OT­TAWA • The Fed­eral Court has over­turned a Cana­dian visa of­fi­cer’s de­ci­sion to refuse per­ma­nent res­i­dence to a former Iraqi gov­ern­ment of­fi­cial un­der Sad­dam Hus­sein’s regime, in a case that could have larger im­pli­ca­tions for how Canada de­cides whether to ac­cept refugees with ties to dic­ta­tor­ships.Judge Michael Man­son found the visa of­fi­cer ig­nored ev­i­dence sug­gest­ing Zaghlol Kassab had lit­tle real power within the regime, and or­dered that his ap­pli­ca­tion for per­ma­nent res­i­dence be re­assessed by a new of­fi­cer.But the judge also raised a broader ques­tion about how Cana­dian of­fi­cials should de­ter­mine whether some­one is too high up in a regime en­gaged in hu­man rights abuses to be ad­mit­ted to Canada as a refugee, which must now be an­swered by the Fed­eral Court of Ap­peal.Ser­gio Karas, an im­mi­gra­tion lawyer and an­a­lyst not in­volved with the case, said he thinks the is­sue could end up be­fore the Supreme Court of Canada. He said there’s cur­rently not enough guid­ance for visa of­fi­cers tasked with de­cid­ing which gov­ern­ment po­si­tions are too se­nior to be ad­mis­si­ble to Canada.“I would like to see the court pro­vide the spe­cific el­e­ments and spe­cific fac­tors that you have to look at to make that de­ter­mi­na­tion,” he said. “The of­fi­cers need guid­ance, so … peo­ple can hold their feet to the fire.”Kassab, 72, is an Iraqi en­gi­neer who spent most of his ca­reer in the Iraqi civil ser­vice. Be­tween 1988 and 2000, he worked in sev­eral po­si­tions, in­clud­ing in the Iraqi Atomic En­ergy Com­mis­sion and Min­istry of In­dus­try and Min­er­als, be­fore re­tir­ing early in 2000. Max Chaud­hary, his Toronto-based im­mi­gra­tion lawyer, said a lot of his work re­lated to the coun­try’s elec­tric­ity grid.Kassab started an en­gi­neer­ing con­sult­ing busi­ness af­ter his re­tire­ment from the gov­ern­ment. He and his fam­ily moved to Jor­dan in 2004, and he then split his time be­tween Iraq, Jor­dan and the United Arab Emi­rates. Ac­cord­ing to the Fed­eral Court de­ci­sion, he and his fam­ily, who are de­vout Catholics, “ex­pe­ri­enced sev­eral in­stances of re­li­gious per­se­cu­tion while liv­ing in Iraq.” Kassab moved to Jor­dan more per­ma­nently in 2014, af­ter an in­ci­dent “where armed men threat­ened death if he at­tended his church,” the de­ci­sion says.Kassab, his wife and two of his daugh­ters later ap­plied for per­ma­nent res­i­dence in Canada as spon­sored refugees. The court de­ci­sion says he was in­ter­viewed by a visa of­fi­cer in Fe­bru­ary 2016, who found he met the def­i­ni­tion of a refugee un­der the UN refugee con­ven­tion, but re­served his de­ci­sion pend­ing the re­sults of an in­ves­ti­ga­tion into Kassab’s em­ploy­ment un­der the dic­ta­tor­ship of Sad­dam Hus­sein, pres­i­dent of Iraq from 1979 un­til 2003.In the mean­time, Kassab’s wife and two daugh­ters were granted per­ma­nent res­i­dence in Canada.In the spring of 2018, Kassab’s ap­pli­ca­tion was de­nied over con­cerns about his role in the Iraqi gov­ern­ment. Ac­cord­ing to Cana­dian refugee law, for­eign na­tion­als are in­ad­mis­si­ble to Canada if they were se­nior of­fi­cials in a gov­ern­ment that en­gaged in ter­ror­ism, hu­man rights vi­o­la­tions, geno­cide or war crimes. In a let­ter declar­ing Kassab in­ad­mis­si­ble, a visa of­fi­cer wrote that Canada con­sid­ers Hus­sein’s gov­ern­ment to be a regime that en­gaged in se­ri­ous hu­man rights abuses.Kassab in­sisted he had been ex­cluded from se­nior po­si­tions be­cause of his re­li­gious be­liefs, and was not a mem­ber of the rul­ing Baath party. “Based on his re­li­gious per­sua­sion, he didn’t have sub­stan­tive in­put into the poli­cies of the gov­ern­ment,” Chaud­hary said.But notes on Kassab’s file quoted in the rul­ing show that visa of­fi­cers felt those ar­gu­ments were ir­rel­e­vant. “Although he may not have reached the up­per ech­e­lons of the Iraqi pub­lic ser­vice, one can still rea­son­ably con­clude that his roles are in­dica­tive of be­ing a se­nior of­fi­cial in the top 50 per cent of Iraqi gov­ern­ment pub­lic ser­vice hi­er­ar­chy dur­ing a des­ig­nated regime pe­riod,” they say.The re­fusal of Kassab’s ap­pli­ca­tion was based on use of the “top half test,” which de­ter­mined that he was a se­nior of­fi­cial be­cause he was in the top half of the Iraqi gov­ern­ment hi­er­ar­chy. But the judge found it was un­rea­son­able to rely solely on that test in the case of gov­ern­ment of­fi­cials.“Given that a civil hi­er­ar­chy may be less struc­tured than a mil­i­tary hi­er­ar­chy, when con­sid­er­ing whether a civil ap­point­ment con­sti­tutes a se­nior mem­ber of the pub­lic ser­vice, a more ful­some ex­am­i­na­tion should be done,” the judge wrote.“It’s re­ally dif­fi­cult in a bu­reau­cratic set­ting to make that de­ter­mi­na­tion, un­like in a mil­i­tary set­ting where re­spon­si­bil­i­ties are re­ally de­mar­cated in quite ex­plicit terms,” Chaud­hary said.The judge found the visa of­fi­cer should have con­sid­ered the “highly rel­e­vant ev­i­dence” sug­gest­ing Kassab did not wield mean­ing­ful in­flu­ence, and or­dered that his case be re­con­sid­ered.How­ever, it will now be up to the Fed­eral Court of Ap­peal to de­cide what fac­tors visa of­fi­cers must take into con­sid­er­a­tion.“When sig­nif­i­cant ev­i­dence is put for­ward that the in­di­vid­ual was un­able to ex­ert sig­nif­i­cant in­flu­ence or ben­e­fit from their po­si­tion, can an of­fi­cer con­clude that an in­di­vid­ual is a se­nior mem­ber of the pub­lic ser­vice solely on the ba­sis that the in­di­vid­ual is within the top half of the gov­ern­ment hi­er­ar­chy, or is the of­fi­cer re­quired to con­duct a broader anal­y­sis and con­sider such ev­i­dence?” the judge wrote.

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