MB8-06936

RAD File / Dossier de la SAR : MB8-06936 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision June 2, 2021 Date de la décision Panel Jo-Anne Pickel Tribunal Counsel for the person who is the subject of the appeal Jared Will Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Mike Milette Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal for the reasons that follow. [2] XXXX XXXX XXXX is a citizen of Libya. He served approximately 24 years in Libyan armed forces, specifically in the Libyan Navy/Coast Guard,1 from 1989 until he left Libya in 2013 to pursue a doctorate in Canada. He served both during the dictatorship of Muammar Gadhafi and after the latter was overthrown. Mr. XXXXheld ranks up to and including the rank of XXXX. Most significantly for the purposes of this case, he was a XXXXin charge of supervising radar and communications in the Operations Department of the XXXX XXXX XXXXfor a period of time between 2008 until the Libyan revolution in 2011. He had the responsibility of supervising the Navy/Coast Guard's monitoring of the Libyan coast by means of radar and also for communications relating to this monitoring. As part of his duties during this period of time, Mr. XXXXdirected Libyan ships to intercept migrant vessels off the coast of Libya and transfer illegal migrants over to members of the Libyan security authorities on land, specifically the police and security agents from the XXXX XXXX XXXX XXXX XXXX under the jurisdiction of the Ministry of the Interior.2 Mr. XXXXsupported the overthrow of Muammar Gadhafi and went into hiding during the Libyan revolution. He returned to the Navy/Coast Guard after the revolution until he was accepted into a doctoral program in Canada. Mr. XXXX, his wife and children entered Canada in XXXX 2013. While in Canada, they were informed that they should not return to Libya, as officers who had supported the revolution were being targeted by Gadhafi supporters. Mr. XXXXand his family claimed refugee protection in May 2016. [3] The Minister of Public Safety and Emergency Preparedness (Minister) intervened both before the Refugee Protection Division (RPD) and the Refugee Appeal Division (RAD) to argue that Mr. XXXXshould be excluded from refugee protection under Article 1F(a) and Article 1F(c) of the refugee Convention. [4] The RPD accepted the refugee claims filed by Mr. XXXXfamily. However, the RPD found that Mr. XXXXwas excluded from refugee protection under Article 1F(a) of the Convention as there were serious reasons for considering that he had committed a crime against humanity during his tenure in the Libyan Navy/Coast Guard. Specifically, the RPD found that there were serious reasons for considering that Mr. XXXXhad voluntarily made a significant and knowing contribution to the criminal acts committed against illegal migrants by the Libyan authorities under the Gadhafi regime. Mr. XXXXappealed this finding. [5] Mr. XXXXappeal was dismissed by another RAD member. The Federal Court granted his judicial review application on consent, as the first RAD member mistakenly issued two decisions in the case. She issued one decision in June 2020 but then issued a second decision with different formatting and substantive edits in August 2020. The Federal Court referred the matter back to the RAD for redetermination by a different member. This is that redetermination. DECISION [6] My role is to look at all the evidence and decide if the RPD made the correct decision.3 I agree with Mr. XXXXcounsel that the RPD erred in finding that there was sufficient evidence to establish that there were serious reasons for considering that the Libyan Navy/Coast Guard themselves mistreated illegal migrants to such an extent as to amount to a crime against humanity. However, I find that the RPD was correct to conclude that Mr. XXXXvoluntarily made a knowing and significant contribution to crimes against humanity committed against illegal migrants by members of the Libyan security authorities-specifically, security authorities reporting to the Ministry of the Interior. Therefore, I find that the RPD was correct to conclude that Mr. XXXXis excluded from refugee protection by the combined effect of Article 1F(a) of the refugee Convention and s. 98 of the Immigration and Refugee Protection Act. PROPOSED NEW EVIDENCE [7] According to the law,4 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or that the appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [8] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.5 [9] Mr. XXXXformer counsel submitted four documents as proposed new evidence: (1) an online document of unknown origin from around 1987 that provides information about the Libyan Navy; (2) a Wikipedia entry about the Libyan Navy; (3) a United Nations report from 1985 about conscientious objection to military service; and (4) a report from the United Nations Human Rights Office of the High Commissioner issued in 2016. [10] As acknowledged by Mr. XXXXformer counsel, all of the documents predate the RPD decision and were reasonably available to Mr. XXXXbefore the RPD decision. Counsel argued that the documents were admissible as, in her view, they contradict findings of fact made by the RPD which were used to undermine Mr. XXXXcredibility. She also argued that Mr. XXXXwas unaware that he needed to submit evidence of this nature at the hearing. I disagree with these arguments. [11] Mr. XXXXwas put on notice prior to the RPD hearing that the Minister would be intervening to argue that he should be excluded from protection under Article 1F(a). Therefore, it would have been clear to him and his counsel that actions he took as part of his military involvement would be an issue in the case. Moreover, even if he did not realize this before the first hearing, it would have been abundantly clear to Mr. XXXXand his counsel after the first hearing day that the RPD had concerns about aspects of his testimony regarding his military involvement. In my view, he reasonably could have been expected to present the documents listed above to the RPD, if not before the first hearing day, then before the RPD rendered its decision in this case. Therefore, the documents are inadmissible as new evidence on the basis that they do not meet the conditions for the admission of new evidence set out in s. 110(4) of the Immigration and Refugee Protection Act. As I note below, the proposed new evidence also does not contradict any findings of fact made by the RPD and specifically the evidence does not contradict any findings of fact that are relevant to my conclusions in this decision. [12] I note that, in addition to seeking to admit the above documents, Mr. XXXXprevious counsel submitted an affidavit sworn by Mr. XXXXin which he purports to recite facts from his case and to make arguments which are taken up by his counsel in the appeal memorandum. In his affidavit, Mr. XXXXalso seeks to add to or clarify evidence he provided during the RPD hearing. Neither Mr. XXXXprevious counsel nor his current counsel made arguments regarding the admissibility of the affidavit and neither listed it as proposed new evidence in the case. Nevertheless, Mr. XXXXformer counsel sought to rely upon this evidence in her arguments on appeal. In my view, the affidavit is not admissible as new evidence on appeal as it makes arguments taken up in the appeal memorandum and either restate facts before the RPD or seeks to add or clarify information that Mr. XXXXcould have added or clarified before the RPD rendered its decision in this case. [13] For the reasons above, neither the documents submitted by Counsel as proposed new evidence nor Mr. XXXXaffidavit are admissible as new evidence. [14] I note that Mr. XXXXcurrent counsel filed an additional appeal memorandum after the return of this file from the Federal Court.6 Despite the fact that these supplementary submissions, when added to the initial appeal memorandum, placed Mr. XXXXwell over the page count permitted for appeal submissions, I have accepted these supplementary submissions and address them below. IN-PERSON HEARING REQUEST [15] The RAD only has the power to hold in-person hearings in certain cases in which it admits new evidence.7 Since I have not admitted any new evidence in this case, I have no power to hold an in-person hearing and Mr. XXXXin-person hearing request is denied. ANALYSIS OF MERITS Applicable law [16] Taken together, s. 98 of Immigration and Refugee Protection Act and Article 1F(a) of the refugee Convention exclude individuals from refugee protection when there are serious reasons for considering that they have committed a crime against peace, a war crime, or a crime against humanity. [17] The term "crimes against humanity" is defined as "murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group [...]"8 A criminal act rises to the level of crime against humanity when the following four elements are made out: i. An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act); ii. The act was committed as part of a widespread or systematic attack; iii. The attack was directed against any civilian population or any identifiable group of persons; and the person committing the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of that attack.9 [18] It is the Minister who has the onus of proof in terms of establishing that a person is excluded from refugee protection. The evidentiary burden required to demonstrate that an individual is excluded from the definition of refugee is the "serious reasons for considering" standard. This is less than the civil standard of "balance of probabilities" but higher than "mere suspicion or reasonable grounds for suspecting."10 [19] Evidence of direct participation in the commission of crimes against humanity is not required to find that the exclusion applies. Rather, individuals may be excluded from refugee protection under Article 1F(a) for complicity in international crimes when there is a link between the individual and the crime or criminal purpose of the group. In Ezokola, the Supreme Court of Canada held that such a link is established when there are serious reasons for considering that an individual voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime against humanity.11 The Supreme Court emphasized that mere association or passive acquiescence is not sufficient to conclude that there is complicity.12 [20] Whether or not an individual's conduct meets the test for complicity is based on a detailed, contextualized assessment of the facts. Ezokola sets out the following non-exhaustive list of factors that may be relevant in establishing the three components necessary for complicity: i. the size and nature of the organization; ii. the part of the organization with which the refugee claimant was most directly concerned; iii. the refugee claimant's duties and activities within the organization; iv. the refugee claimant's position or rank in the organization; v. the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group's crime or criminal purpose; vi. the method by which the refugee claimant was recruited and the refugee claimant's opportunity to leave the organization.13 [21] When analyzing complicity, the focus must always remain on the individual's contribution to the crime or criminal purpose of the organization that has committed crimes against humanity and any viable defences, including duress, should be taken into account. In Ezokola, the Supreme Court stated that: 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.14 [22] After addressing the issue of Mr. XXXXcredibility, I will address the arguments made by Mr. XXXXcurrent counsel and his former counsel as part of a framework of analysis that addresses the two following issues: a) Are there serious reasons for considering that the Libyan security authorities committed crimes against humanity? b) If so, are there serious reasons for considering that Mr. XXXXvoluntarily made a knowing and significant contribution to the crime or criminal purpose of the Libyan security authorities who committed crimes against humanity? Credibility of Mr. XXXXevidence regarding his role in the military [23] I do not agree with Mr. XXXXcounsel that the RPD erred in finding that Mr. XXXXwas attempting to diminish or mitigate his role within the Libyan military and, more specifically, with respect to the efforts of the Libyan authorities to combat illegal migration. In my view, the RPD did not err in drawing a negative inference as to the credibility of his allegations regarding his duties, actions, and knowledge about the crimes committed during his tenure in the military under the Gadhafi regime. [24] I do agree with Mr. XXXXformer counsel that the RPD erred in noting that it had concerns about elements of Mr. XXXXbehaviour that were inconsistent with what would be expected a person who fears for their life or security.15 The RPD did not specify the behaviour to which it was referring. Given the lack of explanation for the finding, it appears that the sentence was included in error as it does not have connection to the paragraphs that follow. [25] Mr. XXXXcounsel, especially his former counsel, appear to suggest that the only inconsistency in Mr. XXXXevidence related to an accidental omission of a change in Mr. XXXXrank on only one document which was then again provided on two other documents. According to Mr. XXXXformer counsel, "the entire negative determination of the appellant's credibility is regarding his change in title from XXXX XXXXto XXXXand then a demotion during a certain period."16 In my view, Mr. XXXXformer counsel significantly mischaracterized the basis of the RPD's credibility finding. [26] In my view, the inconsistencies and contradictions in Mr. XXXXevidence about his rank are the least important of the inconsistencies in his evidence about his actions and knowledge of how these actions connected to the actions of other Libyan authorities. The RPD was correct to note that Mr. XXXXevidence regarding his rank between 2008 and the time he left Libya to come to Canada in 2013 was filled with inconsistencies and contradictions. These inconsistencies are correctly described by the RPD at paragraphs 59 and 60 of its decision. I would note, parenthetically, that Mr. XXXXaffidavit which I refused to admit as new evidence on appeal would only have added further inconsistencies, as he provided information that was both inconsistent with his testimony at the hearing and the information he provided on his military career form. [27] In any event, I do not see how Mr. XXXXfailure to indicate the rank of XXXX XXXXon his military career form and other forms can be taken as evidence of his attempt to diminish or mitigate his role in the military. The reason for this is that the rank he did indicate, XXXX, is a higher rank than the one he omitted. For this reason, I agree with Mr. XXXXcounsel that his omission of holding the rank as XXXX XXXXfor a period of time does not present any valid credibility concerns. [28] While I do not agree with the RPD's focus on whether Mr. XXXXexclusively held the rank of XXXXduring his time supervising radar operations at the XXXX XXXX XXXX, I do agree with the RPD that he attempted to minimize the importance of his role within the Navy/Coast Guard during his time at the XXXX XXXX XXXX. [29] First, I agree with the RPD that Mr. XXXXstatement in his Basis of Claim written narrative that the rank of XXXX"sounds like a higher rank that (sic) it actually is" was an attempt to minimize his rank. Even if one were to accept Mr. XXXXallegation that many people reached the rank of XXXX, the fact remains that it is the highest rank within the Libyan military. In addition, Mr. XXXXgradually worked his way up through the ranks of the military consistently being promoted from rank to rank until he reached the rank of XXXX. Even if it were true that he was demoted to XXXX XXXXfor a period of time before again returning to the rank of XXXX, this does not change the fact that the general trajectory of his long military career was one of being promoted up to and including the rank of XXXX, the highest rank within the Libyan military. [30] Secondly, I agree with the RPD that Mr. XXXXattempted to minimize the responsibilities he held during his time at the XXXX XXXX XXXX. In the form he completed regarding his military career, Mr. XXXXindicated that his tasks and duties while he was the XXXX of a Coast Guard boat between 2001 and 2008 were to patrol the territorial and economic Libyan sea.17 When a Canadian Border Services Agency (CBSA) officer asked him to describe his responsibilities when he was the XXXXof a ship between 2001 and 2008, Mr. XXXXreplied that, among other things, he was responsible for protecting the Libyan coast including through joint operations with the Italian government in order to assist migrants and secure oil and petroleum instalments.18 However, when being asked about his responsibilities as the XXXXof the ship at the hearing, Mr. XXXXtestified that, in his whole time as XXXXof the ship between 2001 and 2008, he never came across any illegal migrants. [31] When the Minister's counsel asked Mr. XXXXto explain the inconsistency between his testimony and the information he provided in his CBSA interview, Mr. XXXXsaid that he was assigned to the task of rescuing illegal migrants but that he never found any.19 In my view, this explanation was not satisfactory or credible on a balance of probabilities. The CBSA officer had asked Mr. XXXXabout his duties as the XXXXof a ship, not about theoretical assigned responsibilities. In his answer to the CBSA officer, Mr. XXXXmade no distinction between assigned duties and actual duties he carried out. He simply responded with the description of duties that he had carried out as the XXXXof the ship. [32] I also do not find satisfactory Mr. XXXXexplanation, at the hearing, that his ship was assigned fewer responsibilities for a period of three years because the missile system was out of order. In my view this explanation is unsatisfactory because Mr. XXXXhimself acknowledged that a missile system was not necessary in order to rescue illegal migrants. Therefore, it is unlikely that the ship he XXXXwould not be assigned the task of rescuing illegal migrants for a period of three years simply because its missile system was out of order. Moreover, even if one were to accept that the ship was out of commission for a full three years because the missile system was out of order, the fact remains that Mr. XXXX XXXX the ship for four other years in the time period between 2001 and 2008. Given the fact that rescuing illegal migrants as part of the joint venture with the Italian government was one of his main tasks, I agree with the RPD that it is not credible that Mr. XXXXwould not have come across at least one illegal migrant in that time period. This is the case even if there were fewer migrants at the time than there would be post 2011. The fact that there was a joint venture with the Italian government to stem the flow of illegal migrants during this time can reasonably be viewed as an indication that there were in fact enough illegal migrant vessels during this time to prompt the Italian government to identify stemming the flow of illegal migrants as an issue it needed to take steps to address. [33] For all the above reasons, I agree with the RPD that, in his testimony at the hearing, Mr. XXXXwas seeking to minimize the responsibilities that he carried out while he was XXXXof a naval ship between 2001 and 2008. This credibility finding is significant as it affects the weight that can be given to his testimony regarding his role and responsibilities in regard to Libya's efforts to combat illegal migration. However, I should note that, whether or not Mr. XXXXintercepted any illegal migrants when he was XXXXof a ship between 2001 and 2008 was not central to the Article 1F(a) exclusion analysis, since it was not contested that from 2008 until 2011 he was responsible for directing ship XXXXwho reported to him to intercept illegal migrants found in Libyan waters. In my view, his supervisory actions between 2008 and 2011 are sufficient to find him excluded under Article 1F(a) of the refugee Convention. Serious reasons for considering that Libyan security authorities committed crimes against humanity RPD did not err with respect to the time period considered [34] I do not agree with Mr. XXXXformer counsel that the RPD erred by failing to restrict its analysis to the appropriate time period. I disagree with Counsel that the RPD treated the relevant time period as being from 2011 until today. There is simply no evidence that this was the case. The RPD clearly focused on two periods of time, and one of the two in particular. Most significantly, it focused on the period of time from 2008 to 2011 when Mr. XXXXwas in charge of radar and communications in the Operations Department at the XXXX XXXX XXXX. It also referred to the period of time from 2001 to 2008 when Mr. XXXXwas the XXXX of a Coast Guard boat with duties to patrol the Libyan coast. All of the documentary evidence the RPD relied upon regarding the mistreatment of illegal migrants by Libyan authorities related to the time period prior to the Libyan revolution in 2011. [35] In the interest of clarity, when I speak of the "relevant time period" in this decision, I am referring to the period of time prior to the Libyan revolution in 2011. More specifically, I am referring to the time period during which Mr. XXXXwas assigned to the XXXX XXXX XXXX, and even more specifically, the time period during which he supervised radar and communications in the Operations Department at the XXXX XXXX XXXX. RPD's failure to clearly identify relevant actors and organizations [36] Mr. XXXXcurrent counsel argues that the RPD erred in failing to distinguish between the Navy/Coast Guard and the other elements of the Libyan Armed forces and in failing to distinguish between the Libyan Armed Forces and the Libyan police and security authorities that fell under the jurisdiction of the Ministry of the Interior. Counsel goes on to argue that all of the alleged crimes in which Mr. XXXXis alleged to have played any role, were perpetrated not by the Navy/Coast Guard, not by the Libyan Armed Forces, but by the Libyan security authorities reporting to the Ministry of the Interior. I agree with these arguments in part. I agree with Counsel that it is important to distinguish between relevant actors and organizations. However, as I describe below, it is also important to examine connections between different actors and organizations, where appropriate. [37] In its decision, the RPD referred to serious crimes committed by Libyan Armed Forces against the civilian population.20 More importantly, it also found that, during the time period that Mr. XXXXwas in charge of radar and communications in the Operations Department of the XXXX XXXX XXXX, illegal migrants were subjected to widespread, systematic, and ongoing mistreatment and abuse both by the Libyan Navy/ Coast Guard as well as by the Libyan forces on land. The RPD found that illegal migrants were victims of assault and mistreatment by members of the Libyan Navy/ Coast Guard as they were in the process of being arrested. In addition, the RPD found that these illegal migrants were then handed over by members of the Navy/ Coast Guard to Libyan forces on land and they were then transferred to detention centres where they were again beaten and tortured.21 Ultimately, the RPD found that the acts committed by the "Libyan forces" under the Gadhafi regime, particularly the mistreatment of illegal migrants, were crimes against humanity.22 Later in its decision, the RPD placed emphasis, not on the mistreatment of illegal migrants by the Libyan Navy/Coast Guard, but instead on the role played by Mr. XXXXin intercepting migrant boats, or ordering them intercepted, and transferring the illegal migrants to "Libyan authorities on land" who systematically subjected them to serious forms of mistreatment that would amount to crimes against humanity.23 [38] I agree with Counsel that the organization or set of organizations to which the RPD is referring is not always clear due to the use of different terminology such as "Libyan forces" and "Libyan authorities on land" each of which is not defined. It is not clear whether the RPD used the term "Libyan forces" to mean the "Libyan Armed Forces" or else as an umbrella term to include the Libyan Armed Forces (including the Navy/Coast Guard) and the Libyan authorities on land (in other words, the police and security authorities reporting to the Ministry of the Interior). On one hand, there is some reason to believe that it is the former due to the heading above paragraph 71 of the RPD decision which refers to crimes committed by "Libyan Armed Forces." On the other hand, there is reason to believe it may be the latter due to the RPD's emphasis later in the decision on the systematic mistreatment of illegal immigrants, up to and including torture, by the Libyan authorities on land. Taking all of the above into account, I agree with Counsel that the RPD could have been clearer in its use of terminology. [39] However, notwithstanding some lack of clarity in the terminology used by the RPD, it is clear that it found both that (1) the Libyan Navy/Coast Guard had engaged in widespread and ongoing assaults and mistreatment of illegal migrants, and (2) the Libyan Navy/Coast Guard had intercepted boats of illegal migrants and transferred them to Libyan authorities on land who then also systematically mistreated, beat, and even tortured them. I address each of these two findings in the paragraphs that follow. Evidence did not establish that Navy/Coast Guard committed a crime against humanity due to its own mistreatment of migrants [40] Both Mr. XXXXcurrent and former counsel argue that the RPD erred in finding that the evidence established that the Libyan Navy/Coast Guard themselves engaged in the kind of widespread and systematic mistreatment and abuse of illegal migrants that would amount to crimes against humanity. The RPD referred to the "abundant objective evidence" submitted by the Minister; however, most of this evidence related to the actions of Libyan authorities on land-that is, the police and the security authorities reporting to the Ministry of the Interior. I agree with Mr. XXXXcounsel that the RPD provided only one example from a 2009 Human Rights Watch report that referred to an incident of mistreatment of illegal migrants by members of the Navy.24 The only other specific incident referred to by the RPD was an incident from 2010 described in an Amnesty International report. However, in that incident, a boatful of Somali migrants were intercepted and mistreated after they were placed in detention on land.25 [41] Overall, I agree with Counsel that the one incident referred to in the evidence presented by the Minister did not establish a pattern of widespread and systematic mistreatment of illegal migrants by the Libyan Navy/Coast Guard themselves of the kind that would amount to crimes against humanity. The same conclusion would apply even if one considered the two incidents referred to above. [42] However, that is not the end of the matter. As I describe in the next section, the RPD did not err in finding that the Navy/Coast Guard transferred illegal migrants to Libyan security authorities on land who then engaged in widespread and systematic mistreatment of them amounting to crimes against humanity. Evidence established crimes against humanity committed by Libyan security authorities reporting to the Ministry of the Interior [43] I agree with the RPD that the Minister filed abundant evidence establishing that, during the relevant time period, the Libyan security authorities to whom the Navy transferred illegal migrants, including agents from the XXXX XXXX XXXX XXXX XXXX, subjected them to widespread and systematic mistreatment and abuse amounting to a crime against humanity. I note that Mr. XXXXdid not seek to contest this point in his testimony. Instead, Mr. XXXXtestified that he did not have contemporaneous knowledge of the mistreatment and abuse of illegal migrants by security authorities to whom he transferred or, ordered transferred, illegal migrants intercepted at sea. Mr. XXXXtestified that he only had knowledge of such mistreatment and abuse after the relevant time period. He testified that he was not aware of such abuses during the time that he was responsible for intercepting, or ordering members of the Navy to intercept, illegal migrant boats and transfer the illegal migrants to the police and agents from the XXXX XXXX XXXX XXXX XXXX. [44] Likewise, neither Mr. XXXXcurrent counsel nor his former counsel have sought to argue that security authorities reporting to the Ministry of the Interior did not mistreat or abuse migrants in a way that amounted to a crime against humanity during the relevant time period. What they have sought to argue is that Mr. XXXXdid not voluntarily make a knowing and significant contribution to any crimes committed by security authorities reporting to the Ministry of the Interior. [45] Since Mr. XXXXand his counsel do not contest that Libyan security authorities were responsible for crimes against humanity against illegal migrants during time that Mr. XXXXtransferred, or ordered others to transfer, migrants to them, it is unnecessary for me to address the issue at length.26 It suffices for me to state that the Minister did in fact submit a significant amount of evidence of the serious mistreatment and abuse of illegal migrants by security authorities reporting to the Ministry of the Interior in the time period during which Mr. XXXXwas posted at the XXXX XXXX XXXX. [46] The Minister filed several reports covering the period of time between 2004 and 2010 that indicated that there were widespread and persistent reports of the mistreatment of people in detention, including illegal immigrants or asylum seekers.27 In particular, there are several reports indicating that instances of mistreatment and abuse of illegal migrants and asylum seekers increased around the same time that European governments, most notably Italy, began pressuring Libya to stem the flow of illegal migration via both its land borders and coastal waters. Several reports indicate that Libyan authorities engaged in widespread and systematic arrests of undocumented migrants and asylum seekers, many of whom were then abused in various ways up to an including torture during their detention by security authorities reporting to the Ministry of the Interior. [47] It is true, as noted in the UNHCR report submitted by Mr. XXXXwhich I have not admitted into evidence, as well as in other documents contained in the National Documentation Package for Libya, that the deterioration of the security situation in Libya, starting with the 2011 revolution and then also in 2014, led to increasing numbers of migrants smuggled or trafficked through Libya into Europe.28 This led to the increased mistreatment and abuse of illegal migrants by Libyan security authorities, notably the XXXX XXXX XXXX XXXX XXXX. However, the evidence submitted by the Minister to the RPD indicated that such mistreatment and abuse started before Muammar Ghadafi was overthrown in 2011 and, specifically, it occurred during the time period that Mr. XXXXwas in charge of radar and communications in the Operations Department at the XXXX XXXX XXXX. [48] Based on all of the foregoing, I find that the RPD erred in concluding that there was sufficient evidence to establish that the Libyan Navy/Coast Guard had themselves mistreated and abused illegal migrants in such a way as to amount to a crime against humanity. However, the RPD correctly found that security authorities reporting to the Ministry of the Interior to whom the Navy/Coast Guard transferred illegal migrants had subjected them to widespread and systematic mistreatment amounting to a crime against humanity during the relevant time period. The next step is to assess whether there are serious reasons for considering that Mr. XXXXmade a voluntary, knowing, and significant contribution to the crimes against humanity committed by the Libyan security authorities such that he was complicit in those crimes. Mr. XXXXvoluntary, knowing, and significant contribution [49] I do not agree with Mr. XXXXcounsel that the RPD erred in concluding that Mr. XXXXvoluntarily made a knowing and significant contribution to the crimes or criminal purpose of the Libyan security authorities that were responsible for crimes against humanity against illegal migrants during the relevant time period. Mr. XXXXcontribution was voluntary [50] Mr. XXXXprevious and current counsel both argued that the RPD erred in finding that Mr. XXXXcontribution to any mistreatment of illegal migrants amounting to a crime against humanity was voluntary. I disagree. [51] Mr. XXXXformer counsel reiterated Mr. XXXXtestimony that under the Ghadhafi regime things were not done by the book, that he had tried to resign, and they told him he could apply to resign after 15 years. In his testimony, Mr. XXXXsaid that military members who had been sent abroad to study, as he had, were required to serve at least 15 years and that this period could be extended. He testified that all XXXX in particular were not allowed to leave.29 I agree with the RPD's finding that, given the credibility concerns discussed above, and Mr. XXXXfailure to file any evidence, even from peers, to corroborate this prohibition on leaving the military, preference should be given to the documentation in the NDP for Libya. This documentation indicates no prohibition on leaving the military once the mandatory number of years are complete. [52] I note that even the Amnesty International report I have found inadmissible would not have assisted Mr. XXXXsince it indicates that conscripts may serve up to 10 years. It does not speak to members of the military being forced to serve more than 10 years or being prohibited from leaving the military. [53] Mr. XXXXcurrent counsel advances an argument based on the notion of duress that was not made before the RPD. He argues that, even if one assumes that the RPD was correct in finding that Mr. XXXXknew the illegal migrants he was responsible for transferring to security authorities on land may be mistreated by them, the alternative was to let them perish at sea. According to Counsel, Mr. XXXXchoice would have been to let them perish at sea or rescue them and thus put them at risk of mistreatment by the security authorities to whom they were being transferred. Counsel argues that all the elements of the defence of duress are made out in this scenario. Counsel has not cited any cases in which the Federal Court or the RAD have applied the defence of duress in circumstances such as those arising in this case. [54] It is true that the Supreme Court in Ezokola found that the voluntariness requirement in the analysis of complicity captures the defence of duress.30 However, I do not find that the defence of duress applies in this case. The defence of duress is defined in subparagraph 31(1)(d) of the Rome Statute of the International Criminal Court. That provision states that: 31(1).... a person shall not be criminally responsible if, at the time of that person's conduct if: (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. [emphasis added] [55] The defence of duress "is available when a person commits an offence while under compulsion of a threat made for the purpose of compelling him or her to commit it".31 [56] To establish the defence of duress, an individual must establish several elements, namely: (i) There was an explicit or implicit threat of death or bodily harm proffered against the individual or a third person; (ii) The individual reasonably believed that the threat would be carried out; (iii) There was no safe avenue of escape (as determined by reference to a reasonable person similarly situated); (iv) There was a close temporal connection between the threat and the harm threatened; (v) The harm threatened was equal to or greater than the harm inflicted by the individual (or by those with whom he was complicit); (vi) The individual behaved in a manner consistent with what society would expect from a reasonable person similarly situated in that particular circumstance; and (vii) The individual did not voluntarily put himself or herself in a position where there was a risk of coercion and/or threats by the other members of a conspiracy or association, to compel him or her to commit an offence.32 [57] In my view, Mr. XXXXhas not established that he carried out the actions he did toward illegal migrants under duress. First, the defence of duress requires there to be a threat proffered against the individual or another person to compel him or her to commit an offence. There was no such threat in this case. Instead, the risk that Counsel claims to have caused duress is the fact that migrant boats faced dangerous or perilous conditions on the Mediterranean. In my view, this does not amount to the kind of threat or compulsion that would give rise to the defence of duress. [58] Second, the evidence does not establish that all or most of the illegal migrants intercepted by Mr. XXXX, or officers following his directions, were facing imminent death or continuing or imminent serious bodily harm. Although Mr. XXXXand his counsel have sought to characterize Mr. XXXXresponsibilities in as innocent and noble a way as possible-that, is that Mr. XXXXwas simply engaged in rescuing migrants who had sent out an SOS and would otherwise surely die, part of his own evidence was that one of his duties was to "monitor" Libyan waters for traffickers and illegal fishing boats and to respond to calls from Italian oil installments to come and pick up illegal migrants that had been found around those instalments. [59] Finally, it is not as if Mr. XXXXand the officers reporting to him rescued illegal migrants and let them go. Once they had intercepted the migrants they transferred them to the Libyan security authorities, most notably the XXXX XXXX XXXX XXXX XXXX. This transfer was not done under duress. It was a part of the duties that Mr. XXXXtook on as part of his position supervising radar and operations at the XXXX XXXX XXXX. [60] In light of the above, I do not accept that Mr. XXXXwas acting under duress when intercepting migrant ships and transferring illegal migrants to the security authorities as part of his duties in the Libyan Navy/Coast Guard. I note that Counsel argued in a footnote that the defence of duress under the Rome Statute includes elements that would fall under the defence of necessity under Canadian law. I do not agree with counsel that the defence of necessity are made out in this case for the same reasons set out above in relation to the defence of duress as that defence is defined under the Rome Statute. [61] For the reasons set out above, the RPD was correct to find that his contribution to the crimes against humanity committed by the security authorities was voluntary. Mr. XXXXcontribution was significant [62] Mr. XXXXcurrent counsel argues that the RPD erred in misapplying the six factors listed in Ezokola to assess complicity. I do agree that the RPD could have more clearly integrated the six Ezokola factors into its analysis of whether Mr. XXXXwas complicit in the crimes against humanity committed by members of Libyan security authorities to whom he ordered the transferral of illegal migrants. However, the RPD did carry out the kind of detailed, contextualized assessment of the facts called for by the Supreme Court in Ezokola. In particular, I do not agree with Counsel that the RPD erred in finding that Mr. XXXXhad made a significant contribution to crimes against humanity committed by members of the Libyan security authorities. [63] I do not agree with Mr. XXXXcurrent counsel that Mr. XXXXwas simply engaged in the innocent activity of rescuing boats in distress at sea as required under international law or simply rescuing migrants from the Mediterranean when receiving an SOS call as alleged by Mr. XXXXprevious counsel. Counsel argues that what is relevant in assessing his contribution is what Mr. XXXXwas seeking to achieve-which, according to Counsel, was rescuing boats. I disagree with this analysis. [64] First, the RPD was not required to accept Mr. XXXXframing of his actions, in his testimony at the hearing, as "rescuing" illegal migrants rather than intercepting them and preventing them from continuing on their journey toward Europe or any other destination. However, even if one does accept that Mr. XXXXand the officers working under him "rescued" migrants, the reality is that they did not simply rescue migrants and release them or "bring them to land" (as argued by Mr. XXXXformer counsel). After "rescuing" the migrants, they transferred them into the custody of other members of the Libyan security authorities-that is, the police and security authorities working for the XXXX XXXX XXXX XXXX XXXX. [65] I disagree with Mr. XXXXcounsel that it was speculative or conjecture for the RPD to find that Mr. XXXXmade a significant contribution to the crimes against humanity committed against illegal migrants by Libyan security authorities. I agree with the Minister's counsel that this transfer of migrants constitutes a significant contribution to the crimes against humanity then carried out by these members of the security authorities. As the Minister's counsel argues, had the migrants not been transferred to the security authorities, they would not have suffered from torture or other mistreatment.33 Therefore, Mr. XXXXcontribution in either transferring, or ordering the transfer of, illegal migrants to the members of the Libyan security authorities was a significant contribution to the widespread and systematic crimes they then committed against these migrants. Mr. XXXXmade a "knowing" contribution [66] Given my findings above about the lack of evidence that the Libyan Navy/Coast Guard themselves engaged in the kind of mistreatment of illegal migrants that would amount to a crime against humanity, the relevant issue is whether Mr. XXXXmade a "knowing" contribution the crimes against humanity committed by members of the Libyan security authorities. I note that Mr. XXXXcurrent counsel himself implicitly recognizes that the Libyan Navy/Coast Guard can be seen as part of the Libyan security authorities since he refers to "other members of the Libyan security authorities"34 [emphasis added] when referring to security authorities working under the Ministry of the Interior. [67] Mr. XXXXcurrent counsel argues that the RPD erred in finding that it was sufficient that Mr. XXXXknew that his conduct could lead to the detention and torture of migrants by other members of the Libyan security authorities. Counsel argues that knowledge in that form constitutes recklessness and the Supreme Court found at para. 60 of Ezokola that "recklessness is likely insufficient."35 I disagree. [68] This argument about recklessness being insufficient was considered and squarely rejected by the Federal Court in Hadhiri.36 In Ezokola, the Supreme Court discussed two main modes of commission recognized under international criminal law which are relevant to the complicity analysis applied under Article 1F(a) of the refugee Convention: common purpose liability under art. 25(3)(d) of the Rome Statute of the International Criminal Court and joint criminal enterprise developed under ad hoc jurisprudence.37 As pointed out by Justice Leblanc in Hadhiri, in para. 60 of Ezokola, the Supreme Court was discussing the concept of acting with a common purpose rather than the broader mode of liability, that of joint criminal enterprise.38 The concept of joint criminal enterprise captures individuals who could easily be considered secondary actors complicit in the crimes of others.39 The concept requires, at minimum, a significant contribution to the group's crime or criminal purpose, made with some form of subjective awareness of the crime or criminal purpose and this knowledge can include recklessness.40 [69] In summarizing the analysis of complicity under international law, the Supreme Court made clear that the concept of knowledge in the complicity analysis may include recklessness: In sum, while the various modes of commission recognized in international criminal law articulate a broad concept of complicity, individuals will not be held liable for crimes committed by a group simply because they are associated with that group, or because they passively acquiesced to the group's criminal purpose. 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.41 [emphasis added] [70] I do not agree with Mr. XXXXcounsel that the RPD's complicity finding amounts to complicity by mere association of the kind the Supreme Court warned against in Ezokola. In my view, there may have been a valid basis for the RPD's finding that Mr. XXXXwas likely "fully aware" that the Libyan authorities to whom he ordered the transfer of illegal migrants were systematically subjecting these migrants to systematic mistreatment. However, it is not necessary to decide this issue because "full awareness" is not required to establish a "knowing" contribution within the meaning of the Ezokola analysis. [71] In this case, I find that Mr. XXXXat the very least recklessly made a significant contribution to the crimes or criminal purposes carried out by the members of the Libyan security authorities, including those from the XXXX XXXX XXXX XXXX XXXXto whom Mr. XXXXordered the transfer of illegal migrants during his tenure at the XXXX XXXX XXXX. In my view, his reckless as to the potential mistreatment of these illegal migrants can be discerned from his responses to questioning about his awareness of the mistreatment of the illegal migrants at the hearing. Therefore, it is worth setting out this testimony at some length. [72] The Minister's counsel questioned Mr. XXXXabout the process that was followed when members of the Libyan Navy/Coast Guard transferred illegal migrants to these security authorities. He testified that the XXXX XXXX XXXX XXXX XXXXwould come pick up the migrants and "they were led to special places, clean places, just to be taking care of. As to pregnant women and patients, they were sent to hospitals as fast as we could. And they were treated with Libyan citizens without any charge."42 [73] The Minister's counsel then asked Mr. XXXXabout his level of knowledge regarding the treatment of illegal migrants by security authorities after they had been transferred to them by members of the Navy/Coast Guard: Q. And once the officers, the police officers took charge of those people do you know where-let's say, I'm not talking about people who maybe needed to go to the hospital but of the other ones, do you know where they would take them? A. Well, as for most of them, they would stay in Libya and al-Gaddafi an African orientation in his politics so they would work in commerce and construction and other stuff. They would live with us. And until now there is a lot of them living with us in Libya. Q. Do you know if some of them or all of them were sent to a detention center at some point? A. Detention, no. I have never heard about that, about detention until recently. Now, after the revolution, yes, they are doing this, after 2011.43 Q. ...My question was, were you aware that migrants, refugees, and asylum seekers in Libya are systematically tortured and ill-treated? That was my question, Sir. A. By whom? That's my question. I want to know who was torturing them. Was it the Navy forces? Was it the South forces? The Chadian forces? The Nigerian forces? Who was torturing them? Q. Sir, the question is-the report says that migrants, asylum seekers, and refugees that are detained are tortured and ill-treated in Libya. I'm not trying to demonstrate that the Navy did something. All I'm asking is are you aware that these people in Libya were tortured and ill-treated, no matter who did this. I'm only asking if you knew that this was happening in Libya. A. Well, I really am not aware at all of this. Maybe it happened to some persons like in irregular cases for five to ten persons but it doesn't mean that you tortured thousands, millions. I have really no idea about that. Q. Just to make sure. You said he was unaware of this but then what did you say after? Interpreter: Maybe it happened to some persons in irregular cases, five to ten persons. A. Well, maybe those people who were tortured, they could contact international organizations and they could sue, like, sue them in justice but I have no idea. I have never heard about that. Q. Okay. Just to be clear, sir, because you said that maybe it happened to some people. You said five or ten. So, is it something you know, or just something you're saying that could have happened but you don't know? I just want to be clear. A. No, I don't know if it happened or now but I'm saying according to the information you mentioned that this could have happened and I can't deny it; I can't confirm it. But I have no idea if it happened or not.44 [74] Later in his testimony Mr. XXXXstated that drug dealers would sometimes use illegal immigration boats in order to traffic drugs and these drug dealers would be intercepted by the Navy and transferred to the security authorities. He testified that the drug dealers would then be investigated and they were sometimes beaten in order to denounce the head dealers. He said this happened all over the world so that authorities can catch big cartels and big dealers.45 When asked later by the Minister's counsel whether he had said that suspected drug dealers or drug boats with people on them would be investigated and beaten, Mr. XXXXreplied, "yeah, even Libyan citizens who are caught in drug dealing cases, they are being beaten by police authorities."46 However, when the Minister's counsel asked Mr. XXXXwhether he was aware of cases where suspected drug dealers were transferred by the Libyan Navy to the police and eventually beaten, he sought to retreat from his previous testimony. Q. So are you aware of cases where drug-well, suspected or drug dealers were arrested by the Libyan Navy and then transferred to the police and eventually beaten? A. No. I have never heard about that. Q. So why did you say that then, if you don't-if you're not aware of any cases? A. Because it never happened with Navy forces with us. Q. But Sir, I don't understand because you said in your answer-you talked about cases where-you said when boats would not cooperate with instructions from Navy you would hit them on the engines to make it stop and then they were arrested and then investigated and then beaten. So why say that if you say that never happened? A. Yeah, well, as I said, in the beginning that the Italian forces taught us how to approach the boats from behind and how to give them orders to go back to XXXX XXXX XXXX XXXX XXXX or Khums. And I said we had weapons in order to deal with them and in order to hit their engines and in order to abolish their destructive capacities. We have all-we as Navy forces, we have all this information but we don't have the instructions to beat them. We have nothing to do with other forces like police forces; if they take them and beat them, it's not our job. Q. But Sir, that's my question. I'm not saying-I'm not asking if the Navy beat people. I'm just asking if there were cases where you would arrest people, the Navy would arrest people, transfer them to the police and then these people would be beaten by the police. A. We have nothing to do with the job of the police. It's their duty. They have their own methods. They have their own instructions to execute over both Libyans foreigners. But we-like, we hear talking, like everyday, that they beat drug dealers. This is what we're hearing, like, as normal people, ordinary people on streets that the police uses-the police beats drug dealers even Libyan ones.47 [75] When his counsel asked him about the treatment of illegal migrants, Mr. XXXXonce again stated that the Navy only rescued migrants and that he had no knowledge that other authorities may have mistreated them: Q. So you said a few moments ago that you never ever arrested somebody and made available to the police. Do you know-and I think Mr. Millet did ask this but I'm just asking it again. Did you know of other people in the Coast Guard-because you said you would know things in the Coast Guard. Did you know of other people who were patrolling the Coast Guard who might have arrested some people and handed them over to the police? A. Well, arrested no, but rescued yes. I wouldn't say we don't have-I don't use that word, "arrested"; I would say rescued. I've heard of some other people who rescued other migrants and they sent them to the-not to detention but to hospitals or they would be set free afterwards. Q. What would your comment be if you were told that actually some of them were rescued but were not sent to hospitals, and actually were sent to detention centres where they were beaten? Like, if I were to say that to you, that that happens sometimes, what would your comment be? A. Well, this really does not exist because if you go to Tripoli or to some popular neighborhoods like Fashloun (ph.) for other neighbourhoods you would see that Africans are still working there and they live normally and they don't have any problems. And when I did some restoration works to my house, it was done by African workers. Q. They were migrants? A. Yeah. Q. I'm not speaking about that I'm just saying to you-you've already given your answer for you. I'm just saying to you that in this pile of paper there are examples of people that might have been rescued and then not sent to the hospital. They were actually sent to the detention centres, XXXX, and bad things happened to those migrants in the detention centres. Now you've said that you were not involved with that but I'm asking you if you heard that other people, other officers in Libya actually did that, what would your comment be? A. Well, as I gave orders to rescue them from the sea, I would try to rescue them from those centres because finally they are human beings I wouldn't be-I wouldn't stay silent about that. I would talk about that. And I was really shocked when I read listened to those reports.48 [76] Mr. XXXXCounsel asked him when he came to know that there had been torture inflicted on illegal migrants: Q. And you also said at the last session that you subsequently found out that there had been tortured, not on the naval base, but there had been torture inflicted on immigrants. So, when did you find out that there actually was torture inflicted? And again, I understand not on your naval base. You said you didn't see. But when did you find out; when did you come to know that there was torture? A. I used to hear this only from the public. I don't have any formal source because even the Africans, they had more authority in Libya, more than the Libyans themselves because they were protected by Gadhafi. Q. But when did you hear this from the public? Just-can you remember the year when you heard it from the public? A. I can't remember.49 [77] This response contradicted his earlier response that he was unaware "until recently" that any illegal migrants had even been put into detention by security authorities during the time he was responsible for the transfer of migrants to those authorities.50 [78] In my view, there are serious reasons for considering that Mr. XXXXwas at the very least reckless about the significant contribution he was making to the crimes against humanity committed by the security authorities to whom he transferred illegal migrants, or to whom he ordered the transfer of illegal migrants, while he was posted to the XXXX XXXX XXXX. Mr. XXXXwas a high-ranking senior officer who served in the Navy/Coast Guard for approximately two decades by the time he was in charge of the radar and operations at the XXXX XXXX XXXX. He held high ranks up to and including the rank of XXXXat the time that he was posted to the base. He was in charge of supervising the radar and communications in the Operations Department for the whole Libyan coast. I agree with the RPD that it is not credible that he would not have reason to suspect that the officers from the XXXX XXXX XXXX XXXX XXXXwere not simply taking illegal migrants to "special places, clean places"51 and hospitals to be taken care of, as he testified at the hearing. [79] In my view, Mr. XXXXlikely had sufficient awareness that the very raison d'être of the XXXX XXXX XXXX XXXX XXXXwas in the very title of the department-it was to combat illegal migration. It was not to rescue and assist migrants and bring them to hospitals or let them go as Mr. XXXXtestified. As seen above, Mr. XXXXadmitted to at least being aware of cases in which the police officers had mistreated drug dealers. If he was aware of the mistreatment of drug dealers by the police, I find that Mr. XXXXalso likely suspected that there was a likelihood that the Department was not only detaining the migrants that were being transferred to them but also systematically mistreating them. In my view, the passages quoted above show that, at the very least, Mr. XXXXwas reckless to the possible actions of the authorities from the XXXX XXXX XXXX XXXX XXXX to whom he was responsible for transferring illegal migrants who had been intercepted at sea. [80] In my view, the facts in this case differ from those in the decisions relied upon by Mr. XXXXprevious counsel. In the X(Re) decision cited by Counsel, the RAD found that the RPD had failed to identify how the appellant had a subjective awareness or how he had contributed significantly to crimes against humanity committed by the organization of which he was a part (the Indian Army).52 That is not the case here. The RPD not only addressed these elements of the Ezokola analysis but did so correctly for the reasons set out above. [81] Likewise, I find the Habibi case relied upon by Mr. XXXXformer counsel is distinguishable.53 In that case, the Federal Court found that the RPD erred in concluding that the claimant, a XXXX XXXXwith the police, was complicit in crimes against humanity committed by other enforcement organizations. The Federal Court found that the RPD had relied upon only vague evidence linking the police to these other organizations. I do not find that is the case here. I find that the link between the Navy/Coast Guard and the security authorities was well established as both played a role in Libya's efforts at combatting illegal migration-the Navy/Coast guard would intercept/rescue illegal migrants at sea and transfer them to the security authorities for arrest and detention during which time the crimes against humanity were committed. Even Mr. XXXXtestified that the Navy/Coast Guard would turn over illegal migrants to the security authorities, specifically the XXXX XXXX XXXX XXXX XXXX. Therefore, I do not find that the circumstances of this case are analogous to those in the Habibi case. [82] For all the reasons set out above, I find that the RPD was correct to conclude that there are serious reasons for considering that Mr. XXXXvoluntarily made a knowing and significant contribution to the crimes against humanity committed against illegal migrants by members of the Libyan security authorities-specifically, security authorities reporting to the Ministry of the Interior. Therefore, I find that the RPD was correct to conclude that Mr. XXXXis excluded from refugee protection by the combined effect of Article 1F(a) of the refugee Convention and s. 98 of the Immigration and Refugee Protection Act. CONCLUSION [83] For the above reasons, I find that XXXX XXXX XXXXis neither a Convention refugees nor a person in need of protection as he is excluded from protection by the combined effect of Article 1F(b) of the refugee Convention and s. 98 of the Immigration and Refugee Protection Act. (signed) Jo-Anne Pickel Jo-Anne Pickel June 2, 2021 Date JP/tm 1 There appeared to be a lack of clear boundaries between the Libyan Navy and Coast Guard during the time of Mr. XXXX tenure. Any distinction betweeen the two organizations is not relevant to this decision. Therefore, in this decision, I refer to both organizations together as the "Libyan Navy/Coast Guard." 2 Although Mr. XXXX referred, in his testimony, to the entity as the "Office for Struglling Against Illegal Immigration," or the interpreter interpreted it that way, the actual name of the entity is the XXXX XXXX XXXX XXXX. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 4 Subsection 110(4) of the IRPA. 5 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (Singh). 6 Additional Memorandum of Fact and Law, March 15, 2021 (Exhibit P-3). 7 Subsection 110(6) of the IRPA. 8 Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, s 6(3). This Act implements the Rome Statute of the International Criminal Court into Canadian law. 9 Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 119. 10 Ibid, para. 101. 11 Ezokola v Canada (Citizenship and Immigration) 2013 SCC 40, para. 29 [Ezokola]. 12 Ibid, para. 100. 13 Ibid, para. 91. 14 Ibid. at para. 68. 15 Para. 51 of RPD Decision. 16 Appellant's memorandum of argument, para. 25, Appellant's Record, Exhibit P-2. 17 Military career form, Document M-1, Exhibit 8 of RPD Record. 18 CBSA Interview, Document M-18, Exhibit 9 of RPD Record, pp. 5-6. 19 Transcript of RPD Hearing, September 27, 2016, p. 31. 20 Paragraphs 37 and 39 of RPD Decision. 21 Paragraph 47 of RPD Decision. 22 Paragraph 49 of RPD Decision. 23 Paragraphs 91, 93 and 101 of RPD Decision. 24 Paragraph 41 of RPD Decision; Human Rights Watch, "Pushed Back, Pushed Around. Italy's Forced Return of Boat Migrants and Asylum Seekers, Libya's Mistreatment of Migrants and Asylum Seekers" (September 2009), Document M-11 of Exhibit 8, RPD Record. 25 Paragraphs 43-44 of RPD decision; Amnesty International, "Seeking Safety, Finding Fear: Refugees, Asylum-seekers and Migrants in Libya and Malta" (December 2010), Document M-16 of Exhibit 8, RPD Record. 26 Appellant's Memorandum of Argument, para. 14, Appellant's Record; Additional Memorandum of Fact and Law, paras. 15 and 23, Exhibit P-3. 27 United States Department of State, "2010 Country Reports on Human Rights Practices" (April 8, 2011), Document M-17 of Exhibit 8, RPD Record; Amnesty International, "Seeking Safety, Finding Fear: Refugees, Asylum-seekers and Migrants in Libya and Malta" (December 2010), Document M-16 of Exhibit 8, RPD Record; Human Rights Watch, "Libya: End Live Fire Against Suspected Boat Migrants" (September 16, 2010), Document M-15 of Exhibit 8, RPD Record; Amnesty International, "Libya of Tomorrow: What Hope for Human Rights?" (2010), Document M-14 of Exhibit 8, RPD Record; Amnesty International, "Libyan Arab Jamaniriya: Submission to the UN Universal Periodic Review" (November-December 2010), Document M-13 of Exhibit 8, RPD Record; United States Department of State, "2009 Country Reports on Human Rights Practices" (March 11, 2010), Document M-12 of Exhibit 8, RPD Record; Human Rights Watch, "Pushed Back, Pushed Around. Italy's Forced Return of Boat Migrants and Asylum Seekers, Libya's Mistreatment of Migrants and Asylum Seekers" (September 2009), Document M-11 of Exhibit 8, RPD Record; Amnesty International, "Amnesty International Report 2009 - Libya" (May 28, 2009), Document M-10 of Exhibit 8, RPD Record; Amnesty International, "Amnesty International Report 2008 - Libya" (May 23, 2008), Document M-9 of Exhibit 8, RPD Record; Amnesty International, "Amnesty International Report 2007 - Libya" (May 28, 2007), Document M-8 of Exhibit 8, RPD Record; Human Rights Watch, "Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees" (September 13, 2006), Document M-7 of Exhibit 8, RPD Record; Amnesty International, "Amnesty International Report 2005-Libya" (May 25, 2005), Document M-6 of Exhibit 8, RPD Record; and Amnesty International, "Libya: Time to Make Human Rights a Reality" (April 2004), Document M-5 of Exhibit 8, RPD Record. 28 United High Commissioner for Refugees, "UNHCR Position on Returns to Libya-Update 1" (November 9, 2015), NDP for Libya (April 29, 2016), Tab 1.10; United Kingdom. Home Office, " ?Libya: Country of Origin Information (COI) Report" (December 19, 2012), NDP for Libya (April 29, 2016), Tab 2.5; and Office of the Commissioner General for Refugees and Stateless Persons et al., "Libya: Judiciary and Security Sector"(December 19, 2014), NDP for Libya (April 29, 2016), Tab 9.4, 29 Transcript of RPD Hearing, September 27, 2016, p. 12. 30 Ezokola, supra note 11 at para. 86. 31 R v Ryan, 2013 SCC 3 at para 2. See also Canada (Citizenship and Immigration) v. Kljajic, 2020 FC 570 at para. 166. 32 Ryan, ibid at paras 55, 65, 73, 75 and 80; Kljajic, ibid. at para. 167. 33 Minister Memorandum on appeal, para. 34 (Exhibit M-1) 34 Paragraph 27 of Additional Memorandum of Fact and Law filed by Mr. XXXX current counsel, March 15, 2021, Exhibit P-3. 35 Ezokola, supra note 11 at para. 60. 36 Hadhiri v. Canada (Citizenship and Immigration), 2016 FC 1284 ("Hadhiri"). 37 Ezokola, supra note 11 at pra. 52. 38 Hadhiri, supra note 36 at para. 41. 39 Ibid. at para. 63. 40 Ibid. at para. 67. 41 Ibid. at para. 68. See also Hadhiri, supra note 36 at paras. 41-43. 42 Transcript of RPD Hearing September 27, 2016, at p. 40. 43 Transcript of RPD Hearing September 27, 2016, at p. 40. 44 Transcript of RPD Hearing September 27, 2016, at pp. 42-43. 45 Transcript of RPD hearing, September 27, 2016, p. 46. 46 Transcript of RPD hearing, September 27, 2016, p. 47. 47 Transcript of RPD Hearing September 27, 2016, at p. 48. 48 Transcript of RPD hearing, September 27, 2016, p. 62. 49 Transcript of RPD hearing, February 24, 2017, p. 38. 50 Transcript of RPD Hearing September 27, 2016, at p. 40. 51 Transcript of RPD hearing, September 27, 2016, p. 40. 52 X(Re), 2015 CanLii 28291. 53 Habibi v. Canada (Citizenship and Immigration), 2016 FC 253 at para. 25-26. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-06936 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français