ORLANDO CONCEPCION NHORLEO CONCEPCION NOEMI CONCEPCION GABBY CONCEPCION JACKIELYN CONCEPCION CARL IAN ORDANZA Applicants v. THE MINISTER OF, 2016 FC 544

Date: 20160516 Docket: IMM-626-15 Citation: 2016 FC 544 Toronto, Ontario, May 16, 2016 PRESENT: The Honourable Mr. Justice O'Reilly BETWEEN:ORLANDO CONCEPCIONNHORLEO CONCEPCIONNOEMI CONCEPCIONGABBY CONCEPCIONJACKIELYN CONCEPCIONCARL IAN ORDANZAApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS I. Overview [1] Ms Nelly Concepcion wished to sponsor her husband, Orlando, for permanent residence in Canada. He currently resides inthe Philippines. A visa officer in Manila found Mr Concepcion to be inadmissible to Canada for having committed crimes againsthumanity when he served as a radio operator in the Philippine Army, citing s 35(1)(

a) of the Immigration and Refugee Protection Act, SC2001, c 27 [IRPA] (provisions of IRPA cited are set out in an Annex). [2] Mr Concepcion maintains that the officer treated him unfairly by failing to give him adequate notice that his admissibility toCanada was in issue, and by relying on sources of information unknown to Mr Concepcion. He also submits that the officer applied anoutdated and incorrect test for inadmissibility, and rendered an unreasonable decision.

He asks me to quash the officer’s decision andorder the respondent Minister to process his permanent residence application and those of his children. [3] I find that the officer applied an incorrect definition of inadmissibility and will allow this application for judicial review onthat basis. It is unnecessary to address the other issues Mr Concepcion raised.

I cannot, however, grant the relief Mr Concepcion seeks; Ican only order another officer to reconsider the question of his admissibility to Canada. (Rafuse v Canada (Pension Appeals Board),2002 FCA 31 at para 14). [4] Accordingly, the sole issue is whether the officer applied the correct test for inadmissibility. II. The Officer’s Decision [5] In 2011, the officer interviewed Mr Concepcion about his possible inadmissibility to Canada based on his service in thearmy.

The officer’s concerns arose from public sources about the army’s involvement in crimes against humanity. [6] Two years later, the officer advised Mr Concepcion that he might be inadmissible to Canada for having committed crimesagainst humanity, referring to the Crimes Against Humanity and War Crimes Act, SC 2000, c 24. The officer did not specify whichprovision of the Act he was relying on. Mr Concepcion responded by telling the officer that he had never been involved in a crimeagainst humanity.

His role as a radio operator, he said, involved maintaining lines of communication in order to protect public safety. [7] In 2014, the officer rendered her decision finding that Mr Concepcion was inadmissible to Canada. She concluded that he had been a member of units of the army that had been involved in atrocities – the 7th Infantry Division and the 56th Infantry Battalion.She found that he had been aware that some of his communications had resulted in the arrest and interrogation of members of the enemy,the New People’s Army.

He knew that his battalion had been involved in combat in 1987, although he had not been involved personally.Still, he had not taken any action to stop the army’s atrocities or to disassociate himself from them. [8] The officer found that Mr Concepcion was complicit in the army’s crimes by having been aware of them and contributing tothem by facilitating the transmission of communications. She relied primarily on the analysis of complicity in Ramirez v Canada(Minister of Employment and Immigration), (FCA), [1992] 2 FC 306.

She concluded that a person would beinadmissible if he or she committed an international crime, or was involved as a secondary party (eg, by aiding and abetting it). Theofficer went on to state that an association with a group involved in international crimes may amount to complicity, even if the personmerely knew about them and tolerated them.

III. The Test for Inadmissibility [9] Under s 35(1)(

a) of IRPA, a person is inadmissible to Canada for violating human or international rights if he or she hascommitted

an act outside Canada that amounts to an offence under ss 4 to 7 of the Crimes Against Humanity and War Crimes Act. [10] The Supreme Court of Canada has held that, in order to prove that a person was complicit in a war crime, it must be shownthat the person made a significant contribution to it; a person cannot be considered complicit by mere association: Ezokola v Canada(Minister of Citizenship and Immigration), 2013 SCC 40 , [2013] 2 SCR 678. In that case, the Court was dealing provisions ofIRPA relating to exclusion from refugee protection, while this case deals with inadmissibility to Canada.

Nonetheless, the language atissue is identical. In addition, Ezokola dealt with the proper scope of liability for international crimes, which is equally applicable both toexclusion under

Article 1F(

a) of the Refugee Convention and to inadmissibility under s 35(1)(

a) of IRPA. [11] The Federal Court of Appeal has found that Ezokola does not apply directly to the inadmissibility clause in s 34(1)(

f) of IRPA,which deals with membership in an organization engaged in terrorism (Kanagendren v Canada (Minister of Citizenship and Immigration,2015 FCA 86). However, it specifically distinguished s 34(1)(

f) from s 35(1)(a), noting that s 35(1)(

a) is “the domestic inadmissibilityprovision that parallels

Article 1F(a)”. Therefore, the Supreme Court’s analysis will surely apply here. Indeed, in effect, the Ministerconcedes that it does. [12] In Ezokola, the Supreme Court held that complicity under

Article 1F(

a) requires a nexus between the person’s conduct and thegroup’s purpose: “While individuals may be complicit in international crimes without a link to a particular crime, there must be a linkbetween the individuals and the criminal purpose of the group . . . ” (at para 8; emphasis in the original). [13] The Court applied a “contribution-based approach” to replace the “knowing participation test” developed in Ramirez.

Itemphasized the need to respect rules of liability that have been developed in relation to international crimes, given their “extraordinarynature” (para 44): “International criminal law, while built upon domestic principles, has adapted the concept of individual responsibilityto this setting of collective and large-scale criminality, where crimes are often committed indirectly, and at a distance” (para 45). [14] After looking to the Rome Statute and other sources of international criminal law principles, the Court concluded: At a minimum, complicity under international criminal law requires an individual to knowingly (or, at the very least, recklessly)contribute in a significant way to the crime or criminal purpose of a group. (para 68) [15] Therefore, the test for inadmissibility under s 35(1)(

a) requires serious reasons for considering that a person has voluntarilymade a significant and knowing contribution to an offence contrary to the Crimes Against Humanity and War Crimes Act, or to a group’scriminal purpose. IV.

Did the officer apply the correct test? [16] The Minister maintains that the officer made no error in applying the test in Ramirez as it amounts, in substance, to the samestandard articulated and applied by the Supreme Court of Canada in Ezokola. [17] While I agree with the Minister that there are many common elements in Ramirez and Ezokola, there are also, in my view,some significant differences.

Specifically, in Ezokola, the Supreme Court explicitly departed from the concept of complicity byassociation (a notion that derives not from Ramirez itself, but from its progeny; See, eg, Sivakumar v Canada (Minister of Employment &Immigration), (FCA), [1994] 1 FC 433 at para 9). As discussed above, the test now requires proof of a significantcontribution to an international crime.

The Minister argues that that test was met in this case by evidence showing that Mr Concepcionmade a “voluntary, significant and knowing contribution to the Philippines Military for many years when it was committing atrocities”.In my view, that is not the proper test. The evidence must show, at least, that the person made a significant contribution to a crime or theorganization’s criminal purpose, not just a contribution to the organization. [18] In any case, however, the officer applied even a lesser test than that offered by the Minister.

The officer found that anassociation with an international crime group would amount to complicity if the person knew about and acquiesced in the group’sactivities. That standard can no longer be applied after Ezokola, which requires evidence that a person made a significant contribution toa crime or a group’s criminal purpose. [19] Accordingly, the officer should have applied the principles of liability set out in Ezokola. Failure to do so amounted to anerror of law. V.

Conclusion and Disposition [20] The test applied by the officer did not correspond to the principles set out by the Supreme Court of Canada in Ezokola. I must,therefore, allow this application for judicial review. Given the existing case law on this issue (eg, Kanagendren), no question of generalimportance arises. JUDGMENT

THIS COURT’S JUDGMENT is that 1. The application for judicial review is allowed, and the matter is returned to another officer for redetermination. 2. No question of general importance is stated. "James W. O'Reilly" Judge Annex Immigration and Refugee Protection Act , SC 2001, c 27

Loi sur l’immigration et la protection des réfugiés , LC 2001, ch 27 Security Sécurité 34.

(1) A permanent resident or a foreign national is inadmissible on security grounds for 34.

(1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : … […] (

f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c).

f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b), b.1) ou c). Human or international rights violations Atteinte aux droits humains ou internationaux 35 .

(1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for 35.

(1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants : (

a) committing

an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act ;

a) commettre, hors du Canada, une des infractions visées aux articles 4 à 7 de la

Loi sur les crimes contre l’humanité et les crimes de guerre ; FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-626-15 STYLE OF CAUSE: ORLANDO CONCEPCION, NHORLEO CONCEPCION, NOEMI CONCEPCION, GABBY CONCEPCION, JACKIELYN CONCEPCION, CARL IAN ORDANZA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: October 16, 2015 JUDGMENT AND REASONS: O'REILLY J. DATED: May 16, 2016 APPEARANCES : Prasanna Balasundaram For The Applicants Jamie Todd For The Respondent SOLICITORS OF RECORD :

Prasanna Balasundaram Barrister and Solicitor Toronto, Ontario For The Applicants William F. Pentney Deputy Attorney General of Canada Toronto, Ontario For The Respondent