Date: 20050405
Docket: IMM-7354-03
Citation: 2005 FC 446
Saskatoon, Saskatchewan, this 5th day of April 2005
Present: The Honourable Madam Justice Heneghan
BETWEEN:
AYAMUDDIN NEZAM, NAFISA NEZAM
KHATERA NEZAM, FRISHTA NEZAM and
YAMA NEZAM and KHAJESTA NEZAM
(by their litigation guardian Ayamuddin Nezam)
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Mr. Ayamuddin Nezam (the "Principal Applicant"), his wife Nafisa Nezam and their children Khatera, Frishta, Yama and Khajesta (the "other Applicants") seek judicial review of the decision of Immigration Officer Niall Cronin (the "Immigration Officer"). In that decision, which was communicated orally on July 22, 2003 and confirmed in writing by letter dated July 24, 2003, the Immigration Officer refused the Principal Applicant's application for permanent residence in Canada as a member of the family class, together with that of the other Applicants. The application was sponsored by an adult daughter of the Principal Applicant and her husband who have status in Canada.
BACKGROUND
[2] The Principal Applicant and the other Applicants are citizens of Afghanistan. They left that country in 1992 following the outbreak of civil war and went to Pakistan. The Principal Applicant periodically returned to his country of birth to work but he did not remain resident there. The Principal Applicant submitted his application for permanent residence in Canada in March 2001 and included the other Applicants as his dependants.
[3] The application was rejected by the Immigration Officer by letter dated February 13, 2002, on the grounds that the sponsor did not meet the requirements of the Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended ("IRPA") and the Immigration and Refugee Protection Regulations, SOR/2002-227, as amended ("the Regulations") relating to the financial resources of the sponsor.
[4] This decision was successfully appealed to the Immigration Appeal Division of the Immigration and Refugee Board and the Principal Applicant's file was reopened. Following a review of the file, the Immigration Officer decided to interview the Principal Applicant to assess his admissibility and sent him a letter in the following terms dated June 19, 2003:
Dear Applicant,
This refers to your application for permanent residence in Canada.
Please visit the Visa Section of [sic] Canadian High Commission for a subsequent interview on July 22, 2003 at 10:00 hours. Bring all your original documents of education, work references and identification with you at interview.
You should report at least 30 minutes before the scheduled time. However, because seating capacity in the waiting area is limited, we ask you not to report more than 60 minutes before your interview time.
Please bring this letter and passport with you for file identification purposes.
[5] On July 22, 2003, the Principal Applicant attended for the interview. According to the Computer Assisted Immigration Processing Systems ("CAIPS") notes made by the Immigration Officer relative to the interview, the following information was recorded:
DESPITE Fns LACK OF PARTY MEMBERSHIP AND MILITARY SERVICE BUT GIVEN HIS POSITION WITHIN THE CIVIL SERVICE, FACT HE TRAVELED ON ON [sic] OFFICIAL PPT DURING THE MARXIST REGIME AND FACT THAT HE WAS SENT ABROAD AND PROVIDED WITH A DRIVER BY THIS REGIME I AM OF THE OPINION THAT HE OCCUPIED A POSITION OF INFLUENCE AND BENEFITTED FROM THIS SENIOR POSITION IN A PRESCRIBED REGIME.
[6] The Immigration Officer concluded that the Principal Applicant was inadmissible because he was a person described in section 35(1)(b) of IRPA. A refusal letter sent to the Principal Applicant on July 24, 2003 set out the basis for the Immigration Officer's negative decision as follows:
There are reasonable grounds to believe that you/your family member (name) are/is a member of the inadmissible class of persons'[sic] described in section 35(1)(b) of the Immigration and Refugee Protection Act ...
Specifically, from 1978 to 1992, you occupied different position [sic] in the service of the Marxist regime in Afghanistan. In the opinion of the Minister, that government 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. I have reached this conclusion because of the following facts:
- your position within the civil service and the resulting benefits of this position;
- you travelled on an official passport during the Marxist regime
I am of the opinion that you occupied a position of influence and benefitted from this senior position in the prescribed regime.
As a result, you are inadmissible to Canada pursuant to section 35(1)(b) of the Act. I am therefore refusing your application.
SUBMISSIONS
[7] In this application for judicial review, the Applicants argue that the Immigration Officer committed a reviewable error in his interpretation and application of section 35(1)(b) in reading his evidence that the Principal Applicant was a senior official in a prescribed government. Alternatively, they argue that the application of section 35(1)(b) results in a breach of section 2(d), that is the guarantee of freedom of association, as set out in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 (the "Charter").
[8] The Applicants argue that the term "prescribed senior official in the service of a government", as provided in section 35(1)(b) of IRPA, is not defined. Although section 16 of the Regulations provides a list of positions falling within that category, the Immigration Officer did not refer to section 16 in his decision. Accordingly, they argue that the Court must engage in the exercise of statutory interpretation in order to determine the meaning of "senior official" in section 35(1)(b), having regard to the context of those words, their grammatical and ordinary sense and the intention of Parliament. In this regard, they rely on the decision of the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27.
[9] The Applicants submit that the context of section 35 of IRPA and section 16 of the Regulations prohibits the entry into Canada of persons associated with organizations or regimes that have committed significant human rights abuses. They say that only those persons who, by virtue of the positions they hold or held, are or were able to exert significant influence on the exercise of government powers, or are or were capable of benefiting from their positions are barred from entry pursuant to section 35(1)(b).
[10] The Applicants acknowledge the decision of the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Adam, [2001] 2 F.C. 337 (C.A.) where the Court held that section 19(l)(e) of the former Immigration Act, R.S.C. 1985, c. I-2, did not give rise to a rebuttable presumption such that once the determination has been made that a person is a "senior official", that person does not have the opportunity to demonstrate that, notwithstanding seniority, he or she did not exert influence or desire a personal benefit as a consequence of that position. In respect of the decision in Adam, supra, the Applicants argue that the Court, in determining whether an individual meets the criteria of being a "senior official", should assess that person's degree of influence and/or the benefits derived from his or her position.
[11] The Applicants also submit that, having regard to the context of IRPA as a whole, there should be consistency in this application of the legislation in matters of exclusion. They point to consideration of complicity involving claimants for Convention refugee protection when exclusion comes into play and rely on the decision in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.). They submit that these principles have been applied by the Immigration Appeal Division in addressing the admissibility of a senior official under section 19(1)(1) of the formerImmigration Act, supra, as discussed in Shirdon v. Canada (Minister of Citizenship and Immigration), [2000] I.A.D.D. No. 1886.
[12] The Applicants also argue that the assessment of whether a person is a "senior official" for the purposes of section 35(1)(b) is to be informed by the policy guideline set forth in the Immigration Manual Chapter ENF 18: War Crimes and Crimes against Humanity ("ENF 18"). Section 8.2 of that guideline, prepared by Citizenship and Immigration Canada ("CIC"), provides that:
... 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).
[13] The Applicants submit that the Principal Applicant was the Vice President of a handicraft department that was only 40% government-owned and was one of dozens of such departments with the Ministry of Commerce. They note that there was no evidence that the Principal Applicant was aware of abuse committed by the regime, participated in these abuses or that his position fell within the top half of the government organization.
[14] They also submit that there is no evidence that the Principal Applicant executed significant influence on the exercise of government power. The Principal Applicant, in his affidavit filed in this application for judicial review, points out that there were 14-15 staff in his department, he travelled to craft shows to sell and promote handicrafts, he did not meet with Ministers in the Afghan government nor did he attend inter-Ministry meetings.
[15] The Applicants argue that the positions occupied by the Principal Applicant did not fall within the meaning of "senior official". Accordingly, the Immigration Officer's decision was either unreasonable or patently unreasonable. As well, the Applicants submit that with respect to the benefits received by the Principal Applicant, that is attendance on foreign trade trips and access to a driver, that the Immigration Officer erred in interpreting the evidence. They say that the availability of a driver was not exclusive as other members shared the driver. All members of the government received government passports for work-related travel, including secretaries.
[16] The Principal Applicant also submits that he was selected to travel on account of his English language skills and his knowledge of export duties and handicrafts, not for his political beliefs. The Applicants argue that the foreign travel, which was for work purposes, and the use of a driver are not the kind of benefits that should trigger the inadmissibility provision.
[17] The Respondent takes the position that the decision here in issue was a discretionary one, reviewable on the standard enumerated in [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2. He argues that the claim is reviewable on the standard of reasonableness simpliciter.
[18] The Respondent submits that ENF 18 assists immigration officers by identifying three groups of persons who come within section 35 of IRPA: 1) Heads of state, ambassadors and members of the judiciary; 2) senior diplomatic officials, functionaries and members of the military; and 3) persons not specifically described but who may, on the evidence, have been able to exercise significant influence on the action or policies of the regime or to benefits from the position.
[19] The Respondent argues that, on the evidence before him, this Immigration Officer could conclude that even though an Applicant for permanent residence does not hold a senior position identified in section 16 or is not a senior official in the top half of an organization, that person may still be able to exercise significant influence or claim a benefit, thereby falling within the inadmissibility class pursuant to section 35(1)(b) of IRPA.
[20] The Respondent also argues that section 35(1)(b) is an absolute liability provision and that complicity or knowledge is irrelevant to the question of inadmissibility. The degree of such complicity or knowledge is also irrelevant. According to the Respondent, the focus of the inquiry is limited to evidence of significant influence or, as in the case of the Principal Applicant, to the question of whether he is or was able to benefit from his position.
[21] The Respondent also submits the discretion provided by section 35(2) can only be exercised when the person concerned acknowledges that he or she is inadmissible pursuant to section 35(1)(b). The Respondent relies on the Immigration Manual published by CIC. The Respondent says that no such admission was made by the Principal Applicant once he was advised of the concerns of the Immigration Officer, which concerns precipitated the interview.
DISPOSITION AND DISCUSSION
[22] This is an application for judicial review pursuant to section 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. The grounds for judicial intervention are set out in section 18.1(4).
[23] The principal issue is the standard of review that applies to the decision of the Immigration Officer. I disagree with the Respondent's submission that this is a discretionary decision, reviewable in accordance with the factors identified in Maple Lodge Farms, supra. The matter in issue is whether the Principal Applicant is inadmissible, pursuant to section 35(1)(b) of IRPA and the Regulations. Having regard to the decision of the Supreme Court of Canada in Canada (Director of Investigation & Research) v. Southam Inc., [1997] 1 S.C.R. 748, I regard this question to be either a question of mixed law and fact, reviewable on the standard of reasonableness simpliciter or a question of fact, reviewable on the standard of patent unreasonableness. In any event, the Immigration Officer is to decide, on the basis of the evidence before him, whether the Principal Applicant is inadmissible because he was a "senior official" in the Afghan government.
[24] There is evidence that the Afghan government was designated by the Respondent as a "prescribed regime". There is also evidence that the Principal Applicant was an employee of the Ministry of Commerce during the former marxist regime and attained the rank of Vice President. The details provided by the Principal Applicant in the affidavit filed in this application for judicial review as to the ownership of the Export Department were not before the Immigration Officer. His decision will be reviewed only on the basis of the material that was before him and as contained in the Tribunal Record.
[25] In my opinion, the conclusion reached by the Immigration Officer as to the inadmissibility of the Principal Applicant fails to meet the standard of either reasonableness or patent unreasonableness. It seems that the Immigration Officer focused solely on two factors, that is the attendance of the Principal Applicant at trade shows abroad and his access to a driver. These facts are neutral and in my opinion, more is required in order to show that an individual is inadmissible pursuant to section 35(1)(b). There is no indication that the Immigration Officer considered the guidelines provided in ENF 18 or directed his mind to where the Principal Applicant ranked in the Afghan government.
[26] The category of "senior official" in section 16 of the Regulations is indefinite, in comparison with the other categories listed. For example, a person's status as a head of state, cabinet minister or member of the judiciary are clearly matters of fact that can be readily established. The ENF 18 provides guidance in determining who is a senior official and one of the factors to be considered is whether a person holds a position in the top half of an organization. I am not satisfied, on the record, that the Immigration Officer engaged in the exercise outlined by ENF 18. His conclusions respecting the Principal Applicant are not reasonably supported on the evidence.
[27] As well, I note that the facts about the Principal Applicant's employment were provided when he submitted his application for permanent residence in 2002. The details of his employment are disclosed in the application form. It appears that the Immigration Officer, who initially rejected the application on financial grounds, did not comment on the significance of his position in Afghanistan in issuing the refusal letter dated February 13, 2002.
[28] The prior involvement of the same Immigration Officer with this file, in my opinion, gives rise to a concern about procedural fairness. That issue was not addressed by the parties but, nevertheless, it arises from the record.
[29] In light of my conclusion with respect to the lack of evidence to reasonably support the Immigration Officer's decision, there is no need to consider the Charter argument raised by the Applicant.
[30] In the result, the application for judicial review is allowed. The matter is remitted to a different Immigration Officer for re-determination. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is remitted to a different Immigration Officer for re-determination. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7354-03
STYLE OF CAUSE: AYAMUDDIN NEZAM et al
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY SEPTEMBER 28, 2004
REASONS FOR ORDER
AND ORDER BY: Heneghan, J.
DATED: April 5, 2005
APPEARANCES BY: Mr. Ronald Poulton
For the Applicants
Ms. Matina Karvellas
For the Respondent
SOLICITORS OF RECORD:
Mr. Ronald Poulton
Mamann & Associates
Barristers & Solicitors
74 Victoria Street, Suite 303
Toronto, Ontario
M5C 2A5
For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 200504xx
Docket: IMM-7354-03
BETWEEN:
AYAMUDDIN NEZAM et al
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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