Docket: IMM-2130-11
Citation: 2012 FC 460
Toronto, Ontario, April
19, 2012
PRESENT: The Honourable Madam
Justice Mactavish
BETWEEN:
|
|
AL-GHAZALI
FOUAD
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
Fouad Al-Ghazali seeks judicial review of the decision of a
visa officer finding him to be inadmissible to Canada because there were
reasonable grounds to believe that he was a member of the al-Jabha al-Wataniya
Lilmu’ardha (or “MOG”), an organization that engaged in the subversion of a
government by force.
[2]
Mr. Al-Ghazali asserts that he was treated unfairly in the
inadmissibility process, as the visa officer precluded him from adducing
evidence to show that the MOG was not an organization that had engaged in the
subversion of a government by force. He further submits that the visa officer’s
membership finding was unreasonable.
[3]
For the reasons that follow, I am not persuaded that Mr.
Al-Ghazali was treated unfairly or that the visa officer’s inadmissibility
finding was unreasonable. As a result, the application for judicial review will
be dismissed.
Background
[4]
Mr. Al-Ghazali is a citizen of Yemen. He left Yemen for Switzerland in 1999. On his arrival in Switzerland he made an application for refugee
protection. The basis for his refugee claim was his membership in the MOG. Mr.
Al-Ghazali’s refugee claim was dismissed on credibility grounds.
[5]
Mr. Al-Ghazali married a Canadian citizen in 2003, and his
wife subsequently submitted an application to sponsor him for permanent
residence as a member of the family class.
[6]
In an interview with Canadian immigration authorities in
2005, Mr. Al-Ghazali denied having ever been a member of MOG in Yemen. He claimed that he had left Yemen for family reasons, and that he had fabricated his
story of MOG involvement to support his refugee claim in Switzerland.
[7]
Mr. Al-Ghazali was interviewed again in 2010, this time by
the visa officer. In the course of this interview, the officer asked him to
resolve the discrepancies in his story and to provide evidence to corroborate
his claim not to have been a member of the MOG. Mr. Al-Ghazali declined the
officer’s offer of additional time to adduce such evidence, submitting that the
only evidence available to him was the rejection of his Swiss refugee claim on
credibility grounds.
The Visa Officer’s Decision
[8]
The visa officer found Mr. Al-Ghazali to be inadmissible to
Canada under paragraph 34(1)(f) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27, and refused his application for permanent residence.
[9]
The officer found that there were reasonable grounds to
believe that Mr. Al-Ghazali was a member of the MOG, an organization that had
engaged in the subversion of the Yemeni government by force. The officer was
satisfied that Mr. Al-Ghazali associated with members of the MOG over a lengthy
period of time, and that he was involved in writing slogans, distributing
flyers and instigating people against the government of Yemen on behalf of the MOG.
[10]
The visa officer based his finding on the sworn
declarations that Mr. Al-Ghazali had provided to the Swiss government in
connection with his refugee claim. The officer was of the view that these
statements created a presumption that Mr. Al-Ghazali was a member of the MOG,
and that he now bore the burden of rebutting that presumption which he had
failed to do simply by recanting his earlier claims.
[11]
Nor was the visa officer persuaded that the rejection of
Mr. Al-Ghazali’s refugee claim by the Swiss authorities was enough to establish
that he had fabricated his claim of MOG involvement. The officer observed that
the two cases involved different standards of proof and that the evidence
before him was sufficient to satisfy the lower “reasonable grounds to believe”
threshold.
Was Mr. Al-Ghazali Treated Unfairly by the Visa Officer?
[12]
Mr. Al-Ghazali submits that the visa officer treated him
unfairly by failing to afford him an opportunity to adduce evidence that the
MOG was not an organization that had engaged in the subversion of the Yemeni
government by force.
[13]
Where an issue of procedural fairness arises, the task for
the Court is to determine whether the process followed by the decision-maker
satisfied the level of fairness required in all of the circumstances: see Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para. 43.
[14]
The content of the duty of procedural fairness owed by the
visa officer in this case was at the lower end of the spectrum. The Federal
Court of Appeal has held that inadmissibility determinations give rise to a
lesser duty of fairness where they involve the refusal of a visa to a person
outside Canada. The interests at stake in such cases are less serious, and the
visa applicant always bears the burden of proving admissibility: Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297, [2000] F.C.J. No.
2043 (QL) at para. 54 (F.C.A.); Khan v. Canada (Minister of Citizenship and
Immigration), 2001 FCA 345, [2001] F.C.J. No. 1699 (QL) at para. 30; Medovarski
v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2
S.C.R. 539 at para. 46.
[15]
In this case, the visa officer’s concerns arose from the
wording of the statute. Mr. Al-Ghazali was thus on notice of the determinative
issues by virtue of the wording of paragraph 34(1)(f) of IRPA.
[16]
There is no obligation on officers to give notice of any
concerns arising directly from the provisions of the Act or its Regulations: Patel
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 55, 288 N.R.
48 at para. 10; Pan v. Canada (Minister of Citizenship and Immigration),
2010 FC 838, 90 Imm. L.R. (3d) 309 at para. 26; Johnson v. Canada (Minister of Citizenship and Immigration), 2008 FC 2, 163 A.C.W.S. (3d) 439 at para. 34; Ayyalasomayajula
v. Canada (Minister of Citizenship and Immigration), 2007 FC 248, 155
A.C.W.S. (3d) 941 at para. 18.
[17]
Indeed, the evidentiary options open to Mr. Al-Ghazali to
establish his admissibility to Canada were obvious from a reading of subsection
34(1) of Immigration and Refugee Protection Act , and the officer was
not required to help Mr. Al-Ghazali make his case for him.
[18]
Even if the visa officer should have expressly advised Mr.
Al-Ghazali that it was open to him to adduce evidence with respect to the
nature of the MOG as an organization, Mr. Al-Ghazali has failed to persuade me
that he was prejudiced in any way by the failure of the officer to do so.
[19]
Mr. Al-Ghazali has produced some country condition
information which refers to the MOG in support of his application for judicial
review. I have reviewed this information carefully. There is nothing in that
documentation that contradicts or otherwise calls into question the officer’s
finding that the MOG was engaged in the subversion of the Yemeni government by
force. Indeed, much of the information relied upon by Mr. Al-Ghazali actually
reinforces the visa officer’s finding in this regard.
Was the Visa Officer’s Finding that Mr. Al-Ghazali was a
Member of the MOG Reasonable?
[20]
Mr. Al-Ghazali also argues that the visa officer’s
membership finding was unreasonable as it was made in the absence of a
compelling or credible evidentiary base as required by Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at
para. 114.
[21]
According to Mr. Al-Ghazali, the only evidence supporting
the officer’s membership finding was his sworn statements given to the Swiss
authorities, which he has since recanted. Mr. Al-Ghazali argues that his
contention that he lied about his MOG involvement is corroborated by the Swiss
authorities’ finding that his refugee claim was not credible.
[22]
I do not accept this argument. It was reasonably open to
the visa officer to find that there were reasonable grounds to believe that Mr.
Al-Ghazali had been a member of the MOG based upon his sworn declaration to
that effect in the context of his Swiss refugee claim.
[23]
Even though the Swiss authorities found that Mr.
Al-Ghazali’s refugee claim was not credible, it does not follow that the visa
officer had to accept Mr. Al-Ghazali’s new and alternative account of events: Shkabari
v. Canada (Minister of Citizenship and Immigration), 2006 FC 856, 150
A.C.W.S. (3d) 201 at paras. 19, 28-29; Cheung v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 710, 235 F.T.R. 150 at paras. 3-4,
7, 20; Dust Parast v. Canada (Minister of Citizenship and Immigration),
2005 FC 660, 153 A.C.W.S. (3d) 1210 at paras. 13-14.
[24]
Moreover, it is apparent from a review of the Swiss refugee
decision that a different standard of proof was applied to Mr. Al-Ghazali’s
refugee claim than is applicable to an inadmissibility finding under subsection
34(1) of IRPA. Mr. Al-Ghazali was required to establish his Swiss
refugee claim on a balance of probabilities, whereas the visa officer only
needed to have reasonable grounds to believe that Mr. Al-Ghazali was a member
of the MOG.
[25]
The Supreme Court of Canada described the “reasonable
grounds to believe” evidentiary standard in Mugesera as requiring
“something more than mere suspicion, but less than the standard applicable
in civil matters of proof on the balance of probabilities”. [my emphasis]
The Court went on to hold that reasonable grounds will exist “where there is an
objective basis for the belief which is based on compelling and credible
information”: at para. 114.
[26]
Mr. Al-Ghazali has told two fundamentally different stories
regarding his involvement with the MOG, changing his story only when it was in
his interest to do so. It is clear that at least one of his stories is not
true. The officer concluded that the other story was true.
[27]
I recognize that it may be difficult for Mr. Al-Ghazali to
understand how he can be found to have been lying about being a member of the
MOG by the Swiss authorities, and then be found to have been lying about not
being a member of the MOG by the visa officer.
[28]
However, as the Federal Court of Appeal observed in Agraira
v. Canada (Minister of Public Safety and Emergency Preparedness), 2011 FCA
103, 415 N.R. 121 at para. 73, this absurdity “is more apparent than real. Mr.
Al-Ghazali claimed to be a member of the MOG when it suited his purposes and
then denied being a member of the organization when it suited a different
purpose.
[29]
The visa officer interviewed Mr. Al-Ghazali in person, and
was thus in a position to assess his credibility and decide which of his
stories was to be believed. The officer concluded that the information provided
by Mr. Al-Ghazali under oath to the Swiss authorities was credible, and that
his subsequent recantation was not. That was an assessment that the visa
officer was best positioned to make, and Mr. Al-Ghazali has not persuaded me
that the officer’s credibility assessment was unreasonable.
[30]
Having determined that Mr. Al-Ghazali’s statements to the
Swiss authorities were credible, the visa officer clearly had reasonable
grounds to believe that Mr. Al-Ghazali was a member of the MOG.
Conclusion
[31]
For these reasons, the application for judicial review is
dismissed. I agree with the parties that the case does not raise a question
for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. This application for judicial review is dismissed; and
2. No
serious question of general importance is certified.
“Anne Mactavish”
Email this Content