Docket: IMM-157-16
Citation:
2016 FC 723
Ottawa, Ontario, June 24, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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HANI TAWFIQ
SHAKI AL-NAIB
(AKA HANI
TAWFIQ SHAKIR AL-NAIB)
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Proceeding
[1]
This application for judicial review, brought
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] seeks to set aside the December 22, 2015 decision of the
Immigration Division [ID] of the Immigration and Refugee Board of Canada. In
that decision the ID found the Minister of Public Safety and Emergency Preparedness [Minister] met its burden in establishing that the applicant is inadmissible
to Canada on the basis that he was, pursuant to paragraph 35(1)(b) of the IRPA
and paragraph 16(f) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [IRPR] a “prescribed senior official”
in the Al-Bakr and Saddam Hussein government in Iraq. That government had been
designated by the Minister as being engaged in international crimes as
described at paragraph 35(1)(b) between 1968 and May 22, 2003.
[2]
The application is denied for the reasons that
follow.
II.
Background
[3]
Hani Tawfiq Shaki Al-Naib, the applicant, is a
citizen of Iraq born in 1934. He was employed by the Iraqi government, first in
the Iraqi Ministry of Foreign Affairs mostly as a diplomatic official from 1955
to 1978 often working in various embassies and then from 1978 until his
retirement in 1983, at the Ministry of Trade. His employment history is not in
dispute.
[4]
While serving with the Ministry of Foreign
Affairs, Mr. Al-Naib was the Charge d’ Affaires ad interim in Nairobi, Kenya from
February to May 1974, and he was Charge d’ Affaires ad interim in Bonn, West
Germany from June to November 1976. In that capacity the applicant was in
charge of the embassy in the ambassador’s absence, but did not have the full authority
of an ambassador. Instead the applicant operated the embassy pending the
ambassador’s return.
[5]
On September 9, 2004 the Minister issued a
declaration that the Iraqi governments of Al-Bakr and Saddam Hussein, in power
from 1968 to May 22, 2003 in Iraq are regimes described in paragraph 35(1)(b)
of the IRPA.
[6]
The applicant arrived in Canada in March, 2015
at Sarnia, Ontario and made a refugee claim. The Minister of Citizenship and
Immigration prepared a subsection 44(1) report expressing the opinion that the
applicant is inadmissible to Canada pursuant to paragraph 35(1)(b) of the IRPA leading
to the applicant’s referral for an admissibility hearing under subsection 44(2)
of the IRPA.
III.
ID Decision
[7]
In its December 22, 2015 decision the ID notes
that the applicant’s work as a diplomat and as a Ministry of Trade official for
a regime designated under paragraph 35(1)(b) of the IRPA, was not in dispute.
The only issue was whether he was a prescribed senior official of that regime.
[8]
The ID found that unlike some positions
described in section 16 of the IRPR, the “senior members
of the public service” position description (paragraph 16(d)) and the “senior diplomatic officials” position description (paragraph
16(f)) rely on general terminology that requires analysis beyond a simple
consideration of the applicant’s position title.
[9]
After considering the applicant’s management
responsibilities, duties and role within the Ministry of Trade including the
hierarchy in which he was employed, the ID concluded he was never a “senior” Ministry of Trade Official for the purpose of
paragraph 16(d) of the IRPR. The ID reached this conclusion while recognizing
that the applicant did interact with individuals having significant influence
on government power.
[10]
The ID concluded that the applicant was a senior
diplomatic official pursuant to paragraph 16(f) of the IRPR. The ID noted that
the applicant had on two occasions acted as the senior Iraqi diplomatic
official in Nairobi, Kenya and subsequently in Bonn, West Germany. The ID
recognized that as Charge d’Affaires ad interim, the applicant did not exercise
the full authority of an ambassador and the role was limited to managing
embassy operations, but in this role he was the top diplomatic official when
the ambassador was absent and the second ranking official when the ambassador
was present.
[11]
The ID noted that the applicant described the
Bonn embassy as “a huge embassy” and concluded
that the applicant had: (1) managed a large diplomatic mission; (2) maintained
a prominent role upon the ambassador’s return as an advisor; (3) that he was
the second most authoritative diplomat at a large embassy; and (4) that he was
clearly a senior diplomatic official within the meaning of paragraph 16(f) of
the IRPR.
[12]
Having reached this conclusion the ID relied
upon Justice Lagacé’s decision in Hussein v Canada (Minister of Citizenship
and Immigration), 2009 FC 759 at para 14 [Hussein] to hold that
where one is found to be a person described in section 16 of the IRPR this
creates an “irrebuttable” presumption of
significant influence on the exercise of government power.
IV.
Issues and Analysis
A.
Position of the Parties
[13]
The applicant submits the ID committed a
reviewable error in interpreting paragraph 35(1)(b) of the IRPA. The applicant
argues that the unanimous Supreme Court of Canada decision in Ezokola v
Canada (Minister of Citizenship and Immigration), [2013] 2 S.C.R. 678 [Ezokola]
impacts upon how the ID should have interpreted paragraph 35(1)(b).
Specifically the applicant argues that there was a need for the ID to consider
whether the applicant had personally engaged in or was complicit in war crimes,
crimes against humanity, or other crimes described in section 35(1)(b), of the
IRPA. Restricting the analysis to the nature of the applicant’s position within
the regime, as the ID did, was not sufficient.
[14]
The applicant further argues that the ID’s
decision was unreasonable as the ID did not undertake an analysis of the
evidence to determine if the applicant’s position allowed him to exert
significant influence on the exercise of government power. The applicant
submits that the evidence demonstrates he was nothing more than a public
servant performing non-political and non-partisan duties.
[15]
The respondent submits that the sole issue in
dispute was whether the applicant was a prescribed senior official under
paragraph 35(1)(b), specifically a senior diplomatic official under paragraph
16(f) of the IRPR and that the ID reasonably determined that he was. The
evidence demonstrated the applicant’s position as the number two official at an
embassy after the ambassador, placing him in the top half of an organization
and therefore he was a senior diplomatic official. The respondent further
submits that once the applicant was determined to be an individual described in
paragraph 16(f) of the IRPR the ID concluded that this established an
irrebuttable presumption that the applicant held a position where he was able
to exert significant influence on the exercise of government power.
[16]
The respondent argues that the principles in Ezokola
are not engaged in the paragraph 35(1)(b) context, an issue that has been
previously considered and determined by this Court. Ezokola interprets
the Refugee Convention as it relates to one’s actions in the context of the
commission of serious international crimes, as does paragraph 35(1)(a) of the
IRPA. Paragraph 35(1)(b) on the other hand considers one’s status in a
designated regime.
B.
Issues
[17]
The application raises the following issues:
A.
What is the applicable standard of review: and
B.
Did the ID reasonably determine the Applicant
was a prescribed individual under paragraph 35(1)(b) of the IRPA? Answering
this question requires determining if the Supreme Court of Canada’s decision in
Ezokola applies to the paragraph 35(1)(b) context.
(1)
Standard of Review
[18]
The applicant submits that the issues raised
engage questions of statutory interpretation requiring an understanding of
criminal law and international human rights law attracting a correctness
standard of review. The respondent submits that the decision of inadmissibility
should be reviewed against the standard of reasonableness.
[19]
The question of the appropriate standard of
review to be applied by this Court when reviewing a decision made pursuant to
paragraph 35(1)(b) of the IRPA was recently considered by Justice Simon
Fothergill in Al-Ani v Canada (Minister of Citizenship and Immigration),
2016 FC 30 [Al-Ani] where he states at paragraph 11:
[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).
[20]
I am in agreement with Justice Fothergill, and
will review the decision on a reasonableness standard, recognizing that the
range of reasonable outcomes may be narrow.
(2)
Does Ezokola Apply to the Interpretation
of Paragraph 35(1)(b)?
[21]
In considering and interpreting paragraph
35(1)(b) of the IRPA, this Court, relying on the decision of the Federal Court
of Appeal in Canada (Minister of Citizenship and Immigration) v Adam,
[2001] FCJ No 25, 266 NR 92 (CA) [Adam] has described the provision as
enshrining “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” (Hussein at paras 14, 16). The
applicant argues that Ezokola has substantially changed the law in this
regard, submitting that Ezakola requires that a complicity analysis be
undertaken before one can conclude an individual is a “senior
diplomatic official” as that term is used in paragraph 16(f) of the
IRPR. I respectfully disagree.
[22]
In Kanagendren v Canada (Minister of
Citizenship and Immigration), 2015 FCA 86, 382 DLR (4th) 562 [Kanagendren],
the Federal Court of Appeal engaged in a detailed statutory interpretation of
paragraph 34(1)(f) of the IRPA in response to an argument that is similar to
that being advanced by the applicant in this case. The Federal Court of Appeal read
subsection 34(1) against subsection 35(1) of the IRPA, specifically paragraph
34(1)(f) against paragraph 35(1)(a) and concluded that there is a distinction
between those provisions arising from (1) inadmissibility based on one’s
actions that may attract criminal liability and where complicity is therefore
relevant as a mode of commission of the offence under paragraph 35(1)(a); and (2)
one’s status, membership in an organization, where complicity is not relevant
to the question of membership under paragraph 34(1)(f) (Kanagendren at
paras 20-22).
[23]
This same distinction is evident when comparing
paragraphs 35(1)(a) and 35(1)(b) of the IRPA. Paragraph 35(1)(a) speaks to an
applicant’s “committing an act…that constitutes an
offence referred to in sections 4 to 7 of the Crimes against Humanity and
War Crimes Act” complicity is relevant as it is a mode of commission
of the crimes described. Paragraph 35(1)(b), on the other hand, speaks to a
person’s status as “being a prescribed senior official
in the service of a government…”
[24]
Nothing in the language of paragraph 35(1)(b) of
the IRPA or in paragraph 16(f) of the IRPR contemplates the requirement for a
complicity analysis in the context of determining if an individual is a senior
diplomatic official in the service of a designated government; “These concepts cannot be read into the language used by
Parliament” (Kanagendren at para 22).
[25]
My view in this regard is neither new nor novel.
This argument has been considered in two prior cases where my colleagues
Justice Camp and Justice Fothergill have come to similar conclusions (Tareen
v Canada (Minister of Citizenship and Immigration), 2015 FC 1260 at
paras 36-40 and Al-Ani at paras 17-20). The applicant was unable to
point to any precedent to the contrary but rather urged that the Court view the
matter differently. I have not been so persuaded.
(3)
Was the Decision Reasonable
[26]
In light of my finding above I am satisfied that:
(1) there was sufficient evidence upon which the ID could reasonably conclude
that the applicant was a senior diplomatic official in the service of a
designated government under paragraphs 35(1)(b) of the IRPA and 16(f) of the
IRPR; and (2) having reached that conclusion, the ID reasonably relied on Hussein
to determine no further analysis was needed on the question of significant
influence.
[27]
The ID did not simply
consider the applicant’s evidence of being the Charge d’Affairs ad interim in
reaching this conclusion. Rather the ID noted that the applicant’s position as Charge
d’Affaires ad interim was evidence of his prominent role. The applicant’s
evidence further established his position in the organizational hierarchy, he
was second in command at the embassies and he ran the embassies when the appointed
ambassadors were not present. Similarly the applicant’s evidence was to the
effect that the ambassadors in Kenya and West Germany were political
appointments who relied on the applicant as an advisor. There was ample
evidence available to allow the ID to reasonably conclude that the applicant
was not a low level diplomat but rather held a senior position within the
Ministry of Foreign Affairs.
[28]
The applicant points to evidence before the ID
indicating that a Charge d’Affaires is the lowest rank of diplomatic
representative recognized under the Vienna Convention of Diplomatic Relations
(1961) and therefore cannot be a senior diplomatic official. Again I
respectfully disagree. As noted by the ID, paragraph 16(f) of the IRPR “does not require one to be the most senior diplomatic
official at an embassy…It casts a wider net and includes those who can be
reasonably determined to have been senior diplomats.”
[29]
As Justice Fothergill did in Al-Ani at
paragraph 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.”
V.
Certified Question
[30]
The applicant has advanced the following
question for certification:
Does the Ezokola decision of the Supreme
Court of Canada change the requirements for assessing inadmissibility under
paragraph 35(1)(b) of the IRPA?
[31]
The Federal Court of Appeal has set out the test
for certification of issues for the purposes of an appeal under paragraph 74(d)
of the IRPA on a number of occasions (Zazai v Canada (Minister of
Citizenship and Immigration), 2004 FCA 89 at paras 10-12, 36 Imm LR (3d)
167; Zhang v Canada (Minister of Citizenship and Immigration), 2013 FCA
168 at para 9, 28 Imm LR (4th) 231). These authorities establish that this
Court may certify a question under paragraph 74(d) only where it (1) is
dispositive of the appeal and (2) transcends the interests of the immediate
parties to the litigation, as well as contemplate issues of broad significance
or general importance. Furthermore, the question must arise from the case
itself.
[32]
I take the same view as Justice Fothergill did
in Al-Ani at paragraph 22 that in this case the legal issues raised and
considered have been addressed by the Federal Court of Appeal in Adam
and in other decisions of this Court that were consistent with Adam. In
the circumstances I am not satisfied that the proposed question engages issues
of broad significance or general importance. I therefore decline to certify the
proposed question.
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