Docket: IMM-4297-15
Citation:
2016 FC 458
Ottawa, Ontario, April 22, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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ANTRANIK SOUREN
MOURAD KRIKOR
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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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JUDGMENT AND REASONS
[1]
The applicant was found inadmissible to apply from
overseas for permanent resident status under the government refugee
resettlement program because his military service rendered him inadmissible to
Canada on grounds of violating human or international rights. He asks the Court
to set aside that decision on procedural fairness and reasonableness grounds.
Background
[2]
In November 2012, the applicant fled Iraq with
his wife to escape alleged ongoing harassment and intimidation by Islamic
extremists. They settled in Amman, Jordan, where they made their refugee
claims. The applicant was interviewed on May 14, 2014, by an officer at the
Canadian Embassy in Jordan.
[3]
On July 20, 2014, the applicant received a
procedural fairness letter from an officer, stating that there were reasonable
grounds to believe that he is a member of the inadmissible class of persons
described in section 35(1)(b) of the Immigration and Refugee Protection Act,
SC 2001, c 27. The letter observed that the applicant had served in the Iraqi
military as a senior officer between May 1982 and December 1988 and that,
during this time, the government of Iraq had engaged in terrorism, systematic
or gross human rights violations, or genocide, a war crime, or a crime against
humanity. The letter went on to state:
By examining where a
person fits into the overall hierarchy of an organization, their position can
be considered senior if it can be demonstrated that the position falls within
the top half of an organization. You stated that at the beginning of this
service period you were a First Lieutenant, then you were promoted to Captain,
and that in 1985 or 1986 you were promoted to Major. When you were discharged
in 1988 you were in Infantry Major. Within the structure of the Iraqi military,
officers holding the rank of Major at the time you served fell within the top
half of the military organization. For this reason, I have reasonable grounds
to believe that you were a senior member of the military in a designated regime.
The officer concluded
the letter by giving the applicant an opportunity to “respond
and demonstrate that your positions were not as a senior member of the Iraqi
military.”
[4]
On August 11, 2014, the applicant responded to
the procedural fairness letter with detailed submissions. The applicant
referred to his affidavit dated August 12, 2014, in which he stated that:
I was not a senior
official in the Iraqi military and I was not in the top half of the Iraqi
military. To my knowledge, there were at least six ranks above mine: (1) First
Lieutenant Colonel, (2) Colonel, (3) Brigadier General, (4) Major General, (5)
Lieutenant General, and (6) Marshal. In contrast, the highest position I ever
reached in the Iraqi military – that of Major – was superior to only four
ranks: (1) infantry, (2) Lieutenant, (3) Second Lieutenant, and (4) First
Lieutenant.
[5]
The applicant’s counsel in her submissions also
noted that he “has not been provided with any
documentation – relied upon by the Canadian Embassy in Jordan – that
establishes that his position as Major was in the top half of the Iraqi
military.” He observed that, “[a]s a result, he
has not had the opportunity to respond to and be heard with regard to the
veracity or reliability of any documentation that may have been relied upon in
finding that he may be a senior official – or in the top half – of the Iraqi
army.”
[6]
The applicant’s application was denied. In the decision,
the officer sets out the relevant legislation and states that:
…from 1966 until 1988 you served in the
military forces of the Government of Iraq. In the opinion of the Minister,
that government engages or has engaged in terrorism, systemic 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.
You were sent a letter in which I outlined
my concern that, as a Major in the Iraqi Military in the 1980s, you are a
person described in section 35(1)(b). You were sent a procedural fairness
letter and given the opportunity to respond to this concern. Your response was
received and carefully reviewed along with all the information presented in
your application, including your oral statements at interview. I still
conclude that there are reasonable grounds to believe that you were a senior member
in a designated regime.
By examining where a person fits into the
overall hierarchy of an organization, their position can be considered senior
if it can be demonstrated that the position falls within the top half of an
organization. You stated that you were promoted to First Lieutenant in 1984,
and that you were promoted to Major in 1986. When you were discharged in 1988
you were an Infantry Major. You have stated that, as a Major, you were not a
senior official in the Iraqi Military because you were not in the top half of
the Iraqi military. However, reliable open source information indicates
that during the period when you served in the military, the Iraqi military
ranks ran from Basic Private (Jundi) up to Marshal (Muhib), and that persons
holding the rank of Major fell within the top half of the military organization.
You have stated that you were conscripted
into the Iraqi military, that your responsibilities and level of influence were
limited relative to more senior officers, and that at the time of your military
service you were not aware of crimes and human rights abuses committed by the
military. While this may be so, section 35(1)(b) of the Act specifically
describes inadmissibility due to being a prescribed senior official in a
designated regime. I conclude that there are reasonable grounds to believe
that you were a senior member of the military in a designated regime. As such,
you are inadmissible to Canada under section 35(1)(b) of the Act. I am
therefore refusing your application. [emphasis added]
[7]
The officer’s notes elaborate on the reasons set
out in the letter. They provide some additional details about the applicant’s
military service, including that as a Major he commanded companies of 300-400
privates while they were being trained in the use of light weapons. The notes
also state that:
Reliable open source material
(http://www.defense.gov/news/Apr2003/pipc10042003.html ) indicates that during
the period of PA’s military service the Iraqi military comprised of ranks
running from Basic Private (Jundi), Private (Jundi Awad), Private First Class,
Corporal (Nalb), Sgt (Arif), 2nd Lt (Mulazzim), 1st Lt (Mulazzim Awad), Captain
(Naqib), Major (Ra’ed), Lt Col (Muqaddam), Col (Aqid), Brigadier Gen (Amid),
Maj Gen (Liwa), Lt Gen (Fariq), Gen (Fariq Awad), and Marshal/Head of Army. In
this structure, and keeping in mind the larger numbers in lower ranks, PA falls
within the top 50% of the military. Lawyer’s statements about PA’s level of
influence and actual activities, awareness of military activities, and refs to
Ezakola and issues of complicity, relate to A35(1)(a), whereas A35(1)(b) is
clearly only concerned with inadmissibility due to being a prescribed senior
official of a designated regime.
[8]
The “reliable open
source material” that the officer refers to is a former United States
Department of Defence web page that contains pictures of a set of “Personality Identification Playing Cards.” The face
and numbered cards in the deck each include details of a different high-profile
official in the Iraqi regime. The Joker cards provide general information for
interpreting the other cards: one is entitled “Arab
Titles” and the other is entitled “Iraqi
Military Ranks.” The officer appears to have used this latter card to
determine the hierarchy in the Iraqi military and, in particular, to conclude
that the applicant, as a Major, was in the top half of that hierarchy.
Issues
[9]
The applicant raises two issues: did the officer
act unfairly by failing to disclose to the applicant documents that were
considered in the admissibility decision; and was the officer’s finding that the
applicant was inadmissible reasonable?
[10]
The parties agree that the first issue, being
one of procedural fairness, is reviewable on a standard of correctness, while
the inadmissibility issue is reviewable on a standard of reasonableness: Tareen
v Canada (Citizenship and Immigration), 2015 FC 1260, 260 ACWS (3d) 563 at
para 15.
Analysis
A.
Procedural Fairness
[11]
The applicant submits that the officer acted
unfairly by determining that the applicant was a senior official in the Iraqi
military by reference to the Joker card issued by the United States Department
of Defense without disclosing that card to him.
[12]
The parties disagree on the level of procedural
protection owed. While the respondent refers to jurisprudence finding that
visa officers should only be required to provide a low level of procedural
protection, the applicant points out that this is not a typical visa case.
Rather, the applicant is applying to come to Canada as a refugee and claims to
fear persecution, and even death, if he is forced to return to Iraq.
[13]
I accept that the officer’s decision in this
case was more important to the applicant than an officer’s decision would
normally be in a non-refugee case and I therefore accept that, according to the
contextual analysis set out by the Supreme Court of Canada in Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] SCJ No.
39, a somewhat higher level of procedural fairness was owed.
[14]
The Minister submits that the officer was not
required to disclose the Joker card to the applicant, or advise him that it was
the basis for his understanding of the Iraqi military structure; rather, it was
sufficient for the officer to state in the procedural fairness letter that:
Within the structure of the Iraqi military,
officers holding the rank of Major at the time you served fell within the top
half of the military organization. For this reason, I have reasonable grounds
to believe that you were a senior member of the military in a designated
regime.
[15]
The applicant points out that the officer’s failure
to disclose the source of his information deprived the applicant of any
opportunity to question the credibility or reliability of that source,
including by pointing out that: (i) the web page depicting the “Personal Identification Playing Cards” is no longer
available on the United States Department of Defense website, (ii) according to
its URL, the web page depicting the cards appears to have been created in
April, 2003, about 15 years after the applicant left the Iraqi military, and
(iii) the rank listed on the applicant’s Military Conscription Book is “Major Reserve rank 20 session 2” and no such rank is
listed on the Joker card (although the rank of Major is).
[16]
In support of his position, the Minister cites Nadarasa
v Canada (Citizenship and Immigration), 2009 FC 1112, [2009] FCJ No. 1350 [Nadarasa].
That case involved an applicant from Sri Lanka who had been found inadmissible
as a result of misrepresentation, and for security reasons. The applicant told
an immigration officer that neither he nor anyone in his family had ever worked
for the Tamil Tigers. However, the applicant’s son told CSIS that he had
worked for the Tamil Tigers. This contradiction (and the source of it) was put
to the applicant in an interview, and he was given an opportunity to respond.
However, he was not shown the report detailing CSIS’s interview with his son.
On judicial review, the applicant claimed that the officer’s failure to
disclose the report was unfair. The Court disagreed.
[17]
Nadarasa at paras
25–27 stands for the proposition that it is not necessary for an officer to
provide an applicant with an extrinsic document that the officer is relying
upon, as long as the information contained within that document is conveyed in
such a manner that the applicant can know and meet the case against him and, in
particular, correct any prejudicial statement that may arise from that document.
The Court in Dasent v Canada (Minister of Citizenship and Immigration),
[1995] 1 FC 720, [1994] FCJ No 1902, which was relied on in Nadarasa,
observed at para 23 that “[t]he relevant point is
whether the applicant had knowledge of the information so that he or she had
the opportunity to correct prejudicial misunderstandings or misstatements.”
Sometimes the knowledge of the information will include the source of that
information. Unlike Nadarasa, the applicant here did not know the
source of the information and was not informed of it.
[18]
Although the applicant was thus put on notice
that it was the placement of his rank within the Iraqi military that he was
required to address, he did not know the basis of the officer’s opinion. Had
it been known to him, then he could have addressed in response to the
procedural fairness letter the validity of the Joker card information vis-à-vis
his particular situation, and in particular, that the information was 15 years
after he completed his military service. In these unique circumstances, I find
that procedural fairness required that the source of the officer’s information
be put to the applicant so that he could respond meaningfully to the officer.
B.
Reasonableness of Inadmissibility Finding
[19]
I do not accept the submission of the applicant
that the officer incorrectly assessed his rank as Major when he was listed at
discharge as Major Reserve rank 20 session 2. The officer in the procedural fairness
letter specifically indicates that the applicant’s rank is Major and the
applicant took no issue with that description at that time. In fact, he and
his counsel use the word ‘Major’ to describe his
rank.
[20]
However, I find the officer’s reliance on the
Joker card to be unreasonable. There is no evidence that the Joker card
depicts the structure of the Iraqi military as of the late 1980s, when the
applicant completed his military service. Indeed, the evidence suggests that
it depicts that structure as of a much later date, sometime around the United
States’ invasion of Iraq in 2003. The officer’s apparent failure to appreciate
this fact may have led him or her to place much more weight on the cards than
they actually deserved. Perhaps there is no objective evidence of the military
structure at the time the applicant served. If so, the officer’s reliance on
the Joker card may have been reasonable, but some statement to that effect, or
effort on the officer’s part to find earlier evidence is required.
[21]
When assessing the impact of the officer’s reliance
on the card, it is important to consider it in light of the applicant’s
affidavit evidence, according to which the rank of Major was not in the top
half of the Iraqi military hierarchy when he served. The applicant’s
credibility and reliably was never explicitly impugned. Had the officer realized
that the cards post-dated the applicant’s military service by several years, he
or she may have accepted the applicant’s sworn evidence about the structure of
the Iraqi military at the time that he served. I therefore conclude that the
officer’s decision was unreasonable.
[22]
The applicant submits that, in cases where the
officer cannot determine whether an applicant falls within any of the
enumerated categories of “prescribed senior official” set out in paragraphs
16(a)-(g) of the Regulations, the officer must apply the residual test
described in the body of section 16, 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:” see for example Kojic v Canada (Citizenship and
Immigration), 2015 FC 816, 256 ACWS (3d) 675. The applicant further
submits that this inquiry involves looking into the applicant’s degree of
complicity in the crimes committed by the designated regime.
[23]
The issue does not arise in the present case
because the officer found that the applicant fell within an enumerated category
of “prescribed senior official,” namely that set out in paragraph 16(e) of the
Regulations: senior members of the military. The question of how to apply the
residual test in the body of section 16 therefore is not engaged.
[24]
For these reasons this application is allowed.
No question was proposed to be certified.
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