Inadmissibility

One of the inadmissibility grounds is being a senior public service official of a designated regime.

Kassab is the decision made by the Federal Court of Appeal that clarifies the application of this ground of inadmissibility.

Paragraph 35(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (IRPA) stipulates that both permanent residents and foreign nationals are inadmissible to Canada on the grounds of violating human or international rights for “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 crime against humanity within the meaning of subsection 6(3) to (5) of the Crime Against Humanity and War Crimes Act.” Paragraph 16 (d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR) lists senior members of public service as one of the prescribed senior officials. The “ENF 18 Human or international rights violations,” the guide by Immigration, Refugees and Citizenship Canada (IRCC), for its officers to assess this ground and other same nature grounds of inadmissibility, interprets senior public service members as the person holds or held a senior position, namely, a position in the top half of the organization. This is known as the Top Half Test.

The Top Half Test and its application seem clear until the rule prescribed on paper has to be applied in an application. This happened when Zaghlol Kassab was sponsored to be resettled in Canada as a Convention Refugee. He applied for permanent residence under the Convention Refugees Abroad Class.

Mr. Kassab is a citizen of the Republic of Iraq and an engineer with a PhD in electrical engineering. He was employed by the governments of Ahmed Hassan Al-Bakr and Saddam Hussein from April 1969 until June 2000, holding various senior positions. The regime he served was designated under A35(1)(b) from 1968 until May 22, 2003.

The visa officer concluded Mr. Kassab, and his wife met the definition of Convention Refugee. However, the officer suspected that he was inadmissible on the grounds of being a senior official of Iraq. He was requested to provide details of the positions he held, the duties he performed, and the positions in the hierarchical structure. And he did so. The information he provided showed that some of the positions fell in the sphere of the top half. Among those, two positions he held were three levels in the reporting hierarchy below Saddam Hussein.

Mr. Kassab claimed that he and his family were Catholics, and he was not a member of the Ba’ath Party, and thus his power and influence in the public service of the regime was insignificant and limited. The visa officer considered his above claim irrelevant to his inadmissibility factors and refused his permanent residence application.

Mr. Kassab challenged the refusal decision in the Federal Court. The Federal Court found the officer’s decision unreasonable. The Court reasoned that for a senior member of the public service when there is highly relevant evidence suggesting that the person was not able to exercise meaningful influence or benefit from their position, applying the Top Half Test without further examination to conclude inadmissibility according to R16(d) is unreasonable. As a result, the Federal Court granted Mr. Kassab’s judicial review application. Nevertheless, the Court certified a question: Whether a person who occupied a senior position in the public service of a designated regime could argue that, notwithstanding the position they held, they are not inadmissible because of their inability to exert significant influence or to benefit from their position? [74]

The Minister appealed the Federal Court’s decision, arguing that the conclusion by the Court went contrary to Canada (Minister of Citizenship and Immigration) v. Adam, [2001] 2 FC 337 (Adam), a case cited by the Court when making the decision. In Adam, the same Court stated that if an individual found to have held an enumerated position, the irrefutable presumption is that the individual is or was a prescribed senior official. The Federal Court of Appeal supported this conclusion. Unlike the decision made by the Federal Court in Mr. Kassab’s case, which suggested that some senior officials may not be caught by R16, the “irrefutable presumption” applies to all. The Minister also pointed out a few decisions made by the Federal Court for the fact that the Top Half Test has been applied consistently in its previous decisions.

The Federal Court of Appeal agreed with the Minister. First, Adam applied to this case. This Court explained the legislation rationale in Adam, which is that persons holding enumerated positions are deemed to be prescribed senior officials. The decision in dispute was inconsistent with the interpretation. Second, even though other Federal Court’s previous decisions are not binding on subsequent cases before the same Court, they are pervasive decisions. The Court should not part from the doctrine set up by itself without cogent reasons that support the departure because prior decisions were wrong. The decision in question failed to consider the prior decisions and presented no cogent reasons.

The Federal Court of Appeal reframed the certified question and answered it in the affirmative as follows: If an officer is satisfied that an individual occupies or occupied a senior position in the reporting hierarchy of the public service of a designated regime, the officer may reasonably conclude that the individual is or was a “senior member of the public service” and a “prescribed senior official” within the meaning of paragraph 35(1)(b) of the Act and section 16 of the Regulations. A broader analysis into the individual’s ability to benefit or exert influence is not required in this circumstance. [77]

The Minister’s appeal succeeded. With the Federal Court of Appeal’s interpretation of R16(d) in Kassab, assessing senior officials in the public service of a designated regime becomes straightforward.

This article is for information purposes only and should not be considered legal advice. For details of Kassab and the cited case Adam, click the hyperlinks to access the text of the respective decision.