Federal Court Decisions

Date: 20060309

Docket: IMM-281-03

Citation: 2006 FC 309

Ottawa, Ontario, March 9, 2006

PRESENT:      The Honourable Mr. Justice Russell

BETWEEN:

MOHAMMAD MOHSEN HOLWAY,

ZIAUDDIN HOLWAY AND SHAHJAN HOLWAY

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

[1]                Mohammad Mohsen Holway, Ziauddin Holway and Shahjan Holway (Applicants) have brought this application for judicial review of the decision of a visa officer (Officer), dated November 18, 2002 (Decision), refusing the application for landing made by Ziauddin and Shahjan Holway under the sponsorship of Mohammad Mohsen Holway. The application for landing was refused on the basis that Ziauddin Holway (Mr. Holway) was a member of an inadmissible class under paragraph 35(1)(b) of the Immigration and Refugee Protection Act (Act) because he had been a senior member of the military in the former Marxist regime in Afghanistan.

BACKGROUND

[2]                Mr. Holway was in the military from 1959 until he left Afghanistan in 1985. He claims that he worked in the logistics department performing clerical duties and that the highest rank he achieved was brigadier (also called lieutenant colonel), which is two ranks below general. The Marxist regime in power in Afghanistan between 1978 and 1992 has been designated as a regime which, in the opinion of the Minister of Citizenship and Immigration, has engaged in gross human rights violations and other such crimes. Therefore, anyone who served as a senior member of the Afghan military during this period is inadmissible to Canada under section 35 of the Act. The Officer found that Mr. Holway was inadmissible to Canada on the basis that he had been a senior member of the military under the designated regime.

[3]                The Officer's Decision was appealed to the Immigration Appeal Division (IAD) and judicial review was sought before this Court. The Minister opposed the judicial review on the basis that an appeal lay to the IAD, and the judicial review was refused. The IAD rejected the appeal on the grounds that it did not have jurisdiction to make the determination. Judicial review of the IAD's decision was unsuccessful on the grounds that the IAD was correct in holding that it lacked jurisdiction. The Minister has acknowledged being mistaken with respect to the jurisdiction of the IAD in the original judicial review application, and I allowed this judicial review application to proceed with respect to the Officer's Decision.

VISA OFFICER'S DECISION

[4]                The Officer's Decision is contained in a letter to Mr. Holway dated November 18, 2002. The letter states that Mr. Holway's application was refused on the basis that there is reason to believe that he is a member of an inadmissible class of persons as described in paragraph 35(1)(b) of the Act. The Officer advised that, specifically, there is reason to believe that Mr. Holway was a senior member of the military with the former Marxist regime in Afghanistan.

[5]                The Officer indicated in her notes that it did not appear entirely credible that Mr. Holway would have spent 15 to 20 years in the military and achieved the position of brigadier, and that his responsibilities would not have changed during this time. The Officer also seemed to doubt that Mr. Holway could have retained his position without supporting the Marxist regime.

ISSUES

1.       Did the Officer err in concluding that Mr. Holway is a person described in section 35(1)(b) of the Act?

2.       Did the Officer breach a duty of fairness by failing to advise the Applicants of his concerns and of the availability of an application for an exemption to the bar to admission?

3.       Did the Officer breach the duty of fairness in not making the decision herself on Mr. Holway's application for landing, but rather by having officials in Ottawamake the decision for her?

ARGUMENTS

            The Applicants

[6]                The Applicants argue that while a person found to fall into one of the classes enumerated in section 16 of the Regulations cannot rebut their inadmissibility, a person may still argue that he or she does not fall into that class. The Applicants say that Mr. Holway merely held a clerical position and was not, in fact, a senior member of the military, and, therefore, should not have been assessed as inadmissible. They argue that the Officer improperly made her determination by focusing on Mr. Holway's rank rather than on the duties that he actually performed in the military.

[7]                The Applicants further argue that the Officer was under a duty of fairness to advise Mr. Holway that he might be found inadmissible as a senior member of the military, and that he could seek a Minister's exception.

[8]                The Applicants also argue that the Officer's use of information from another government unit as to Mr. Holway's position was either an improper delegation of the Officer's discretion or a breach of procedural fairness.

            The Respondent

[9]                The Respondent says that the Officer's Decision that Mr. Holway was inadmissible was reasonable, and was based on an analysis of the facts presented by Mr. Holway at his interview.

[10]            The Respondent further argues that the duty of fairness does not require an Officer to advise an applicant of the possibility of applying for a Minister's exception.

[11]            Finally, the Respondent says that the Officer's availing herself of the information services of another government unit was not an improper delegation of discretion or a breach of procedural fairness.

ANALYSIS

            Standard of Review

[12]            The Applicants submit that the determination of whether Mr. Holway was a "senior member" of the military is a question of mixed fact and law. The Respondent argues that where the determination of an Officer involves a question of mixed fact and law, the standard of review is reasonableness simpliciter. The Respondent argues, however, that this case is concerned with the activities and responsibilities of Mr. Holway as a member of the Marxist regime, and that these are factual issues which require a standard of review of patent unreasonableness.

[13]            In support of this position, the Respondent cites the 1996 decision of the Federal Court of Appeal in To v. Canada(Minister of Employment and Immigration), [1996] F.C.J. No. 696. In that case the court was concerned with a denial of an application to enter Canada as an entrepreneurial immigrant. The application was denied because the immigration officer was not satisfied that the applicant had either the business ability or the personal financial resources to establish a business in Canada. The Court relied on Maple Lodge Farms Limited v. Canada, [1982] 2 S.C.R. 2 for the conclusion that the Court should not interfere with the exercise of discretion by a statutory authority merely because the Court would have decided the matter differently. As long as the discretion was exercised in good faith, in accordance with the principles of natural justice, and without relying on irrelevant or extraneous considerations, the Court will not interfere.

[14]            The Court has also been directed to the decision in Au v. Canada(Minister of Citizenship and Immigration), [2001] F.C.J. No. 435, 2001 FCT 243. The Court in Au relied on decisions in Hao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 296 (T.D.), and Lu v. Canada(Minister of Citizenship and Immigration), [1999] F.C.J. No. 1907 to conclude that the standard of review for a decision of a visa officer is reasonableness simpliciter. These cases noted that, on the one hand, the decisions of a visa officer involve questions of mixed fact and law and are not protected by a privative clause, both factors which would mitigate against deference, but, on the other hand, officers have considerable experience and deal with issues that are not polycentric, both factors which support deference.

[15]            The definition of a senior member of the military is a matter of statutory interpretation, which is a question of law. The determination, therefore, as to whether someone can be characterized as a senior member of the military cannot simply be a question of fact. This determination, however, will involve a factual assessment of the person's involvement with the military. Given the nature of the question to be determined, it seems that it must be concluded, as argued by the Applicants, that this is a question of mixed fact and law. As such, the standard of review that I will use is reasonableness simpliciter.

[16]            The discussion of the standard of review was carried further in Au, where the court held that an officer need only have "reasonable grounds" for believing the disqualifying situation to be true. The Court pointed to Chan v. Canada(Minister of Employment and Immigration)(1996), 34 Imm. L.R. (2d) 259 (F.C.T.D.) at p. 273 where it was held that the standard of proof for an officer is not "beyond a reasonable doubt"; a visa officer need only have reasonable grounds for reaching a conclusion. The Court in Chiau v. Canada(Minister of Citizenship and Immigration), [1998] 2 F.C. 642, [1998] F.C.J. No. 131, (T.D.) held that reasonable grounds "is more than a flimsy suspicion, but less than the civil test of balance of probabilities... It is a bona fide belief in a serious possibility based on credible evidence."

            Whether the Officer erred in concluding that Mr. Holway was inadmissible

[17]            The court in Esse v. Canada(Minister of Citizenship and Immigration), [1998] F.C.J. No. 46 considered the inadmissibility provisions under the former Immigration Act, R.S.C. 1985, c. I-2, which are similar to sections 16 and 35 of the current Act. Section 19(1)(l) of the former Immigration Act reads as follows:

[18]            The former Immigration Act defined "senior members of or senior officials in the service of a government" in section 19(1.1) as including "senior members of the military."

[19]            In Esse, the Court interpreted the legislation as creating a scheme that considered senior members of a government as being able to "exert a significant influence on the exercise of the government's power such that they must take responsibility for the objectionable acts of their government" (para 11). Persons holding specific positions were deemed to be senior members of the government. The Federal Court of Appeal in Canada(Minister of Citizenship and Immigration) v. Adam (C.A.), [2001] 2 F.C. 337, [2001] F.C.J. No. 25 at para. 11 adopted the understanding of the scheme set out in Esse, and held that section 19(1)(l) did not create a rebuttable presumption. Therefore, any person falling into one of the categories enumerated in the legislation was automatically deemed inadmissible without the need for a contextual analysis of his or her actual activities as a member of that category.

[20]            The Applicants in the present case accept that, on the basis of Adam, it is not open to an applicant to rebut inadmissibility if he or she falls within one of the occupations enumerated in section 16 by demonstrating that he or she did not actually occupy a position of influence in the government. Mr. Holway argues, however, that it is open to him to attempt to establish that he does not actually fall into one of these categories (i.e. that he was not a "senior" member of the military). The Applicants argue that:

... [w]hile he was a career officer and was many years in the logistics department, achieving a middle level rank of brigadier or lieutenant colonel, in the context of section 35(1)(b) the evidence was that he held an administrative clerical position.

[21]            Mr. Holway says that the determination of whether he was a "senior" member of the military should not be based only on a consideration of whether he held an officer's position, but must take into account the structure of the military and the role he actually played.

[22]            The Applicants have directed the Court to two cases that dealt with refugee applications. Certain articles of the United Nations Convention Relating to the Status of Refugees are incorporated into the definition of a "Convention refugee" under the Act. The UN Convention excludes from its application people who there is serious reason to believe have committed a crime against peace, a war crime, or a crime against humanity.

[23]            In Canada (Minister of Citizenship and Immigration) v. Hajialikhani, [1999] 1 F.C. 181, [1998] F.C.J. No. 1464 the Court held that mere membership in an organization that from time to time commits crimes against humanity is not sufficient to justify exclusion on the basis of the UN Convention, but that participation in an organization that is "principally directed to a limited brutal purpose such as a secret police activity" may be sufficient grounds for exclusion.    The Court looks for "personal and knowing participation" in the proscribed activities.    In this context the Court in Hajialikhani held as follows at para. 24:

It is important in this context to scrutinize labels carefully. Labels can block analysis. If one is going to conclude that membership in, or close association with, a group automatically leads to a conclusion of complicity in crimes against humanity committed by members of that group, the evidence concerning the characterization of the organization must be free from doubt. In addition, in the case of an organization, which changes over time it is important to assess its characterization during the time or times when the individual in question was associated with it.

[24]            The Court engaged in a similar analysis in Moreno v. Canada(Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), [1993] F.C.J. No. 912 where it again considered the situation of a refugee claimant, and assessed his degree of complicity as a member of the Salvadorean army. The Court considered factors such as proximity to the decision-making process.

[25]            The Applicants rely on the reasoning in Hajialikhani and Moreno to argue that merely being a member of the military is not sufficient for a finding of inadmissibility, and that Mr. Holway's actual position within the military must be assessed.

[26]            The parties have not provided, and there does not appear to be, an established definition of what is meant by a "senior member of the military." In Lutfi v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1703, 2005 FC 1391 which was not referred to by the parties, the Court noted that "[a] senior member is not defined except as being a person who by virtue of his position is or was able to exert significant influence." (para 10). The Court in that case was concerned that there was no evidence that the visa officer had contacted the war crimes unit or other appropriate units for assistance with the file, and that there had been an inadequate consideration of where the person stood in the military hierarchy.

[27]            The Court in Zaheri v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 553, 2004 FC 446 quoted from the immigration manual, which notes the lack of case law on the definition of "senior", but suggests as follows:

A senior member of the military would be a person occupying a high position in the military and would be a person of more advanced standing and often comparatively long service.

Advanced standing would be reflected in the responsibilities given to the person and the positions occupied by the person's immediate superiors.

[28]            The applicant in Zaheri failed to provide the Court with an affidavit or evidence on which to challenge the visa officer's conclusions, so the Court did not establish a definition for "senior member of the military."

[29]            The former Marxist regime of Afghanistan was designated on October 21, 1994 as a regime that, in the opinion of the Minister of Citizenship and Immigration, engaged in gross human rights violations and other such crimes. Therefore, anyone who was a senior member of the Afghan military during the relevant period is inadmissible under section 35 of the Act.

[30]            The Officer in the present case determined that Mr. Holway had been a senior member of the military on the basis of the length of his career, the fact that he had risen through the ranks to obtain the position of lieutenant colonel, and the fact that he reported to the general commander of the air force. The Officer found that Mr. Holway's assertions that he had simply held an unimportant administrative position were unreasonable given all of the above factors. Based on the criteria set out in the Immigration Manual, this is a reasonable determination in my view; the Officer considered the length of service and the position of Mr. Holway's immediate superior. Furthermore, the Officer in this case did contact the War Crimes Unit regarding her concerns about Mr. Holway's admissibility, and the War Crimes Unit confirmed that he was inadmissible.

[31]            The general scheme of section 35 is to identify certain positions in a designated regime, including those of senior public servants and ambassadors, as being positions where the individuals concerned were either able to exert significant influence on the government, or were able to benefit from their position in a way that automatically renders them inadmissible. In cases involving refugee law, such as Moreno, the Court has considered the person's proximity to the decision making process. In my view, such factors are also relevant to the present determination, and the fact that as a lieutenant colonel Mr. Holway reported directly to the general would suggest a considerable degree of proximity to the decision-making process, and that he held a "senior" position.

[32]            The Officer concluded that, notwithstanding Mr. Holway's assertions that he was a mere paper-pusher in "logistics," his length of service, his rank and his position in the chain of command, meant that, as a matter of fact, he was an officer capable of exerting significant influence and should, therefore, share and accept responsibility for the practices of the regime he served for so long. I might not have come to this same conclusion on the facts, but I cannot say that the Officer's conclusions were unreasonable. Hence, the Court should not interfere with the Decision on this ground.

[33]            As regards the legal aspect of "senior member" I believe the Officer was within the guidance provided by the Overseas Operation (OP) Manual, Chapter 17, which takes into account the hierarchy in which the functionary operates and concludes that "If it can be demonstrated that the position is in the top half of the organization, the position can be considered senior." So legally speaking, I cannot say that the Officer's conclusions were incorrect.

[34]            All in all, then, the Decision on this issue cannot be said to be unreasonable and I should not interfere.

            Breach of Procedural Fairness

[35]            Section 35(2) of the Act creates an exception to the inadmissibility provisions:

[36]            Under the former Immigration Act, an exception was created under section 19(1.1)(2) for persons who "have satisfied the Minister" of various conditions. In Adam, the Court held that the presence of the words "have satisfied" indicated that the ministerial exception was to be made prior to the determination of the Officer.

[37]            The Applicants argue that there was a breach of procedural fairness in the present case because Mr. Holway was not informed that his application might be refused. He was not aware that a Minister's exception was available, and he was not aware that he might need to apply for such an exception.

[38]            The Applicants argue on the basis of the reasoning in Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39, [1999] 2 S.C.R. 817 (QL), Suresh v. Canada (Minister of Citizenship and Immigration), [2002] S.C.J. No. 3, 2002 SCC 1 and Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407, [2000] F.C.J. No. 854 that the principles of fairness are not fixed in time but must be adapted to ensure that decision making is transparent and just.

[39]            The Respondent has directed the court to the decision in Mahzooz v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1203, 2002 FCT 926 (QL). That case did not consider whether an officer should advise an applicant that he might seek a Minister's exception; instead, it addressed whether the officer should have exercised her discretion and asked whether he might be given such an exception. The Court held that the officer did not have the discretion to grant relief from the inadmissibility provisions, and therefore did not have to consider factors that might support granting such relief.

[40]            In Zaheri, the Court held that there was no duty on an officer to inform the applicant of the availability of the Minister's exemption.

[41]            The Applicants argue that, following Mr. Holway's interviews, the medical clearances of Mr. Holway and his wife expired and that new medical forms were issued to them. They point out that medicals are not normally issued unless it is likely that the person concerned will be admitted to Canada. The Applicants also argue that the sponsor was asked to pay the right of landing fee, which is not normally requested unless an application is going to be accepted.

[42]            The Officer asked Mr. Holway about his military career during his original interview on March 7, 2001. Mr. Holway was interviewed a second time in July 2001, and that interview related almost entirely to his military career. The Officer questioned Mr. Holway's assertions of his own unimportance in the regime during this interview, and asked how he could have been performing simple clerical jobs if he was reporting to a general. The Officer did not specifically advise Mr. Holway that he might be inadmissible on the basis of his military background.

[43]            However, given that Mr. Holway was questioned extensively about his military background, he must have been aware that this was a concern and he was given ample opportunity to demonstrate that he was not inadmissible on this basis. Mr. Holway was given a full opportunity to describe what he did in the military. In my view, there is no procedural fairness issue on this score. Mr. Holway merely disagrees with the Officer's conclusions given what he told her. But she explains why she cannot accept what he says. Based on the reasoning in Zaheri, it was up to Mr. Holway to seek a Ministerial exemption. The Officer was not obliged by a duty of fairness to advise him of this option. Therefore, in my view, the Officer did not breach the duty of fairness.

            The BCW Opinion

[44]            The Applicants say that the Officer's use of the BCW opinion was either an improper delegation of the Officer's discretion, and thus amounts to a failure to exercise her statutory discretion, or it was a breach of procedural fairness. They say that the CAIPS notes indicate that the Officer did not merely receive advice from BCW, but that BCW actually made the Decision.

[45]            The CAIPS notes make it clear that the Officer had, and recorded, concerns about Mr. Holway's admissibility after both interviews. Indeed, the second interview seems to have been an attempt to get to the bottom of those concerns and to give Mr. Holway an opportunity to explain clearly what he actually did in the military.

[46]            The Officer had concluded, even after the first interview, that what Mr. Holway said about his duties did not make sense to her.

[47]            Following the second interview, the Officer's concerns had not been allayed and she determined to seek guidance from BCW. A later e-mail was sent to BCW asking if there were any outstanding concerns. On August 22, 2002, BCW finally indicated that the Applicant was inadmissible under section 35(1)(b) as a Senior Member of the Military.

[48]            Viewed as a whole, the situation is clear. The Officer had concerns about admissibility from the initial interview and those concerns were related to Mr. Holway's position in the military and the role he played as an officer in the Marxist regime. She conducted a second interview to put her concerns to Mr. Holway and to allow him a full opportunity to describe what he actually did in the military and to allay her concerns. His answers did not make sense to her. Her concerns were not answered. But she went further.

[49]            The Officer availed herself of the information available from BCW. Her final Decision was entirely in accord with the concerns she records in the CAIPS notes following both interviews. She made the Decision. She merely took the additional precaution of checking with BCW.

[50]            In my opinion, there was no failure to exercise her discretion, and no breach of fairness on this ground.

[51]            Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons for Order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party Following that, an Order will be issued.

"James Russell"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-281-03

STYLE OF CAUSE:                           MOHAMMAD HOHSEN HOLWAY, ET AL v. MCI

PLACE OF HEARING:                     Vancouver, B.C.

DATE OF HEARING:                       December 14, 2005

REASONS FOR ORDER:                RUSSELL J.

DATED:                                              March 9, 2006

APPEARANCES:

Ms. Barbara Jackman	FOR THE APPLICANT(S)
Ms. Catherine Vasilaros	FOR THE RESPONDENT(S)

SOLICITORS OF RECORD:

Ms. Barbara Jackman	FOR THE APPLICANT(S)
Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Toronto Regional Office	FOR THE RESPONDENT(S)