Canada v. Zazai

Canada (Minister of Citizenship and Immigration) v. Zazai, 2004 FCA 89 (CanLII)

• Claimant from Afghanistan – tribunal finds him inadmissible pursuant to the current 35(1)(a) IRPA, that there were reasonable grounds to believe he had committed a crime under s. 4-7 of the War Crimes Act
• Claimant had previously been excluded under 1F(a) for complicity in crimes against humanity as a member of KHAD; the question was whether he was also inadmissible under what is now 35(1)(a) IRPA
• Adjudicator found that the evidence was more credible at the Exclusion proceedings and based her inadmissibility findings on the evidence from that hearing, which she preferred over the evidence from the inadmissibility hearing
• FC judge overturns adjudicator’s decision on the basis that she would have found him inadmissible because he was excluded under 1F(a)
• FCA holds the FC’s decision in this regard was an error, as the adjudicator clearly didn’t believe that a 1F(a) exclusion automatically led to a finding of inadmissibility; rather, she made her own findings of fact, merely making use of the evidence presented in the Exclusion proceedings, as she was entitled to do

• FC judge certified three questions for appeal: two of the questions certified for appeal were not dispositive of the appeal and shouldn’t have been certified

• The other question, “Does the definition of ‘crime against humanity’ found at section 4(3) of the Crimes against Humanity and War Crimes Act include complicity therein?” was not dealt with by the FC judge although it would have been dispositive of the appeal
• The court remitted the file to the FC to deal with the dispositive question re: complicity

o Note that this question eventually made its way back up to the FCA in Zazai v. Canada (Minister of Citizenship and Immigration), 2005 FCA 303 (CanLII),, where the FCA agreed with the FC that “yes”, the definition of crimes against humanity referred to in the War Crimes Act did include complicity