IMM-2248-96
B E T W E E N:
HIBO FARAH MOHAMED
and
ARDO ABDI OMER
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
Delivered from the Bench, at Toronto, Ontario
Monday, April 7, 1997 as edited)
ROTHSTEIN, J.:
The issue in this judicial review is whether the applicants are excluded from the definition of Convention refugee in the Immigration Act by reason of section E of Article 1 of the Geneva Convention. Section E of the Article 1 of the Convention provides:
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E. This Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. |
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The female applicant is originally from Somalia. She left Somalia in 1991, went to Kenya then Russia and finally Sweden in January of 1993. After she left Somalia but before arriving in Sweden she gave birth to the infant applicant. The applicants applied for Convention refugee status in Sweden. In March of 1994, while these refugee claims were pending, they left Sweden for Canada and applied for Convention refugee status in Canada on arrival.
In April 1994, Sweden denied their Convention refugee claims but granted them permanent residence status on humanitarian grounds. The question is whether they have the rights and obligations attaching to the possession of Swedish nationality so as to come under section E of Article 1 of the Convention.
Counsel for the applicants says they abandoned Sweden. He says that according to the Swedish Aliens Act, a certificate of permanent residence is to be revoked if the alien ceases to be domiciled in Sweden. Because they abandoned Sweden, he says, the applicants have lost domicile in that country and therefore their permanent residence certificates are to be revoked. Therefore they do not have the rights of Swedish nationals and are not excluded from the definition of Convention refugee in the Immigration Act by reason of section E of Article 1 of the Convention.
Applicants' counsel says the CRDD erred in not correctly interpreting the term domicile in the Swedish Aliens Act. The panel considered the issue and the evidence before it. There was an apparent conflict in the evidence. The panel chose to accept evidence from the Canadian delegation in Sweden, which states:
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Our mission in Stockholm advises that permanent residence provides subjects with the same type of rights that permanent residents have in Canada (i.e. they have the right to reside, work and study without restrictions or limitations and may apply for citizenship after statutory period of five years). Subjects certificate of permanent residence (06-777256/01) is valid to April 12, 1997. Provided subjects are still in Sweden at that time, the certificate will be automatically renewed. If, on the other hand, subjects have abandoned Sweden as their place of residence when certificate is up for renewal, status would lapse. To conclude, subjects would be admitted and allowed to remain in Sweden provided they arrive at a Swedish Port of Entry within the validity of the certificate of permanent residence. |
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The conflicting evidence is from the Swedish Embassy in Ottawa. However, that document pertains to refugee claimants. The applicants were found not to be Convention refugees in Sweden, but were granted permanent residence there on humanitarian grounds. The Tribunal was entitled to rely on the evidence of the Canadian delegation, which indicates that the relevant time for determining whether the applicants have abandoned Sweden is when the permanent residence certificate comes up for renewal. That will not be until April 12, 1997. The panel therefore did not err in finding that the applicants had not lost their domicile in Sweden.
Applicants' counsel says that the Tribunal should have considered whether there was a possibility that the applicants' permanent residence certificate would not be renewed. However, I think the test established by Pratte J.A. in Mahdi v. M.C.I., Court file A-632-94 December 1, 1995 (F.C.A.) and upon which the Tribunal relied is more appropriate:
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The evidence showed that the respondent, after becoming a permanent resident of the United States, had acted in such a way as to create a serious possibility, if not a probability, that the American authorities would no longer recognize her as a permanent resident and would, for that reason, deny her the right to return to the United States. Surely, that possibly had to be taken into account in deciding whether it was established on a balance of probabilities that the American authorities still recognized the respondent as a permanent resident. |
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The tribunal's decision was consistent with the dicta of Pratte J.A. in Mahdi.
Applicants' counsel says that when the applicants made their refugee claims in Canada, they had no permanent residence status in Sweden. Relying on Mahdi, applicants' counsel says that relevant time to determine if a person has status in another country is when the Convention refugee application is made. I agree that in some cases status should be considered at that time. In other cases it would be when the application is considered by the CRDD. Each case must be decided on the basis of whether there is status at a relevant time. In the case at bar, the applicants obtained permanent residence status in Sweden a few weeks after their arrival and refugee claims in Canada. While they did not have that status on their arrival in Canada, they did have it at the time of the hearing which was the relevant time in this case. The panel was correct in considering their status in Sweden at the time of the hearing.
Applicants' counsel makes the argument that the applicants' status in Sweden is subject to expiry. Therefore they do not have the right of a national envisaged by section E of Article 1 of the Convention. However, the evidence is that having been granted permanent residence status in Sweden, it is only the certificate that must be periodically renewed. There is no evidence that permanent residence status in Sweden is subject to some form of arbitrary cancellation.
This case raises the disturbing question of asylum shopping. If applicants' counsel were correct in his domicile argument, applicants could, at their own will, reject the protection of one country by unilaterally abandoning that country for another. Indeed, that is what has occurred here. The Geneva Convention exists for persons who require protection and not to assist persons who simply prefer asylum in one country over another. The Convention and the Immigration Act should be interpreted with the correct purpose in mind.
Although, I would have preferred to take more time to prepare these reasons, I am delivering them from the Bench today, because it appears from the evidence, that the applicants should be able to maintain their permanent residence status in Sweden if they return there before April 12, 1997.
The judicial review is dismissed.
"Marshall E. Rothstein"
Judge
Toronto, Ontario
April 9, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2248-96
STYLE OF CAUSE: HIBO FARAH MOHAMED ET AL.
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: APRIL 7, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: APRIL 9, 1997
APPEARANCES:
Mr. Nainesh Kotak
For the Applicants
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD:
Andrew Rafuse
Barrister and Solicitor
65 High Park Avenue, Suite 811
Toronto, Ontario
M6P 2R7
For the Applicants
George Thomson
Deputy Attorney General
of Canada
For the Defendant
FEDERAL COURT OF CANADA
Court No.: IMM-2248-96
Between:
HIBO FARAH MOHAMED ET AL.
Plaintiffs
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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