Case information

Immigration — Judicial review — Inadmissibility on security grounds —Membership in an organization affiliated with a terrorist organization — Whether law concerning s. 16(d) of Immigration and Refugee Protection Regulations, SOR/2002 227, is settled — Whether test under s. 16(d) meets relevant legislative objectives — Whether determination under s. 16(d) can be reasonably made without context — Whether Court of Appeal failed to distinguish between explicitly named positions and “senior members of the public service” — Whether appellate decision fetters discretion of administrative decision-maker interpreting their home statute — Whether decision of visa officer unreasonable — Whether visa officer fettered his discretion by relying on National Security Screening Division Assessment — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 35(1)(d).

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Under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 35(1)(b), a foreign national is inadmissible for “being a prescribed senior official in the service of a government that…has engaged in…gross human rights violations…”. Mr. Kassab, a citizen of the Republic of Iraq, had been employed by the Iraqi governments of Ahmed Hassan Al-Bakr and Saddam Hussein in a variety of positions from April 1969 to June 2000. Both governments are designated as regimes that engage, or have engaged “in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity” under s. 35(1)(b). Mr. Kassab applied for permanent residence in Canada as a sponsored refugee under the Convention Refugees Abroad Class. The visa officer concluded that he met the definition of Convention refugee, but that there were reasonable grounds to believe that he was inadmissible to Canada as a “prescribed senior official” in the service of a designated regime that engaged in serious human rights abuses: Immigration and Refugee Protection Regulations, SOR/2002 227, s. 16(d). Those positions were the Chief Engineer, reporting to the Director General of the Energy Production, the Head of the Telecommunications Department/Centre of Electronic Systems, and the Director of Centre for Electronic Systems. In the governmental reporting structure, he had been as high as three levels below Saddam Hussein. The visa officer applied s. 35 and denied Mr. Kassab permanent residency. Mr. Kassab applied for judicial review, which was granted, but that decision was overturned on appeal and the application for judicial review was dismissed.