Date: 20061018
Docket: IMM-523-06
Citation: 2006 FC 1237
Ottawa, Ontario, October 18, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
SABIR
ARAZ NAJAT
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Araz
Najat Sabir is a 23 year old Kurdish citizen of Iraq who applied
for permanent residence in Canada as part of the Convention refugee abroad
and humanitarian protected persons abroad classes. His application was
rejected by a visa officer.
[2]
Mr.
Sabir now seeks judicial review of the officer’s decision, asserting that the
officer erred in finding that he could safely return to Iraq by considering the
general situation in Iraq, and not addressing Mr. Sabir’s personal
circumstances. The officer further erred, Mr. Sabir says, by
engaging in speculation, by making
unreasonable inferences, and by making findings of fact without regard to the
totality of the evidence.
[3]
For
the reasons that follow, I am of the view that the officer did indeed err, and
that this application should therefore be allowed.
Background
[4]
While
he was completing secondary school in the Kurdish region of Iraq, Mr. Sabir
says that he became involved with the Patriotic Union of Kurdistan (PUK), and
was elected as a student representative of the PUK.
[5]
Mr.
Sabir asserts that his political beliefs brought him into conflict with
fundamentalist Islamic political parties operating in the region, who sought to
enforce Islamic practices within his school’s administrative structure. Mr.
Sabir alleges that during public speeches and debates, he would often be
confronted by members of these parties, and verbal arguments and fights would
break out between the participants and members of the religious parties.
[6]
Mr.
Sabir subsequently took on different roles within the PUK, and was elected head
of the PUK student member’s organization in Sulaymaniyah in 1999. He was
subsequently re-elected as PUK student representative for his school in 2000.
[7]
Mr.
Sabir says that in 2000, he began receiving death threats. The threats started
around the time that members of the Islamic parties came to his school, trying
to force students to join their party.
[8]
The
threats against Mr. Sabir’s life continued over the next couple of years, he says,
increasing in number and intensity. On the advice of his father, Mr. Sabir
decided to leave Iraq, eventually arriving in Switzerland, having
travelled through Iran, Turkey, Greece and Italy en route.
Mr. Sabir made a claim for refugee protection in Switzerland, which was
not successful.
[9]
A
group of five Canadian citizens then offered to assist Mr. Sabir with an
application for refugee protection in Canada, and in June of 2004,
this group made an application to sponsor him. The group’s sponsorship application
was approved by Citizenship and Immigration Canada shortly thereafter.
[10]
Mr.
Sabir then sent his application for permanent residency to the Canadian embassy
in Paris. He stated
in his application that he feared returning to Iraq because of
the increase in Islamic-based political parties.
[11]
As
part of his application, Mr. Sabir was required to attend for an interview with
the Visa Officer, which took place in Switzerland on December 9, 2005.
The Visa Officer’s
Decision
[12]
By
a letter dated January 6, 2006, Mr. Sabir was advised that he did not meet the
requirements for immigration to Canada. The operative portion
of the officer’s letter provides that:
… I am not satisfied that you are a
member of any of the classes prescribed for the following reasons: you are from
the Kurdish region of Iraq where the rest of your family
(brothers and sister) are still living. Since your departure of Iraq in 2002,
the political situation has changed in Iraq and the Kurdish people is [sic]
no longer persecuted by the Iraqi regime in place in 2002. Therefore, you do
not meet the requirements of [the Immigration and Refugee Protection
Regulations].
[13]
The
Officer’s contemporaneous notes of the interview, as recorded in the Computed
Assisted Immigration Processing System, state :
DIT QU IL A ETE REFUSE CAR LES SUISSES
ESTIMENT QUE L,IRAQ EST DESORMAIS SECURISE POUR LES KURDES… SUJ N A PRESENT AUX
AUTORITES SUISSES AUCUN ELEMENT DE PREUVE SATISFAISANT CONCERNANT UNE
EVENTUELLE PERSECUTION DE LA PART DES AUTORITES DE SON PAYS D ORIGIN. [sic
throughout]
[14]
The
CAIPS notes go on to state :
NOUS AVONS REVU EN DETAIL LES RAISONS
POUR LESQUELLES SUJET SE SENTIRAIT PERSECUTE OU EN DANGER S IL RETOURNAIT DANS
SON PAYS MAIS CES RAISONS NE M ONT SEMBLES NI CREDIBLES NI SATISFAISANTES.
[15]
After
discussing the basis of Mr. Sabir’s claim, the CAIPS notes state “SUJ N,A
APPORTE AUCUNE PREUVE CONVAINCANTE. N,A APPORTE AUCUN DOCUMENT AVEC LUI DE
KURDISTAN.”
[16]
The
Visa Officer then goes on to state that persecution on the basis of Kurdish
ethnicity no longer occurs in Iraq. In this regard the officer noted that
the area that Mr. Sabir comes from is predominantly Kurdish. The officer then
goes on to observe that since the war in Iraq began in 2003, there has been a
change in regime, and that the Kurdish minority in Iraq are now under the
protection of American forces. Moreover, the officer found that Mr. Sabir had
family members in the Kurdistan area of Iraq, and thus he
would not be isolated on his return.
[17]
The
officer then concluded that Mr. Sabir had left Iraq for economic reasons,
finding that the fears that he had expressed about returning to Iraq did not
reflect the current reality in that country.
[18]
In
essence, therefore, it appears the Visa Officer found the situation had
improved substantially, and that given his family remaining in Iraq, there was
no reason that Mr. Sabir could not return and live safely with them.
[19]
The
Visa Officer has provided additional reasons for refusing Mr. Sabir’s
application in an affidavit sworn in support of this application for judicial
review. Before addressing the arguments advanced by the parties with respect
to the merits of the application, it is first necessary to address the extent
to which the reasons for the decision set out in the officer’s affidavit should
be considered.
The Officer’s Affidavit
[20]
It
is well-settled that the reasons contained in the decision letter of a visa
officer may be supplemented by reference to the officer’s contemporaneous CAIPS
notes.
[21]
However,
where, as here, the officer’s reasons have been further supplemented by an
affidavit from the officer, the question arises as to how much weight should be
accorded to the officer’s reasons for his decision, as they are set out in his
affidavit.
[22]
In
my view, the reasons provided in the officer’s affidavit in this case should be
given very little weight. In coming to this conclusion, I adopt my comments in
Alam v. Canada (Minister of Citizenship and Immigration), [2004]
F.C.J. No. 209, 2004 FC 182, at ¶ 19, where, in a similar situation, I observed
that:
… It is apparent from the affidavit that,
at the time that the affidavit was signed, the officer continued to have a
specific recollection of the interview with Mr. Alam. Nevertheless, the
affidavit was sworn several months after the interview, presumably at a point
where the officer was aware that her decision was being challenged. In the
circumstances, I prefer to focus my attention on the reasons expressed in the
CAIPS notes, and to give little weight to the after-the-fact explanation
provided by the officer.
To this effect, see also Kalra v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1199, 2003 FC 941.
[23]
In
Mr. Sabir’s case, the officer’s affidavit was also sworn several months after
the decision under review was made. Moreover, in the intervening months, the
officer had undoubtedly been
called upon to deal with other visa
applications, which would inevitably have had a negative impact on his ability
to recall the precise details of Mr. Sabir’s interview.
[24]
This
is not a situation where the officer is merely elaborating on cursory reasons
for an assessment provided in CAIPS notes. What the officer has done with his
affidavit is to provide entire lines of reasoning that are not reflected
anywhere in his contemporaneous notes of the interview.
[25]
Moreover,
in his affidavit, the officer attributes certain statements to Mr. Sabir, such
as his alleged statement that he could not return to Iraq because the
economic conditions in that country were difficult. Nowhere in the CAIPS notes
is there any reference to Mr. Sabir having made any such statement.
[26]
Similarly,
there is no reference in the CAIPS notes to Mr. Sabir allegedly having said
that his Swiss refugee claim had been rejected because the Swiss authorities
did not believe him.
[27]
In
these circumstances, I am satisfied that little weight should be attributed to
the explanation for the decision provided by the officer in his affidavit, and
that my analysis should be confined to the reasons set out in the refusal
letter and CAIPS notes.
Analysis
[28]
There
is little in either the CAIPS notes or decision letter to explain why the
officer concluded that Mr. Sabir’s reasons for fearing persecution in Iraq were neither
credible nor sufficient.
[29]
Nowhere
in the record is there a copy of the Swiss refugee decision, and thus there is
no way of knowing precisely why it was that Mr. Sabir’s claim in that country
was refused, apart from the explanation provided by Mr. Sabir himself. As a
result, the Swiss decision could not have reasonably formed a basis for the
officer’s finding that Mr. Sabir was not credible.
[30]
This
leaves the officer’s finding that Mr. Sabir had failed to provide any
documentary evidence to support his claim to having been a PUK activist as a
possible foundation for the officer’s finding that he was not credible. In
this regard, it is clear from the jurisprudence that a claimant's testimony
cannot be discredited simply because it has not been corroborated by
documentary evidence: Ahortor v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 705 (T.D.). It seems to me
that it would be especially risky to do so where, as is the case here, the
claimant comes from an area of the world that is currently in chaos.
[31]
Moreover,
the officer does not appear to have appreciated the nature of the risk that was
being asserted by Mr. Sabir. That is, the officer found that as a result of
the regime change in Iraq, Mr. Sabir would no longer have reason to
fear the Iraqi authorities. This may well be true. However, the risk that Mr.
Sabir claimed to face in Iraq was not from representatives of the Saddam
Hussein regime, but rather from Islamic militants. There is no consideration
in the officer’s decision as to whether sectarian violence in Iraq has abated
to the point that Mr. Sabir would no longer have reason to fear Islamic
militants.
[32]
As
a consequence, I am satisfied that the officer’s finding that Mr. Sabir was not
at risk in Iraq was made without regard to the evidence before him, and was
thus patently unreasonable.
[33]
Finally,
the officer’s references to the fact that members of Mr. Sabir’s family
continue to reside in Iraq are confusing. There is no suggestion in
the record that anyone else in Mr. Sabir’s family was politically active, and
thus the fact that his family continues to live in Iraq seems to be
of limited relevance to the assessment of the risk faced by Mr. Sabir himself.
Conclusion
[34]
For
these reasons, the application for judicial review is allowed.
Certification
[35]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different visa officer for re-determination; and
2. No serious question
of general importance is certified.
“Anne Mactavish”
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