The Minister of Citizenship and Immigration, plaintiff,
Jassem Abdel Hussain, defendant
 F.C.J. No. 274
2002 FCT 209
Court No. IMM-906-01
Federal Court of Canada - Trial Division
Aliens and immigration Admission, refugees Disqualifications, war crimes or crimes against humanity Appeals or judicial review, grounds.
Application by the Minister for judicial review of a decision of the Refugee Division that Hussain was a Convention refugee and was not excluded as being a person with respect to whom there were serious reasons for considering that he had committed a crime against humanity. The tribunal only raised one question concerning this exclusion. It noted that Hussain had been involved in the extra-judicial execution of a deserter. The tribunal stated that the necessary mens rea was not found in the offence and found that it was possible to invoke the duress or coercion exception.
HELD: Application for judicial review allowed and the matter was referred back to different members of the Refugee Division for re-examination. Mere membership in a group which committed crimes of an international nature was not by itself sufficient to support a conclusion that Hussain was an accomplice in those offences. However, the case was replete with evidence that Hussain was aware of the crimes against humanity committed by the Iraqi army when he was a part of it. The evidence further showed that he was assigned to the maintenance of military vehicles used to transport light cannon. In light of the particular circumstances it was not sufficient for the tribunal to raise only one question concerning the direct participation of Hussain in the extra-judicial execution of a deserter. The Tribunal was required to ask questions about his complicity and his defence of duress. The error of law was the failure to ask all the necessary relevant questions and dispose of them expressly. It was not the Court's duty to perform these functions.
Statutes, Regulations and Rules Cited:
Immigration Act, s. 2(1).
Daniel Latulippe, for the plaintiff.
Styliani Markaki, for the defendant.
REASONS FOR ORDER
1 PINARD J.: The application for judicial review concerns a decision by the Refugee Division on January 10, 2001 that the defendant is a Convention refugee as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act") and is not a person excluded from the application of that section under art. 1F(a).
2 The definition of a Convention refugee found in s. 2(1) of the Act excludes person excluded from the scope of the Convention by art. 1F(a) of the latter, namely persons with respect to whom there are serious reasons for considering that they have committed a crime against humanity.
3 The courts have consistently held that mere membership in a group which commits crimes of an international nature is not by itself sufficient to support a conclusion that the claimant was an accomplice in those offences (see Ramirez v. Canada (M.E.I.),  2 F.C. 306, at 317). The first requirement for complicity in a crime against humanity is "personal and knowing participation". To use the words of MacGuigan J.A. in Ramirez, supra, at 318:
At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it.
In the same case, at 327 and 328, MacGuigan J.A. also laid out the tests to be met to support a conclusion that a defence of duress is applicable in such a case:
On duress, Hathaway, supra, at page 218, states, summarizing the draft Code of Offences against the Peace and Security of Mankind, in process by the International Law Commission since 1947:
Second, it is possible to invoke [as a defence] coercion, state of necessity, or force majeure. Essentially, this exception recognizes the absence of intent where an individual is motivated to perpetrate the act in question only in order to avoid grave and imminent peril. The danger must be such that "a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong". Moreover, the predicament must not be of the making or consistent with the will of the person seeking to invoke the exception. Most important, the harm inflicted must not be in excess of that which would otherwise have been directed at the person alleging coercion. [Footnotes omitted.]
If I were to accept this as the state of international law, as the appellant urged, I could find that the duress under which the appellant found himself may be sufficient to justify participation in lesser offences, but I would have to conclude that the harm to which he would have exposed himself by some form of dissent or non-participation was clearly less than the harm actually inflicted on the victims.
4 Like duress, complicity by membership in a group is a question of fact which must be considered and determined in each particular case.
5 In the case at bar the tribunal, in a very brief decision, only raised one question concerning art. 1F(a) of the Convention. The full text of the decision on this point needs to be set out:
As to the applicability of the exclusion clause, it is clear that the claimant was involved in the extra-judicial execution of a deserter.
First, in the particular circumstances of this case, I do not see the necessary mens rea. My other two main points of reference are James C. Hathaway in The Law of Refugee Status and his comments on the concept of duress, "contrainte" in French, my second reference being the case law, and in particular Ramirez [reference omitted].
As regards the analysis of James C. Hathaway [reference omitted], he says at p. 218:
It is possible to invoke coercision (sic) state of necessity or force majeure, essentially (sic) exception recognizes the absence of intent were (sic) an individual is motivated to perpetrate the act in question only in order to avoid grave and imminent peril. The danger must be such that "a reasonable man who (sic) would apprehends (sic) that he was in such eminent (sic) physical peril as to deprive him of freedom to choose the right and refrain from the wrong". This is a quotation Hathaway takes from the High Command Case, the American Military Tribunals, in connection with the celebrated Nuremberg trials.
As to Ramirez, MacGuigan J.A. of the Federal Court wrote:
"One must be particularly careful not to condemn automatically everyone engaged in conflict under conditions of war"; and went on, "While the law may require a choice on the part of those ordered actually to perform international crimes, it does not demand the immediate benevolent intervention, at their own risk, of all those present at the site. Usually, law does not function at the level of heroism".
For these reasons, I find that Jassem ABDEL HUSSEIN is a refugee as defined in s. 2(1) of the Immigration Act.
6 The case is replete with evidence that the defendant was aware of the crimes against humanity committed by the Iraqi army when he was a part of it:
- the use of chemical weapons, which caused some 150,000 deaths;
- the razing of towns and villages;
- the poisoning of water in one area of the country;
- the repeated hanging of deserters;
- the regular use of torture during interrogations; and
- the murder of a pregnant woman (which the defendant witnessed when he was on leave).
7 The evidence further showed that the defendant was assigned to the maintenance of military vehicles used to transport light cannon.
8 In these particular circumstances, I must conclude that it was not sufficient for the tribunal to raise only one question concerning the direct participation of the defendant in the extra-judicial execution of a deserter. The Act, as confirmed by the foregoing case law, required it also to ask questions about the defendant's complicity and his defence of duress. The error of law made thus has to do with the tribunal's failure to ask all the necessary relevant questions and dispose of them expressly. It is certainly not this Court's duty to perform these functions in a judicial review proceeding.
9 In the circumstances, therefore, I consider that the application for judicial review should be allowed and the matter referred back to different members of the Refugee Division for re-examination.
Certified true translation: Suzanne M. Gauthier, C. Tr., LL.L.
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