Date: 20060314
Docket: IMM-10493-04
Citation: 2006 FC 333
Ottawa, Ontario, March 14, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
MAHMOUD HAMIDI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Mahmoud Hamidi, the Applicant, is a citizen of Afghanistan who has applied for permanent residence in Canada, as a member of the family class. The Applicant served in the military in Afghanistan from 1961 to 1990, where he rose to the rank of colonel. Beginning in 1984, he was employed in the Ministry of Security, also known as the KhAD, Khedamat-e Etelea'at-e Dawlati, or Khedamat Eminiate Dawleti (referred to in these reasons as KhAD). The Applicant arrived in Germany on September 18, 1990, where he now holds permanent residence status.
[2] In a decision dated October 28, 2004, a visa officer at the Canadian Embassy in Germany (the visa officer or the officer) determined that he was inadmissible to Canada pursuant to ss. 35(1)(a) and 35(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The Applicant seeks judicial review of that decision.
Visa Officer's Decision
[3] For assistance to the reader, the relevant portions of the visa officer's decision are as follows:
Both in your asylum claim, dated October 23, 1990 and in your reply to my letter, you have confirmed that you were employed by Afghanistan's Ministry of State Security also known as KhAD . . . . You have indicated that you were a military trainer in the KhAD from 1986 until 1990. You have also indicated that you were the director of the planning department in the Ministry of Defence from 1980 until 1984. It must be noted that you first became an officer in the Afghan armed forces on August 4, 1961 and served in various positions until you left Afghanistan [on] September 1, 1990. This confirms that you continued to serve in the armed forces during the Soviet occupation of Afghanistan (1979-1989). You have also mentioned in your asylum claim that in 1989 it was mentioned that you were to be transferred to regular duty and that it was possible that you were to be promoted to divisional commander with concomitant increase in rank from colonel to that of general officer. From this, I would conclude that your superiors considered you a loyal and trustworthy individual.
It is my belief, that during your four years of employment with the KhAD, and given your established rank of colonel you would have become familiar with the brutal and limited purpose of this organization, whose gross violations of human rights are a matter of public record.
Given this, it is my belief that you are inadmissible to Canada pursuant to [s. 35(1)(a) and s. 35(1)(b) of IRPA].
. . .
Given that these facts have been established: Your military rank of colonel; and your service in the KhAD one would reasonably conclude that your inadmissibility under Paragraphs 35(1)(a) and 35(1)(b) of the [IRPA] has been established and therefore I am refusing your application for permanent residence in Canada.
Issues
[4] In disposing of this application, it is necessary to deal with the following issues:
- Did the visa officer render an unreasonable or patently unreasonable decision in deciding that the Applicant was inadmissible pursuant to s. 35(1)(a) of IRPA?
- Did the visa officer err in finding the Applicant to be a prescribed senior official as defined in s. 35 of the IRPA and s. 16 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations)?
Statutory Scheme
[5] As noted, the visa officer determined that the Applicant was inadmissible to Canada under both ss. 35(1)(a) and 35(1)(b) of the IRPA. Those provisions are as follows:
| 35. (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for:
(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or
(c) [not relevant to this application].
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35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants :
a) commettre, hors du Canada, une des infractions visées aux articles 4 à 7 de la Loi sur les crimes contre l'humanité et les crimes de guerre;
b) occuper un poste de rang supérieur - au sens du règlement - au sein d'un gouvernement qui, de l'avis du ministre, se livre ou s'est livré au terrorisme, à des violations graves ou répétées des droits de la personne ou commet ou a commis un génocide, un crime contre l'humanité ou un crime de guerre au sens des paragraphes 6(3) à (5) de la Loi sur les crimes contre l'humanité et les crimes de guerre; ou
(c) [ne s'applique pas en l'espèce].
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[6] It is clear from the words of this section of IRPA that ss. 35(1)(a) and 35(1)(b) are separate. That is, a determination under either of the provisions will result in a conclusion that the individual is inadmissible. I will examine each.
(a) Section 35(1)(a)
[7] Under the first paragraph, the visa officer was required to examine whether there were "reasonable grounds to believe" (IRPA, s. 33) that the Applicant had committed acts in Afghanistan that constituted offences set out in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 . For purposes of this judicial review, it is not necessary to set out or examine those particular provisions.
(b) Section 35(1)(b)
[8] The second paragraph contains two elements. The first requirement is that the officer have reasonable grounds to believe that the individual was a "prescribed senior official". This is a term defined in s. 16 of the Regulations:
| For the purposes of paragraph 35(1)(b) of the Act, a prescribed senior official in the service of a government is a person who, by virtue of the position they hold or held, is or was able to exert significant influence on the exercise of government power or is or was able to benefit from their position, and includes:
(a) heads of state or government;
(b) members of the cabinet or governing council;
(c) senior advisors to persons described in paragraph (a) or (b);
(d) senior members of the public service;
(e) senior members of the military and of the intelligence and internal security services;
(f) ambassadors and senior diplomatic officials; and
(g) members of the judiciary [emphasis added].
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Pour l'application de l'alinéa 35(1)b) de la Loi, occupent un poste de rang supérieur au sein d'une administration les personnes qui, du fait de leurs actuelles ou anciennes fonctions, sont ou étaient en mesure d'influencer sensiblement l'exercice du pouvoir par leur gouvernement ou en tirent ou auraient pu en tirer certains avantages, notamment :
a) le chef d'État ou le chef du gouvernement;
b) les membres du cabinet ou du conseil exécutif;
c) les principaux conseillers des personnes visées aux alinéas a) et b);
d) les hauts fonctionnaires;
e) les responsables des forces armées et des services de renseignement ou de sécurité intérieure;
f) les ambassadeurs et les membres du service diplomatique de haut rang;
g) les juges [Non souligné dans l'original].
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[9] Secondly, the officer must be satisfied that government of Afghanistan, as of the relevant time, was one that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act. In other words, the government in question must be one that was designated by the Minister. The manner of designation is not set out in legislation, leaving this task to the discretion of the Minister. From information on the website of the Department of Justice, one learns that 9 regimes have been designated, including the following:
Designated 21 October 1994: the former Marxist regimes of Afghanistan between 1978 and 1992.
[10] Finally, reference is made to the exception to s. 35(1)(b) set out in s. 35(2). This subsection states that:
| Paragraphs (1)(b) and (c) do not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
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(2) Les faits visés aux alinéas (1)b) et c) n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l'intérêt national.
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Analysis
[11] At the outset, I wish to comment that the reasons of the visa officer do not set out a separate and discrete analysis for each of s. 35(1)(a) and (b). Such separation of issues would have made the reasons clearer to the Applicant and to this Court. Having said this, however, the form of the reasons should not be the driving element in this review. Rather, the question is whether, on the appropriate standard of review, the decision is reviewable.
Standard of Review
[12] The visa officer made a discretionary decision. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 53, the Supreme Court found that the decisions of immigration officers with regard to immigration applications are discretionary and should be according high deference. In the particular context of that case, the Supreme Court held the officer to a standard of review of reasonableness simpliciter. In this case, whether I apply the reasonableness standard or the highest standard of patent unreasonableness, I would come to the same result.
Issue #1: Decision under s. 35(1)(a)
[13] In the present case, the officer's reasons for deciding that the Applicant was inadmissible pursuant to s. 35(1)(a) are brief. The officer's words lead me to believe that he made a finding of complicity in war crimes or crimes against humanity, and not that the Applicant had directly committed such offences.
[14] The leading case in Canadian law regarding complicity in the commission of international crimes is Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (F.C.A.). The Court of Appeal ruled that a person could be complicit in the international crimes of their organization if the evidence established a "personal and knowing participation" in those offences (at para. 15). Mere membership could be sufficient to establish personal and knowing participation only if the organization was "principally directed to a limited, brutal purpose, such as a secret police activity" (at para. 16).
[15] There is no dispute that the Applicant was a member of KhAD for four years and held the rank of colonel. The Applicant stresses that he was merely an instructor and that he commanded no troops.
[16] The Applicant first contends that the officer made no findings as to whether KhAD did or did not commit war crimes or crimes against humanity; nor did he refer to any identifiable evidence establishing such facts. In Andeel v. Canada (Minister of Citizenship and Immigration), 2003 FC 1085, a visa officer erred by failing to identify which offences, contained within ss. 4 to 7 of the War Crimes Act, the Applicant was an accomplice to. In that case, there also was insufficient evidence in the record upon which the officer could have reasonably found that a specific offence had taken place.
[17] The Respondent argues that KhAD's limited and brutal nature has been established in this Court and the Court of Appeal several times (Zazai v. Canada (Minister of Citizenship and Immigration) 2005 FCA 303; Zadeh v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 94 (T.D.) (QL); Rasuli v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1417 (T.D.) (QL)), and that being a member has typically (but not always) led to a finding of complicity. My response to this is it would have been open to the officer to consider and apply the findings listed in prior cases. Certainly these cases form part of the "public record" to which the officer referred. But ultimately, there is no indication that the officer relied on these cases. It is unknown to any reader of the officer's decision what information he relied upon, whether it was jurisprudence, state reports, encyclopaedias, newspaper articles, or anything else. I have no way of verifying the reasonableness of the officer's finding that the KhAD had a limited and brutal purpose.
[18] Even where an organization has a limited and brutal purpose, membership is not always conclusive proof of complicity. In this case, the Applicant presented evidence of his role in KhAD. I am not satisfied that the officer carried out any analysis of whether the Applicant, in his role as a trainer, had knowledge of the activities of the KhAD or whether he disengaged himself from the group at the earliest opportunity. There is no indication that the officer turned his mind to the latter point, despite evidence showing that the Applicant turned down a promotion, refused to command troops, and fled shortly thereafter.
[19] The Respondent submits that the officer came to a reasonable conclusion because of the Applicant's rank and four years of service. The Respondent points out that the applicant in Zazai was found to be complicit in KhAD's activities even though he was a captain and not a higher ranked colonel. I note that, in Zazai, there was actual evidence of the Applicant's shared views and specific acts in support of KhAD. It was not merely Mr. Zazai's rank that led to a finding of complicity.
[20] In summary: there are two overarching problems in the officer's decision that the Applicant was inadmissible pursuant to s. 35(1)(a). The first and most important problem is that the officer did not provide a sufficient analysis or identify the evidence relied upon to determine the limited, brutal purpose of KhAD. This makes it impossible for me to determine whether the evidence supports the officer's decision. The second problem is that the officer seems to have cut his analysis short, by concluding that the Applicant knew of and supported the crimes committed by KhAD merely because of his rank. The wording of the decision suggests that the officer failed to appreciate the evidence of the Applicant which could have contradicted this conclusion. It would have been open to the officer to conclude as he did, so long as the Court could have some confidence that he appreciated the possibility that the Applicant may not have been complicit.
[21] Therefore, I conclude that the officer's decision in deciding that the Applicant was inadmissible under s. 35(1)(a) of the IRPA was patently unreasonable.
Issue #2: Decision under s. 35(1)(b)
[22] The task for the officer making a determination under s. 35(1)(b) of the IRPA is much more direct. A considerable amount of discretion has been removed by the list of designated regimes, including the Afghan regime during the applicable time of this application. Unlike with s. 35(1)(a), there is no need to undertake an analysis of the offences committed by KhAD and whether, as an organization, it had a limited brutal purpose. The entire government regime, including KhAD, is designated.
[23] Further, the officer is relieved, to some extent, from having to undertake a detailed assessment of the complicity of the Applicant in the acts of KhAD. Section 16 of the Regulations contains a list setting out a number of categories of persons who will be considered to be "prescribed senior officials". The Applicant accepts that the jurisprudence has established that, once it is determined that an individual falls within one of paragraphs (a) to (g) of s. 16, the person is, without anything further, a prescribed senior official (Canada (Minister of Citizenship and Immigration) v. Adam, [2001] 2 F.C. 337).
[24] Although the officer does not expressly refer to s. 16(e) of the Regulations, it is clear that the officer concluded that the Applicant was a "senior member of the military" in the designated regime. The Applicant submits that the visa officer made that determination without a proper evidentiary foundation. The Respondent disagrees, stating that the rank of colonel, particularly in light of the offer of promotion to general, is high enough to qualify as a senior member of the military.
[25] The issue before the officer - and now before this Court - is the meaning of "senior". Neither the IRPA nor the Regulations contain a definition of "senior". In Hussein v. Canada(Minister of Citizenship and Immigration), [2001] I.A.D.D. No. 1330, the Immigration Appeal Division stated, at para. 13, that:
A senior member of the military would be a person occupying a high position in the military and would be a person of more advanced standing and often of comparatively long service. Advanced standing would be reflected in the responsibilities given to the person and the positions occupied by the person's immediate superiors.
[26] Following on this statement, I would add that whether any particular rank qualifies for inclusion under s. 16(e) of the Regulations will depend on the facts related to the particular military regime. While the rank of colonel or general may be senior in the Canadian military, I think it an error to apply Canadian standards to foreign military hierarchies.
[27] This view is reinforced in section 8.2 of "ENF: 18 War crimes and crimes against humanity", the Enforcement Manual of Citizenship and Immigration Canada (CIC), where guidance is given to officers considering exclusion inadmissibility under s. 35(1)(b). In particular, CIC suggests that the officer obtain "proof that position is senior" and provides further guidance as follows:
| In addition to the evidence required, it must be established that the position the person holds or held is a senior one. In order to establish that the person's position was senior, the position should be related to the hierarchy in which the functionary operates. . . . If it can be demonstrated that the position is in the top half of the organization, the position can be considered senior. This can be further established by evidence of the responsibilities attached to the position and the type of work actually done or the types of decisions made (if not by the Applicant then by holders of similar positions).
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Outre la preuve nécessaire, on doit établir que le poste est de rang supérieur. À cette fin, on doit situer le poste dans la hiérarchie où le fonctionnaire travaille ... Si l'on peut prouver que le poste est dans la moitié supérieure de l'organisation, on peut considérer qu'il est un poste de rang supérieur. Un autre moyen de l'établir est celui des preuves de responsabilités liées au poste et du type de travail effectué ou des types de décisions prises (à défaut d'être prises par le demandeur, par les titulaires de postes analogues).
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[28] ENF 18, at section 8.4, also offers a caution to officers faced with these important
s. 35(1)(b) determinations:
| Officers should be aware of the sensitive nature of A35(1)(b) and the need for careful and thorough consideration of all relevant information. It is not intended that officers should cast the net so widely that all employees of a designated regime are considered inadmissible.
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Les agents doivent être conscients de la nature délicate de ce qui touche L 35(1)b) et de la nécessité d'une évaluation soignée et approfondie de tous les renseignements pertinents. L'intention n'est pas que les agents emploient des critères si généraux que tous les employés de régimes désignés soient considérés comme interdits de territoire.
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[29] Finally, in the context of this application, I note the e-mail to the visa officer from an Analyst - Modern War Crimes, Canadian Border Services Agency where the analyst states that:
In regards to the Applicant, it is clear from the service interview brief that there are likely grounds for inadmissibility under both 35(1)a and 35(1)b as summarized below. However, the information on the Applicant's military career is not very detailed. To be able to make a final recommendation we would like to have a completed Military Service Table listing units and commanding officers with which the Applicant served, details of any awards or commendation the subject received, and a copy of the IMM0008 application.
[30] It appears from this e-mail that even an expert in the field was not prepared to offer a final recommendation without further information. In this case, there is no evidence before me that the officer obtained any of this information. He seems to have assumed, without any further evidence, that the rank of colonel within the Marxist Afghan regime was "senior".
[31] In view of the failure of the officer to consider, or even attempt to obtain, more information on the hierarchy of the Afghan military and the role of the Applicant within the organization, I conclude that the decision of the officer under s. 35(1)(b) was fatally flawed.
Conclusion
[32] Given that I have concluded that the officer erred in respect of both his s. 35(1)(a) and his s. 35(1)(b) findings, the application will be allowed. There is no need to consider the other issues raised by the Applicant.
[33] Neither party proposed a question for certification. None will be certified.
ORDER
THIS COURT ORDERS that:
- The application is allowed and the matter remitted for reconsideration by a different visa officer.
- No question of general importance is certified.
"Judith A. Snider"
___________________________
Judge
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