Docket: IMM-4957-16
Citation:
2017 FC 566
Toronto, Ontario, June 9, 2017
PRESENT: The
Honourable Mr. Justice Southcott
|
BETWEEN:
|
|
JOVO BARAC
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review of a
decision of a visa officer [the Officer] dated October 5, 2016, in which the
Officer determined that the Applicant does not meet the requirements for a
temporary resident visa to Canada. Noting that the Applicant had served in the
Bosnian Serb Army [BSA], which had been designated as a regime that has engaged
in serious human rights abuses during the Applicant’s years of service, the
Officer found the Applicant to be inadmissible pursuant to s. 35(1)(b) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. This finding was based on
the Officer’s conclusion that there were reasonable grounds to believe that the
Applicant was a senior member of the military pursuant to s. 16(e) of the Immigration and Refugee Protection Regulations (SOR/2002-227) [IRPR] and a prescribed senior official pursuant to
s. 35(1)(b) of IRPA.
[2]
As explained in more detail below, this
application is dismissed, because I have found that the Officer’s decision was made
in accordance with the jurisprudence of this Court and that there is no basis
for a finding that the decision was unreasonable.
II.
Preliminary Matter
[3]
As a preliminary matter, counsel for the parties
agreed at the hearing of this application that the name of the name of the Respondent
in the style of cause should be changed to “The Minister of Citizenship and
Immigration”. My Judgment below reflects this change and the above style of
cause has been amended accordingly.
III.
Background
[4]
The Applicant, Mr. Jovo Barac, is a citizen of
Bosnia and Herzegovina who applied for a temporary resident visa for Canada on
July 7, 2016. His application outlined his involvement with the military,
including dates of service from 1971-1973 and 1991-1996 with the BSA.
[5]
On June 16, 1993, the BSA was designated a
regime within the meaning of ss. 6(3) to (5) of the Crimes Against Humanity
and War Crimes Act, SC 2000, c 24, for the period of time between March 27,
1992 and October 10, 1996. This designation was extended on August 15, 1997.
[6]
Mr. Barac’s military records were requested by
letter dated July 8, 2016. On August 5, 2016, he provided a notarized copy of
his military booklet issued by the Socialist Federal Republic of Yugoslavia,
which indicated that he held the rank of Captain, First Class, during the
period of designation.
[7]
On September 2, 2016, the Officer received an
admissibility brief from a partner agency [the Admissibility Brief]. The
Officer subsequently sent Mr. Barac a procedural fairness letter, advising that
there were reasonable grounds to believe he was a “senior
member of the military” pursuant to s.16(e) of the IRPR, and a “prescribed senior official” pursuant to s.35(1)(b) of
the IRPA. The Officer asked Mr. Barac for additional information relating to
this issue.
[8]
In response, Mr. Barac provided a chart from the
Canadian Armed Forces showing the military hierarchy in Canada as well as one
from Wikipedia with respect to the Serbian army. He submitted that, in both
hierarchies, Captains are considered junior officers and not in the top half of
the hierarchy. He also described his duties during his military service as
involving procurement of food and gasoline supplies, checking food preparation,
supervising food distribution, clothing, and sleeping equipment, and being in
charge of transportation vehicles and their maintenance. Mr. Barac submitted
that he was not in a position to make any decisions and that, while he
supervised 50 to 100 men, his duties were low level administrative duties,
incompatible with a conclusion that he was a person of high military rank.
IV.
Impugned Decision
[9]
The Officer communicated the subsequent decision
by letter dated October 5, 2016. In that letter, the Officer noted that Mr.
Barac disclosed that he served in the BSA from 1992 to 1996, that the Minister
of Public Safety has designated the Bosnian Serb Government as a regime that
engaged in serious human rights abuses between March 27, 1992 and October 10,
1996, and that Mr. Barac served in the military during the designated regime
period with the rank of Captain, First Class. The Officer found that there were
reasonable grounds to believe that Mr. Barac was a senior member of the
military pursuant to s. 16(a) of the IRPR and a prescribed senior official
pursuant to s. 35(1)(b) of the IRPA.
[10]
The Officer referred to the procedural fairness
letter that was sent to Mr. Barac on September 6, 2016, outlining the Officer’s
concerns related to his service in the BSA, and noted that his submissions in
response were reviewed. The Officer stated that the information provided in
response did not mitigate the Officer’s assessment that Mr. Barac was
inadmissible pursuant to s. 35(1)(b) of the IRPA.
[11]
The reasons for the Officer’s decision are found
not only in the October 5, 2016 letter but also in the notes as recorded in the
Global Case Management System [GCMS]. Those notes provide an overview of Mr.
Barac’s military service and refer to the Admissibility Brief. The notes
indicate that Mr. Barac served with the rank of Captain in the BSA from 1992 to
1996 and that he was in this position during the time that the Bosnian Serb Government
has been found by the Minister of Public Safety to have engaged in serious
human rights abuses. The notes also indicate that Mr. Barac held the rank of Captain,
First Class, which is in the top 50% of military ranks in this force.
[12]
In a subsequent entry, the GCMS notes refer to
Mr. Barac’s response to the procedural fairness letter, in which his lawyer
stated that he was not a senior official during the designated period but
merely a low level administrator, involved in food distribution, clothing
purchases and procurement of gas and oil, but also acknowledged that he
supervised 50 to 100 men. The notes indicate that the Officer found this
explanation to be a self-serving attempt by Mr. Barac to downplay his role in
the military and that his contributions to the armed force in his capacity of
Captain made a significant contribution to the war effort.
[13]
The GCMS notes also refer to Mr. Barac claiming
that the rank of Captain was not in the top 50% of military ranks, based on a
Canadian and Yugoslavian military rankings guide. However, the Officer found
that this guide confirmed that Mr. Barac was in the top 50% of the military, as
a result of which the Officer was satisfied of Mr. Barac’s inadmissibility
under the IRPA and the IRPR.
V.
Issues and Standard of Review
[14]
The issues raised by Mr. Barac in his written
submissions included an argument that the Officer’s failure to disclose the
Admissibility Brief to Mr. Barac, before making the decision, constituted a
breach of procedural fairness. However, at the hearing of this application, Mr.
Barac’s counsel explained that this argument was raised before a copy of the
Admissibility Brief was made available through production of the Certified
Tribunal Record. Having subsequently reviewed this document, Mr. Barac’s
counsel acknowledged that the information contained in the procedural fairness
letter was sufficient for Mr. Barac’s then counsel to know what was required to
be established in response. Mr. Barac’s counsel therefore acknowledged that the
failure to provide a copy of the Admissibility Brief did not rise to the level
of a breach of procedural fairness, and this argument was not pursued at the
hearing.
[15]
The remaining issue articulated by Mr. Barac was
whether the Officer’s reasons are deficient, erroneous, and inadequate,
rendering the decision regarding his inadmissibility to be unreasonable.
[16]
The parties are in agreement on the applicable
standard of review, i.e. that the Officer’s determination that Mr. Barac is
inadmissible pursuant to s.35(1)(b) of the IRPA, including the adequacy of
reasons, is reviewable on a standard of reasonableness (see Mirosavljevic v.
Canada (Minister of Citizenship and Immigration), 2016 FC 439 [Mirosavljevic],
at paras 11-12). I concur with the parties’ position on standard of review.
VI.
Analysis
[17]
In submitting that the Officer’s decision was
unreasonable, Mr. Barac advances two arguments. First, he argues that the
Officer erred in failing to consider the evidence contained in the Yugoslavian
military rankings guide, which placed the various military rankings into
categories, with Captain, First Class placed in a category entitled “Junior Officers or Company Grade Officers.” Indeed,
Mr. Barac notes that there are eight categories and that “Junior Officers or Company Grade Officers” is the
fifth category from the top, meaning that it is in the bottom 50% of the
categories.
[18]
Second, Mr. Barac argues that there was no
evidentiary basis for the Officer’s conclusion that Mr. Barac’s submissions in
response to the procedural fairness letter represented an effort to downplay
his role in the military or that they were self-serving. Mr. Barac also refers
to authorities in which this Court has disapproved of adverse credibility
findings based on characterizations of evidence as self-serving. Mr. Barac
argues that the Officer should have taken into account the evidence of his duties,
which demonstrates that he did not occupy a senior military position.
[19]
My conclusion is that these arguments do not support
a finding that the Officer’s decision was outside the range of acceptable
outcomes, defensible on the facts and the law, so as to constitute an
unreasonable decision. The jurisprudence of this Court is clear that it is not
necessary for a visa officer to analyze the influence or benefit associated
with a person’s military rank. Rather, the focus, in assessing whether a person
is a senior member of the military, is on the individual’s rank in the
organization. The number of individuals in positions above and below the person
is a significant consideration and, if it can be demonstrated that the positon
is in the top half of the organization, the position can be considered senior
(see Younis v Canada (Minister of Citizenship and Immigration), 2010 FC
1157 [Younis], at paras 23-25). As noted at paragraph 26 of Younis,
use of the top half indicator has been cited with approval in other cases (see
Nezam v Canada (Minister of Citizenship and Immigration), 2005 FC 446, at
para 26; Holway v Canada (Minister of Citizenship and Immigration), 2006
FC 309, at para 33).
[20]
In concluding that Mr. Barac’s rank of Captain,
First Class was in the top half of the BSA, the Officer relied on the
information in the Admissibility Brief, that such rank was the eighth highest
out of a total of 21 ranks, as well as the military rankings guide provided by
Mr. Barac, which also showed Captain, First Class in the top half of the ranks.
This approach is consistent with the applicable jurisprudence. The Officer did
not analyse, and does not appear to have had evidence relevant to, the number
of individuals in each rank. Such information was noted in Younis to be
a significant consideration. However, as observed in Mirosavljevic, at
para 24, it is appropriate to assume that the Yugoslavian military is
pyramidal, with more persons in the lower ranks than at the higher ranks.
[21]
Mr. Barac argues that, while the jurisprudence
speaks of performing this analysis by reference to ranks, none of the cases
expressly address the possibility of considering categories of ranks, perhaps
because no evidence of categories was adduced in those cases. He therefore
submits that it was unreasonable for the Officer to have failed to expressly
consider the evidence that the Yugoslavian military rankings guide categorized
Captain, First Class as a junior officer. I cannot conclude that this
represents a reviewable error by the Officer. The analysis approved by the case
law involves assessing whether an individual was in the top half of the
military organization. I would not conclude that such analysis must necessarily
be performed in relation to rank. However, given the analytical significance of
the number of individuals in positions above and below the person, and given
the point identified in Mirosavljevic that it is appropriate to assume
that there are more individuals in the lower ranks in higher ranks, the
analysis performed by the Officer based on rank is consistent with the case law
and represents a decision within the range of acceptable outcomes, defensible on
the facts and the law, and which is therefore reasonable.
[22]
In support of his position that the Officer
erred by failing to into account the evidence as to his duties, which he argues
demonstrates that he did not occupy a senior military position, Mr. Barac refers
to the applicable administrative manual which guides officers in performing
assessments of the sort at issue in the present case. In “ENF 18 War crimes and crimes against humanity”,
section 8.2 provides the following guidance:
In addition to the evidence required, it
must be established that the position the person holds or held is a senior one.
In order to establish that the person’s position was senior, the position
should be related to the hierarchy in which the functionary operates. Copies of
organization charts can be located from the Europa World Year Book,
Encyclopedia of the Third World, Country Reports on Human Rights Practices
(U.S. Department of State) and the Modern War Crimes System (MWCS) database. If
it can be demonstrated that the position is in the top half of the
organization, the position can be considered senior. This can be further
established by evidence of the responsibilities attached to the position and
the type of work actually done or the types of decisions made (if not by the
applicant than by holders of similar positions).
(Emphasis added.)
[23]
Mr. Barac relies on the emphasized sentence in
the above passage. However, taken in context, this sentence does not suggest a
requirement to analyse evidence of responsibilities. Rather, such evidence is a
further means by which the seniority of a position can be assessed. The passage
in section 8.2 indicates that a position can be considered senior if it can be
demonstrated that the position is in the top half of the organization. In other
words, as argued by the Respondent, such a conclusion is determinative. This is
consistent with the case law, as referenced in paragraph 23 of Younis,
that it is not necessary to analyse a person’s influence or benefit in a
military organization, as such is assumed by operation of law if the individual
is found to have held a high enough position.
[24]
I therefore find no error by the Officer in
finding Mr. Barac inadmissible without analysing the evidence of his duties and
responsibilities. Whether the Officer can be faulted for his characterization
of that evidence, as self-serving or downplaying Mr. Barac’s role, is therefore
immaterial and does not take the decision outside the range of acceptable
outcomes.
[25]
Having found no basis to conclude that the Officer’s
decision was unreasonable, this application for judicial review must be
dismissed. Neither party proposed a question for certification for appeal, and
none is stated.
Email this Content