Date: 20241205

Docket: IMM-1864-24

Citation: 2024 FC 1974

JUDGMENT AND REASONS

I. Overview

[1] This is an application for judicial review of a decision made by the Immigration Division [ID] dated January 16, 2024 [the Decision]. In the Decision, the ID found that the Applicant is inadmissible to Canada because he is a person described under paragraph 35(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. Paragraph 35(1)(b) refers to a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systemic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act, SC 2000, c 24.

[2] As explained in further detail below, this application is allowed, because the Decision is unreasonable, in that it fails to engage with the Applicant’s evidence that he was not regarded as a senior diplomatic official by either the post-Hussein Iraqi government or the government of Germany where he was stationed during the Hussein regime.

II. Background

[3] The Applicant is a citizen of Iraq who held positions with the Iraqi governments of Ahmed Hassan Al-Bakr and Saddam Hussein. These governments, in power between 1968 and May 22, 2003, are the subject of a designation by Canada pursuant to paragraph 35(1)(b) of IRPA as referenced above. The position of the Applicant, at issue before the ID, was his service as First Secretary/Counsellor and Chargé d’affaires at the Iraqi Embassy in Bonn, Germany between 1998 and 2002.

[4] Following the fall of the Saddam Hussein regime in 2003, the Applicant served in Baghdad, Rome, and finally Ottawa. When he was called back to Baghdad from Ottawa in 2017, he claimed refugee protection in Canada, asserting fear that he would be targeted by extremist groups in Iraq who opposed the Iraqi government or would consider him a traitor for cooperating with Western governments. The Minister of Public Safety and Emergency Preparedness [the Minister] subsequently asserted that the Applicant is inadmissible to Canada pursuant to paragraph 35(1)(b) of IRPA based on his role as First Secretary/Counselor and Chargé d’affaires at the Iraqi Embassy in Bonn.

[5] The ID conducted an admissibility hearing on June 6, 2023, at which the Applicant testified.

III. Decision under Review

[6] The issue before the ID was whether there were reasonable grounds to believe that the Applicant was a prescribed senior official in a designated regime as per paragraph 35(1)(b) of IRPA. That determination turned on paragraph 16(f) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], which provides as follows:

[7] The ID noted jurisprudence to the effect that a person can be considered senior if it can be demonstrated that the position is in the top half of the relevant organization, which results in a presumption that the individual is or was able to exert significant influence on the exercise of government power or is or was able to benefit from their position. That position cannot be rebutted with evidence that they did not in fact exert such influence.

[8] Based on the Applicant’s testimony, the ID concluded that he was the highest Iraqi representative in Germany from 1998 to 2002 as, due to sanctions against Iraq at that time, the country could not send an ambassador, and the Applicant was therefore in charge of the Iraqi Embassy in Germany. The ID referenced section 14 of the Vienna Convention on Diplomatic Relations, which Iraq ratified, that identified three classes of heads of mission, one of which was Chargé d’affaires. The ID also referred to the Federal Court’s decision in Al-Naib v Canada (Public Safety and Emergency Preparedness), 2016 FC 723 [Al-Naib] at paragraph 28, as determining that it was reasonable to conclude that a Chargé d’affaires in an Iraqi Embassy was a senior diplomatic official.

[9] Based on these considerations, the ID was satisfied that the evidence allowed a determination that the Applicant was a prescribed senior official. The ID noted that, between 1998 and 2002, the Applicant became the most important individual at the Iraqi Embassy in Germany. In relation to submissions advanced by the Applicant, the ID recognized that there was no evidence that the Applicant exerted significant influence on the exercise of government power or that he would have benefited from his position. However, the ID concluded based on applicable jurisprudence that an individual’s inadmissibility is linked to their status within a designated government and not with their actions.

[10] Finally, the ID considered the Applicant’s argument that section 16 of the IRPR must be interpreted and applied in accordance with the principles applicable to matters of exclusion, specifically in relation to the decision of the Supreme Court of Canada in Ezokola v Canada (Citizenship in Immigration), 2013 SCC 40, which examines an individual’s complicity. However, relying on applicable jurisprudence (Canada (Citizenship and Immigration) v Kassab, 2020 FCA 10 at para 34; Al-Naib at paras 20, 24; Al-Ani v Canada (Citizenship and Immigration), 2016 FC 30 at para 20; Kanagendren v Canada (Citizenship and Immigration), 2015 FCA 86; Canada (Minister of Citizenship and Immigration) v Adam, 2001 CanLII 22027 (FCA)), the ID rejected this argument, concluding that neither complicity nor personal culpability is a relevant factor in inadmissibility under paragraph 35(1)(b).

[11] Based on the foregoing analysis, the ID found that the Applicant was inadmissible to Canada and issued a deportation order against him.

IV. Issue and Standard of Review

[12] The sole issue raised for the Court’s determination is whether the Decision is reasonable.

[13] As is implicit in the articulation of that issue, the standard of reasonableness applies to the Court’s review of the merits of the Decision (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16-17).

V. Analysis

[14] My decision to allow this application for judicial review turns on the Applicant’s argument that the ID’s analysis did not engage with the Applicant’s evidence to the effect that neither the post-Hussein Iraqi government nor the government of Germany (where he was stationed) regarded him as a senior official in the government of the Hussein regime.

[15] In support of the Applicant’s position that the ID failed to account for evidence that was inconsistent with its conclusion that the Applicant was a senior diplomatic official, he relies on components of his written submissions and oral testimony. The record before the Court demonstrates that he asserted before the ID that, if the post-Hussein government in Iraq (supported by the administrative authority of the United States and its allies) concluded that he had been a senior official of the Hussein regime, he would not have been permitted to continue working in senior positions with the new Iraqi government. The Applicant also asserted that, if the government of Germany had considered him to be a senior official, then (due to the sanctions imposed on the Hussein regime), Germany would not have permitted his presence at the Iraqi Embassy.

[16] The Respondent submits that the Applicant’s evidence in support of these positions was not particularly compelling and was in any event not material to the ID’s analysis, which considered, consistent with applicable jurisprudence (and the Minister’s submissions to the ID), only the Applicant’s role and whether that role was within the top half of the Iraqi diplomatic service.

[17] The Respondent refers the Court to Damte v Canada (Citizenship and Immigration), 2023 FC 58, in which the applicant argued that the ID ignored evidence that he was not a prescribed senior official and was not involved in any crimes. The ID had applied the “top half” test and noted that, where a person’s position fell within the top half of an organization’s hierarchy, the individual may be found to be a prescribed senior official. In such circumstances, there was no requirement to analyse evidence as to the person’s responsibilities in order to assess their seniority (at para 17). The Court found that analysis to be reasonable (at paras 36-37).

[18] Similarly, in Sekularac v Canada (Citizenship and Immigration), 2018 FC 381, the Court found it was reasonable for an officer to rely on the Applicant’s military rank to conclude that he was a senior official in the relevant regime (at para 20) and that there was therefore no requirement to analyse his ability to exert influence over the exercise of government power (at para 21).

[19] I agree with the principles upon which the Respondent relies. As explained in the Respondent’s authorities, if the ID performs a reasonable analysis leading to a conclusion that, structurally, an individual’s position is that of a senior official, there is no requirement to consider the individual’s particular responsibilities or influence.

[20] However, in my view it is significant that, in the case at hand, the ID did not conduct its analysis by recourse, for instance, to an organizational chart or other evidence of the applicable rank or position structure extending up to the head of government, leading to a numerical analysis that the relevant position was in the top half of the structure. Rather, the ID’s analysis relied on the evidence that the Applicant was the highest-ranking Iraqi representative in Germany at the relevant time and was in charge of the Iraqi Embassy.

[21] The Applicant does not argue that the Decision is unreasonable for want of a numerical analysis based on the Applicant’s position in the hierarchy and, consistent with this Court’s explanation in Barac v Canada (Citizenship and Immigration), 2017 FC 566 at paragraph 21, I would be reluctant to conclude that the required analysis must necessarily be performed in relation to any particular formula.

[22] Nevertheless, in the absence of a more objectively verifiable conclusion that the Applicant’s position was in the top half of the organization, the Court has concern about the intelligibility of the Decision without it having engaged with the Applicant’s evidence as to how, under the political conditions at the time, his level of seniority was viewed by the post-Hussein government of Iraq and the government of Germany. This is not to say that such evidence would or should have persuaded the ID that he was not a senior diplomatic official. Rather, having been presented with the Applicant’s evidence on this point, I find that the ID was required to consider it.

[23] I note that the Decision does recite a portion of the Applicant’s testimony to the effect that, due to sanctions imposed on Iraq at the time, European countries refused to accept individuals in senior positions. Indeed, the ID referenced that testimony in concluding that the Applicant was in charge of the Iraqi Embassy in Germany. However, the ID’s analysis does not engage with the question whether, if Germany refused to accept the presence of people in senior positions, then logically it follows that the Applicant was not in a senior position. Nor does the ID’s analysis engage with the question whether it follows from the Applicant’s employment with the post-Hussein regime, which he testified would not employ senior members of the previous regime, that logically he had not been in a senior position.

[24] In conclusion, I find the Decision unreasonable for lack of engagement with this evidence. My Judgment will therefore allow this application for judicial review, set aside the Decision, and refer the matter back to another member of the ID for redetermination. It is therefore unnecessary for the Court to engage with the Applicant’s other arguments. Neither party proposed any question for certification for appeal, and none is stated.

JUDGMENT IN IMM-1864-24

THIS COURT’S JUDGMENT is that:

1. This application for judicial review is allowed, the Decision set aside, and the matter is referred back to another member of the ID for redetermination.

2. No question is certified for appeal.

"Richard F. Southcott"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: