Date: 20101118
Docket: IMM-4866-09
Citation: 2010 FC 1157
Ottawa, Ontario, November
18, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
NADA YOUNIS and
ANMAR MOHAMAD NOURI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an applicant pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a refusal
letter of the Second Secretary - Immigration (the officer) of the Canadian
Embassy in Damascus, Syria, refusing the applicants’ application for permanent
residence on the grounds that Anmar Mohamad-Nouri (the male applicant) is
inadmissible to Canada pursuant to paragraph 35(1)(b) of the Act. The decision
was based on the officer’s determination that there were reasonable grounds to
believe that the male applicant was a senior member of the Iraqi Army during
Saddam Hussein’s regime.
[2]
The
applicants seek an order setting aside the decision of the officer and an order
directing that a different panel review and assess the applicants’ application
for permanent residence in Canada.
Background
[3]
During the period of the male applicant’s military service, 1983
to 1996, the Iraqi military was designated as a regime which, in the opinion of
the respondent Minister, has engaged in gross human rights violations and other
crimes. Having been a prescribed senior official in the service of that
military would render a foreign national inadmissible to Canada pursuant
to paragraph 35(1)(b) of the Act.
[4]
The Canadian Embassy in Syria that processed
the application, noticed the male applicant’s declared military service in the
Iraqi Army and on December 16, 2008, sent a note to the applicants requesting
that the male applicant complete a Details of Military Service form. Correspondence
ensued in which the applicants were specifically advised of the officer’s
concerns regarding the male applicant’s tenure in the Iraqi Army and were given
opportunities to provide information and address those concerns.
[5]
The male applicant’s submission to the Canadian Embassy was that
he was merely an engineer with the army and while he may have moved up in rank
to the position of lieutenant colonel, was never involved in any type of
combat. He worked in the electro mechanical directorate from July 1983 to
September 1989 and in the computer directorate from October 1989 to September
1996.
[6]
On
February 26, 2009, Canada Border Services Agency (CBSA) provided a report to
the officer which outlined the relevant law, standard of proof, policy and the
application of paragraph 35(1)(b) to the male applicant. The recommendation was
that the male applicant be found inadmissible. Based on the evidence, the male
applicant’s rank of lieutenant colonel was clearly
within the top half of the Iraqi Army, being the sixth-highest rank out of
fifteen.
[7]
The Canadian Embassy sent two more notes to the applicants
requesting details regarding the organizational chart of the Iraqi Army
indicating the male applicant’s placement.
[8]
On May 26, 2009, the officer provided a fairness letter indicating
that there were reasonable grounds to believe that the male applicant was a
member of the inadmissible class of persons described in paragraph 35(1)(b) of
the Act. In the officer’s opinion, the organizational charts supplied by the
male applicant confirmed that he was in the top half of the organization and
that his position was six positions removed from General Saddam Hussein.
[9]
The male applicant submitted in reply that within the Iraqi Army,
positions of responsibility were classified into three classes: A, B and C. The
positions the male applicant occupied fell within the C class which included
commanders and officers who were running support services and other backup directorates.
He reiterated that he had nothing to do with any combat activities. The male
applicant also submitted that he was not loyal to Hussein’s regime and in fact
that he was forced to retire from the military. His family also secretly
opposed the regime and even had members in the opposition forces.
[10]
On July 23, 2009, the officer rendered her final determination
refusing the application. After considering all of the information on file, the
officer was still not satisfied that the rank or positions held by the male
applicant were not senior ones. Despite the submissions that his positions were
merely support, service or backup in nature, the officer was not satisfied that
the positions he held were not positions of significant responsibility.
Issue
[11]
Was
the officer’s decision reasonable?
Relevant Legislation and
the Standard of Review
[12]
Paragraph 35(1)(b) of the Act provides:
|
35.(1) A
permanent resident or a foreign national is inadmissible on grounds of
violating human or international rights for
. . .
(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
|
35.(1)
Emportent interdiction de territoire pour atteinte aux droits humains ou
internationaux les faits suivants :
. .
.
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;
|
[13]
It is not
in dispute that the government of Iraq under Ahmad Hassn Al-Bakr and later
under Saddam Hussein between 1968 and May 22, 2003, is designated as a regime
that, in the opinion of the Minister of Citizenship and Immigration, engaged in
systematic or gross human rights violations and other such crimes.
[14]
Defining senior
official for the application of section 35 of the Act, section 16 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations)
provides:
|
16. 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.
|
16.
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.
|
[15]
The standard of proof required is set out in section 33 of the
Act:
|
33. The facts
that constitute inadmissibility under sections 34 to 37 include facts arising
from omissions and, unless otherwise provided, include facts for which there
are reasonable grounds to believe that they have occurred, are occurring or
may occur.
|
33.
Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf
disposition contraire, appréciés sur la base de motifs raisonnables de croire
qu’ils sont survenus, surviennent ou peuvent survenir.
|
[16]
It was for the officer to determine whether
there were reasonable grounds to believe that the male applicant’s military
service constituted service as a senior official. This Court has held that
following the Supreme Court’s decision in Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190 and this Court’s previous jurisprudence, the
applicable standard of review governing a visa officer’s decision relating to paragraph
35(1)(b) of the Act is reasonableness (see Yahie v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1319, 78 Imm. L.R. (3d) 91 at
paragraph 21).
Written Submissions of
the Parties
[17]
The
applicants submit that the decision was unreasonable because the officer failed
to follow the respondent’s enforcement manual, “ENF 18: War Crimes and Crimes
against Humanity” (ENF 18) in making her decision. In particular, the officer
failed to consult with the modern war crimes section of the CBSA as cautioned
by section 8.4 of ENF 18. The officer also erred by failing to refer to section
16 of the Regulations and by doing so, failed to examine the male applicant’s
degree of influence or the benefits he derived from his position as required in
order to determine if an individual is a senior official. The officer erred
further by concluding that positions within the top half of the Iraqi Army were
considered senior positions without providing any analysis of why such a
conclusion was reached. The applicants finally raise the issue that the officer
did not have adequate information before her on the Iraqi Army to make a
conclusive determination regarding the male applicant’s level of seniority.
[18]
The
respondent submits that the decision was reasonable and that there was no error
in not referring to the manual specifically. The officer followed the procedure
in ENF 18. Indeed, it is ENF 18 which states, “If it can be demonstrated that
the position is in the top half of the organization, the position can be
considered senior”. The officer then continued to follow the procedure in ENF
18 and even went beyond by affording the male applicant three opportunities to
demonstrate that his position was not senior. The officer was not required by
ENF 18 to consult the modern war crimes section because the male applicant was
described in subsection 16(e) of the Regulations. Contrary to the applicants’
suggestion, the officer did consider the male applicant’s degree of influence.
The officer noted the male applicant’s movement within his 12 year tenure to
positions of increasing responsibility. Finally, the information the male
applicant provided confirmed that he was in the top half of the Iraqi Army and
accordingly, could be considered senior.
Analysis and Decision
[19]
Issue
1
Was the
officer’s decision reasonable?
Because of the standard of
review, the decision will be deemed reviewable and remedial action considered
if the decision is found to be unreasonable. The Supreme Court in Dunsmuir
above, held that on a reasonableness review, the Court should inquire into the
qualities that make a decision reasonable and to consider the decision as a
whole. Reasonableness is primarily concerned with the existence of
justification, transparency and intelligibility in the decision making process,
but is also concerned with the end result and whether that result falls within
the range of possible, acceptable outcomes (at paragraph 47).
[20]
The
applicants point to several perceived errors in the decision or decision making
process. I will now turn to analyze those perceived errors individually. The
next step will be to assess the decision on the whole and determine if an
established error or errors so severely impugn the merits of the decision that
it ought to be interfered with.
[21]
The
applicants’ first claim is that the officer failed to consult with the modern war
crimes section of the CBSA as cautioned by section 8.4 of ENF 18. In my view,
there was no error here. Section 8.4 of ENF 18 in relevant part provides:
Before considering the refusal of an
applicant whose position is not listed in R16, officers are requested to
consult with RZTW.
Therefore, the manual only requests that officers
consult with RZTW, the modern war crimes section, if the individual’s position
is not listed in section 16 of the Regulations. Although the particular
subsection was not cited, it is clear that in the officer’s view, the male applicant’s
position fell within subsection16(e) “senior members of the military and of the
intelligence and internal security services”.
[22]
The
applicants then argue that it was a reviewable error that the officer did not
refer to section 16 of the Regulations in her decision. Section 16 is important
as its opening sets out the only legislative direction for the qualities that senior
officials should have. It provides that persons should be considered senior
when, by virtue of the position they hold or held, they are able to exert
significant influence on the exercise of government power or are able to
benefit from their position. The two key words are influence and benefit. What
I take to be the essence of the applicants’ argument is not the officer’s
failure to reference section 16 per se, but the officer’s failure to
conduct an analysis of the male applicant’s ability to influence the Iraqi
government or to have benefited from his position.
[23]
However,
the case law implies that such analysis is not required. Indeed, section 16
appears to do away with the need to conduct such analysis with the words “…by
virtue of the position they hold or held…”. This puts the focus on the individual’s
rank in the organization and to a degree, leaves influence and or benefit to be
simply assumed by operation of law if the individual is found to have held a
high enough position.
[24]
The
cases the applicants rely on turn on whether the officer properly conducted an
analysis of the individual’s comparative rank within the organization. In Lutfi
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1391, 52 Imm. L.R. (3d) 99, the
decision was ruled unreasonable because the officer made a factual error in
considering the applicant to have been a colonel when he was only a lieutenant
colonel in the Iraqi Army and also because the officer failed to consider the
scheme of rankings in the Iraqi Army and approximately how many individuals
were in each position.
[25]
The
number of individuals in positions above and below the male applicant have
proved to be a significant consideration due to section 8.2 of ENF 18, which
provides that when considering military personnel, “…If it can be demonstrated
that the position is in the top half of the organization, the position can be
considered senior”. While this guideline would disqualify a great many number
of individuals in an organization such as the Iraqi Army of the 1980s and 1990s,
this Court repeated implied approval of its use by immigration officers. In Hamidi
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 333, 53 Imm. L.R. (3d) 150, Madam
Justice Judith Snider quoted from section 8.2 of ENF 18 and the decision was
ruled unreasonable because the officer failed to collect a military service table
for the former Marxist regime of Afghanistan that would allow the officer to
appropriately consider the applicant’s rank therein. The officer simply assumed
that the rank of colonel was senior (at paragraph 30).
[26]
Use
of the top half indicator was also cited with apparent approval in other cases
(see Nezam v. Canada (Minister of
Citizenship and Immigration), 2005 FC 446, 272 F.T.R. 9 (Eng.) at
paragraph 26 and Holway v. Canada (Minister of
Citizenship and Immigration), 2006 FC 309, 146 A.C.W.S. (3d) 697 at
paragraph 33).
[27]
In
the present case, the officer appears to have followed the guidelines by first
satisfying herself that the government concerned has been designated by the
Minister. Second, the officer satisfied herself that the male applicant had
held the position of lieutenant colonel by his own admission. Third, the
officer considered the male applicant’s ranking in the Iraqi Army by gathering
operational charts of the army with the approximate number of positions at each
level. The male applicant’s position was six positions removed from Saddam
Hussein and the sixth highest rank in the Army out of 15 total ranks. It was
also considered that while there were 5,400 lieutenant colonels in the Army, the
entire army was approximately 1.4 million strong. This gave the officer the
evidentiary background to conclude that the male applicant was in the top half
of the Iraqi Army. Section 8.2 of ENF, the use of which has been approved by
this Court, allowed the officer to rely on this finding to find that the male
applicant’s position was senior. The officer however, continued and also
considered the male applicant’s relatively long tenure of 12 years and his
promotions to positions of increasing responsibility to further buttress her
opinion that he had been senior.
[28]
While
the male applicant argued vigorously that his position was administrative or
academic in nature and that he had no involvement in any combat, such arguments
were correctly discarded by the officer. The Federal Court of Appeal has
determined that personal lack of blameworthiness is simply not relevant to whether
one is inadmissible under paragraph 19(1)(l) of the former Immigration Act,
R.S.C. 1985, c. I-2, now paragraph 35(1)(b) of the Act (see Canada (Minister
of Citizenship and Immigration) v. Adam, [2001] 2 F.C. 337). As has been
repeatedly affirmed, the inquiry under paragraph 35(1)(b) of the Act is not about
complicity in prohibited acts but whether a position held is senior (see Ismail
v. Canada (Minister of Citizenship and Immigration), 2006 FC 987, 150
A.C.W.S. (3d) 890 at paragraph 18). It has been likened to an absolute
liability provision.
[29]
The
applicants finally raise the issue that the officer did not have adequate
information before her on the Iraqi Army to make a conclusive determination
regarding the male applicant’s level of seniority. I would note here that the
officer is not required to be sure and indeed, cannot always obtain accurate
historical information regarding some regimes. The standard of proof as set out
in section 33 of the Act, only requires that the officer have reasonable
grounds for believing the disqualifying situation to be true. The Court in Chiau
v. Canada (Minister of
Citizenship and Immigration), [1998] 2 F.C. 642, [1998] F.C.J. No. 131,
(T.D.) held that reasonable grounds ‘is more than a flimsy suspicion, but less
than the civil test of balance of probabilities... It is a bona fide
belief in a serious possibility based on credible evidence.” In the present case,
the officer gathered evidence identifying the male applicant’s position and
duties, as well as information regarding the Iraqi Army as a whole and involved
the male applicant in the information gathering process. I cannot require that
the officer ought to have done more or gathered more.
[30]
The
evidence objectively points to a position somewhere in the top half of the Iraqi-Army.
The officer came to the conclusion that the male applicant held a position that
was senior. The officer’s decision “falls within a range of possible acceptable
outcomes which are defensible in respect of the facts and law” (see Dunsmuir
above, at paragraph 47). As a result, I cannot say that the officer’s
conclusions were unreasonable. Hence, the Court should not interfere. Moreover,
the officer supported her decision by demonstrating that the position was
senior under the guidelines by providing support for her conclusion that it was
in the top half of the army and that his position had significant
responsibilities.
[31]
While
the Court in Lutfi above, allowed judicial review regarding an
individual of the same rank and within the same organization, the case does not
set a precedent favourable to the male applicant. To the extent that the errors
in the decision making process identified in Lutfi above, were not made
by the officer in this case, the case is not applicable.
[32]
As
a result, the application for judicial review must be dismissed.
[33]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[34]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
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