Date:
20120713
Docket: IMM-5752-11
IMM-5758-11
IMM-5757-11
IMM-5759-11
Citation:
2012 FC 883
Ottawa, Ontario,
July 13, 2012
PRESENT: The
Honourable Mr. Justice O’Reilly
Docket: IMM-5752-11
BETWEEN:
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NURO GAS MUSSE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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Docket: IMM-5758-11
AND BETWEEN:
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ABDIRAHMAN ABDI GAS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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Docket: IMM-5757-11
AND BETWEEN:
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AHMED ABDI GAS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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Docket: IMM-5759-11
AND BETWEEN:
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NAJMA OSMAN AWID
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
In
2008, Ms Nuro Gas Musse, along with her nephews, Ahmed and Adbiraham, and her
niece, Najma, applied for permanent residence in Canada at the Canadian
consulate in Addis Ababa, Ethiopia. The family fled Somalia in 2007. Their applications
were sponsored by Hospitality House Refugee Ministry in Winnipeg.
[2]
A
visa officer dismissed all four applications because of concerns about the
applicants’ credibility and a lack of evidence of their identities. The
applicants argue that the officer treated them unfairly and rendered an
unreasonable decision. In particular, they maintain that the officer relied on
extrinsic evidence, and failed to render a separate decision for each
applicant. They also question the basis for the officer’s conclusion that their
account of events was implausible. They ask me to quash the officer’s decision
and order another officer to reconsider their applications.
[3]
I
can find no basis for overturning the officer’s decision and must, therefore,
dismiss this application for judicial review. The officer did not rely on
evidence of which the applicants were unaware. Further, because the basis for the
officer’s conclusion was common to all four applicants, the officer did not
treat them unfairly by rendering an identical decision for each of them.
Finally, the officer’s decision was based on the evidence before her and fell
within the range of defensible outcomes based on the facts and the law. It was
reasonable.
[4]
The
issues are:
1. Did the
officer treat the applicants unfairly?
2. Was the
officer’s decision unreasonable?
II. The Officer’s
Decision
[5]
In
2011, the officer interviewed each applicant separately, and then brought them
together to respond to her concerns. The applicants gave the following
accounts:
(a) Ms Nuro Gas
Musse
[6]
Ms
Musse explained that she belonged to the Bah Hamer tribe in Somalia. During the war, her two sons disappeared. Her husband died of natural causes.
[7]
Ms
Musse lived with her sister, her nephews and her niece in Mogadishu. She ran a
shop, but a group of men burned it down. Her sister died in the fire. Friends
collected money so that she and the other applicants could flee Somalia by air. They flew to Hargeisa, where they stayed only for ten days because there
was no refugee camp there. Again, friends collected money so that the family
could fly to Addis Ababa.
[8]
In
Addis Ababa, the applicants found accommodation, but not in a refugee camp.
Nor did they register with the UNHCR. Because their bags were stolen, they did
not have identification papers and could not leave their home. Therefore, they
were unfamiliar with the surrounding neighbourhood, even though they lived
there for four years. While the rest of the family went to the mosque, she did
not because her hearing and eyesight were poor.
[9]
Ms
Musse stated that she was afraid of returning to Somalia because she was a
member of a minority clan and was at risk of persecution from other clans.
(b) Ahmed
Abdi Gas
[10]
Ahmed,
age 22, explained that he did not know if his parents were alive. He had lived
with his aunt, Ms Musse, since he was a child. The other applicants, Abdirahman
and Najma, were cousins. The family left Somalia in 2007 after Ms Musse’s shop
burned down.
[11]
Ahmed
stated that he rarely went to the mosque in Addis Ababa. The officer asked him
about the neighbourhood. He said there were no shops or restaurants around. He
did not know the name of the nearby shopping centre. He did not register with
the UNHCR because he did not know the location of the office. He did not ask
anyone where it was.
[12]
Ahmed
confirmed that they travelled to Addis Ababa by air, and that their belongings
were stolen after they arrived. They did not report the theft.
(c) Abdirahman
Abdi Gas
[13]
Abdirahman,
age 19, told the officer that his parents disappeared during the war in
Somalia, and that he had lived with his aunt, Ms Musse, since he was three
years’ old.
[14]
He
explained that the family left Somalia in 2007 because of the war. They flew to
Ethiopia by plane, on funds raised in the mosque.
[15]
The
family lived in the Lafta area of Addis Ababa, but he did not know the name of
the street. They could not leave the house because they had no identification
papers. He attended the mosque on Fridays, but he did not know the name of the
imam. Members of the Somali community helped them. Sometimes Ahmed shopped for
them.
[16]
He
did not register with the UNHCR and did not know its location. He possessed a
Somali community identification card that he obtained three days before the
interview.
[17]
Abdirahman
stated that he feared returning to Somalia because he might be killed in the
fighting or forced to take part in it.
(d) Najma
Osman Awid
[18]
Najma,
age 20, believed her parents were alive but she did not know where they were.
She had lived with her aunt, Ms Musse, since she was ten. Ms Musse’s sons
disappeared before 2007.
[19]
The
family fled Somalia because of a series of problems. Her aunt’s sister was
killed, and Ms Musse feared the same fate.
[20]
Najma
confirmed that the family had travelled to Hargeisa and then to Addis Ababa by air. They possessed passports, but these and their other belongings were
stolen on arrival.
[21]
She
knew that the family lived in the Lafta district but did not know the name of
the street. She stayed in the house all day because she had no identification
and did not speak the local language. She did not know where the UNHCR was.
None of applicants attended the mosque. The oldest male in the family did the
shopping.
[22]
After
completing these interviews, the officer called all four applicants together to
discuss her concerns, including:
• considering
they had lived there for four years, they had little knowledge of Addis Ababa;
• they
had no documentation from Somalia or Ethiopia;
• their
stories were not entirely consistent;
• they
had not registered with the UNHCR; and
• aspects
of their story were not plausible: for example, their assertion that the Somali
community in Hargeisa would raise money to fly four strangers to Ethiopia, but
no one in Addis Ababa would help them find the UNHCR.
[23]
Only
Abdirahman spoke in the group interview. He explained that Ms Musse believed
they might be arrested if they left the house without identification.
Therefore, they were not familiar with the neighbourhood. The officer pointed
out that Ms Musse did not provide that explanation in her interview. Further,
other Somalis living in Addis Ababa did not fear arrest.
[24]
Regarding
the UNHCR, Abdirahman stated that anyone who gave them directions to the office
would charge a fee. Somalis in Addis Ababa were not as generous as those in
Hargeisa.
[25]
The
officer asked about the inconsistencies in their accounts of events. Abdirahman
stated that “[w]hat we remembered is that we lived in the same area and that we
lost our parents during the war and she left the country that her sister was
killed in the market that she lived in.”
[26]
The
officer concluded that the applicants’ evidence was not credible and was
inconsistent with the documentary evidence about conditions in Addis Ababa. Further, the officer was not satisfied of the applicants’ identities, the only
evidence being a document obtained from a community office a few days before
the interview.
III. Issue One – Did the
officer treat the applicants unfairly?
[27]
The
applicants argue that the officer should not have relied on what was said in
the interviews by the others. None of the applicants knew what the others had
said. Therefore, this was extrinsic evidence. Further, the officer did not tell
them how their evidence was inconsistent.
[28]
I
agree with the applicants that the officer did not make clear what the
inconsistencies were. It would have been better if she had. However, this was
only one of a series of concerns about the applicants’ evidence. All the
others, described above, were common to all of the applicants. They all knew
what they had said in their interviews and the officer gave them a chance to
allay her concerns.
[29]
The
applicants also contend that the officer had a duty to render separate
decisions for each of them. Instead, she issued four identical decisions. It
does not appear, they claim, that she gave individual consideration to each
applicant, as she was bound to do. In particular, the officer did not consider
the Gender Guidelines in respect of the two female applicants. They did not
speak at the group interview, letting their male relative answer for them. Nor
did the officer consider Ms Musse’s poor eyesight and hearing. These factors
might have helped explain why she was unfamiliar with her neighbourhood.
[30]
The
officer had four separate applications before her; however, Ms Musse’s
application listed the other family members as dependants. Still, the officer
did render four separate decisions, albeit all on the same grounds, based on
separate interviews. The collective interview at the end gave the applicants a
chance to respond to concerns that were common to all four applications. I
believe the officer gave the applicants a fair chance to present their
evidence.
[31]
Further,
the female applicants have not provided evidence that they felt inhibited at
the group interview or that they could have addressed the officer’s concerns if
given an additional opportunity. Those concerns arose out of the individual
interviews in which the applicants would not have felt constrained by the
presence of their male relatives.
[32]
Regarding
Ms Musse’s disabilities, the officer was clearly aware of them and informed Ms
Musse that she should indicate if she was having any trouble during the
interview. She did not express any difficulties. Further, she did not contend
that her unfamiliarity with the neighbourhood was a consequence of her physical
limitations.
[33]
In
the circumstances, therefore, I cannot see any unfairness in the officer’s
treatment of the applicants. Each of them was given an opportunity to present
his or her evidence and to respond to the officer’s concerns (see Ali v Canada (Minister of Citizenship and Immigration), 2012 FC 710, at para 41-45).
IV. Issue Two – Was the
officer’s decision unreasonable?
[34]
The
applicants suggest that the officer’s conclusions were unreasonable and
inadequately explained. In particular, they argue that the officer should not
have based her decision on the implausibility of their evidence. Such a finding
should only be made in the clearest of cases.
[35]
I
find that the officer’s conclusions were reasonable. She found it unlikely that
all of the applicants would be unfamiliar with a neighbourhood they had
occupied for four years; that they were seeking refugee protection but did not make
any reasonable effort to contact the UNHCR; that no one would tell them the
location of the UNHCR office (without a fee), while relative strangers were
prepared to pay their airfare; and that they did not possess, and could not
obtain, any reliable identification evidence. In my view, the officer
reasonably concluded that this evidence fell outside the realm of what could be
reasonably expected in the circumstances (Valchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776, at para 9). Further, in
setting out the basis for her conclusions, she made sufficiently clear why she
dismissed the applications (NLNU v Newfoundland & Labrador (Treasury Board), 2011 SCC 62, at
para 16).
V. Conclusion and
Disposition
[36]
The
officer treated the applicants fairly by giving each of them an opportunity to
provide their individual accounts, and then gave them a chance to respond to
her concerns. She rendered individual decisions for each applicant, albeit all
on the same grounds. Moreover, the officer’s conclusions were reasonable given
that they represented defensible outcomes based on the facts and the law. Her
reasons were sufficiently clear. I must, therefore, dismiss this application
for judicial review.
[37]
The
applicants proposed the following questions for certification:
i.
In
an application for permanent residence at a Canadian visa office abroad, does
the visa office breach the duty of fairness owed the applicant by basing the
decision in part on interviews with other, related applicants, but not
disclosing the entirety of those other interviews to the applicant with an
opportunity for comment?
ii.
Is
there a breach in the duty of fairness owed an application for immigration at a
visa post abroad where
1. the
visa office interviews a number of related applicants separately,
2. refuses
the application of the applicant based on inconsistencies with the interviews
of the other related applicants, and
3. the
visa office does not disclose to the applicant the inconsistencies with an
opportunity to respond?
iii.
Where
a person makes an individual application to a Canadian visa office abroad for
permanent residence along with other related applicants and that application is
refused, is the applicant entitled to separate reasons for the refusal which
relate specifically to the case of the applicant?
4. When
deciding on an application for immigration at a visa post abroad based on
membership in the Convention refugee abroad or humanitarian protected persons
abroad designated class, does gender equality require the visa office to assess
the need to conduct an interview of an individual female refugee applicant who
comes from a male dominated society separately from her male relatives?
5. Can
reasons for refusal of an immigration application by a visa post be considered
reasonable when they are collective, refusing several applicants with the same
language, and not linked to the individual case of the applicant?
[38]
In
my view, Question 1 does not arise here because the officer gave the applicants
a reasonable opportunity to respond to concerns arising from individual
interviews. For the same reason, Question 2 should not be stated. Question 3
should not be stated because each applicant received a separate decision.
Question 4 need not be stated because the female applicants were interviewed
separately and there is no evidence that they refrained from putting forward
relevant information. In my view, Question 5 should not be stated because the
applications here were based on the same grounds and rejected on the same
basis. No further particularity was required in the circumstances.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is dismissed;
2.
No
serious question of general importance will be stated;
3.
A
copy of these reasons for judgment and judgment shall also be placed in file
IMM-5758-11 (Abdirahman Abdi Gas); IMM-5757-11 (Ahmed Abdi Gas)
and IMM-5759-11 (Najma Osman Awid).
“James W. O’Reilly”
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