Concepcion v. Canada (Citizenship and Immigration), 2016 FC 544 : Human Rights Inadmissibility Finding Overturned Because Officer Applied the Wrong Complicity Test

The Federal Court reviewed a finding that the applicant was inadmissible under paragraph 35(1)(a) of the IRPA for complicity in crimes against humanity arising from his service as a radio operator in the Philippine Army.

The Court overturned the decision because the officer relied on an outdated test for complicity and treated knowledge of, and association with, the army’s activities as sufficient.

Key Principle

Following Ezokola v. Canada, complicity in international crimes requires more than mere association, knowledge, or acquiescence.

There must be serious reasons to believe that the individual knowingly or recklessly made a significant contribution to an international crime or to the criminal purpose of the group.

A person’s contribution to an organization is not by itself sufficient. The evidence must establish a meaningful connection between the individual’s conduct and the crime or criminal purpose.

Background

The applicant was a Philippine citizen who had served as a radio operator with the Philippine Army. He later sought permanent residence in Canada through his Canadian spouse.

The officer became concerned about his involvement with army units that had been associated with atrocities. The applicant explained that his role was limited to maintaining communications and that he had never personally participated in crimes against humanity.

The officer nevertheless found him inadmissible, relying primarily on Ramirez and concluding that his knowledge of the army’s activities and continued association with the military could amount to complicity.

Court Findings

The Federal Court found that the officer applied the wrong legal test.

The Court explained that Ezokola had replaced the former approach that could permit complicity to be established through association. The evidence had to demonstrate a significant contribution to an international crime or to the organization’s criminal purpose.

The Court specifically rejected the notion that contributing to the military organization generally was enough. The relevant question was whether the applicant had made a significant contribution to the crime or criminal purpose itself.

The officer had also applied an even broader standard by finding that knowledge of and acquiescence in the group’s activities could establish complicity. The Court held that this approach could no longer be applied after Ezokola.

Because the officer failed to apply the correct legal principles, the inadmissibility finding could not stand.

Outcome

The Federal Court allowed the application for judicial review and returned the matter to another officer for redetermination.

Case Citation:

Concepcion v. Canada (Citizenship and Immigration), 2016 FC 544 CanLII