Mar 1, 2016

The Federal Court Reaffirms that Guilt by Association is not the Proper Test for Complicity in Crimes Against Humanity: Habibi v. Canada (Citizenship and Immigration), 2016 FC 253

Habibi v. Canada (Citizenship and Immigration), 2016 FC 253 (CanLII)

In Habibi, the Applicants (Mr. Habibi and his wife, Ms. Khoshadel) had applied for refugee protection on the basis of religious persecution for having converted to Christianity in Iran. The Refugee Protection Division (RPD) had concluded that in addition to not being Convention refugees or persons in need of protection, Mr. Habibi was excluded pursuant to section 98 of the Immigration and Refugee Protection Act due to a finding that he had been complicit in committing crimes against humanity pursuant to Article 1F (a) of the Convention Relating to the Satatus of Refugees.

According to the RPD, Mr. Habibi must have been complicit in crimes against humanity undertaken by the Iranian Regime because of his 28 years’ of service as a police officer in Iran, and his having achieved the high rank of Lieutenant Colonel upon retirement. The RPD stated:

not only would [Mr. Habibi] have been aware of the police’s co-operation with and support for other agencies such as the Komiteh [revolutionary committee], but also have been involved in providing direction to the actions of police when working with other agencies.

In its findings, the RPD rejected the direct testimony of Mr. Habibi that he “had never transferred a prisoner to another security or enforcement agency which had committed crimes and crimes against humanity”.

On Judicial Review, the Federal Court found that although the RPD had been “mindful” of the test set out by the Supreme Court of Canada in Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40, which required that there had to be evidence of Mr. Habibi “personally making a voluntary, knowing and significant contribution to crimes against humanity or the criminal purposes of the Iranian regime”, the RPD had nonetheless “incorrectly and unreasonably applied the test”. More specifically, the RPD’s decision was not based on an individualized assessment, as had been required in Ezokola, but a “guilt by association” determination, contrary to Ezokola. In so doing, the RPD had failed to properly consider the six contextual factors set out in Ezokola, including the size and nature of the Iranian police force.

The Federal Court ordered that another panel of the RPD make a determination as to the Applicants’ refugee claim.

It is a relief that Mr. Habibi and Ms. Khoshadel are permitted to make their case for refugee and/or protected status without the erroneous application of a serious ground for exclusion. However, the decision of the RPD does create the uncomfortable reality that even with guidance from the Supreme Court of Canada, decisions are being made in respect of exclusions that are only being caught due to judicial reviews (or appeals). Although it is to be expected that decisions of first instance will not always be correct or reasonable (hence the opportunity for an appeal or a judicial review if provided leave), the reality is that not all applicants will pursue the process, either due to financial constraints or other issues. It is therefore imperative that as much as is possible, decision makers of first instance thoroughly consider binding authority and come to reasonable conclusions that are warranted in the specific circumstances of the claim before them.