Date: 20180409

Docket: IMM-1993-17

Citation: 2018 FC 381

Ottawa, Ontario, April 9, 2018

PRESENT:  The Honourable Mr. Justice Gleeson

JUDGMENT AND REASONS

I.  Overview

[1]  The applicant, Ms. Draginja Sekularac, is a citizen of Serbia. She and her husband were both sponsored for permanent residence in Canada by their daughter.

[2]  The Federal Republic of Yugoslavia [FRY] and the Republic of Serbia were designated by the Minister of Public Safety pursuant to paragraph 35(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] as regimes engaged in war crimes and crimes against humanity between February 1998 and October 2000. During that time Ms. Sekularac’s husband worked for Prva Iskra, a company which manufactures, among other things, explosives.

[3]  Ms. Sekularac was found inadmissible pursuant to paragraph 42(1)(a) of the IRPA. The Officer found that her husband, who held the military rank of Lieutenant-Colonel between February 1998 and March 2000, had been a prescribed senior official in a government that had “engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity” under the IRPA paragraph 35(1)(b).

[4]  Ms. Sekularac brings this application for judicial review stating the decision to deny her permanent resident visa application was based on erroneous findings of fact made in a perverse or capricious manner. She submits that: (1) her husband’s military rank was an honorary rank; (2) he did not occupy a position in the military structure of the Federal Republic of Yugoslavia; (3) with the exception of a period of mandatory military service in 1972 and 1973 where he held the rank of private he was employed as a civilian; (4) he worked for the majority of his career as a mechanical engineer; (5) he was not involved in the manufacture of weapons or explosives; and (6) he was removed from his duties as a director and engineer with the state owned enterprise, Prva Iskra, in 1996 prior to the period of designation.

[5]  The respondent notes that: (1) Ms. Sekularac’s husband held the rank of Lieutenant-Colonel in the Serbian military between 1996 and 2002; (2) he was employed with Prva Iskra; (3) the Prva Iskra website discloses the company’s role in supplying explosives for defence; (4) transcripts of evidence given before the International Criminal Tribunal for the former Yugoslavia [ICTY] include reference to a Lieutenant-Colonel Sekularac and describes him as a military man and director of Prva Iskra. The respondent submits that on the basis of this evidence the Officer reasonably concluded Ms. Sekularac was inadmissible pursuant to paragraph 42(1)(a) of the IRPA as her husband had been a prescribed senior official in a government that had “engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity”.

II.  Preliminary Matter – Style of Cause

[6]  The applicant has named the Minister of Immigration, Refugees and Citizenship as the respondent in this matter. The correct respondent is the Minister of Citizenship and Immigration (Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, s 5(2) and Immigration and Refugee Protection Act, SC 2001, c 27, s4(1)). Accordingly, the respondent in the style of cause is amended to the Minister of Citizenship and Immigration.

III.  Relevant Legislation

[7]  Paragraph 35(1)(b) of the IRPA provides that a senior official of a government that in the Minister’s opinion engages in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity is inadmissible to Canada:

[8]  Section 33 of the IRPA requires that an officer must be satisfied that the facts and evidence establish reasonable grounds to believe an individual is a senior official in order to conclude an individual is inadmissible pursuant to paragraph 35(1)(b):

[9]   Section 16 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR] describes how the term “senior official”, as used in paragraph 35(1)(b) of the IRPA, is to be interpreted:

[10]  Paragraph 42(1)(a) of the IRPA provides that spouses of prescribed senior officials inadmissible under section 34, 35 or 37 of the IRPA are also inadmissible:

[11]  Section 23 of the IRPR further describes the circumstances in which a family member will be inadmissible even if not accompanied by the prescribed senior official:

IV.  Issue

[12]  The sole issue raised in this application is whether the Officer’s decision to deny the applicant’s permanent resident visa application was reasonable.

V.  Standard of Review

[13]  The party’s submit and I agree that inadmissibility determinations under paragraph 35(1)(b) are to be reviewed against a standard of reasonableness (Mirosavljevic v Canada (Citizenship and Immigration), 2016 FC 439 at paras 11-12 [Mirosavljevic]; Barac v Canada (Citizenship and Immigration), 2017 FC 566 at para 16).

VI.  Analysis

[14]  Ms. Sekularac acknowledges that her husband held the military rank of Lieutenant-Colonel in the Federal Republic of Yugoslavia and that he held this rank during the period the Minister had designated the regime as being a regime engaged in war crimes and crimes against humanity.

[15]  The parties do not dispute that the jurisprudence of this Court also establishes that: (1) occupying a position in the top half of the military is sufficient to establish an individual is a “senior member of the military;” and (2) that no analysis of that individual’s ability to influence the government’s exercise of power is required (Mirosavljevic at paras 23-25; Younis v Canada (Citizenship and Immigration), 2010 FC 1157 at paras 23,25 and 26; Ali Al-Ani v Canada (Minister of Citizenship and Immigration), 2016 FC 30 at paras 2, 14 [Ali Al-Ani]).

[16]  In Mirosavljevic, Justice Russel Zinn reviewed the rank structure within the Yugoslav army (Mirosavljevic at para 10). In that case the decision-maker relied on the rank structure alone to conclude the rank of lieutenant-colonel was within the top half of the structure and therefore in the top half of the Yugoslav army. Justice Zinn found, absent any evidence to the contrary, that this was a reasonable interpretation of the IRPA and the IRPR and entitled to deference (Mirosavljevic at paras 24 and 25).

[17]    Ms. Sekularac essentially argues that unlike the situation in Mirosavljevic, there was evidence to the contrary before the Officer and the Officer’s failure to appreciate and consider that evidence renders the decision unreasonable. I am unable to agree.

[18]  Ms. Sekularac’s argument that her husband was in reality a civilian and the rank held was simply an honorary title is not supported by any other evidence on the record. There was no evidence placed before the Officer to show that civilians were given honorary military ranks or promoted on an honorary basis from one rank to another as their civilian careers advanced. As was noted by the Officer there was no explanation “at all [of] the origin of the [translation] “Serbian military tradition” according to which such a high (and/or honorary) rank would be given to a civilian.”  

[19]  In addition to noting the absence of any evidence to support the argument that honorary ranks were part of the FRY military tradition the Officer also notes: (1) the absence of a military service booklet despite an admitted period of military service; (2) Prva Iskra’s primary role as an explosives producer as disclosed through internet research; and (3) the references to a Lieutenant-Colonel Sekularac in ICTY evidentiary transcripts who is described as a military man and director of Prva Iskra.  

[20]  Ms. Sekularac takes no issue with the Officer’s reliance on information found through open source internet searches but does take issue with the conclusions drawn from this information. Ms. Sekularac’s submissions in this regard amount to nothing more than disagreement with the Officer. Mere disagreement with the Officer’s interpretation of the information relating to the role of Prva Iskra or the contents of the ICTY transcripts does not render those interpretations unreasonable. In the circumstances, it was reasonably open to the Officer to conclude that Ms. Sekularac’s husband was a senior official in the FRY regime during the period of designation based on his military rank.

[21]  Having reasonably concluded that Ms. Sekularac’s husband was a senior official in the FRY regime, the position he held with Prva Iskra between February 1998 and March 2000 is of no consequence. As noted above, the 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.” (Ali Al-Ani at para 2).

VII.  Conclusion

[22]  The Officer’s decision is transparent, justified and intelligible and it falls within the range of reasonable possible outcomes based on the facts and the law. The application is dismissed.

[23]  The parties have not identified a question of general importance for certification, and none arises.

JUDGMENT

THIS COURT’S JUDGMENT is that:

1. The application is dismissed.

2. No question is certified.

3. The style of cause is amended to name the Minister of Citizenship and Immigration as the respondent.

"Patrick Gleeson"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: