Docket: IMM-3608-23
Citation: 2024 FC 1985
Ottawa, Ontario, December 6, 2024
PRESENT: The Honourable Justice Fuhrer
BETWEEN: |
Ghulam Haidar WAHAB |
Applicant |
and |
MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Mr. Wahab is an 85-year-old citizen of Afghanistan. He served in the Afghan National Army as a medical doctor and orthopaedic specialist from 1965 until 1992 when he retired. During his service, he achieved the rank of Colonel.
[2] Mr. Wahab left Afghanistan in August 2021, fleeing the Taliban because of his prior work as a medical doctor in the military. Having been issued a temporary resident permit as an airlifted national of Afghanistan, he subsequently applied for Canadian permanent residency.
[3] The Immigration Division [ID] of the Immigration and Refugee Board of Canada determined that Mr. Wahab was inadmissible [Decision] pursuant to paragraph 35(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and section 16 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR]. See Annex “A”
for applicable legislative provisions.
[4] Noting the applicable standard of proof of “reasonable grounds to believe”
as set out in section 33 of the IRPA, the ID concluded that Mr. Wahab was a prescribed senior official in the service of designated regime (i.e. the Marxist regimes of Afghanistan, 1978-1992) that engaged in systematic or gross human rights violations. Specifically, the ID found that Mr. Wahab was a senior member of the military per paragraph 16(e) of the IRPR. The ID applied the “top-half test”
resulting in the following irrebuttable presumption. If a person’s rank is (or was) within the top half of the military hierarchy, then they are deemed a “senior member of the military”
who, by virtue of the position they hold, is able to exert significant influence on the exercise of government power or to benefit from their position.
[5] Mr. Wahab challenges the Decision, alleging unreasonableness. He argues that the top-half test, as applied, is unreasonable because it is based solely on whether there are nominally more ranks below than above the rank held by the person. The ID must consider, posits Mr. Wahab, whether his rank actually places him in the top half of the applicable hierarchy. Mr. Wahab’s submissions are premised on Canada’s international obligations regarding refoulement. He relies, in this regard, on the recent decision of the Supreme Court of Canada in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 [Mason].
[6] The Minster responds that the Decision is reasonable, arguing that the top-half test is inline with pre-existing jurisprudence and, further, the prohibition on refoulement is engaged during the process of removal, not on the delineation of inadmissibility grounds.
[7] At the Court’s invitation, both parties made post-hearing submissions on the recent decision of Canada (Public Safety and Emergency Preparedness) v Weldemariam, 2024 FCA 69 [Weldemariam].
[8] The sole issue before the Court is the reasonableness of the Decision. More granularly, did the ID reasonably interpret and apply paragraph 35(1)(b) of the IRPA and paragraph 16(e) of the IRPR?
[9] I find that none of the situations that could displace the presumptive reasonableness standard of review arises in the matter before me: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 17. A reasonable decision is one that exhibits the hallmarks of justification, transparency and intelligibility, and is justified in the context of the applicable factual and legal constraints: Vavilov, above at para 99. International law may operate as an important legal constraint, particularly within the immigration context: Mason, above at para 72.
[10] I find that the Applicant has met his burden of showing that the Decision is unreasonable (Vavilov, at para 100) because the ID did not consider Canada’s international obligations concerning non-refoulement. For the more detailed reasons that follow, the judicial review application will be granted and the Decision set aside, with the matter to be reconsidered by a different panel.
II. Analysis
[11] The outcome of this judicial review is predicated on jurisprudence that post-dates the Decision, notably Mason and Weldemariam. Mr. Wahab conceded, through his counsel, at the hearing of this matter, that a superficial reading of applicable case law decided before Mason appears to support the Decision. I will turn briefly to that jurisprudence which pertains to the top-half test, followed by a summary of the relevant findings in Mason and Weldemariam and a consideration of the parties’ arguments on the implications of these two cases.
(1) Top-half test case law prior to Mason
[12] I propose to consider only two cases on the test: Canada (Citizenship and Immigration) v Kassab, 2020 FCA 10 [Kassab]; and Damte v Canada (Citizenship and Immigration), 2023 FC 58 [Damte].
[13] Kassab is an oft-cited decision in the context of paragraph 35(1)(b) of the IRPA and section 16 of the IRPR. It describes the top-half test in some detail and addresses head-on whether the presumption of significant influence on the exercise of government power that applies to an enumerated position in section 16 of the IRPR is rebuttable. The Federal Court of Appeal finds that it is not.
[14] In so concluding, the Kassab court refers to the decision in Canada (Minister of Citizenship and Immigration) v Adam, 2001 CanLII 22027 (FCA) [Adam], which considers “substantially similar”
(Kassab, at para 24) predecessor provisions, namely, paragraph 19(1)(l) and subsection 19(1.1) of the Immigration Act, RSC, 1985, c I-2. The majority in Adam agreed with the court below that paragraph 19(1)(l) does not contain a rebuttable presumption. The Kassab court (at paras 27-29) faults the Federal Court for failing to follow Adam insofar as all (as opposed to some of) the enumerated positions are concerned. In other words, at the time Kassab was decided, Adam was still good law, binding jurisprudence on this Court as well as on administrative decision makers, and applied to the successor provisions, paragraph 35(1)(b) of the IRPA and section 16 of the IRPR.
[15] According to Kassab (at para 32), the top-half test relates to the guidance contained in Chapter 18 of the Operational Manual issued by the former Citizenship and Immigration Canada. The Manual instructs that “to establish that the person’s position was senior, the position should be related to the hierarchy in which the functionary operates. … If it can be demonstrated that the person is in the top half of the organization, the position can be considered senior.”
[16] Further, the Kassab court observes (at paras 33-36) that there was pre-existing jurisprudence of the Federal Court in which it applied the top-half test without any further contextual analysis (underlining added). In other words, it was contrary to the doctrine of judicial comity and an error of law for the Federal Court (i.e. in 2018 FC 1215) to fail to refer to the prior, conflicting decisions and fail to give cogent reasons to support the conclusion that the prior jurisprudence was wrong.
[17] This Court was prepared to accept in Damte (at para 31) that the top-half test might be overly broad in some circumstances and that a different demarcation point might be reasonable in some circumstances. I am unaware whether Justice Gleeson, in Damte, was presented with and was commenting on situations where the person did not fall neatly within an enumerated position, as this Court faced in Vanovac v Canada (Public Safety and Emergency Preparedness), 2024 FC 148 [Vanovac FC]; appeal dismissed 2024 FCA 148 [Vanovac FCA]. The latter circumstance permits flexibility in examining, under section 16 of the IRPR, the person’s ability to exert influence on the exercise of government power or to benefit from their position. Otherwise, Kassab is categorical, in my view, that further contextual analysis is not required regarding the application of the top-half test if the person’s position was an enumerated one. This results, in my view, in the apparently anomalous treatment regarding positions that do not fall squarely within an enumerated one in that the irrebuttable presumption does not apply to a non-enumerated position.
[18] Regardless, the Court in Damte nonetheless finds that the applicant’s rank of lieutenant colonel, which was fifth from the top of what the ID found to be a hierarchy of 18 ranks, falls well within the top half of the Ethiopian Air Force rank structure. The Court thus concludes (at para 35) that the ID’s interpretation of paragraph 35(1)(b) of the IRPA and paragraph 16(e) of the IRPR was reasonable, as was its reliance on the top-half test. In other words, the Court’s comments in Damte about the possibility of moving the line of demarcation are obiter, in my view.
(2) Relevant findings in Mason and Weldemariam
[19] This brings me next to the decisions in Mason and Weldemariam. Following a brief discussion of key findings in these cases, I explain why in my view they have a bearing on the outcome of this matter, with reference to the parties’ submissions about the decisions.
[20] The Supreme Court teaches in Mason (at para 117) that, with regard to the overarching interpretive principle in paragraph 3(3)(f) of the IRPA, the statute must be construed and applied in compliance with international human rights instruments to which Canada is a signatory. These instruments include the Refugee Convention which thus is a constraint on the interpretation of the IRPA.
[21] As noted in Mason (at para 108), “Article 33(1) enshrines the principle of non-refoulement, … which, generally, prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations.”
Further, Article 33(2) provides a limited exception (to the non-refoulement principle) that permits certain persons to be removed in exceptional circumstances, namely, where there are reasonable grounds to consider the person as a danger to the security of the country in which they are, or when the person is convicted of a serious crime and is a danger to the community of that country. In addition, Article 42 of the Refugee Convention prohibits ratifying states from making reservations to the non-refoulement principles of Article 33.
[22] With these constraints in mind, the Supreme Court finds (at para 109 of Mason) that the Immigration Appeal Division [IAD]’s interpretation of paragraph 34(1)(e) of the IRPA permits a foreign national found inadmissible to Canada to be subject to refoulement contrary to Article 33(1) of the Refugee Convention. The Supreme Court’s finding is premised on shortcomings in the so-called “safety valves”
or discretionary exemptions from the application of the general ineligibility rules under the IRPA described in para 110 of Mason, citing Canadian Council for Refugees v Canada (Citizenship and Immigration), 2023 SCC 17 at paras 43-48.
[23] Significantly, the Supreme Court observes (at para 115 of Mason) that the constraint imposed by the Refugee Convention applies irrespective of whether the foreign national who is the subject of a deportation order is a refugee claimant (underlining added). Further, the Supreme Court describes the IAD’s failure to consider the principle of non-refoulement as a crucial omission, as opposed to a minor aspect of interpretive context (at para 117 of Mason, citing Vavilov, at para 122).
[24] A question that arises in the case before me is whether the teachings in Mason extend beyond paragraph 34(1)(e) to other inadmissibility provisions under the IRPA. Weldemariam suggests that it does; hence, the Court’s invitation to the parties here to make post-hearing submissions in writing on the implications of the latter decision for the matter at hand.
[25] Weldemariam involves an inadmissibility determination by the ID on the basis of paragraph 34(1)(a) of the IRPA. Referring extensively to the findings in Mason, the Weldemariam court finds (at paras 64-65) that the crucial omission of overlooking the principle of non-refoulement is a sufficient basis on which to uphold the Federal Court’s decision (2020 FC 631) to set aside the at-issue ID decision. The Federal Court of Appeal continues in Weldemariam (at paras 80-81) to instruct that where the interests of an affected individual involve harsh consequences, such as potential removal to a country with a risk of persecution, responsive justification requires that a decision’s reasons reflect what is at stake and explain why that decision best reflects Parliament’s intent.
[26] I pause to add that I am not persuaded by the Minister’s submissions regarding the applicability to the matter before me of this Court’s decision in Fituri v Canada (Citizenship and Immigration), 2024 FC 502. There, the Court seemingly discounted (at para 17) the applicability of Mason because it concerned paragraph 34(1)(e) of the IRPA, as opposed to paragraph 34(1)(b) that was in issue in Fituri. I note, however, that the Fituri court did not have the benefit of the Weldemariam decision which issued ten days after the decision in Fituri.
(3) Parties’ positions regarding Mason and Weldemariam
[27] As I understand it, Mr. Wahab relies on Mason (at para 117) to argue that the ID must consider the principle of non-refoulement in its interpretation of paragraph 35(1)(b) of the IRPA and section 16 of the IRPR, and whether the interpretation is inconsistent with non-refoulement. There is no dispute that the ID simply did not do this when it applied the top-half test. The parties disagree about whether it was obligated to consider non-refoulement in concluding that Mr. Wahab was inadmissible under paragraph 35(1)(b) of the IRPA and that, accordingly, he was issued a deportation order under paragraph 229(1)(b) of the IRPR.
[28] Although Mason concerns the IAD’s interpretation of paragraph 34(1)(e) of the IRPA, Mr. Wahab further contends that Weldemariam stands for the proposition that an interpretation consistent with the principle of non-refoulement is required wherever the inadmissibility at issue effectively sanctions refoulement (i.e. in a manner contrary to Article 33(1) of the Refugee Convention). In support, Mr. Wahab points to paras 64-65 of Weldemariam where, in the context of inadmissibility under paragraph 34(1)(a), the Federal Court of Appeal concludes that the ID’s decision in that case must be set aside for essentially the same reasons as in Mason, citing paras 108 and 117 of the latter decision.
[29] The Minister argues that sections 34 and 35 of the IRPA have distinct purposes. While I do not disagree necessarily, central to both Mason and Weldemariam, however, is the sufficiency of the discretionary “safety valves”
against the backdrop of paragraph 3(3)(f) of the IRPA and Article 33 of the Refugee Convention.
[30] The Minister also argues that Mason does not change the analysis and application of paragraph 35(1)(b), nor does it displace the Federal Court of Appeal decision in Kassab. Notwithstanding the observation in para 15 of Vanovac FC (about the Federal Court of Appeal decision in Kassab) on which the Minister relies in its submissions, there were no submissions before the Court in Vanovac FC regarding the Supreme Court decision in Mason, nor does it appear on the face of the Vanovac FCA decision that Mason or Weldemariam were argued before or considered by the Federal Court of Appeal. Here, however, there were submissions at the hearing on Mason and there were post-hearing submissions on Weldemariam.
[31] The Minister submits further that, per Kassab (at para 51), paragraph 35(1)(b) casts a broad net “to avoid the evidentiary challenges posed by having to establish that any particular individual has or had influence on the exercise of government power.”
Again, while I do not disagree necessarily, I note that the enumerated positions in section 16 of the IRPR are prefaced with the non-limiting language “includes.”
[32] Thus, pursuant to currently applicable jurisprudence, section 16 of the IRPR contemplates evidence by persons who do not fall into an enumerated position to show whether they are not or were not able to exert significant influence on government power or to obtain a benefit by virtue of their non-enumerated position. Whether these seemingly anomalous treatments could or should change to be consistent in the context of the application of the non-refoulement principle to interpreting paragraph 35(1)(b), or otherwise, is not an issue presently before the Court.
[33] Regardless, the ID applied the top-half test to determine that Mr. Wahab was a senior member of the military (i.e. a Colonel in the Afghan National Army), giving rise to the irrebuttable presumption, under paragraph 16(e) of the IRPR described in Adam and Kassab, and resulting in the inadmissibility determination (i.e. of being a prescribed senior official) under paragraph 35(1)(b) of the IRPA. In reaching this determination, the ID did not consider non-refoulement.
[34] While Mason was concerned with 34(1)(e) of the IRPA, Weldemariam extended the application of Mason to paragraph 34(1)(a) of the IRPA. Although the matter presently before me is concerned with paragraph 35(1)(b) of the IRPA, the latter suffers from the same “safety valve”
insufficiencies that pertain to paragraphs 34(1)(e) and 34(1)(a), as noted by the Supreme Court and the Federal Court of Appeal respectively. For example, there is no refugee claim here and, therefore, Mr. Wahab cannot apply for permanent residence on humanitarian and compassionate grounds. Further, and as a consequence of there being no refugee claim, Mr. Wahab is entitled to only a limited pre-removal risk assessment that does not consider his risk under section 96 of the IRPA, which is the kind of risk specified in Article 33(1) of the Refugee Convention (as noted at para 110 of Mason).
[35] Although Ministerial relief may be available under section 42.1 of the IRPA after this Court adjudicates the matter, this discretionary relief does not detract from the same kind of concern expressed in Mason (at para 110), that the ID’s interpretation of paragraph 35(1)(b), as a general rule, would permit a deportation order without protection from refoulement, contrary to Article 33(1) of the Refugee Convention. In my view, the decision in Mason is a clear signal that the non-refoulement principle must be considered at the time the applicable legislation is interpreted and the deportation order is issued, contrary to the Minister’s position in the matter before me.
[36] I add that the Minister submits section 7 of the Charter need only be considered at the time of deportation or removal from Canada. While I do not disagree necessarily, read holistically, Mason guides, and Weldemariam reinforces, that the principle of non-refoulement must be considered at the point where the decision maker interprets paragraphs 34(1)(e) and 34(1)(a) of the IRPA, resulting in inadmissibility and the issuance of a deportation order. I agree with Mr. Wahab that what happens at the time of execution of the deportation order (in this case under paragraph 35(1)(b) of the IRPA), as opposed to the time of the order’s issuance, is a different issue.
[37] Because the ID here did not consider non-refoulement in its interpretation of 35(1)(b) in the context of Mr. Wahab’s circumstances resulting in the issuance of a deportation order, I find that the Decision was unreasonable. In my view, the Decision does not reflect what was at stake for Mr. Wahab. Because of the ID’s inadmissibility determination under paragraph 35(1)(b) of the IRPA and 16 of the IRPR, Mr. Wahab now is on a path to deportation to a country in respect of which the ID did not consider the non-refoulement principle and Mr. Wahab’s risk of persecution, further to paragraph 3(3)(f) of the IRPA and Article 33(1) of the Refugee Convention. In other words, the ID’s interpretation of paragraph 35(1)(b) of the IRPA and section 16 of the IRPR failed to consider the significant legal constraint imposed by paragraph 3(3)(f) of the IRPA that the IRPA operate in conformity with Canada’s international human rights obligations: Weldemariam, above at paras 81-82. This is unreasonable.
[38] The Minister submits that there may be circumstances where non-refoulement does not apply, such as where the person concerned is outside Canada which could be the case where subsection 35(1) is implicated. Be that as it may, that is not Mr. Wahab’s situation, given that he is in Canada on a temporary resident permit, and it will fall to the ID to consider in other circumstances. It is not the Court’s role on this judicial review to opine on how the application of the non-refoulement principle may affect the top-half test and its application. Rather, it is for the parties to argue and the ID to consider and decide on redetermination.
III. Conclusion
[39] For the above reasons, the judicial review application will be granted. The Decision will be set aside and the matter will be remitted to a different panel for reconsideration, taking Mason and the principle of non-refoulement into account. Accordingly, the new panel is to provide the parties with an opportunity to make additional submissions about this issue.
IV. Proposed Question for Certification
[40] In its post-hearing submissions, the Minister proposed the following question for certification:
When determining if a person is a prescribed senior official under paragraph 35(1)(b) of the IRPA, is the decision-maker required to examine the principle of non-refoulement under Article 33 of the Refugee Convention at the admissibility stage?
[41] Mr. Wabab submits that the question has been addressed definitively in Mason and Weldemariam and, therefore, need not be certified. I disagree.
[42] Mason and Weldemariam dealt with different provisions under the IRPA and different grounds of inadmissibility. Here, Mr. Wahab draws a parallel or analogizes the applicability of these decisions on the basis of the same insufficiency of “safety valves”
in respect of paragraphs 34(1)(e) and 34(1)(a) of the IRPA respectively, as in the case of 35(1)(b). In other words, Mason and Weldemariam did not deal with the issue definitively, as Mr. Wahab argues.
[43] In my view, the proposed question is serious, dispositive, transcends the parties’ interests, raises an issue of general importance, and arises from the case dealt with by this Court: Vanovac FC, above at paras 28-29. I thus determine that the question meets the test for certification under paragraph 74(d) of the IRPA and rule 18 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22. The proposed question therefore will be certified.
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