left Lebanon in December, 1999, traveled to Canada by way of the Czech Republic, Ireland and England and arrived in May, 2000, with a false passport. The Refugee Protection Division of the Immigration and Refugee Board (RPD) determined that Mr. Alwan was excluded from refugee status under Article 1F(a) of the Refugee Convention because of his involvement with the SLA, a group that is implicated in human rights abuses and crimes against humanity. Specifically, the board found that Mr. Alwan was complicit in crimes against humanity by reason of his activities in the SLA between 1995 and 1999. Mr. Alwan asks that the decision be quashed and referred back for redetermination.

[2] This is the second time that Mr. Alwan's refugee claim has been rejected under Article 1 F(a). Mr. Alwan successfully applied for judicial review of the first board's decision and his application was remitted for rehearing. The Minister was represented at the hearing and participated. There is no dispute regarding the following findings of the RPD:

- One of the main purposes of the SLA was the gathering of intelligence resulting in the arrest and detention of individuals whom it considered to be a security threat. Besides the mistreatment of Lebanese civilians, the SLA was responsible for the management of the detention centre in El-Khiam where cases of torture by cigarette butts, electric shock to the fingers, feet and genitalia, confinement in cages, and water deprivation have been reported. The SLA committed acts of barbarous cruelty against the civilian population in a widespread, systematic fashion which constitute crimes against humanity from 1991 to 1999;

- While the applicant was a conscript who did not voluntarily unite with the SLA, his own experience made him well aware of the tactics and the actions of the SLA;

- The applicant's contradiction about whether he was armed or not undermined his credibility as a witness;

- The applicant was and was perceived to be an active member of the SLA;

- The applicant did not disassociate himself from the SLA. He attempted to quit after two years but was told he knew too much and continued to serve. By not leaving either at the first opportunity or at what would be reasonable to assume would be numerous subsequent opportunities, the applicant exhibited a willingness to serve, grudgingly or otherwise;

- While his participation in the SLA was not one of principal actor, the applicant made regular reports to the SLA and was aware of what could happen to those whom he reported. He is "wilfully blind" in asserting that he did not know what happened to those he reported;

- The applicant also had knowledge of the atrocities committed by the SLA. He willingly served in his role as security agent or informer for the SLA for five years.

[3] At the end of the hearing, the RPD asked counsel for Mr. Alwan, the refugee protection officer (RPO) and the Minister's counsel for written submissions on the question of whether the test for exclusion under Article 1F(a) had been met. Counsel for the Minister indicated that he would not be providing written submissions on the question as he was of the view that the evidence before the board in this respect was not compelling and that the test had not been made out. He left it to the RPD to draw its own conclusion. The RPO and Mr. Alwan's counsel provided written submissions. Notwithstanding the position of the Minister and Mr. Alwan, the RPD found that the test had been met and that there exist serious reasons for considering that Mr. Alwan has committed a crime against peace, a war crime, or a crime against humanity.

[4] Mr. Alwan says that the panel erred in its finding and that the finding was perverse. Although the written submissions allege a breach of natural justice or fairness, those arguments were not pursued at the hearing.

[5] The crux of Mr. Alwan's submissions is that his evidence was clear that he did not target or report in relation to civilians. Rather, he reported with respect to the resistance. Relying on Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (F.C.A.), he submits that the onus is on the Minister to prove the facts going to a finding of exclusion. Counsel for the Minister was of the opinion that the case for exclusion had not been made out. The RPD acknowledge this, but disagreed. It is said that the opinion of the Minister's counsel was entitled to significant deference. The RPD failed to accord deference and in doing so, Mr. Alwan contends, it erred in law.

[6] In Harb v. Canada (2003) 302 N.R. 178 (F.C.A.), Mr. Justice Décary stated that in so far as these are findings of fact, they can only be reviewed if they are erroneous and made in a perverse or capricious manner or without regard for the material before the RPD. The findings, insofar as they apply the law to the facts of the case, can only be reviewed if they are unreasonable. In so far as they interpret the meaning of the exclusion clause, the findings can be reviewed if they are erroneous.

[7] While I can appreciate Mr. Alwan's frustration, I cannot agree that the RPD ought to have deferred to the opinion of the Minister's counsel. The Immigration and Refugee Protection Act, S.C. 2002, c. 27 (IRPA), subsection 162(1) vests the RPD with sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. In Gutierrez v. Canada (Minister of Employment and Immigration) (1994), 84 F.T.R. 227 (F.C.T.D.), Mr. Justice MacKay, at paragraph 17, stated that the non-participation of the Minister does not affect the question of whether there was sufficient evidence to make a finding of fact related to exclusion.

[8] Similarly, in Fletes v. Canada (Secretary of State) (1994), 83 F.T.R. 49 (F.C.T.D.), Mr. Justice Noël, then of the Trial Division as it was then constituted, dealt with circumstances where no written representations were received from counsel for the Minister and the representations of the hearing officer were favourable to the applicant. Justice Noël determined that the Minister was not required to make representations as to the application of the exclusion clause notwithstanding his participation in the hearing. Additionally, the representations of the hearing officer could not in any way bind the board. It was the board's function to decide whether the exclusion clause should be applied based on the evidence before it. The Minister's failure to file written representations had no effect on assessing the adequacy of the evidence put forward.

[9] Mr. Justice Gibson, in Malouf v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 537 (T.D.), found that whether or not the Minister intervenes, it is open to the CRDD (Convention Refugee Determination Division) [now the RPD] to conclude that the exclusion clause applies on the evidence and submissions before it. The question of whether the board could apply the exclusion clauses as part of the definition of Convention refugee without Ministerial participation was certified, but the Court of Appeal declined to answer it: Malouf v. Canada (Minister of Citizenship and Immigration) (1995), 190 N.R, 230 (F.C.A.). However, in Arica v. Canada (Minister of Employment and Immigration) (1995), 182 N.R. 392 (F.C.A.), the Court of Appeal, at paragraph 8, stated:

"...it is clear in law that the Board can make a determination with

respect to the exclusion clause based on the evidence presented.

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), [now Rule 23] does not alter the right of

the Board to render a determination on the issue of exclusion."

[10] With respect to the evidence and Mr. Alwan's position that he reported only regarding the resistance, Mr. Justice Décary, in Harb, supra, noted that if the organization persecutes the civilian population the fact that the [applicant] persecutes only the military population does not mean that he will escape exclusion if he is an accomplice by association as well. The court approved the rules relating to complicity set out in Bazargan v. Canada (Minister of Employment and Immigration) (1996), 205 N.R. 232 (F.C.A.), relating to exclusion pursuant to Article 1F(c), and applied them to Article 1F(a). The court noted that membership in a group makes it easier to conclude that there was "personal and knowing participation".

[11] Here, the RPD made a finding that Mr. Alwan was complicit in crimes against humanity. It did not make a finding that he committed the crimes. Specifically, the board stated:

"By not disassociating himself from the organization, by continuing

to report for five years, the panel finds he was willingly, and thereby

complicit in, committing acts which assisted in the achievement of the

objectives of the SLA, an organization that violated international

standards with impunity. [...]

The panel has found that the claimant had knowledge of the atrocities

committed by the SLA. The panel has also established he willingly

served in his role as security agent or informer for the SLA for five

years. He was complicit. The panel finds that the actions of the

claimant exhibit a "shared common purpose"."

[12] The board so concluded after noting that the Minister's counsel took the position that the test had not been met and disagreed with that position as well as the one taken by Mr. Alwan. The RPD considered all of the testimony adduced during the hearing and all the evidence on record and found that the test had been met.

[13] I can find no reviewable error in this conclusion on any of the standards of review set out in Harb, supra. The conclusion was reasonably open to the RPD and cannot be said to be erroneous. My intervention is not warranted. Counsel did not suggest a question for certification and none is appropriate.

ORDER

IT IS HEREBY ORDERED THAT the application for judicial review is dismissed.

"Carolyn Layden-Stephenson"

Judge

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-8204-03

STYLE OF CAUSE: Riad Muhsen Abou Alwan v. The Minister of

Citizenship and Immigration

PLACE OF HEARING: Edmonton, Alberta

DATE OF HEARING: June 2, 2004

REASONS FOR: Layden-Stevenson, J.

DATED:

APPEARANCES:

Mr. Kevin E. Moore For Applicant

Mr. Rick Garvin For Respondent

SOLICITORS OF RECORD:

Mr. Kevin E. Moore For Applicant

Edmonton, Alberta

Morris Rosenberg For Respondent

Deputy Attorney General of Canada