Docket: IMM-5755-11
IMM-3959-11
IMM-5754-11
Citation:
2012 FC 960
Ottawa, Ontario,
August 2, 2012
PRESENT: The
Honourable Mr. Justice O'Reilly
Docket: IMM-5755-11
BETWEEN:
|
|
AMINA AHMED ABDULLAHI
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
Docket: IMM-3959-11
AND BETWEEN:
|
|
ABDULLAH FARAH IBRAHIM
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
Docket: IMM-5754-11
AND BETWEEN:
|
|
ABDIHSHAKUR FARAH IBRAHIM
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
Ms
Amina Ahmed Abdullahi and her two adult sons, Abdihshakur and Abdullah, as well
as her dependant daughter, Deqa, sought permanent residence in Canada as members of the Convention refugee abroad class, or the country of asylum class.
They claimed to be Somali nationals, living in Djibouti. In 2007, a visa
officer at the Canadian consulate in Djibouti interviewed the applicants.
Subsequently, in 2011, another officer denied their applications based on
concerns about the applicants’ identities and credibility.
[2]
The
applicants argue that the officer who denied their applications treated them
unfairly and rendered unreasonable decisions. In particular, they submit that
the officer made adverse credibility findings against them based on the
interview notes of another officer; this, they say, was unfair. They also
maintain that the officer’s decision was unreasonable because the officer
concluded that their evidence was not credible primarily because they referred
to the ethnic group to which they belonged as a “minority clan.” They ask me to
quash the officer’s decisions and order reassessments by a different officer.
[3]
I
can find no basis for overturning the officer’s decisions. The officer fully
considered the evidence supporting their applications and did not treat them
unfairly by relying in part on the notes of another officer. Further, the
officer’s decision was not unreasonable, as it was based on the evidence before
him. I must, therefore, dismiss this application for judicial review.
[4]
The
issues are:
1. Did
the officer treat the applicants unfairly by relying on another officer’s notes
or extrinsic evidence?
2. Was
the officer’s decision unreasonable?
II. The Officer’s
Decision
[5]
The
officer who interviewed the applicants in February 2007 noted the following:
• Abdihshakur
did not bring any supporting documents to the interview, and said that he had
none. He had not contacted the UNHCR or the ONARS (Office Nationale
d’assistance aux réfugiés et sinistrés). He stated that he and his brother and
sister arrived in Djibouti in 1995, having fled the fighting in Somalia, where his older brother and uncle were killed. He cannot work in Djibouti because he has no documents. The family survives on money sent by his sister, who
lives in Canada. He claimed to be a member of the Ahmed Said tribe and to fear
persecution in Somalia as a member of a minority clan.
• Since
Abdullah did not have an application form or any photos, the officer asked him
to send the necessary documentation to the consulate. Abbdullah said that the
family had arrived in Djibouti in 1995, having fled Somalia fearing for their
lives. He claimed the applicants were members of a minority tribe in Somalia, and could be treated like animals by the dominant tribes if they went back.
• Amina
also claimed that the family would be mistreated in Somalia because of their
tribe.
[6]
The
officer sent reminders to Abdullah and Amina to provide the required forms and
photographs, and further details about their clan. The applicants provided
photos (in April 2008) and forms (in October 2009), but no information about
their clan.
[7]
Another
officer reviewed the family’s file and concluded that the applicants were
members of the dominant Darod clan, but their sub-sub-clan, or family, was
Ahmed Said. They were not members of a minority tribe. This officer also found
it unlikely that Abdihshakur had been in Djibouti since 1995 but had never
acquired any documents. The officer had concerns about Abdihshakur’s identity
and overall credibility. In addition, he noted that circumstances had changed
since the applicants left Somalia. At the time, there was a war between the various
warlords and clans. However, the situation had since changed especially in
Hargeisa, Garowe and Puntland where the applicants had stayed.
[8]
In
June 2010, the applicants were asked to provide further documents. The
consulate also sent a request to the UNHCR for any records it had. It appeared
that Abdihshakur had registered with the UNHCR, but not until September 2010,
fifteen years after he allegedly fled Somalia. Abdullah and Amina never
registered with the UNHCR.
[9]
In
2011, the deciding officer reviewed the file and, like the previous officer,
had concerns about Abdihshakur’s clan membership, his identity, and his
nationality. The officer held the same concerns regarding Abdullah and Amina.
Accordingly, he was not satisfied that the applicants were members of the
Convention refugee abroad class, or the country of asylum class, and rejected
their applications for permanent residence.
III. Issue One – Did the
officer treat the applicants unfairly by relying on another officer’s notes and
extrinsic evidence?
[10]
The
applicants submit that the deciding officer treated them unfairly by making
credibility findings based on the notes of another officer. They suggest that
the officer was required to interview them personally before rejecting their
applications. They had a legitimate expectation that the officer would do so
based on the applicable Operations Manual and the interviewing officer’s own
undertaking that a decision would not be made until she had done research into
the applicants’ clan.
[11]
The
applicants point out that the interviewing officer made no adverse credibility
findings. In fact, the officer noted that their evidence was consistent
regarding their clan membership.
[12]
Amina
and Abdullah also submit that the officer should not have relied on the UNHCR
database because it is not publicly accessible. Therefore, it constitutes
extrinsic evidence. The officer should have disclosed this information to them
and given them a chance to respond before making any negative credibility
findings against them. Further, they maintain that the officer should not have
relied on Abdihshakur’s late registration to make an adverse finding against
them.
[13]
There
are cases where it would be unfair for the deciding officer to render a
decision without interviewing the applicants personally (see e.g.,
Patel v Canada (Minister of Citizenship and Immigration), (1998) 155 FTR
228, at para 21). However, in this case, the officer made a decision based on
the evidence before her and the plausibility of the applicants’ account of
events. She did not make any findings based on subjective assessments of the
applicants’ credibility that could only be made by direct observation. The
Operations Manual to which the applicants refer contemplates this situation:
When an officer is not the only
person dealing with applicants, who hears and decides may be less clear to
them. They may present information to someone not authorized to make the
decision. This person is an intermediary who must pass all relevant information
from applicants to the officer. The intermediary cannot assess the information
for an officer and arrive at a decision. The record of decision must show that
the officer made it after assessing all pertinent information from the
applicant. Often, officers rely on subjective assessments to make decisions. If
a decision hinges on such assessments (e.g., abilities in English or
French, or credibility), it must be clear to the applicant that the officer
made the assessment. Officers should not appear to rely on someone else’s
subject assessment (OP 1, Procedures, 8 (procedural fairness)).
[14]
Here,
the deciding officer did not rely on someone else’s subjective credibility
assessment. Nor did she make her own subjective assessment. She relied on the
evidence presented by the applicants and arrived at her own conclusions about
whether the applicants had demonstrated that they fell within the refugee abroad
or country of asylum classes. I see nothing unfair about the procedure the
officer followed.
[15]
Regarding
the officer’s reliance on information from the UNHCR, the applicants’
non-registration, or late registration, as the case may be, was entirely within
their knowledge. The officer made a negative credibility finding against Amina
and Abdullah because they had failed to register at all, not because Abdihshakur
had registered late.
[16]
Amina
and Abdullah knew before the interview that they were required to provide
documentation, including proof of UNHCR registration. They knew that the
officer would likely investigate this issue, and what the consequences might
be. Therefore, I cannot conclude that the officer treated the applicants
unfairly by reviewing the UNHCR’s records.
IV. Issue Two – Was the
officer’s decision unreasonable?
[17]
The
applicants submit that the officer’s negative credibility findings were
unreasonable because their use of the word “clan” to refer to their
sub-sub-clan or family is consistent with the usage of that term in Somalia. They cite documentary evidence stating that it is Western usage to refer to groups
other than the dominant Darod, Hawiye, Isaaq and Dir clans as “minority clans.”
When they said they were members of a “minority clan,” they simply meant that
their clan-family was a minority group within the larger Darod clan. Therefore,
the officer’s suggestion that they were attempting to mislead officials about
their background was unreasonable.
[18]
The
applicants also dispute the suggestion that circumstances in Somalia have improved.
[19]
Finally,
the applicants argue that it was unreasonable to hold their late or
non-existent registration with the UNHCR against them.
[20]
In
my view, the officer’s findings were based on the evidence and, therefore, were
not unreasonable.
[21]
While
the applicants have put forward a document in which the usage of the word
“clan” differs from the officer’s, there is no evidence that this document was
before her. The applicants have simply not shown that the officer’s
interpretation of the word “clan” was unreasonable. The issue was not the
objective meaning of the words “minority” or “clan”, but whether the applicants
were actually at risk of persecution in Somalia. The evidence did not support
their allegations of risk.
[22]
With
regard to the applicants’ submissions about changed circumstances in Somalia, I see no indication that this was a basis for the officer’s decision.
[23]
Regarding
the applicants’ late or non-existent registration with the UNHCR, I cannot find
that the officer’s conclusions were unreasonable. The applicants contend that
there was no reason why they should have registered with the UNHCR – it would
not have afforded them any additional protection in Djibouti and, therefore, it
does not reflect negatively on their fear of persecution in Somalia. In fact, however, registering with the UNHCR as refugees would have protected the
applicants from being returned to Somalia. Their delay put them at risk of
being returned to a country where they claimed to fear for their safety. Their
failure to register put in doubt the genuineness of their fear.
[24]
While
the applicants also contended that they would have had to bribe officials to
get access to the UNHCR office, there no evidence before the officer to support
that assertion and it was contradicted by the fact that Abdihshakur eventually
registered. The officer reasonably found that Abdihshakur’s failure to register
for 15 years reflected negatively on his credibility.
[25]
Therefore,
I cannot find that the officer’s conclusions were unreasonable. They were based
on the evidence or the absence of evidence (i.e., relating to identity),
and fell within the range of defensible outcomes based on the facts and the
law.
V. Conclusion and
Disposition
[26]
In
my view, the officer treated the applicants fairly and arrived at reasonable
conclusions based on the facts and the law. I must, therefore, dismiss these
applications for judicial review.
[27]
Counsel
for the applicants proposed the following questions for certification:
1.
Is
the duty of fairness breached when one visa officer interviews an applicant for
membership in member of the Convention refugee abroad class or a member of the
humanitarian protected persons abroad designated class and another refuses the
applicant on credibility grounds where the interviewing officer did not
recommend against the credibility of the applicant?
2.
Does
the Immigration Manual create a legitimate expectation that an officer
interviewing an applicant for membership in member of the Convention refugee
abroad class or a member of the humanitarian protected persons abroad
designated class will decide the application?
3.
Is
it legally improper for a visa office when considering an application for
membership in the Convention refugee abroad class or a member of the
humanitarian protected persons abroad designated class to ask the applicant for
identity documents then to hold against him the fact that he obtained the documents
after the request for the documents?
4.
Is
registration by the Office of the United Nations High Commissioner for Refugees
of a person as a national of a particular country prima facie evidence
of the nationality of that person?
[28]
These
questions should not be certified. Questions 1 and 2 do not arise because the
deciding officer did not make a subjective credibility assessment and, in fact,
followed the procedure in the Operations Manual. Question 3 does not arise
because the officer did not hold it against the applicant that he obtained a
document after it was requested to provide identity documents. It was the late
registration with the UNHCR that was a factor. Finally, Question 4 does not
arise here because the evidence shows that the UNHCR merely recognizes Somali
nationals in Djibouti on a prima facie basis. The officer was required
to take that evidence into account along with the rest of the evidence, and she
did so. Further, this question is not suitable for certification as it would
not dispose of the application for judicial review. It relates only to one item
of evidence.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
applications for judicial review are dismissed;
2. No
serious question of general importance will be stated.
“James W. O’Reilly”
Email this Content