Citation: 2024 FC 1957
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Ottawa, Ontario, December 4, 2024
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PRESENT: The Honourable Mr. Justice Southcott
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BETWEEN:
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MOHAMED ABDELHAMID AHMED ABDELWAHID
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Applicant |
and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
Overview
[1] This is an application for judicial review of a decision of the Immigration Division [ID] dated June 6, 2023 [the Decision], finding the Applicant inadmissible under paragraphs 34(1)(f) and 34(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], for being a member of an organization that there are reasonable grounds to believe engaged in or instigated the subversion by force of any government.
[2] As explained in further detail below, this application is dismissed, because the Decision is reasonable.
II. Background
[3] The Applicant is a citizen of Egypt who entered Canada in 2018 on a Temporary Resident Visa [TRV] and then claimed refugee protection. In his TRV and refugee protection applications, he stated that he had been a member of the Egyptian military from 1993 to 2017.
[4] The Minister of Public Safety and Emergency Preparedness [the Minister] subsequently initiated admissibility proceedings against the Applicant before the ID, alleging that he was inadmissible for being a member of an organization that there are reasonable grounds to believe engaged in or instigated the subversion by force of any government. This allegation related to the Egyptian military having carried out a coup against the democratically elected government of Egypt in July 2013.
[5] The Applicant responded to this allegation, arguing principally that the Egyptian military was composed of two distinct organizations, one operational and the other administrative, and that he had spent his entire career in the administrative organization. He asserted that only the operational organization of the military was involved in the events of July 2013. The Applicant also raised a preliminary argument before the ID, asserting that the matter of his admissibility was res judicata, because he had previously been issued two TRVs to travel to Canada (the latter of which resulted in the arrival following which he claimed refugee protection) and his TRV applications had disclosed his career with the Egyptian army.
III. Decision under Review
[6] The Minister’s admissibility allegation proceeded to a hearing before the ID on November 3, 2023. At the beginning of the hearing, the ID provided reasons for its rejection of the Applicant’s res judicata argument. Relying on the Federal Court’s decision in Valle Lopes v Canada (Citizenship and Immigration), 2010 FC 403 [Valle Lopes], the ID found that the issuance of a permit and inadmissibility allegations were not determinations of the same issue. The ID also described Valle Lopes as revealing that the issuance of a permit or the granting of status by Immigration, Refugees and Citizenship Canada did not constitute a judicial decision, nor a final one, as required to invoke the res judicata doctrine.
[7] Finally, the ID explained that, even if it were to conclude that the res judicata principle applied, it would decline to apply the principle, in the interests of justice and the objectives of the security of Canadian society, and because there could be new evidence that may not have been available at the time the visa officer issued a TRV.
[8] In its Decision on the merits of the Applicant’s admissibility, the ID noted the Applicant’s testimony that he voluntarily joined the military academy of Egypt in 1993 to become an army officer. After graduating from the academy, he rose through the ranks until 2017 when he became a colonel and retired.
[9] The ID referred to the Applicant’s counsel’s submission that the Applicant’s testimony revealed that the Egyptian military was composed of two distinct parts, one operational and one administrative, and that only the operational organization of the Egyptian army was involved in the events of July 2013. However, the ID noted that the documentary evidence before it did not make a distinction between the operational and administrative components of the Egyptian army that would suggest they formed two organizations. Rather, the army was always referred to without such a distinction. Further, when asked when he joined the armed forces of Egypt, the Applicant had replied that he joined in 1993 without specifying that the armed forces did not form a single organization.
[10] The ID also referenced the Applicant’s declaration that there is one military academy, offering a common course for students in the first two years, and that students were placed in the operational and administrative paths in the third year. The ID concluded that the existence of a single military academy further suggested that the Egyptian military constituted a single organization.
[11] The ID further found that the Egyptian army’s rank insignia that the Applicant had submitted as evidence presented the ranks and insignia for the army’s land forces without distinguishing between the operational and administrative functions.
[12] The ID concluded that it had not been presented with credible and trustworthy evidence supporting the Applicant’s counsel’s claim that the Egyptian army was composed of two distinct organizations, namely an operational Egyptian army and an administrative Egyptian army. Noting counsel’s argument that the Applicant would have had no part in the July 2013 events, given that he had never been involved in operations, the ID referenced case law to the effect that paragraph 34(1)(f) of IRPA requires only that membership be established, not that the relevant individual actively participate in or knowingly support the relevant acts of subversion.
[13] The ID found that there are reasonable grounds to believe that the Applicant was a member of the Egyptian armed forces between 1993 and 2017. The ID then reviewed country condition evidence from which it concluded that there were reasonable grounds to believe that the Egyptian army carried out a coup, which amounted to subversion by force of any government, on July 3, 2013. (This latter finding is not challenged in this application for judicial review.) The ID therefore found the Applicant inadmissible and issued a deportation order against him.
IV. Issues and Standard of Review
[14] The Applicant raises the following issues for the Court’s determination:
- Did the ID reasonably conclude that the matter before it was not res judicata?
- Did the ID reasonably conclude that the Egyptian military was not split into two organizations?
[15] As is implicit in that articulation of the issues, the standard of reasonableness applies (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 16-17).
V. Analysis
A. Did the ID reasonably conclude that the matter before it was not res judicata?
[16] While the ID provided various reasons for rejecting the Applicant’s res judicata arguments, I find determinative its conclusion that the decisions on the Applicant’s TRV applications did not represent judicial decisions. This requirement for invoking the res judicata doctrine is explained in the Valle Lopes decision (upon which the ID relied), which considered arguments that the issue of the applicant’s admissibility was res judicata based on earlier decisions to grant the applicant a minister’s permit and permanent resident status. After noting the applicable requirements (expressed in the context of issue estoppel) as including a final judicial decision said to create the estoppel (Valle Lopes at para 72), the Court held (at para 76):
…neither the Minister’s permit, nor the granting of permanent resident status constituted a judicial decision that was final. Clearly they were not decisions made by a court or even a body resembling a court and thus, they were not judicial decisions.
[17] At the hearing of this application for judicial review, the Applicant acknowledges that the role of a visa officer granting a TRV is different from that of a court or even that of the ID. However, the Applicant submits that the visa officer’s role is nevertheless adjudicative in nature, involving the application of relevant law to the available facts, and therefore satisfies the requirement for a previous judicial decision in order to invoke the res judicata doctrine.
[18] In response, the Respondent has referred the Court to the seminal decision in Danyluk v Ainsworth Technologies Inc, 2001 SCC 44, in which the Supreme Court of Canada explained the judicial nature of a decision required in order to invoke issue estoppel. The Respondent also referred to decisions of the Federal Court, distinguishing visa officers’ decisions from judicial decisions, albeit not in the context of res judicata arguments (Horvat v Canada (Minister of Citizenship and Immigration), 2003 FCT 262 at para 9; Kniazeva v Canada (Minister of Citizenship and Immigration), 2006 FC 268 at para 19).
[19] The Applicant did not reply to the Respondent’s arguments based on these authorities, which the Respondent raised for the first time at the hearing. Moreover, as the Court is conducting a reasonableness review of the ID’s res judicata analysis, it is not the Court’s role to canvas potentially applicable jurisprudence and arrive at a definitive conclusion on the nature of visa officers’ decisions. Rather, the Court is required to assess whether the ID has justified this aspect of its Decision, taking into account the legal and factual constraints upon it (Vavilov at paras 86, 105-107). I find that the ID has done so. Its reliance on Valle Lopes explains and supports its conclusion that the TRV decisions were not judicial decisions of the sort necessary to invoke the res judicata principle. The Applicant has not identified any authorities that represent a legal constraint rendering the ID’s analysis and conclusion unreasonable.
B. Did the ID reasonably conclude that the Egyptian military was not split into two organizations?
[20] The Applicant submits that the ID erred in rejecting his argument that the Egyptian military was comprised of two organizations, which argument he advanced in support of his submission that the administrative organization of which he was a part had no role in the July 2013 coup.
[21] The Applicant notes the ID’s rejection of his argument on the basis that the documentary evidence did not identify a distinction between the operational and administrative components of the army that would suggest they form two organizations. The ID also referenced the Applicant’s testimony, when asked when he joined the armed forces of Egypt, that he joined in 1993 without specifying that the armed forces did not form a single organization. The Applicant submits that this analysis represents a mischaracterization of his evidence, as he testified that in 1993 he joined the military academy as a cadet. He also notes that, when he was later asked why he was only involved in administrative tasks throughout his career, he replied that this had been his job from the beginning. He also explained that, in the last year of the military academy, students have a choice between administrative and operational tracks.
[22] The Applicant therefore submits that his evidence was clear that there were two distinct parts to the military, even to the extent that one could not cross from the administrative to the operational track without having undertaken further studies. As the ID did not make any adverse credibility findings against him, he argues that it was unreasonable for it to find that it was not presented with credible and trustworthy evidence that the Egyptian army was composed of two distinct organizations, namely an operational Egyptian army and an administrative Egyptian army. The Applicant emphasizes that he was not arguing before the ID that there were two separate armies but rather two distinct organizations within the army. He also notes the ID’s reliance on the fact that there is one military academy and argues that this does not mean that the Egyptian military does not itself consist of two distinct organizations.
[23] Finally, the Applicant argues that, when it concluded there were reasonable grounds to believe that the Applicant was a member of the Egyptian armed forces between 1993 and 2017, the ID erred in relying on the principle that, if membership is admitted, then it is admitted for all purposes including allegations under paragraph 34(1)(f) (Khan v Canada (Citizenship and Immigration), 2017 FC 397). Again, the Applicant submits that this conclusion missed the Applicant’s point that the Egyptian army has two distinct organizations, the functions of which do not overlap.
[24] In my view, these submissions all amount to a disagreement with the ID’s weighing of the evidence, and it is not the Court’s role in judicial review to re-weigh the evidence. There is no basis for the Court to conclude that the ID overlooked or misconstrued the evidence before it or the Applicant’s arguments. The ID clearly understood the Applicant’s evidence and took it into account, but it found that his evidence did not support a conclusion that the Egyptian army was composed of two separate organizations. The ID’s reasoning is summarized by the following sentence in the Decision:
… Whereas the panel believes that the Egyptian army is composed of different units carrying distinct tasks, it was not provided with evidence that would lead it to conclude that this arrangement is any different from that of large companies or organizations whose tasks and responsibilities are divided amongst different departments for purposes of efficiency.
[25] In other words, as the Respondent submits, the ID appreciated that the operational and administrative components of the Egyptian army carried out different functions, but it did not accept that they represented two separate organizations.
[26] In conclusion, I find that the Decision is intelligible and withstands reasonableness review. As such, this application for judicial review must be dismissed. Neither party proposed any question for certification for appeal, and none is stated.
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