Date: 20051012
Docket: IMM-1516-05
Citation: 2005 FC 1391
BETWEEN:
RAAD KHALID LUTFI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] This is a case about love and war in Iraq. Raad Khalid Lutfi married the girl next door, Dunia al Safi, in 1983. They had two children together. They divorced in 1995. Shortly thereafter Dunia and their two children immigrated to Canada. Dunia is now a Canadian citizen.
[2] In 2002, Dunia visited Baghdad and reconciled with Raad. They remarried and Dunia filed an application to sponsor Raad to Canada as a member of the family class.
[3] That sponsorship was denied for two reasons. The first ground was that Mr. Lutfi is a member of an inadmissible class of persons described in section 35(1)(b) of the Immigration and Refugee Protection Act ("IRPA") by reason of being a prescribed senior official in the Iraqi government, which government, in the opinion of the minister, had engaged in terrorism, systematic or gross human rights violations, or genocide, war crimes or crimes against humanity. Mr. Lutfi served as an officer in the Iraqi air force from 1976 to 1996.
[4] The second ground is that the divorce was one of convenience. The immigration officer was of the view that the primary reason for the 1995 divorce was to allow Mrs. Lutfi to acquire status in Canada.
[5] This is a judicial review of that decision. Following the oral hearing, I granted judicial review, adding that written reasons would follow. These are those reasons.
HUMAN OR INTERNATIONAL RIGHTS VIOLATIONS
[6] Section 35(1)(b) of IRPA provides:
| 35. (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
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(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic 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; or
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35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants :
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b) occuper un poste de rang supérieur -- au sens du règlement -- au sein d'un gouvernement qui, de l'avis du ministre, se livre ou s'est livré au terrorisme, à des violations graves ou répétées des droits de la personne ou commet ou a commis un génocide, un crime contre l'humanité ou un crime de guerre au sens des paragraphes 6(3) à (5) de la Loi sur les crimes contre l'humanité et les crimes de guerre;
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[7] On 3 September 1996, the Iraqi governments of Ahmed Hassan Al-Bakr and Saddam Hussein in power since 1968 were designated as regimes, which in the Minister's opinion had engaged in gross human rights violations, and other crimes.
[8] Mr. Lutfi did not personally by word or deed engage in such atrocities. The question is whether he has the status of a prescribed senior official. If he does, any personal lack of blameworthiness is simply not relevant (Canada (Minister of Citizenship and Immigration) v. Adam, [2001] 2 F.C. 337 (F.C.A.)).
[9] Section 16 of the Immigration and Refugee Protection Regulations (SOR/2002-227) provides:
| 16. For the purposes of paragraph 35(1)(b) of the Act, a prescribed senior official in the service of a government is a person who, by virtue of the position they hold or held, is or was able to exert significant influence on the exercise of government power or is or was able to benefit from their position, and includes
(a) heads of state or government;
(b) members of the cabinet or governing council;
(c) senior advisors to persons described in paragraph (a) or (b);
(d) senior members of the public service;
(e) senior members of the military and of the intelligence and internal security services;
(f) ambassadors and senior diplomatic officials; and
(g) members of the judiciary.
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16. Pour l'application de l'alinéa 35(1)b) de la Loi, occupent un poste de rang supérieur au sein d'une administration les personnes qui, du fait de leurs actuelles ou anciennes fonctions, sont ou étaient en mesure d'influencer sensiblement l'exercice du pouvoir par leur gouvernement ou en tirent ou auraient pu en tirer certains avantages, notamment :
a) le chef d'État ou le chef du gouvernement;
b) les membres du cabinet ou du conseil exécutif; c) les principaux conseillers des personnes visées aux alinéas a) et b);
d) les hauts fonctionnaires;
e) les responsables des forces armées et des services de renseignement ou de sécurité intérieure;
f) les ambassadeurs et les membres du service diplomatique de haut rang;
g) les juges.
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[10] The question is whether Mr. Lutfi was a senior member of the military. A senior member is not defined except as being a person who by virtue of his position is or was able to exhort significant influence.
[11] The visa officer found that Mr. Lutfi had been a full colonel. This is an error on the face of the record. He was a lieutenant colonel. This in itself would be enough to justify a rehearing on the patent unreasonableness standard of review.
[12] In Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] S.C.J. No. 39 (QL), the facts were somewhat different in that Mr. Mugesera was said to have personally committed offences outside Canada, which incited murder, genocide and hatred in Rwanda. At paragraph 43, the Court, in speaking of the decision of the Federal Court - Trial Division (as it then was) said:
In contrast, Nadon J., the reviewing judge of the FCTD, appropriately intervened to reject the findings of Mr. Bourbonnais and Ms. Champoux Ohrt as patently unreasonable. Nadon J. concluded that "there is no evidence to justify the conclusions" (para. 43)
Likewise in this case, there is no evidence to justify the finding that Mr. Lutfi was a prescribed senior official in the service of the Government of Iraq.
[13] Citizenship and Immigration Canada has issued Guidelines to evaluate inadmissibility on the basis of human or international rights violations. Officers are advised to contact their regional war crimes unit or other appropriate units for assistance with case file preparation. There is no evidence that this was done. It is also recommended that an exercise be carried out to ascertain where the person involved stood in the hierarchy, who reported to him and to whom he reported. This exercise was carried out, but inadequately.
[14] Mr. Lutfi was an aircraft maintenance engineer, who never engaged in combat, and he was not a member of any political party. There is no information on file as to the size of the armed forces, the number of rankings ahead of lieutenant colonel, and how many persons occupied those positions. For all the Court knows, there may have been 100,000 generals in the Iraqi armed forces. What rankings were there? Were they the same rankings as in Canada? A lieutenant colonel is far from being a head of state, a member of the cabinet, a senior advisor, an ambassador or a senior diplomatic official, or for that matter a judge, all of whom are covered by section 16 of the Regulations.
[15] Apart from the judicial review, there is nothing to prevent Mr. Lutfi from seeking an exemption pursuant to section 35(2) of the IRPA.
FAMILY CLASS
[16] Mrs. Lutfi was landed in Canada in January 1996, months before the Iraqi regime was declared outlaw. Thus, there is no basis to the argument that Mr. Lutfi was inadmissible, which would have rendered the entire family inadmissible if they had applied to immigrate together.
[17] To say that the divorce was not legitimate because Mr. Lutfi remained on friendly terms with his ex-wife's family is unreasonable speculation.
[18] If the divorce was one of convenience, and there is nothing in the record to support that conclusion, it was to assist Mrs. Lutfi in leaving Iraq, not in immigrating to Canada.
[19] The parties agreed, as do I, that there is no question of general importance to certify.
(Sgd.) "Sean Harrington"
Judge
Vancouver, BC
October 12, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1516-05
STYLE OF CAUSE: RAAD KHALID LUTFI
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 5, 2005
REASONS FOR ORDER AND ORDER: HARRINGTON J.
APPEARANCES:
Ms. Sawsan Habbal FOR APPLICANT
Ms. Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
Sawsan A. Habbal FOR APPLICANT
Barrister & Solicitor
Vancouver, BC
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada