Zazai v. Can. (M.C.I.) (2004), 318 N.R. 365 (FCA)
MLB headnote and full text
Temp. Cite: [2004] N.R. TBEd. MR.029
The Minister of Citizenship and Immigration (appellant) v. Nasrullah Zazai (respondent)
(A-283-03; 2004 FCA 89)
Indexed As: Zazai v. Canada (Minister of Citizenship and Immigration)
Federal Court of Appeal
Rothstein, Pelletier and Malone, JJ.A.
March 4, 2004.
Summary:
An adjudicator determined that Zazai, a native of Afghanistan, was inadmissible to Canada under s. 19(1)(j) of the Immigration Act because there were reasonable grounds to believe that he was complicit in crimes against humanity. Zazai applied for judicial review.
The Federal Court of Canada, Trial Division, in a decision reported [2003] F.T.R. Uned. 702, allowed the application and set aside the adjudicator’s decision. The applications judge certified the following question for consideration by the Court of Appeal:
“Does the definition of ‘crime against humanity’ found at section 4(3) of the Crimes against Humanity and War Crimes Act include complicity therein?”
The Federal Court of Appeal allowed the appeal where the parties were in agreement that the applications judge erred in finding that the adjudicator committed an error in law in considering herself bound by certain findings of the Convention Refugee Determination Division. The court set aside the order of the applications judge and remitted the matter for redetermination. The court declined however to deal with the certified question because the question was not dealt with by the applications judge.
Aliens – Topic 4069
Practice – Judicial review and appeals – Certification of question of general importance by Federal Court – An adjudicator determined that Zazai, a native of Afghanistan, was inadmissible to Canada under s. 19(1)(j) of the Immigration Act because there were reasonable grounds to believe that he was complicit in crimes against humanity – Zazai applied for judicial review – An applications judge allowed the application, holding that the adjudicator made an error of law in considering herself bound by certain findings of the Convention Refugee Determination Division – The applications judge also certified a question for consideration by the Court of Appeal – The Federal Court of Appeal allowed the appeal, but refused to answer the certified question because the question had not dealt with by the applications judge.
Aliens – Topic 4069
Practice – Judicial review and appeals – Certification of question of general importance by Federal Court – The Federal Court of Appeal stated that the threshold for certifying a question was: “Is there a serious question of general importance which would be dispositive of an appeal? … The corollary of the fact that a question must be dispositive of the appeal is that it must be a question which has been raised and dealt with in the decision below. Otherwise, the certified question is nothing more than a reference of a question to the Court of Appeal. If a question arises on the facts of a case before an applications judge, it is the judge’s duty to deal with it. If it does not arise, or if the judge decides that it need not be dealt with, it is not an appropriate question for certification.” – See paragraphs 11 and 12.
Cases Noticed:
Ramirez v. Minister of Employment and Immigration (1992), 135 N.R. 390 (F.C.A.), refd to. [para. 6].
Figueroa et al. v. Canada (Ministre de la Citoyenneté et de l’Immigration) (2000), 181 F.T.R. 242 (T.D.), refd to. [para. 7].
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 10].
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 10].
Bath v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 530 (T.D.), refd to. [para. 11].
Di Bianca v. Canada (Minister of Citizenship and Immigration) (2002), 224 F.T.R. 168 (T.D.), refd to. [para. 11].
Gallardo et al. v. Canada (Minister of Citizenship and Immigration) (2003), 230 F.T.R. 110 (T.D.), refd to. [para. 11].
Counsel:
Marcel Larouche and Jillian Siskind, for the appellant;
Lorne Waldman, for the respondent.
Solicitors of Record:
Morris Rosenberg, Deputy Attorney General of Canada, Toronto, Ontario, for the appellant;
Waldman & Associates, Toronto, Ontario, for the respondent.
This appeal was heard at Toronto, Ontario, on March 2, 2004, by Rothstein, Pelletier
and Malone, JJ.A., of the Federal Court of Appeal. The following decision of the court was delivered by Pelletier, J.A., on March 4, 2004.
