Date: 20061218
Docket: IMM-1083-06
Citation: 2006 FC 1508
Ottawa,
Ontario, December 18, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
OSMAN
OMAR ABDULLE
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision by
Mr. Norman Morgan, First Secretary (Visa Officer), based in the United Arab Emirates.
By letter dated
December 28, 2005, the Visa Officer found that the Applicant is not a member of
the Convention Refugees Abroad class nor the Humanitarian-Protected Persons Abroad
designated class.
ISSUES
[2]
Did
the Visa Officer make a patently unreasonable finding of fact?
[3]
As
the reasons below explain, there were patently unreasonable findings of fact.
As a result, this application for judicial review shall be allowed.
BACKGROUND
[4]
The
Applicant is a Somali citizen who fled the unrest in his country on October 21,
1996. His flight brought him to Yemen on November 5, 1996,
where he has lived as a refugee ever since.
[5]
In
1999, he married Hawa Ali Omar, in Yemen. On April 5, 2005, the
Applicant applied for permanent residence in Canada as a refugee
outside Canada. His
spouse’s name figures on his application. The Applicant was interviewed on
December 18, 2005. His application was refused by letter dated December 28,
2005, as a result of which the matter comes to this Court.
DECISION UNDER REVIEW
[6]
In
refusing the application, the Visa Officer found that the Applicant did
not “demonstrate that [he has] any fear of specific, individual persecution
against [him] in Somalia or in Yemen”. Furthermore, he was not recognized as
a refugee by the United Nations High Commissioner for Refugees (UNHCR) and his
alleged attack by Yemeni soldiers gave no evidence that he was specifically
targeted.
[7]
The
Applicant states that he faced persecution based on his clan membership, and
due to marrying a woman from a different and more powerful clan than his own. He
states that the Visa Officer misunderstood him to mean that he was from a more
powerful clan than his wife, and also did not recognize the clan he named as
his own. This marriage would cause risk of persecution to them if they returned
to Somalia, and already
causes risk in Yemen. In addition, he argues he was recognized by
the U.N. as a refugee while in Yemen in that both he and his wife were in
possession of an identity card co-signed by the Office of the UNHCR and the
Government of Yemen that were issued on July 1, 2002, with an expiry date of
December 31, 2004.
ANALYSIS
Standard of Review
[8]
The
parties have not turned their minds to the standard of review applicable to a
discretionary decision of a Visa Officer with respect to the determination of
membership in the Convention Refugee Abroad class or membership in the
Humanitarian-Protected Persons Abroad designated class.
[9]
This
question was dealt with by my colleague Justice Edmond Blanchard in Khwaja
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 522, [2006] F.C.J. No. 703 (F.C.) (QL)
at paragraph 22 and I adopt his analysis in its entirety as follows:
[…] In Ouafae v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 592, 2005 FC 459, Justice
Yves de Montigny reviewed and noted that the Court was divided on whether
standard of reasonableness simpliciter or patent unreasonableness applied to
decisions of visa officers. After considering the pragmatic and functional
analysis conducted by Justice John O'Keefe in Yin v. Canada (Minister of
Citizenship and Immigration) (2001), [2001] F.C.J. No. 985, 106 A.C.W.S.
(3d) 726 (F.C.T.D.), Justice de Montigny concluded that decisions of visa
officers based on purely factual assessments are reviewable on a patently
unreasonable standard, whereas decisions of visa officers based on application
of the facts to legal standards are reviewable on a reasonableness standard. At
paragraphs 18 to 20 and 22, Justice de Montigny held:
[18] Opinion on the appropriate standard
of review for decisions by visa officers is divided and appears to have spawned
seemingly contradictory decisions. In some cases, reasonableness simpliciter
was the chosen standard (see, inter alia, Yaghoubian v. Canada (M.C.I.),
[2003] F.C.J. No. 806, 2003 FCT 615; Zheng v. Canada (M.C.I), [2000]
F.C.J. No. 31, IMM-3809-98; Lu v. Canada (M.C.I.), [1999] F.C.J. No.
1907, IMM-414-99). In other decisions, patent unreasonableness was chosen
instead (see, for example, Khouta v. Canada (M.C.I.), [2003] F.C.J. No.
1143, 2003 FC 893; Kalia v. Canada (M.C.I.), [2002] F.C.J. No. 998, 2002
FCT 731).
[19] And yet, on closer inspection, these
decisions are not irreconcilable. The reason for the different choices is
essentially that the nature of the decision under review by this Court depends
on the context. Thus it goes without saying that the appropriate standard of
review for a discretionary decision by a visa officer assessing a prospective
immigrant's occupational experience is patent unreasonableness. Where the visa
officer's decision is based on an assessment of the facts, this Court will not
intervene unless it can be shown that the decision is based on an erroneous
finding of fact made in a perverse or capricious manner.
…
[22] ...[T]his Court must show deference
when the impugned decision is purely factual. […]
I adopt my learned colleague's reasoning
in respect to the applicable standard of review of visa officer's decisions.
[10]
Applied
to the facts of this case, the decision of the Visa Officer is purely fact
driven. As such, this Court will not intervene unless it can be shown that the
decision is based on an erroneous finding of fact made in a perverse or
capricious manner.
Patently unreasonable
findings of fact
[11]
The
Applicant argues that the Visa Officer made two erroneous findings of fact:
the one with respect to the Applicant’s personalized risk; and the other
concerning the Applicant’s UNHCR refugee status.
(i) Personalized
risk
[12]
The
Visa Officer found that there was no evidence of “fear of specific, individual
persecution against you either in Somalia or in Yemen.” The
Applicant’s application referred generally to risks that existed if he was to
return to Somalia, in
particular in response to Question 6A), the Applicant wrote as follows:
Q6A) the security there is not yet
available/certain.
- the country is still under the
authority of certain unmerciful warloads.
-we are not feeling confidency in having
protection from what ever group/authority. [T]he existence of Segregation
behaviours commonly prevailing across the country.
Q6B) I’m not free to work, attend school
or traveling freely in this country, the common law of this country does not
accept this sort of freedom. [sic]
[13]
And
in response to a question about being in danger in Yemen, the
Applicant wrote:
Q7. I’m in danger and experiencing
problem with various categories of bodies in this country because of lack of free
movement and should I do so, I would be arrested by the authorities concerned.
we sometimes experience some in human assaults from them. they intimidates us
and often talk wards that we could not bear. [sic]
[14]
However,
the Applicant also pointed to more personalized risk when he stated:
Q9. for you information, I tell you that
my home country (Somalia) Nowdays have some in human
behaviours and cultures, these are some how prevailed in the community and
existed for so long years. No regime in the past have waged any compaign to eridicate
this negative behaviours and it’s still in full effect across the whole Somali
Community, more people became a victim of these attrocities or behaviours these
behaviour is known as Segregation among the Society. we honestly inform you
that I’m descendent of this Sort of Community who are permenantly look down up
on, Being of this category, have married from those who are in favour of this
odd custom (such marriage is quite rare), and if we even want to get back home
we should get ready to die both of us. even, in this host country we are
Experiencing Such Segregation from other Somali refugees. [sic]
[15]
Prior
to the interview, the following notes were made in the Applicant’s CAIPS notes
on June 8, 2005:
PA states he might be executed in Somalia because of traditional
constraints as he is married from a highly priviledged clan. [sic]
PA states he cannot return to Somalia because of there is no
security.
Unclear what persecution PA faces in Somalia.
[16]
The
CAIPS notes give the following exchange from the interview of the Applicant by
the Visa Officer on December 18, 2005 in Yemen:
ELIGIBILITY
PA [primary applicant] belongs to Mardeban
clan (note not Marehan), Omar Mohamed subclan, Diya Nahir sub-subclan.
Wife belongs to Ogaden clan, Reer Abdul
subclan.
21Oct96 PA said he left Mogadishu after fighting broke out. He
said that he was not member of any militia or involved in any politics. His
father was not involved in politics either.
08Nov96 PA arrived in Yemen.
1999 PA married wife in Yemen.
When asked why he cannot return to Somalia, PA said because there is no
govt nor law and order there. He did not add anything else.
I then asked PA abt his claim that he
fears persecution because he comes from a privileged clan. He could not
provide any explanation for this, though interpreter said separately that the
Mardeban clan are known as traders.
[17]
The
Visa Officer’s Affidavit further explained on this exchange:
8. When I asked Mr. Abdulle why
he could not return to Somalia, he said because there is no
government nor law and order there. I asked him if there were any other reasons
and if he had other concerns that I should note. He did not add anything else
in response to these questions. I then asked Mr. Abdulle specifically about
his claim that he feared persecution because he came from a particular clan, as
was indicated in his application. He could not provide any explanation for
this statement. The interpreter informed me that the Mardeban clan are known
in Somalia as traders. At no time
during the interview did Mr. Abdulle state that he had any fear of persecution
in Somalia because he had married
someone from another clan, let alone someone from an opposing or hostile clan.
(See
Affidavit of Norman Earl Morgan [Visa Officer], paragraph 8, page 3 Affidavit)
[18]
On
cross-examination (by teleconferencing) by the Applicant’s counsel, David
Matas, the Visa Officer offered this explanation for his line of questioning
(p. 7 of the transcripts):
13. Q. Now, I wanted to go to the
CAIPS notes, page 44. It says, “I then asked PA”, “PA”, I assume means
“principal applicant.” “About his claim that he fears persecution because he
comes from a privileged clan.”
A. Yes.
14. Q. “He did not provide me any
explanation for this.”
A. Yes, I have it right in
front of me.
15. Q. Now, I gather from your
affidavit, what you are referring to was something that is found in the
personal information form of Mr. Abdulle.
Well, maybe I should ask you
this: What was the purpose of that question, I mean, about his claim that he
fears persecution because he comes from a privileged clan? What were you
asking him there?
A. You see, as I have
indicated in my [CAIPS] notes, I asked him, “Please, tell me why you fear
persecution in Somalia?” And he gave a very, very
general answer, as you can see in my notes, “The PA explained because there was
no government or law in order there.” And I asked him a follow-up question, I
said, “Is that it?” And the interpreter interpreted, “That’s it. He has
nothing else to add.”
And then to be absolutely
fair, to encourage the applicant to say more, in case there was something that
he missed, or whatever, I had seen this is in the PIF, as well as in the CAIPS
notes prepared, or the prep notes prepared by the immigration officials at the
Canadian High Commission in London, which are above, referring to this privileged
clan. I did not want to place words or suggestions or ideas in the head of the
applicant. However, to be absolutely fair, I said, look, I have given you two
chances already to – I didn’t say this to him, but I thought to myself, look, I
have already given him two chances to explain the grounds why he fears
persecution from Somalia, I will go a little bit farther, I will even ask him
about this privileged clan that I had read about and give him an opportunity to
see if this elicits any type of response, something that I can use in my
assessment. And unfortunately, well, unfortunately for him but, you know, I
record and I base my assessments and my decisions based on all the facts and
the information that he supplies me and the facts before me, he could not
provide any explanation for that statement.
[19]
The
Applicant’s counsel then asked him to comment on the CAIPS notes referring the
possibility of execution in Somalia because of his marriage
(as above). He also quoted from the PIF regarding his marriage and clan affiliation.
He asked the Visa Officer to comment on the apparent confusion in statements as
to which person in the couple was from a privileged clan: the applicant or his
wife? The Visa Officer stated that he was trying to find out from his line of
questioning, “And yet there was nothing. Nothing on this issue. No response
from him. No details. No explanation for this.” The Visa Officer further
stated on cross-examination that the Applicant had done nothing to correct the
impression that it was the Applicant and not his wife who belonged to a
privileged clan. The words “married from” were further discussed as ambiguous
(was the applicant or his wife from the privileged clan), and the same words
appear also in the addendum to the PIF in the Tribunal Record.
[20]
The
Visa Officer then discussed the clan to which the Applicant claimed to belong
and said he was unable to find any information of it. He further stated that
the wife’s alleged clan had been privileged, although it may no longer be so. When
asked if he may have misheard the name of the husband’s clan he did not believe
that to be the case. The alternate name offered was “Madhiban” rather than
“Mardeban”, which is what he heard. The former name is known as a group who
have been persecuted and the Applicant’s Further Submissions have information
attached regarding this clan.
[21]
Altogether
the evidence shows the Visa Officer to have made a serious attempt to elicit
information regarding this issue from the Applicant. However, there is certainly
some confusion concerning who belonged to the privileged clan and which clan
the husband claimed to belong to. More importantly, the evidence regarding the
risk he alleged existed if he was to return to Somalia based on
this marriage is not addressed even though it appears in his PIF and in the
CAIPS notes. I do not see that the Visa Officer’s argument that no information
was put forward concerning this issue can stand when it was already raised as
an indication of risk. For this reason, I believe that the matter should be
returned to a different Visa Officer for re-consideration. The Visa Officer did
not adequately consider the Applicant’s assertion of risk of persecution (if he
remains in Yemen or if he is
returned to Somalia) that was
raised in the PIF and CAIPS notes. For this reason alone, the application ought
to be returned for re-consideration by a different Visa Officer.
(ii) UNHCR
Refugee Status
[22]
A
further issue raised concerns the Visa Officer’s finding that the UNHCR had not
recognized the Applicant as a refugee. The Applicant contends that the UNHCR ID
he has gives him refugee status. The Respondent replies that although this is
an official UNHCR identification, it is not the same as recognition of refugee
status.
[23]
The
Visa Officer explains at length in both his affidavit and on cross-examination
his understanding of the significance of the cards and of different types of
refugee recognition. The essence of it is that although the UNHCR may, along
with the Yemeni government, grant prima facie refugee recognition
to Somalis and some other nationals upon arrival in Yemen, these
people have not actually been through refugee status determinations where the
UNHCR does an assessment to determine whether they meet the Convention refugee
definition. As such, the fact that they may have prima facie refugee
recognition is not relevant to a Canadian visa officer’s determination as to
whether an applicant meets the Convention refugee definition.
[24]
Furthermore,
as the Visa Officer points out, when the Applicant filled out the PIF Schedule
2, question 3C) which asks “Have you ever applied for Convention refugee status
with the United Nations High Commissioner for Refugees (UNHCR)?”, the Applicant
answered “No”.
[25]
While
it seems contradictory for the Applicant to claim that they not only applied
for refugee status but attained it also, the Visa Officer overlooked the fact
that the Applicant and his spouse both had in their possession an identity card
co-signed by the Office of the UNHCR and the Government of Yemen. It would also
appear that the Visa Officer relied on extraneous information not available to
the public to conclude that the Applicant, in spite of his UNHCR ID card, had
not been recognized either as a Mandate or Convention refugee by the UNHCR.
[26]
The
Applicant proposes the following question for certification:
Is a person who is recognized by a state
which has acceded to the United Nations Convention and Protocol on the Status
of Refugees as a Convention refugee also a refugee under the mandate of the
Office of the United Nations High Commissioner for Refugees?"
[27] The Respondent objects and
submits that the case at bar is fact driven and the proposed question for
certification does not contain the characteristic of general importance recognized
by the jurisprudence. I agree.
JUDGMENT
THIS COURT
ORDERS that
the application for judicial review is allowed and the matter is sent back to
be redetermined before a different Visa Officer. No question is certified.
“Michel
Beaudry”
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