Date:
20130201
Docket:
IMM-1036-12
Citation:
2013 FC 118
Ottawa, Ontario,
February 1, 2013
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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ALMIR LUKAVICA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant is a citizen of what is now Bosnia-Herzegovina. When he was 18, he
was conscripted into the Army of the Republic of Bosnia and Herzegovina [the
Bosnian Army], where he served for nine months. Approximately three years ago,
the applicant’s wife, who is a Canadian citizen, sought to sponsor the
applicant for landing in Canada as a member of the Family Class.
[2]
In
a decision rendered December 1, 2011, an immigration officer at the Canadian
Embassy in Vienna denied the applicant’s application for a permanent resident
visa, finding there to be reasonable grounds to believe that the applicant is
inadmissible under paragraph 35(1)(a) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [the IRPA or the Act]. More specifically, the officer
found that there were reasonable grounds to believe that the applicant was
complicit in atrocities committed by the Third Corps of the Bosnian Army in the
Ozren Mountains during September of 1995.
[3]
In
this application, the applicant argues that this decision should be set aside
because he was denied procedural fairness in that he was not provided with the
substance of the officer’s suspicions nor with the salient facts contained in
two documents before the officer, which the officer considered in making his
decision. These documents consist of a detailed email to the officer from a
Senior Program Officer in the War Crimes Section of the Canada Border Services
Agency and an excerpt from an Internet blog entitled, “Slobodna Bosna, War
crimes “Vozunca case”, 6 years later, 9/13/01”. The applicant further argues
that the officer lacked evidence to substantiate his findings and applied a
flawed and incorrect test to find complicity. More specifically, the applicant submits
that the officer’s conclusion is perverse because there was no evidence before
the officer from which he could reasonably have concluded that the applicant
was complicit in a war crime or crime against humanity, under the
well-established law defining complicity, given the applicant’s low rank of
private, the fact he was conscripted, his lack of knowledge of the atrocities
in question and the lack of evidence of the applicant having undertaken any
tasks while in the Bosnian Army, with the exception of training and standing
guard at an Army barracks 40 kilometres away from where the atrocities
occurred. The applicant requests a directed verdict, which would require that
the officer who re-determines the applicant’s application to not find the
applicant to be inadmissible under paragraph 35(1)(a) of the Act. The applicant
finally seeks his costs in this matter, in the amount of $3000.00, arguing that
the officer’s decision is egregious and unfair in that the errors in it ought
to have been obvious to the respondents from the outset.
[4]
The
respondents dismiss each of these objections to the decision, arguing that the
applicant was provided with fulsome procedural rights, having been given three
interviews, during the last of which the officer specifically indicated that
concerns about the applicant’s involvement in war crimes were at issue. In
addition, the respondents argue that the questions posed provided all necessary
particulars of the officer’s suspicions. The respondents further argue that the
documents relied upon by the officer concerned general conditions at the time
in Bosnia and thus need not have been disclosed to the applicant. The
respondents submit that that the officer’s complicity finding was reasonable,
particularly as the applicant was not forthcoming during the interviewers about
his activities in the Bosnian Army. The respondents finally argue that there is
no reason to depart from the normal rule that costs are not recoverable in
immigration judicial review applications since this case is in no way out of
the norm.
[5]
As
is more fully detailed below, I have determined that this application must be
granted because the applicant was denied procedural fairness. In light of this
determination, I have decided that it is not appropriate to grant the
applicant’s request for a directed verdict as the application will be remitted
to another visa officer for a new hearing and the evidence in respect of that
hearing will be different from that before this officer. (At the very least,
the applicant will doubtless file exculpatory evidence that was not before the
officer, including the affidavits from his commanding officers in the Bosnian Army
that he filed in connection with his application.) That said, the procedural fairness
finding in this case is influenced by the facts and context, which provide no
basis for the applicant to have anticipated why or how he was being suspected
of having been complicit in a war crime or crime against humanity, because
there is no basis on these facts to anticipate how or why any such finding
could be made. Finally, I have concluded that this is not an appropriate case
to award costs. My reasons for each of these conclusions appear below.
Was the
applicant denied procedural fairness?
[6]
Two
procedural fairness issues arise in this case: (a) Whether the applicant was
sufficiently on notice that he was suspected of having been involved in war
crimes; and (b) whether the applicant had a right to disclosure of the
documents relied upon by the officer and to an opportunity to respond to their
contents. Either issue would provide a basis for overturning this decision.
[7]
Turning
to the first issue, the parties do not dispute that the applicant was entitled
to know the case against him and to be afforded a fair opportunity to respond
to it. Indeed, the case law so establishes. In Khwaja v Canada (Minister of Citizenship and Immigration), 2006 FC 522 at para 16, cited by the
respondents, Justice Blanchard identified the established principle of law in
the following way: “a visa officer must disclose his or her specific concerns
to the applicant and grant that person sufficient opportunity to respond to the
concerns in a meaningful way”. The parties, however, differ as to whether the
applicant was sufficiently put on notice.
[8]
The
respondents rely on Liao v Canada (Minister of Citizenship and Immigration),
[2000] FCJ No 1926 at para 17, 101 ACWS (3d) 998, for the proposition that an
officer may simply “[adopt] an appropriate line of questioning or [make] reasonable
inquiries which give the applicant the opportunity to respond” and submits that
such a line of questioning was employed in this case. The respondents argue
that the applicant was given three interviews and was asked questions that
related to the specifics of the events during which war crimes were committed
during his second interview – including the units and prison camps involved,
and the name of the operations – and was told at the beginning of his third
interview that “there were concerns that he might be complicit in a war crime”.
The respondents assert that this should have been sufficient to put the
applicant on notice of the suspicions against him and to place him in a fair
position to defend himself.
[9]
With
respect, I do not agree for several reasons. First, the facts in Liao
are quite different from those at issue here. In Liao, the applicant was
seeking a permanent resident visa as an engineer. The officer reviewing her
application found that she was more professor than engineer, given the
proportion of her time spent teaching and the title of her position (“associate
professor”). The officer questioned the applicant about her duties, and based
on her answers and the rest of the record reached his conclusion. Justice Blais
(as he then was) found that the questioning had provided the applicant with
sufficient notice that the officer had concerns about the nature of her
employment activities and that through the questioning the applicant had had
sufficient opportunity to respond. The applicant knew what her job was and
could provide all necessary details about it.
[10]
In
contrast, here, there was no reason for the applicant to suspect there were
concerns he was implicated in the commission of war crimes against prisoners of
war in the Ozern Mountains in September of 1995.
[11]
As
mentioned, the applicant was interviewed three times. During the first
interview, he was told to provide “as many details as possible” and was then
asked general questions about his service in the Bosnian Army. At this stage,
the officer did not find the applicant credible so referred his file to the War
Crimes Section. The War Crimes Section suggested a series of topics about which
to question the applicant, which was done during the second interview.
[12]
At
the beginning of the second interview, the applicant was again asked to provide
as many details as possible in his responses, and then, without context, was
asked the following questions:
▪
Were
you ever ordered to/did you ever render any military services whatsoever to the
35th Division, 37th Division, the 328th
Mountain Brigade or any sub-Divisions or sub-units to these Divisions/Brigade?
▪
Were
you ever ordered to/did you ever render any military services or support
whatsoever to the El Majahed Detatchment (EMD)?
▪
Did
you do any minesweeping?
▪
Were
you ever ordered to participate in either Operation Farz or Operation
Hurricane?
▪
Did
you or your unit ever encounter, or were ordered to stage attacks against
civilians, and did your unit handle prisoners of war?
▪
Did
you ever guard civilians or prisoners of war in Tesanj or anywhere else over
the course of your military service?
[…]
▪
Did
you witness or have knowledge of the detention of any prisoners?
▪
Have
you ever been to – or worked in any capacity (ex: guard, etc) at the Kamenica
camp?
▪
Were
you at any time ever deployed outside of Tuzla, Tesanj or Lukavac over the
course of your military services for any military operations?
▪
Were
you ever deployed from Tesanj to or towards Vozuca?
[…]
▪
Could
you hear the fighting?
▪
Even
during Operations Farz and Hurricane?
[…]
[13]
The
applicant replied “no” to virtually all of these questions. The officer found
significance in this, noting, “Despite our request for as many details as
possible, the applicant was extremely vague, and most of the time he simply
answered no”. With respect, assuming the applicant was telling the truth, it is
unclear what else he should have said.
[14]
Indeed,
knowing the nature of what he was suspected of doing was central to the
applicant’s ability to respond in a fulsome way, given the nature of the
suspicions and the applicant’s circumstances. For example, the applicant could
have provided alibi evidence like the statements he subsequently obtained from
his commanding officers, which corroborate he was not involved in the
atrocities that were committed in the Ozren Mountains.
[15]
The
applicant was a young, conscripted soldier who was in training in an
engineering unit at a site separate from that of the atrocities throughout the
time period in question. Considering this profile, there is no reason that the
line of questioning – a series of factual questions about events that were
devoid of any context and essentially asked the applicant if he was at certain
places at certain times – should have alerted the applicant to the fact that he
was suspected of being linked to the specific war crimes in question. (On this
point, I would again note that there was nothing in the record to link him to
these war crimes other than his relative physical proximity – 40 km – to their
commission.) The applicant had no authority in the Army and thus it would not
be surprising for him to have no knowledge about operations undertaken by other
units. Given this context, his answers were not unnecessarily vague.
[16]
Apart
from the questions highlighted above, the only indications to the applicant as
to the officer’s suspicions were a statement in an email response to his wife
that his claim was being reviewed by the War Crimes Unit and an apparent
statement by the interviewing officer, without any specifics or context, that
there were concerns regarding war crimes, at the beginning of the third
interview. In my view, these vague references were insufficient to alert the
applicant as to what was at issue, especially when the concerns of the officer involved
specific incidents at a specific time and location.
[17]
Thus
here, unlike in Khwaja (cited at para 7, above), I do not believe the
applicant was sufficiently “given notice of the substance of allegations
against him” (to borrow the language of Justice Blanchard at para 21). As such,
I find there to have been a violation of procedural fairness.
[18]
Given
this finding, I need not rule on whether the two documents should have been
provided to the applicant. Indeed, applicant’s counsel suggested that her concern
was not necessarily that the documents themselves needed to have been provided,
but more that the “gist” of them should have been shared with the applicant so
that he could have responded. I agree, but find that this could have been
accomplished by alerting the applicant to the concerns, as discussed above.
Should a
directed verdict be ordered?
[19]
Counsel
for the applicant asked that I issue a directed verdict in this case, given
that the applicant is being kept apart from his wife, who is here in Canada. I do not find it appropriate to do so, because new evidence will likely be before
the next decision-maker. However I would note that, on the present facts, and
in light of the current state of the law, there is little or nothing to support
a finding that the applicant was complicit in war crimes. In that respect, the
facts of this case are comparable to those in Ardila v Canada (Minister of
Citizenship and Immigration), 2005 FC 1518 in which Justice Kelen
overturned a finding of complicity of a young conscript into the Colombian Army
who had spent the majority of his time in the Army in training and whose unit
had not been implicated in war crimes. The present case, and Ardila, are
to be contrasted with situations in which membership and participation in the
affairs of a limited brutal purpose organization gives rise to a complicity
finding (see e.g. Seyoboka v Canada (Minister of Citizenship and
Immigration), 2012 FC 1143), or where one’s seniority in an organization
may similarly justify a finding of complicity (Ezokola v Canada (Minister of
Citizenship and Immigration), 2011 FCA 224, [2011] 3 FCR 417, leave to
appeal granted April 26, 2012 (2012 CarswellNat 1173) (SCC), judgment pending; Nsika
v Canada (Minister of Citizenship and Immigration), 2012 FC 1026).
In contrast, here, it is wholly plausible that a young conscript, with no
seniority, in the Army for a short period of time, would be unaware of war
crimes committed elsewhere by another unit, and would have done nothing to
further their commission.
Costs and
Certified Question
[20]
Rule
22 of the Federal Courts Immigration and Refugee Protection Rules,
SOR/93-22 provides that special reasons are required for costs to be awarded in
an application for judicial review in the immigration context. Such special
reasons have been held to include situations where one party has unreasonably
prolonged proceedings, acted in an oppressive or improper manner or in bad
faith or pursued a clearly unmeritorious case (Johnson v Canada (Minister of
Citizenship and Immigration), 2005 FC 1262 at para 26 [Johnson]; Ndererehe
v Canada (Minister of Citizenship and Immigration), 2007 FC 880 at para 29;
Benhmuda v Canada (Minister of Citizenship and Immigration), 2012 FC
1222 at para 41). Notwithstanding my conclusion that there was a violation of
procedural fairness, I do not find the conduct of the respondents to have been
so egregious as to constitute special circumstances to justify the awarding of
costs. Accordingly, they are not awarded.
[21]
As
this case is fact specific and does not raise any new legal issues, there is no
basis to certify a question under section 74 of the IRPA and accordingly, none
is certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
This
application for judicial review is granted;
2.
The
officer’s decision is set aside;
3.
The
applicant’s application for permanent residence as a member of the Family Class
is remitted to the respondents for re-determination
by a different visa officer;
4.
No question
is certified; and
5.
There
is no order as to costs.
"Mary J.L. Gleason"
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