Docket: IMM-2722-15
Citation:
2016 FC 30
Toronto, Ontario, February 10,
2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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FAISAL
ABDULHALEEM ALI AL-ANI
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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AMENDED JUDGMENT AND REASONS
I.
Introduction
[1]
Faisal Abdulhaleem Ali Al-Ani has brought an
application for judicial review pursuant to s 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision by the Immigration
Division of the Immigration and Refugee Board [the Board]. The Board
found him to be inadmissible to Canada pursuant to s 35(1)(b) of the
IRPA because he was a “prescribed senior official”
in Saddam Hussein’s government in Iraq. This regime has been designated by the
Minister of Citizenship and Immigration [the Minister] as one that has engaged
in gross human rights violations and other international crimes.
[2]
Mr. Al-Ani argues that, despite his rank of
Brigadier General, he was not a “senior member of the
military” within the meaning of s 16(e) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 [Regulations] because he did
not “exert significant influence on the exercise of
government power.” However, this Court’s jurisprudence is clear that
once an individual is found to be a prescribed senior official in the service
of a designated regime, no analysis of their ability to exert influence over
the exercise of government power is required. Mr. Al-Ani has not persuaded me
that this jurisprudence is wrong in law, and accordingly his application for
judicial review must be dismissed.
II.
Background
[3]
Mr. Al-Ani is 82 years old and a citizen of
Iraq. He served in the Iraqi military from 1954 to 1978. He began his military
career as a Second Lieutenant in 1954, and was promoted to First Lieutenant a
few years later. In 1962, Mr. Al-Ani was promoted to the rank of Captain, then
Major, and then Lieutenant Colonel as the commander of the Third Battalion of
the Iraqi Infantry, where he was responsible for training members of the
battalion and the safekeeping of weaponry. In 1974, he was promoted to the rank
of Colonel while he was an instructor at a military college and a staff
college. From 1976 to 1978, he was the Manager of the Air Force Administration
in the General Inspectorate. In 1978, the year he retired, he was promoted to
the rank of Brigadier General. During his career, he was asked to join Saddam
Hussein’s Ba’ath Party, but refused. At a time when non-Baathist members were
being purged from the military, Mr. Al-Ani was forced to retire or was
temporarily released.
[4]
While Mr. Al-Ani was still serving in the Iraqi
military, the Iraqi government was designated pursuant to Appendix 4:
Regimes Designated Pursuant to Paragraph 35(1)(b) of the Immigration and
Refugee Protection Act as a regime which, in the opinion of the Minister,
had engaged in gross human rights violations and other international crimes.
[5]
Mr. Al-Ani fled Iraq in 2006 because he feared
persecution as a Sunni Muslim with a past association to the former military
regime of Saddam Hussein. Mr. Al-Ani arrived in Canada in October 2013, and
made a claim for refugee protection in February 2014. The determination of his
refugee claim was held in abeyance pending his admissibility hearing.
III.
The Board’s Decision
[6]
In a decision dated May 26, 2015, the Board
determined that Mr. Al-Ani was inadmissible to Canada as a prescribed senior
official in Saddam Hussein’s government in Iraq. Pursuant to s 35(1)(b)
of the IRPA, a foreign national is inadmissible to Canada if they are found to
be a prescribed senior official in the service of a government that, in the
opinion of the Minister, has engaged in terrorism, systematic or gross human
rights violations, or genocide, a war crime, or crimes against humanity within
the meaning of ss 6(3) to (5) of the Crimes Against Humanity and War Crimes
Act, SC 2000, c 24.
[7]
The Board applied s 16 of the
Regulations, which states that “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.” The Board also relied on s 8.2 of Citizenship and
Immigration Canada’s Immigration Manual, Chapter ENF 18: War Crimes
and Crimes against Humanity [ENF 18], which states that a position may be
considered “senior” if the position falls within
the “top half” of the organization.
[8]
The Board accepted that Mr. Al-Ani was
unable to exert significant influence over the exercise of government power
during his service in Saddam Hussein’s regime. However, the Board nevertheless
found that Mr. Al-Ani was a prescribed senior official within the meaning of
the Regulations because his position of Brigadier General fell within the “top-half” of the Iraqi military structure. Based on
this Court’s decisions in Younis v Canada (Minister of Citizenship and
Immigration), 2010 FC 1157 [Younis], Habeeb v Canada (Minister of
Citizenship and Immigration), 2011 FC 253 and Ismail v Canada (Minister of
Citizenship and Immigration), 2006 FC 987 [Ismail], the Board
concluded that Mr. Al-Ani’s inability to exert significant influence over the
exercise of government power was inconsequential for the purpose of determining
whether he met the definition of “prescribed senior
official” pursuant to s 16 of the Regulations. The Board therefore
declared him to be inadmissible to Canada pursuant to s 35(1)(b) of the
IRPA.
IV.
Issues
[9]
This application for judicial review raises the
following issues:
A.
What is the applicable standard of review?
B.
Was the Board’s determination that Mr.
Al-Ani is inadmissible to Canada pursuant to s 35(1)(b) of the IRPA as a
prescribed senior official in a designated regime reasonable?
V.
Analysis
A.
What is the applicable standard of review?
[10]
According to Mr. Al-Ani, the Board’s interpretation
of the phrase “senior member of the military” in
s 16(e) of the Regulations should be reviewed by this Court against the
standard of correctness because it involves a question of statutory
interpretation. In the alternative, Mr. Al-Ani submits that the range of
possible, acceptable outcomes should be narrow. The Minister says that the Board’s
finding of inadmissibility is reviewable against the standard of
reasonableness.
[11]
The question of whether Mr. Al-Ani is a senior
member of a designated government pursuant to s 35(1)(b) of the IRPA and
s 16 of the Regulations falls squarely within the Board’s expertise and
involves questions of mixed fact and law that are reviewable against the
standard of reasonableness (Tareen v Canada (Minister of Citizenship and
Immigration), 2015 FC 1260 at para 15 [Tareen], citing Kojic v
Canada (Minister of Citizenship and Immigration), 2015 FC 816). Moreover,
there is a presumption that the reasonableness standard applies where a tribunal
is interpreting its home statute (Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 34).
However, I agree with Mr. Al-Ani that, since the Board was engaged in
statutory interpretation, the range of reasonable outcomes may be narrow (Canada
(Attorney General) v Canadian Human Rights Commission, 2013 FCA 75 at para
14; B010 v Canada (Minister of Citizenship and Immigration), 2013 FCA 87
at para 72).
B.
Was the Board’s determination that Mr.
Al-Ani is inadmissible to Canada pursuant to s 35(1)(b) of the IRPA as a
prescribed senior official in a designated regime reasonable?
[12]
Pursuant to s 33 of the IRPA, the Board must
have “reasonable grounds to believe” that an
individual held a senior position in the service of a designated regime.
Pursuant to s 16 of the Regulations, a “prescribed
senior official” is a person who, by virtue of the position they held,
was able to exert significant influence on the exercise of government power, or
was able to benefit from their position. In Ismail at para 18, Justice
Phelan found that an applicant who held the rank of Brigadier General in the
Iraqi military was a senior official within the meaning of s 16 of the
Regulations, even though the position was administrative and non-combative.
[13]
Mr. Al-Ani acknowledges that he rose through the
ranks of the military from 1954 to 1978, and was ultimately promoted to
Brigadier General. The Minister asserts that Mr. Al-Ani’s position was four
levels below the position held by Saddam Hussein. This is confirmed by country
condition reports that describe the hierarchy of the Iraqi military. Mr. Al-Ani
does not dispute that he held a position in the “top
half” of the organization.
[14]
Mr. Al-Ani challenges the Board’s reliance
on a “top-half” analysis to determine whether he
held a senior position. However, this Court has approved the use of a “top-half” analysis in numerous decisions (see Younis
at para 25, citing Hamidi v Canada (Minister of Citizenship and Immigration),
2006 FC 333).
[15]
In Adam v Canada (Minister of Citizenship and
Immigration), [2001] 2 FC 337 at para 7, [2001] FCJ No 25 [Adam],
the Federal Court of Appeal ruled that where a person has held one of the
positions listed in s 16 of the Regulations, that person is presumed to have
been able to exert significant influence on the exercise of government power,
and this presumption cannot be rebutted with evidence that the person did not
in fact exert such influence. Building on Adam, this Court has likened s
35(1)(b) of the IRPA to an “absolute liability
provision,” noting that if a person has the status of a prescribed
senior official, it “matters little” whether
they were complicit in the violations allegedly committed by the designated
regime (Hussein v Canada (Minister of Citizenship and Immigration), 2009
FC 759 at para 16).
[16]
Mr. Al-Ani says that the Supreme Court of
Canada’s reasoning in Ezokola v Canada (Minister of Citizenship and
Immigration), 2013 SCC 40 [Ezokola], which significantly changed the
law of complicity for international crimes, should affect the interpretation of
“senior member of the military” in s 16 of the
Regulations. According to Mr. Al-Ani, the Board’s finding that he was
inadmissible solely because his rank was in the top half of the Iraqi military
structure is akin to a finding of guilt by association. In Ezokola, the
Supreme Court of Canada rejected “a concept of
complicity that leaves any room for guilt by association or passive
acquiescence” (Ezokola at para 81).
[17]
The Minister argues that Ezokola is
distinguishable because it involved an inquiry into the specific actions taken
by a claimant in order to determine his eligibility for refugee status. Here,
we are concerned with a person’s status, not his actions. The Minister says
that the determination of whether an individual is a “prescribed
senior official” in a designated regime is analogous to a determination
of whether an individual is a “member” of an
organization engaged in terrorism. The Minister relies on Kanagendren v
Canada (Minister of Citizenship and Immigration), 2015 FCA 86 [Kanagendren],
in which the Federal Court of Appeal held that Ezokola did not alter the
proposition that complicity in an offence is irrelevant to a determination of
membership in a terrorist organization under s 34(1)(f) of the IRPA. Mr.
Al-Ani responds that s 35(1)(b) of the IRPA and s 16 of the Regulations
are distinct from s 34(1)(f), because they are concerned with the
ability of the individual to exert significant influence over the exercise of
government power.
[18]
The Board found Mr. Al-Ani’s arguments to
be “compelling and logical.” However, this Court
has repeatedly found that the inquiry under s 35(1)(b) of the IRPA is
not concerned with complicity in prohibited acts, but only with whether an
individual held a senior position in a designated regime (Younis at para
28, citing Ismail). In Younis at paras 23-24, Justice O’Keefe
found that the words “by virtue of their position”
in s 16 of the Regulations places the focus on an applicant’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.”
[19]
Moreover, this Court recently rejected the
argument that Ezokola should affect the interpretation of s 35(1)(b)
of the IRPA. In Tareen, the applicant argued that a visa officer wrongly
found him to be inadmissible as a senior member of the Taliban in Afghanistan
because the officer failed to analyze whether, by virtue of his rank within the
designated regime, he was able to exert significant influence on the exercise
of government power or benefit from his position. Justice Camp found that
Parliament “intended inadmissibility to flow from an
individual’s status rather than an individual’s actions” (Tareen
at para 37), and that intent and personal blameworthiness are irrelevant for
the purposes of inadmissibility under s 35(1)(b) of the IRPA.
[20]
In my view, Ezokola does not permit an
interpretation of s 35(1)(b) of the IRPA and s 16 of the Regulations
that contradicts their plain language. I agree with the Minister that a finding
of inadmissibility under these provisions results from a person’s status, not
his actions. If an individual holds a sufficiently senior position in a
designated regime, then he is presumed to have been able to exert significant
influence on the exercise of government power or to benefit from his position.
The Board’s adherence to precedent was reasonable, and its decision
falls within the range of possible, acceptable outcomes that are defensible in
respect of the facts and law.
[21]
I will end these reasons with the observation
that the degree to which an individual was personally complicit in the
violations committed by a designated regime may be relevant to a request to
apply for permanent residence from within Canada on humanitarian and
compassionate grounds.
VI.
Conclusion
[22]
For the foregoing reasons, the application for
judicial review is dismissed. The legal issues raised in this application have
previously been addressed by the Federal Court of Appeal in Adam and by
numerous decisions of this Court. I therefore decline to certify a question for
appeal.
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