Digests

Canada (Minister of Citizenship and Immigration) v. Muto

IMM-518-01

2002 FCT 256, Tremblay-Lamer J.

6/3/02

5 pp.

Application for judicial review of Immigration and Refugee Board (the panel) decision applicant Convention refugee-- Respondent, citizen of Angola, claimed refugee status upon arrival in Canada--In 1992, joined the ranks of FLEC, armed movement fighting for independence of Cabinda enclave-- From 1992 to 1997, handled transportation of goods and services for FLEC and said to have transported weapons for army and people--Board member concluded respondent not within ambit of exclusion cause defined in Convention, Art. 1F(a) on ground no serious reason for considering claimant committed crime against peace, war crime, or crime against humanity--Application allowed-- Standard of proof requiring something more than suspicion or conjecture, but something less than proof on balance of probabilities: Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.)--However, in view of serious consequences for parties, exclusion clauses should be construed restrictively--In Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66 (C.A.), definition of crimes against humanity adopted by Charter of the International Military Tribunal used--Applicant correctly arguing that Board member failed to rule on issue of whether acts committed by FLEC comparable to crimes against humanity--Yet characterization essential to determining subsequently degree of participation or complicity of individual in actions committed by organization--Omission thereof error of law--Since standard of review for errors of law correctness, error reviewable by Court-- Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, August 8, 1945, 82 U.N.T.S. 279, Charter of the International Military Tribunal, art. 6c-- United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, art. 1F.