CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Convention Refugees |
Bermudez v. Canada (Minister of Citizenship and Immigration)
IMM-1139-99
MacKay J.
13/6/00
9 pp.
Judicial review of CRDD decision male applicant excluded from status as Convention refugee by Art. 1F(a) as person who had committed war crimes while in Nicaragua, female applicant and children not having well-founded fear of persecution--Applicants Nicaraguan citizens, except for one child born in United States--Male applicant member of Nicaraguan Police, participated in interrogation of persons arrested for political offences--CRDD not giving applicants notice exclusion based on commission of war crimes would be considered--Application allowed--(1) CRDD violated duty of fairness when failed to give applicants proper notice of ground on which exclusion determined i.e. war crimes--Two possible grounds for exclusion in this proceeding under Art. 1F(a), crimes against humanity and war crimes, sufficiently different to require different evidence, argument, submissions in response thereto--Facts as disclosed at hearing not prima facie disclosing potential war crimes, but crimes against humanity--War crimes not reasonably foreseeable from circumstances--(2) CRDD erred in law in interpretation of war crimes--"War crimes" understood internationally in context of international conflict--London Agreement of August 8, 1945 and Charter of International Military Tribunal foundation documents for concept of international "war crime"--Art. 6 of latter defining "crimes against peace", "crimes against humanity", "war crimes"--While definition of "war crime" not specifically stating must take place in course of international armed conflict, context so suggesting--Inhumane action that would be war crime during war time may be crime against humanity in absence of international war--Applicant's alleged activities concerned with mistreatment of prisoners in course of civil war --Illtreatment of civilians as war crime limited to crimes against population of, or in territory of, country other than that of perpetrator, in course of international war--This distinction between "war crimes", "crimes against humanity" reflected in Criminal Code, s. 7(3.76) definitions of "crime against humanity", "war crime"--Claims of wife, children not entirely distinct from that of male applicant--Appropriate that claims of all applicants be reconsidered--United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a)--Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement), 8 August 1945, 82 U.N.T.S. 279--Criminal Code, R.S.C., 1985, c. C-46, s. 7(3.76) "crime against humanity", "war crime" (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 1).