Date: 20090731
Docket: IMM-4953-08
Citation: 2009 FC 759
Montréal,
Quebec, July 31, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
MOHAMMED
HUSSEIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This
is an application for judicial review brought by Mohammed Hussein pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), of the decision of the First
Secretary of the Canadian Embassy in Damascus (First Secretary), dated June 8,
2008, denying Mr. Hussein’s application for a permanent resident visa in the spouse
in Canada class, on the grounds of inadmissibility to Canada given the position
he held in the Iraqi government led at the time by Saddam Hussein.
II. Facts
[2]
The
applicant is an Iraqi citizen. His wife, Worood Nasralla, is applying to
sponsor him as a member of the spouse or common-law partner class.
[3]
After
reviewing his file, the First Secretary concluded that the applicant was
subject to paragraph 35(1)(b) of the Act, and was therefore
inadmissible and, for this reason, dismissed his application.
[4]
More
specifically, it would appear that the applicant held the position of a
high-ranking legal advisor in Saddam Hussein’s government between 1996 and 2003,
during which time this same government committed gross human rights violations
and crimes against humanity.
III. Issue
[5]
Is
the First Secretary’s finding that the applicant is inadmissible to Canada
erroneous or unreasonable with regard to the facts and the law and does it
warrant the intervention of the Court?
IV. Analysis
A. Standard
of review
[6]
The
issue involves the interpretation of the Act and its application to the facts. The
question is therefore one of mixed fact and law; the applicable standard of
review is therefore reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9).
Judicial deference is required.
B. Statutory
framework
[7]
Paragraph
35(1)(b) and subsection 35(2) of the Act read as follows:
|
Human or
international rights violations
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
|
Atteinte aux droits
humains ou internationaux
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;
|
|
[…]
|
[…]
|
|
Exception
(2) 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.
|
Exception
(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.
|
|
[Emphasis added.]
|
[Je souligne.]
|
[8]
Section
16 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR),
defines the expression ‘‘prescribed senior official in the service of a
government’’ for the purposes of paragraph 35(1)(b) of the Act as
follows:
|
Application of par. 35(1)(b) of the Act
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
|
Application de l’alinéa 35(1)b) de la
Loi
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) 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.]
|
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.
[Je
souligne.]
|
[9]
The
applicant contends that the First Secretary erred in law because the grounds
relied on by him are unreasonable, since they are not, in the applicant’s view,
based on the evidence.
[10]
Paragraph
35(1)(b) is relevant where the government concerned has been designated,
as is the case here, as a regime that was 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.
[11]
It so
happens that the Iraqi governments of Ahmed Hassan Al-Bakr and Saddam Hussein,
in power since 1968, are on the list of regimes designated by the Minister, on
September 3, 1996, as having committed crimes, most notably by committing gross
human rights violations.
[12]
According
to the information provided by the applicant with his application for a
permanent resident visa, he acted as senior advisor and official for the seven
years during which he served in Saddam Hussein’s government. He made no
reference to any attempt on his part to dissociate himself from the regime, nor
did he ever offer his resignation, despite having had every opportunity to do
so.
[13]
The
positions he held were all senior, according to the organizational chart
included with the information submitted to the First Secretary: Counselor, Legal
and Consular Affairs – Iraqi Permanent Mission
to the UN in Geneva, 1996-1998; Counselor, Legal
Advisor – Legal Department, Ministry of Foreign Affairs, Baghdad,
1998-2001; Counselor and acting Charge d’Affairs – Iraqi Embassy, Madrid,
Spain, 2001-2003.
[14]
In
Canada (Minister of Citizenship and Immigration) v. Adam, [2001] 2 F.C. 337 (F.C.A), after having reviewed the
former paragraph 19(1)l of the Act, which was then in force and whose
wording is nearly identical to that of the current paragraph 35(1)(b), the
Federal Court of Appeal ruled that, when a person has held one of the positions
listed in section 16 of the IRPR, that person is presumed to have held a
position in which he or she was able to exert a significant influence on the
exercise of government power. The Court further concluded that the presumption
enacted by the former paragraph 19(1)l of the Act was irrebuttable, so
that the person deemed to have held a senior position does not have the
opportunity to demonstrate that, even though he or she in theory had high-level
responsibilities, he or she was not able to exert any influence on the exercise
of government power.
[15]
The
Court had already been called upon to interpret paragraph 35(1)(b) of
the Act in Lutfi v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1391; after having cited Adam
(above), Justice Harrington, writing for the Court, made the following
observations:
Mr. Lutfi did not personally by word or
deed engage in such atrocities. The question is whether he has the status of a
prescribed senior official. If he does, any personal lack of blameworthiness is
simply not relevant […].
[Emphasis added.]
[16]
It
must be concluded from these decisions and from the very wording of the Act that
paragraph 35(1)(b) enshrines an absolute liability: with respect to the
issue of inadmissibility, it matters little whether the person in question was
complicit in or aware of the violations allegedly committed by the government
of the country of origin.
[17]
The
applicant merely insists that he had no knowledge of the acts committed by the
regime for which he worked and relies almost exclusively on case law relative
to those cases of exclusion on grounds of complicity in crimes against
humanity. However, even if this ignorance is proven to be true, he still falls
within the provisions of paragraph 35(1)(b) of the Act governing
the inadmissibility of members of governments responsible for gross human rights
violations, as well as their senior advisors and senior members of the public
service.
[18]
The
applicant can scarcely claim he was merely a subordinate official. Given the
importance of his position within Saddam Hussein’s regime, it is not
unreasonable to conclude that he could not have been unaware of the crimes
committed by the regime. Since he indicates that he never took steps to resign
from his position or oppose the crimes of the government in which he served, it
is not unreasonable to conclude, until proven otherwise, that he was complicit
with the government with respect to crimes committed under its authority, even
if the impugned decision in this proceeding does not refer to them.
[19]
Consequently,
the impugned decision was justified, both in terms of the facts and applicable
law. This decision was therefore reasonable. The application for judicial
review must be dismissed.
[20]
No
serious question of general importance was proposed or merits being proposed;
accordingly, no question will be certified.
JUDGMENT
FOR THESE REASONS, THE
COURT:
DISMISSES the
application for judicial review.
‘‘Maurice E. Lagacé’’
Certified
true translation
Sebastian
Desbarats, Translator
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