Zaheri v. Canada (Minister of Citizenship and Immigration), 2004 FC 446

Date: 20040325

Docket: IMM-1145-03

Citation: 2004 FC 446

Ottawa, Ontario, this 25^th day of March, 2004

Present:           The Honourable Justice James Russell                                

BETWEEN:

                                                  MOHAMMAD ZAHIR ZAHERI

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an Application for judicial review of a decision dated November 22, 2002 ("Decision") of an immigration official ("Officer") located at the Canadian High Commission, Visa Section in Islamabad. The Decision refused the application of Mohammad Zahir Zaheri ("Applicant") for permanent residence (spousal sponsorship) because the Applicant was a person described in s.35(1)(b) of the Immigration and Refugee Protection Act ("IRPA").

BACKGROUND

[2]                From 1975 to 1992, the Applicant was a member of the People's Democratic Party of Afghanistan. From 1987 to 1989 he was a director of the municipality of Kabul. He also served with pro-government forces after being liberated by them from detention under the Mujahedin. The Marxist government of Afghanistan, within which the Applicant served in the military and acted as director in Kabul, is a regime that is designated by the Minister as having been involved in terrorism, systematic or gross human rights violations, or genocide, or a war crime or a crime against humanity within the meaning of ss. 6(3) to (5) of the Crimes Against Humanity and War Crimes Act. Hence, the Applicant was found inadmissible to Canada pursuant to s. 35(1)(b) of IRPA.

[3]                On October 21, 1994, the former Marxist regime of Afghanistan between 1978 and 1992 became a designated regime by the Minister of Citizenship and Immigration ("Minister") as a government which was, in the opinion of the Minister, "engaged in systematic or gross human rights violations."

DECISION UNDER REVIEW

[4]                The Applicant submitted an application for permanent residence as a member of the family class to the Canadian High Commission in Islamabad in November, 2000.

[5]                He was interviewed in March 2001 and his application was refused because his sponsor had been in receipt of social assistance for the previous three years and the Officer was not satisfied that there were reasonable grounds to believe he would be supported without recourse to social assistance. The Applicant's sponsor subsequently appealed against the refusal to the Immigration and Refugee Board ("Appeal Division"). The appeal was allowed on humanitarian and compassionate grounds in February 2002.

[6]                The application for permanent residence was re-opened and, in October 2002, the Applicant's file was reviewed in order to assess criminality and security aspects of processing.

[7]                The application form indicated that the Applicant had been a member of the People's Democratic Party of Afghanistan ("PDPA") from 1974 to 1992 and a Director of Kabul Municipality from 1977 to 1988. The Applicant attended an interview to address the concerns these facts raised.

[8]                During the interview on November 7, 2002, the Applicant stated that he joined the PDPA because he believed in their program. He stated that, as a party member, he distributed pamphlets and organized meetings. He stated that he did not occupy any salaried position within the PDPA.

[9]                The Applicant also stated that he was a Director within Kabul Municipality. He occupied this position from 1977 to 1989. As a Director, the Applicant stated that he reported to a Director General, Haji Azizullah, who in turn reported to a President, Abdul Rahim Aziz.

[10]            The Applicant stated that he was taken prisoner in 1989 by members of Hezbe-Islami. He said he was held for two years because he was a supporter of the Najibullah government. He was freed after government forces liberated the area.

[11]            After his release he said that he served with the military from 1991 to 1992. He also claimed he was posted to the Clerical Directorate of the Ministry of Defence and worked in the political unit in a clerical position. He reported to Sardar Mohammad. The Commanding officer of the unit was General Bashir Hamid. The Officer questioned the Applicant about his specific duties and noted that the Applicant's answers were vague.

[12]            Given the information provided by the Applicant concerning his involvement in a designated regime, at the close of the interview the Officer informed the Applicant that he needed to further consider the application before deciding on the Applicant's admissibility to Canada.

[13]            Upon review of the Applicant's application and, based on the length of his association with the PDPA, his career as a civil servant in the Marxist regime of Najibullah, the fact that he was so publicly identified with the Marxist regime as to be imprisoned by its opponents and that he had served in the regime's military, the Officer found that the Applicant came within s. 35(1)(b) of the IRPA. A refusal letter was sent to the Applicant and his sponsor on November 22, 2002.

RELEVANT LEGISLATION

[14]            Section 35(1)(b) and 35(2) of IRPA reads as follows:

[15]            Section 16 of the Immigration and Refugee Protection Regulations ("Regulations") defines "prescribed senior official in the service of a government" for the purposes of s. 35(1)(b) of the Act and states as follows:

[16]            Section 35(1)(b) applies where the government concerned has been designated by the Minister as a regime that has been involved in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of ss. 6(3) to (5) of the Crimes Against Humanity and War Crimes Act.

[17]            On October 21, 1994, the former Marxist regime of Afghanistan in power between 1978 and 1992 was designated as a regime which, in the opinion of the Minister, had engaged in gross human rights violations and other such crimes. The listing of governments that have been so designated are provided in Appendix E of the Immigration Manual, Chapter ENF 18.

[18]            Since the authority to designate such regimes was included in the Immigration Act in 1993, nine regimes have since been designated.

[19]            The policy of the Government of Canada is that Canada will not become a safe haven for those individuals who have committed war crimes, crimes against humanity or any other reprehensible act during times of conflict. Designation of such regimes is made in consultation with the Department of Foreign Affairs and International Trade. The following are among the factors considered by the Minister when determining whether a regime should be designated under IRPA:

condemnation by other countries and organizations;

the overall position of the Canadian government including whether a refugee claim by a senior member of the government would undermine Canada's strong position on human rights;

the nature of the human rights violations; and,

immigration concerns such as the number of persons coming from that specific country and whether there might be a concern for the protection of Canadian society.

Immigration Manual, ENF 2, OP 18

[20]            The following descriptions apply to the terms "crimes against humanity", "genocide", "war crimes" and "terrorist acts":

Crimes against humanity

Murder, extermination, enslavement, imprisonment, torture, sexual violence, or any other inhumane "act" or "omission" that is committed against any civilian population or any identifiable group, whether or not the state is at war, and regardless of whether the "act" or "omission" is a violation of the territorial law in force at the time. The acts or omissions may have been committed by state officials or private individuals, and against their own nationals or nationals of other states.

Genocide

An "act" or "omission", committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, whether committed in times of peace or war, by state officials or private individuals.

War crimes

"Acts" or "omissions" committed during an armed conflict (war between states and civil war), which violate the rules of law as defined by international law. These "acts" or "omissions" include the ill treatment of civilians within occupied territories, the violation and exploitation of individuals and private property, and the torture and execution of prisoners.

Terrorist acts

Terrorist acts have a wider application than war crimes or crimes against humanity because:

o               they can be committed against both persons and property;

o               they can be isolated incidents: they do not have to be committed in a widespread or systematic manner;

o               they can be committed in times of both war or peace.

Immigration Manual, ENF 2, OP 18

ISSUES

[21]            The Applicant raises the following issues:

Did the Officer exceed jurisdiction, err in fact, breach fairness, breach the doctrine of legitimate expectations or err in law in relation to the application and interpretation of s. 35(1) and (2) of IRPA and Regulation 16 of the Regulations?

Did the Officer exceed jurisdiction in applying a designation that was made under the Immigration Act and, accordingly, is not valid under IRPA?

ARGUMENTS                      

Applicant

Standard of Review

[22]            The Applicant suggests that the standard of review for these issues is correctness or reasonableness simpliciter.

Inadequate Reasoning

[23]            The Officer lists the findings he made as a result of his interview with the Applicant as follows:

The Applicant was a member of the People's Democratic Party of Afghanistan

The Applicant was a director of the municipality of Kabul

The Applicant served with pro-government forces after being liberated by them from detention under the Mujahedin.

The officer found that it was not credible that the Applicant was not involved in combat nor that the Applicant did not occupy a position of influence within the former Marxist government of Afghanistan.

[24]            The Applicant submits that the above findings are not adequate to determine that the Applicant is a person inadmissible under s.35(1)(b).

[25]            Regulation 16 of the Regulations sets out who are persons of significant influence or persons who are able to benefit from their positions and provides a list of prescribed officials.

Designated Governments

[26]            The following relevant regime has been designated by the Minister:

designated 21 October 1994: the former Marxist regimes of Afghanistan between 1978 and 1992

[27]            In relation to those regimes designated in Appendix E of the Immigration Manual, the Applicant points out that the relevant time period for the inadmissibility found for the Applicant was the period from 1978 to 1992, which excludes all of his military service after 1992.

Interpretation Extracts from the Immigration Manual

[28]            The following sections from the relevant policy manual deal with the interpretation of Regulation 16:

ENF 18 War crimes and crimes against humanity 14 11-2002

Category Evidence required Notes

1. Persons described in R16(a),(b), (f-ambassadors only),and (g) A person in this group is presumed to be or to have been able to exert significant influence on the exercise of that government's power. This is a non-rebuttable presumption which has been upheld by the Federal Court of Appeal. In other words, the fact that a person is or was an official in this category is determinative of the allegation. Aside from the designation and proof that the person holds or held such a position, no further evidence is required to establish inadmissibility.

2. Persons described in R16(c),(d),(e), and (f-senior diplomatic officials) In addition to the above requirements, 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. Copies of organization charts can be located from the Europa World Year Book, Encyclopedia of the Third World, Country Reports on Human Rights Practices (US Department of State) and the Modern War Crimes System (MWCS) database. 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).

Note: There is no definition of "senior" in the Immigration and Refugee Protection Act and no case law from the Federal Court. However, in considering this issue in relation to a military position, a tribunal of the Immigration Appeal Division determined that:

Note: "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."

3. Persons not described in R16 In addition to the designation of the regime, it must be established that the person, although not holding a formal position, is or was able to exercise significant influence on the actions or policies of the regime or was able to benefit from the position.

A person who assists in either promoting or sustaining a government designated by the Minister can be characterized as having significant influence over its policies or actions.

The concept of significant influence is not limited to persons who made final decisions on behalf of the regime; it also applies to persons who assisted in the formulation of these policies, e.g., by providing advice, as well as persons responsible for carrying them out. If a person conducts activities which directly or indirectly allow the regime to implement its policies, the test for significant influence is met. The phrase "government power" in R16 is not limited to powers exercised by central agencies or departments but can also refer to entities which exercise power at the local level.

Once it is established that the person exerted significant influence or benefited, the extent or degree of this influence or benefit is not relevant to the finding of inadmissibility; however, they are factors that could be considered by the Minister when deciding whether the admission of the person would not be detrimental to the national interest.

Error of Law

[29]            The Applicant submits that the reasoning in the Decision is not adequate because the Officer does not identify what type of official the Applicant could be described as, or whether the Applicant was a person of significant influence.

[30]            The Applicant further submits that it is not enough for the Officer to make a negative finding that his denials are rejected and that, therefore, he was a person of significant influence.

[31]            The Applicant also submits that it is an error of law to find that because the Applicant's denial is not true the opposite is thereby established. All it means is that the denial is not accepted. The following statement of the English Court of Appeal was quoted and approved of by the Ontario Court of Appeal in R. v. Swick (1997), 35 O.R. (3d) 472 (Ont. C.A.), at 477:

But a denial in the witness box which is untruthful or otherwise incapable of belief is not positive proof of anything. It leads only to the rejection of the evidence given, which then has to be treated as if it had not been given. Mere rejection of evidence is not of itself affirmative or confirmatory proof of the truth of other evidence to the contrary.

R. v. Chapman [1973] 2 All E.R. 624 (C.A.)

[32]            The Applicant argues that the Officer appears to have found that his being a Director of the Municipality of Kabul meant that he came under the designated regime. But the government that was designated was "the former Marxist regime." Without any other evidence, the Municipality of Kabul is not the former Marxist regime that ruled the entire country.

[33]            The Applicant says that the fact that he was a member of the Afghan PDPA does not mean that he was a senior official or a person of influence in the former Marxist regime. The Officer erred in law in this regard.

[34]            The Applicant further submits that the Officer erred because his merely serving in the military is not sufficient to make him a person of significant influence. Regulation16 refers to the following:

[...] 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,

[35]            The Applicant says that, without any evidence of his position in the military, it is not legally possible to find that he occupied a position that involved significant influence.

[36]            Furthermore, the Applicant notes that he was in the military from 1990 to 1999. The designation by the Minister covers the Marxist regime until 1992. The Officer appears to have taken into account the Applicant's evidence for his entire military service and rejected his credibility based on the Applicant's account of his military functions from 1990 to 1999. The Officer erred, therefore, because it was irrelevant for the purposes of s.35(1)(b) what the Applicant was doing after 1992. The Officer should have focussed on whether the Applicant's evidence regarding what he did between 1990 and 1992 was credible, not from 1990 to 1999. At the very least, the Officer's reasoning is inadequate in this regard.

Errors of Fact

[37]            The evidence is that, at the interview, the Applicant did not say he was a Director. He said that he was first a clerk and then the head of a department that was involved with consumer complaints.

Exemption not Considered or Offered

[38]            Paragraphs 35(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.

[39]            There is an exemption from s.35(1)(b) set out in s. 35(2). The Officer never offered the Applicant the opportunity to make a case under this subsection. The Applicant says that this is an reviewable error, particularly because the Applicant and the sponsor do not have an appeal to the IAD. It was a breach of the principles of fairness to fail to advise the Applicant of the exemption.

[40]            The Applicant asks the Court to note that, under the Immigration Act, this Court has held that the Minister is personally required to decide the issue of the exemption and that an applicant must apply to the Minister before a decision by a visa officer is made. However, the Court has not addressed the situation where an applicant is unaware that the Minister is considering s.35(1), and so cannot make a request for the exemption. Given that the Applicant did not have an appeal to the IAD, and that his family reside in Canada as Convention refugees, it makes no sense to require the Applicant to make an application for an exemption before the Officer makes the decision that the Applicant is inadmissible (Mahzooz v. Canada (Minister of Citizenship and Immigration) 2002 FCT 926 (T.D.))

Did the Officer exceed jurisdiction in applying a designation that was made under the Immigration Act and, accordingly, is not valid under the IRPA? Is the Minister required to re-designate under IRPA?

[41]            The Applicant submits that this is a technical error. It is also a point of general importance because it deals with all of the regime designations made under the Immigration Act and the applicability of s. 19(1)(l) to IRPA.

[42]            The Applicant submits that the Minister is required to designate the regime for which the Applicant is alleged to have worked. The designation in this case was made before IRPA came into effect. It was made under the prior Immigration Act. It is arguable that former designations under the Immigration Act are no longer valid. The transitional regulations appear to be silent on whether the Minister is required to re-designate under IRPA.

[43]            Section 19(1)(l) of the previous Immigration Act reads as follows:

[44]            The previous designation did not list "genocide" even though that is a crime under s.6(3) of the Crimes Against Humanity and War Crimes Act. The previous Minister's opinion (under s.19(1)(l)) Immigration Act) was for more international offences under the Crimes Against Humanity and War Crimes Act than the current opinion would be. Most important here is the fact that s. 7 was eliminated and ss. 4 and 5 were for offences committed in Canada. Section 7 involves crimes by military commanders and military superiors.

Breach of Fairness

[45]            The Applicant says he was not put on notice that the grounds of inadmissibility applied against him were that he was a senior official or a person of influence in the Marxist regime. Nor was he told the reasons why this was important. This was in violation of the recommended procedure set out in chapter ENF 18, s. 8.3.

[46]            The Applicant submits that, as this policy was in the Immigration Manual, he had a legitimate expectation that the procedure would be followed. The relevant policy is dated November 2002, the same month as the interview between the Applicant and the Officer (November 7, 2002) and the Decision (November 22, 2002). It is inconceivable that the Minister would publish the chapter in November 2002 without having trained officers in this regard. A breach of a legitimate expectation requires a re-determination of the Decision (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).

[47]            The Immigration Manual provides the following in relation to procedure:

8.3 Opportunity for person to be heard

If an officer is contemplating the refusal of a person under A35(1)(b), the applicant must be given an opportunity to demonstrate that their position is not senior as described in R16 (category 2) or that they did not or could not exert significant influence on their government's actions, decisions, or improper policies (category 3). This can be done by mail or by personal interview. In either case, the officer should provide the applicant with copies of all unclassified documents that will be considered in assessing admissibility.

8.4 Consultation with BCW

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. Before considering the refusal of an applicant whose position is not listed in R16, officers are requested to consult with BCW.

...

9.1 Determining the general profile

When reviewing an application for admission to Canada, applicants who are from countries where there is/was internal turmoil, genocide, war or where human rights abuses are/were widespread and who are one of the following qualify for more in-depth investigation:

-                senior government officials, diplomats, or employees of the government;

-                current and former military, para-military, security, intelligence and police personnel or individuals employed in technical or scientific backgrounds related to chemical or biological weapons;

-                close family relatives of heads of government/state;

-                persons suspected of being a member of an organization that is involved in terrorism or crimes against humanity; or

-                members of guerrilla groups.

Errors of Fact and Speculative Findings

[48]            The Applicant submits that the conclusion of the Officer is not supported by the evidence and the Decision is based on speculation and patently unreasonable inferences and errors of fact and law.

[49]            The fact that the Applicant was a member of the Afghan PDPA does not mean that he was a member of the designated Marxist regime. There was no evidence of this.

[50]            There was no evidence of what being a Director of the Municipality of Kabul meant in terms of the Marxist regime.

[51]            Merely serving in the military is not sufficient to make someone a person of significant influence.

[52]            None of the above matters were disclosed to the Applicant. If there was such evidence, it ought to have been disclosed to the Applicant.

No Affidavit from the Applicant

[53]            The evidence before the Court does not include an affidavit from the Applicant.

[54]            The Applicant has not been able to arrange for an affidavit to be interpreted and sworn. As a result the affidavit of his daughter is offered. She heard the Applicant provide information to his counsel and she has confirmed the contents generally of the draft affidavit prepared for the Applicant.

Respondent

[55]            In the recent decision of Canada (Minister of Citizenship and Immigration v. Adam, [2001] 2 F.C. 337 (see also Esse v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 46 (T.D.)), the Federal Court of Appeal considered the application of the virtually identical predecessor of s. 35(1)(b) of IRPA, namely section 19(1)(l) of the Immigration Act. In that decision, the Court of Appeal held that once a determination is made that a person has held a position enumerated under s. 16 of the Regulations that person is presumed to have held a position where he or she was able to exert significant influence on the exercise of government power.

[56]            In the case at bar, the Officer considered the length of the Applicant's association with the PDPA, his career as a senior bureaucrat for over ten years as Director in Kabul in the Marxist regime of Najibullah, the fact that he was so publicly identified with the Marxist regime as to be imprisoned by its opponents and that he served in the regime's military. Based on the information before him, the Officer found that the Applicant fell within s. 35(1)(b) of IRPA. The Applicant has failed to demonstrate that the Court should intervene in the Officer's assessment in this regard.

Standard of Review

[57]            When assessing questions of law, the Respondent says the standard of review for a visa officer's decision is one of correctness. When the question is one of fact or mixed fact and law which involves officer's expertise, deference has to be accorded to the decision and the standard of patent unreasonableness applies (Au v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 435 (T.D.); To v. Canada (Minister of Citizenship and Immigration) (1996), F.C.J. No. 696 (C.A.)).

Absence of Sworn Evidence from the Applicant and Failure to Confirm His Alleged Facts Despite Having the Time to Do So

[58]            The Respondent submits that the Applicant's failure to demonstrate any error is grounded and re-emphasized by the fact that the Applicant has failed to file a personal affidavit to confirm the facts on which he purports to rely. Clearly, the Court should draw a negative inference from this notable absence of sworn evidence from the Applicant.

[59]            The Respondent submits that this is particularly true when the Applicant's leave materials indicated that it was because of lack of time that he did not swear an affidavit. However, the Applicant has chosen not to swear an affidavit even after leave was granted. The Respondent submits that this is a powerful indication that the Applicant's version of events should not be relied upon by the Court.

[60]            The Respondent argues that the evidence of the Officer ought to be preferred over the

Applicant's purported version because: 1) the Officer recorded the information provided at the interview contemporaneously with the interview and the Officer attests to the truth and accuracy of the notes; and 2) evidence such as the Applicant's application for landing corroborates the Officer's recitation of the facts; and 3) there is no sworn evidence from the Applicant contradicting the Officer's evidence.

[61]            The Applicant's application for permanent residence was signed by the Applicant and it clearly states at Part B, Box 3 under work history that the Applicant identified himself as being "Director" in Kabul Municipality.

[62]            The Applicant's "draft, not-sworn" affidavit states: "I was not a member of the national government or the 'Marxist regime' that ruled Afghanistan." However, the application for landing signed by the Applicant states clearly at Part C, Box 1 that he identified himself as a Member of the PDPA in Kabul from 1974 to 1992. The Applicant's "draft and not sworn" document in support of leave is contradicted by the information that he provided in his application for permanent residence and then repeated to the Officer at the interview.

Procedural Fairness

[63]            With regard to the Applicant's arguments regarding procedural fairness, the Respondent submits that the Applicant has not made out any reviewable error. The Officer's decision was based on information which the Applicant provided. The Applicant was interviewed based on the concerns raised by the Applicant's information. At the interview, the Applicant had a full opportunity to address his involvement with the former Marxist regime of Afghanistan and to demonstrate that his position was not senior as described in Regulation 16. At the end of the interview, the Applicant was told by the Officer that he would have to consider his application further to determine if he was admissible. Upon further review of the information, the Officer determined that the Applicant was a person described in s. 35(1)(b). Based on the evidence, this finding cannot be said to be unreasonable (Au,supra).

Application of s. 35 and Reg. 16 - Senior Official

[64]            In response to the Applicant's submissions that attempt to differentiate his service as a Director in Kabul Municipality from the national Marxist regime, the Respondent notes that if a person carries out activities that indirectly allow a designated government or regime to conduct its policies, he or she can also be considered to fall within A35(1)(b) and Regulation 16. The words "government power" in Regulation 16 are not limited to powers exercised by central government agencies or departments, but can also refer to entities that exercise power at a local level.

Exemption

[65]            In response to the Applicant's arguments regarding the exemption, the Respondent notes that this has been dealt with recently in the Mahzooz v. Minister of Citizenship and Immigration, [2002] F.C.J. No. 1203 (T.D.) decision as well as in by the Federal Court of Appeal in the Adam decision noted above. The applicant in Mahzooz argued that the visa officer should have exercised her discretion and asked whether he might be given a ministerial exception from inadmissibility under para. 19(1)(l). However, as the Court in Mahzooz, supra, noted, only the Minister, pursuant to then ss. 121(1.1) of the Immigration Act could grant relief from para. 19(1)(l). The visa officer did not have any discretion to grant the applicant relief from para. 19(1)(l). The Court further noted that there was no evidence on the record that the applicant had asked the Minister for a ministerial exception "although it was his responsibility to do so if he wished to be exempted from non-admissibility." The Federal Court of Appeal in Adam, supra, also held that the onus is on an Applicant to seek a ministerial exemption in a timely fashion if he or she wishes to be considered for it (Mahzooz, supra, at paras. 31-36, Adam, supra, at para. 7).

[66]            As was the case under ss. 121(1.1) of the Immigration Act, ss. 6(3) of IRPA precludes the delegation of determinations under the s. 35(2) exemption. The Minister alone can make these determinations.

[67]            The Applicant in the instant case failed to make any request for a Ministerial exemption and accordingly there was no requirement that it be considered. Nor was there a duty on the Officer to inform the Applicant of the possibility of making an application for exemption.

Designation of Regimes

[68]            In regard to the Applicant's argument concerning the carry-over of designated regimes from the former Immigration Act to IRPA, the Respondent directs the Court's attention to the transitional provisions of the Regulations. Under the "General Provisions" heading, Regulation 317(2) states that any document, which was valid under the Immigration Act continues to be valid. A Ministerial designation is a document under the Immigration Act and, as such, continues to be valid under IRPA.

[69]            In addition, Regulations 320(2) and 321(2)(b) also provide further support for the principle that the Ministerial designations of regimes remain in force. These sections of the Regulations prescribe that inadmissibility as a member of the class described under the former Immigration Act is also inadmissibility on security grounds under IRPA.

[70]            Moreover, applying general rules of legislative interpretation, where a law is re-enacted and where no substantive change is made to the old rule that is re-enacted into a new rule, the substantive law expressed by the two texts remains in force and continues to operate uninterrupted. This feature of re-enactment is called the continuous operation of rules. This is codified in the Interpretation Act, Chapter I-21, at s. 44 as follows:

[71]            Accordingly, the Interpretation Act provides for the continuous operation of repealed powers as well as repealed rules. Section 44(b), for instance, says that "books, papers, forms and things made or used under the former enactment shall continue to be used as before the repeal in so far as they are consistent with the new enactment." As well, s. 44(g) speaks to all regulations made under the repealed enactment remaining in force and deems them to have been made under the new legislation in so far as they are not inconsistent. What is key here is the absence of substantive change. As there are no substantive changes between the relevant sections (s.19(1)(l) of the Immigration Act and s. 35 of IRPA) the regime designations are carried over into IRPA.

ANALYSIS

No Affidavit from the Applicant

[72]            The Applicant has submitted no affidavit in support of this Application. While not fatal to the Application, counsel were in agreement that the Applicant can only raise and argue reviewable errors apparent on the face of the record and in the Officer's affidavit. The Court concurs with this restriction.

[73]            The Applicant raises various grounds of reviewable error. The Court has considered them all but feels that only those referred to below require any serious consideration.

Inadequate Reasons and Evidentiary Basis for the Decision

[74]            The Applicant says that there was no evidentiary basis before the Officer to identify him as a prescribed senior official in the service of the designated former Marxist regimes of Afghanistan between 1978 and 1992 and the Officer provides inadequate reasons in the Decision for the conclusion he reached in this regard.

[75]            In his affidavit, the Officer makes the following statements on this issue:

7.              In October 2002 I reviewed Mr. Zaheri's file in order to assess criminality and security aspects of processing.

8.              Based on the information already on file I noted that Mr. Zaheri had been a member of the People's Democratic Party of Afghanistan (PDPA) from 1974-1992 and an employee of Kabul Municipality from 1977-1988. Consequently I convoked Mr. Zaheri for an interview to address the concerns these facts raised.

9.              I interviewed Mr. Zaheri on November 7, 2002. During his interview Mr. Zaheri stated he joined the PDPA because he believed in their program. He stated that as a party member he distributed pamphlets and organized meetings. He stated that he did not occupy any salaried position within the party.

10.            Mr. Zaheri also stated that the highest level he occupied within the Kabul Municipality was that of a Director. He occupied this position from 1987-89. As a Director, Mr. Zaheri stated that he reported to a Director General, Haji Azizullah who reported to a President, Abdul Rahim Aziz. This is significant as it indicates that Mr. Zaheri was a senior official in the service of the government.

11.            Mr. Zaheri stated that he was taken prisoner in 1989 by members of Hezbe-Islami. Mr. Zaheri stated that he was taken and held for two years because he was a supporter of the Najibullah government. Mr. Zaheri stated that he was held on the Shomali Plains and was freed after government forces liberated the area.

12.            After his release, Mr. Zaheri stated that he served with the military from 1991-1992. Mr. Zaheri stated that he was posted to the Clerical Directorate of the Ministry of Defence. Mr. Zaheri worked in the political unit, stating that it was a clerical position. He reported to Sardar Mohammad. Mr. Zaheri could not recall if Sardar Mohammad held the rank of Captain or Senior Captain. The Commanding officer of the unit was General Bashir Hamid. I questioned Mr. Zaheri about his specific duties and noted that his answers were vague.

13.            Given the information provided by the Applicant on his involvement in a designated regime, at the close of the interview I informed Mr. Zaheri that I needed to think further on his application before deciding on his admissibility to Canada because of my concerns.

[76]            In the Decision, the Officer provides the following reasons:

From 1975 to 1992, you a (sic) member of the People's Democratic Party of Afghanistan. From 1987-1989 you were a director in the municipality of Kabul. You also served with pro-government forces after being liberated by them from detention under the Mujahedin. Given your past involvement with the government I did not find credible your statements that you were not involved in any combat nor that you did not occupy a position of influence within the former Marxist government of Afghanistan.

[77]            The Applicant's point is that, even assuming he could be described as a senior official in the Kabul Municipality, there is nothing to suggest that this would render him a senior official within the designated Marxist regime with the ability to exert significant influence on the exercise of government power or to benefit from that position. The Officer never says which designation under Regulation 16 the applicant falls into and there is no evidence even that the PDPA, of which the Applicant had been a member, is the designated former Marxist regime.

[78]            The Respondent's answer to this, in essence, is that a senior official in the Kabul Municipal government must, in a centralized Marxist system, also be a senior official in that Marxist regime. In addition, in arriving at his conclusion that the Applicant occupied a position of influence within the former Marxist government, the Officer considered the other factors referred to in the Decision and in the Officer's affidavit: namely, membership in the PDPA; the fact that the Applicant was captured and held by Hezbe-Islams until he was liberated by government forces; his service in the military and the clerical Directorate of the Ministry of Defence.

[79]            In the absence of an affidavit from the Applicant that sets out what transpired at the interview with the Officer and whether, given the structure of the designated Marxist regime the Officer's assumptions and conclusions were inaccurate, the Court has no way of judging whether the Officer's conclusions and assumption in this regard are perverse or unreasonable. The Officer is entitled to rely upon his own knowledge. It is clear from the Decision and the Officer's affidavit that, based upon the interview, he concluded that the Applicant was disqualified under s. 35(1)(b). He provides his reasons and there is nothing before the Court to suggest that, based upon what he learned from the Applicant and his own knowledge of the political structure in Afghanistan at the material time, his conclusions are reviewable. It is for the Applicant to prove reviewable error. The Applicant has chosen not to provide the Court with any evidence concerning what transpired at the interview or whether the Officer's assumptions were incorrect and lacked a real evidentiary base. He cannot now complain about these matters. The Court cannot speculate from the face of the record or the Officer's affidavit.

[80]            The Applicant refers the Court to various provisions in the ENF 18 guidelines to argue what it would have been appropriate for the Officer to do in the circumstance of this case. But, once again, quite apart from the fact that they are only guidelines, there is no evidence before me that the Officer did not follow the directions referred to by the Applicant. We do know, for instance, from the face of the record and the Officer's affidavit, that he complied with provision 8.3 of ENF 18 because the Officer called the Applicant to an interview and gave him the opportunity to demonstrate that his position was not senior and that he did not or could not exert significant influence over the regimes actions, decisions or policies.

[81]            I do not think there was any breach of the duty of fairness in the situation revealed by the record. The Officer was under no obligation to provide the Applicant with prior notification of his concerns. He followed the ENF 18 guidelines and invited the Applicant to an interview and raised those concerns with him. The Applicant was given every opportunity to answer the concerns.

Exemption under 35(2) Not Considered or Offered to the Applicant

[82]            As a preliminary matter, in the absence of an affidavit from the Applicant, the Court has no way of knowing if anything was said at the interview or otherwise about s. 35(2).

[83]            But even if it was not, the jurisprudence of this Court is clear that, if the Applicant wanted to be considered for the exemption, it was up to him to seek it in a timely fashion. See Mahzooz, supra, and Adam, supra. Nor was there any duty on the Officer to inform the Applicant of the availability of the exemption. See Mahzooz, supra, at para. 36.

Technical Argument

[84]            The Applicant says that the Officer exceeded his jurisdiction because he applied a designation under s. 35(1)(b) of IRPA that was made under the former Immigration Act. Since the coming into force of IRPA the Applicant says that the former designation under the Immigration Act is no longer valid and the transitional regulations do not deal with the matter.

[85]            The Respondent directs the Courts attention to various transitional regulations that could cover the situation and to s. 44 of the Interpretation Act.

[86]            There is no specific provision that refer's directly to a ministerial designation under the Interpretation Act and this matter does not appear to have received authoritative attention. My review of Regulation 317(2) (which refers to the continuing validity of a "document") and s. 44 of the Immigration Act suggests that a ministerial designation of the kind at issue in this case is carried forward and retains its validity under IRPA.

[87]            However, in the absence of an authoritative decision in this regard, it appears to me that it does give rise to a question of general importance that would be determinative in this case. Consequently, I agree with the Applicant that a question should be certified on this issue.

[88]            The Applicant also suggests that a question should be certified dealing with the issue of whether written notification of an allegation under s. 35(1)(b) of IRPA should be provided to a person applying for a visa in the context of a family sponsorship. In my view, the law on this matter is already quite clear.

ORDER

THIS COURT ORDERS that:

1.          The Application is dismissed.

2.          The following question is certified:

Does a ministerial designation made under sub-section 19(1)(l) of the former Immigration Act continue to be valid and applicable for the purposes of sub-section 35(1)(b) of IRPA or is the Minister required to re-designate under IRPA?

"James Russell"

JFC

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET:                                           IMM-1145-03

STYLE OF CAUSE:                           MOHAMMAD ZAHIR ZAHERI    v. MCI

DATE OF HEARING:                        August 6, 2003

PLACE OF HEARING:                      Toronto, Ontario.

REASONS FOR ORDER BY:          Justice James Russell

DATED:                                              MARCH 25, 2004

APPEARANCES BY:

Mr. Michael Crane

                                                                               For the Applicant

Ms. Sally Thomas

                                                                          For the Respondent

SOLICITORS OF RECORD:

Mr. Michael Crane

Barrister & Solicitor

Toronto, Ontario

                                                                    FOR THE APPLICANT

Department of Justice

Toronto, Ontario                                    FOR THE RESPONDENT

FEDERAL COURT OF CANADA

       Date: 20031229

           Docket: IMM-358-03

BETWEEN:

STEVEN ROMANS

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                       Respondent

REASONS FOR ORDER