MC0-09281

MC0-09281

There are serious reasons for considering the Appellant voluntarily made a significant and knowing contribution to the torture of conflict-related detainees by the ANA based on credible documentary evidence of systemic torture during the Appellant's service, the Appellant's role as battalion commander who captured and transferred detainees, inconsistent testimony on knowledge, and Ezokola factors; accordingly the Appellant is excluded from refugee protection under s.98 IRPA as a person described in Article 1F(a). The late disclosure of the Attaché document breached procedural fairness but was remedied by disclosure and opportunity to respond; no oral hearing was required.

Citation
MC0-09281
Parties
Appellant / Person Who Is the Subject of the Appeal: XXXX XXXX; Intervenor / Respondent: Minister of Public Safety and Emergency Preparedness (intervenor)
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
6 April 2022
Procedural Posture
Refugee Protection Appeal Under IRPA (article 1 F Exclusion) / Appeal to Refugee Appeal Division (intervention by Minister); Interlocutory Disclosure Order Issued; Final RAD Decision
Outcome
Appeal dismissed. RAD confirms RPD decision: Appellant excluded from refugee protection under s.98 IRPA as a person described in Article 1F(a) of the Refugee Convention; Appellant is neither a Convention refugee nor a person in need of protection.
Legal Topics
Exclusion Under Article 1 F(a), War Crimes (torture), Complicity Test (ezokola), Procedural Fairness and Disclosure, Judicial Review Standards
Source Language
English
Immigration and Refugee Law International Criminal Law Administrative Law Exclusion Under Article 1 F(a) War Crimes (torture) Complicity Test (ezokola) Procedural Fairness and Disclosure Judicial Review Standards

Case Brief

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Parties

XXXX XXXX

Appellant / Person Who Is the Subject of the Appeal

Minister of Public Safety and Emergency Preparedness (intervenor)

Intervenor / Respondent

Procedural Posture

Refugee Protection Appeal Under IRPA (article 1 F Exclusion) / Appeal to Refugee Appeal Division (intervention by Minister); Interlocutory Disclosure Order Issued; Final RAD Decision

Legal Issues

  1. 1 Whether the Appellant is excluded from refugee protection under s.98 IRPA as a person described in Article 1F(a) of the Refugee Convention
  2. 2 Whether the RPD properly identified and applied legal definitions of international crimes (war crimes) committed by Afghan National Army (ANA)
  3. 3 Whether there are serious reasons for considering the Appellant voluntarily made a significant and knowing contribution to those crimes (complicity test from Ezokola)

Ratio Decidendi

There are serious reasons for considering the Appellant voluntarily made a significant and knowing contribution to the torture of conflict-related detainees by the ANA based on credible documentary evidence of systemic torture during the Appellant's service, the Appellant's role as battalion commander who captured and transferred detainees, inconsistent testimony on knowledge, and Ezokola factors; accordingly the Appellant is excluded from refugee protection under s.98 IRPA as a person described in Article 1F(a). The late disclosure of the Attaché document breached procedural fairness but was remedied by disclosure and opportunity to respond; no oral hearing was required.

Court Disposition

Appeal dismissed. RAD confirms RPD decision: Appellant excluded from refugee protection under s.98 IRPA as a person described in Article 1F(a) of the Refugee Convention; Appellant is neither a Convention refugee nor a person in need of protection.

Orders

  • Dismiss appeal and confirm Refugee Protection Division decision (June 17, 2020)
  • Interlocutory disclosure order (RAD Sept 21, 2021): Minister to disclose any documents received from Canada's military attaché in Afghanistan relevant to the Appellant, including documents relating to military service (disclosed Nov 4, 2021)