Date: 20080228
Docket: IMM-2018-07
Citation: 2008 FC 263
BETWEEN:
SAMIRA
WILSON BINYAMIN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing at Toronto on the 19th of February, 2008
of an application for judicial review of a decision of the Refugee Protection
Division (the “RPD”) of the Immigration and Refugee Board wherein the RPD
determined the Applicant not to be a Convention refugee and not to be a person
otherwise in need of the protection of Canada. The decision under review is
dated the 11th of April, 2007.
BACKGROUND
[2]
The
Applicant is a citizen of Iraq. She bases her claim for protection from
removal to Iraq on her
nationality, Assyrian, her religion, Christian, and her political opinion
alleging that she is against the American “occupation” and the current Iraqi
government. Further, the Applicant also fears the “insurgents”. The Applicant
claims a fear of removal to Australia “…because of the abuse I have suffered
[at] the hands of my husband in Australia”.
[3]
The
Applicant alleges that she was born into a very conservative and religious
family in Iraq. She is not
well educated. She attests that this reality is by reason of her father’s
conservatism.
[4]
The
Applicant, on the 24th of March, 2004 married one Sargon Kenna, an
Iraqi Assyrian and a citizen of Australia. Shortly after the
wedding, the Applicant’s husband returned to Australia on the
understanding that the Applicant would follow him there.
[5]
In
early April, 2004, the Applicant was the subject of an attempted kidnapping.
By reason of that event, the Applicant attests that her parents sent her to Syria where she
remained for almost two (2) years. On the 18th of March, 2006, the
Applicant left Syria for Australia.
[6]
Unfortunately,
the Applicant’s brief stay in Australia, with assured temporary
residence, did not live up to her expectations. She found her husband to be
unemployed, living on social assistance and living a lifestyle that she could
not condone. The Applicant’s husband was, according to the Applicant, “…very
controlling and abusive to [her] verbally and physically”. She relates in her
Personal Information Form narrative that her husband beat her on three (3)
occasions during the short period that she remained in Australia.
[7]
A
friend of the Applicant and her husband advised that he was planning to get
married in Canada and invited
them to attend the wedding. The Applicant and her husband accepted the
invitation and arrived in Canada on the 18th of June, 2006, exactly
three (3) months after the Applicant had arrived in Australia.
[8]
The
Applicant and her husband attended the wedding on the 24th of June,
2006. At the wedding, the Applicant’s husband behaved badly. In the result,
the Applicant determined to leave her husband and to stay in Canada. Her claim
to Convention refugee status or like protection in Canada followed.
[9]
The
Applicant’s husband returned to Australia with her return plane
ticket. The Applicant has sought a divorce from her husband.
[10]
The
Applicant’s husband had sponsored her for residence in Australia. She was
granted “provisional” residence status on the 27th of February, 2006,
shortly before she left Syria for Australia. Her visa
read in part:
Holder(s) permitted to travel
to and remain in Australia until notified that the permanent visa
application has been decided or until the permanent visa application is
withdrawn. Multiple travel.
[11]
By
letter dated the 21st of November, 2006, the Applicant was advised
by a lawyer acting for her husband that her husband’s support for her
application for more permanent status in
Australia would be withdrawn.
[12]
By
letter dated the 15th of January, 2007, the Applicant was advised by
the Australian Department of Immigration and Multicultural Affairs that her
husband’s support had in fact been withdrawn. She was advised:
Before a decision is
made on your application, you have the opportunity to provide a response [to
advice from the Applicant’s husband], explaining your current circumstances and
the reason for the breakdown of your relationship.
…
You may wish to withdraw
your application, which must be done in writing. If you do withdraw your
application, you will be granted or will already hold a bridging visa which
will permit you to remain in Australia for 28 days after your
withdrawal. During this period you would be required to depart Australia, unless you
had been granted another visa other than the bridging visa mentioned above. If
you are outside Australia, you will not be granted a bridging visa.
[13]
The
Applicant withdrew her application for more permanent residential status in Australia. By letter
dated the 12th of March, 2007, the Australian Department of
Immigration and Citizenship advised her:
Thank you for your
written advice that you have withdrawn your application. Your application has
now been finalised as WITHDRAWN.
[14]
I
interpret the foregoing notification as signifying that the Applicant, as of
the 12th of March, 2007, that is to say before the date of the
decision under review, no longer had status in Australia.
THE DECISION UNDER
REVIEW
[15]
Early
in the reasons for the decision under review, the RPD wrote under the hearing
“DETERMINATION”:
After considering all of
the evidence, the panel determines that the claimant is not a Convention
refugee as she does not have a well-founded fear of persecution for a
Convention ground in Canada, nor is she a person in need of
protection for the following reasons.
Briefly, the panel finds
that the evidence before the panel was that she is a resident of the United
States;
therefore, exclusion under Article 1 E applies.
The panel finds that the
claimant would not face a risk to life, or a risk of cruel and unusual
treatment or punishment, or a danger of torture, if she was to return to her
country of residence.
[16]
Clearly,
the reference in the foregoing quotation to the United States is nothing
more than a technical error. The reference should have been to Australia, the country
of her former, albeit brief residence.
[17]
The
RPD made no general finding of want of credibility on the part of the
Applicant. It did, however, find three (3) discreet elements of her testimony
to be implausible and two (2) discreet elements of her testimony not to be
credible. There is no cloud cast on the Applicant’s testimony regarding her
sense of disorientation in Australia, and I am prepared to
take judicial notice of the fact that Australian culture is dramatically
different from the culture of the middle-eastern countries in which she had
lived. Further, she apparently did not speak the language that is dominant in Australia. Equally,
no doubt is cast on her testimony that her husband supported her in her interest
in coming with him to Canada. Nor is doubt cast on the purpose of
their visit to Canada or as to her husband’s behaviour in Canada that she
alleges constituted the final event leading her determination to leave her
husband and to not return to Australia. In essence, in
determining the Applicant to be excluded under Article 1 E of the Convention,
the RPD simply determined the Applicant to be “jurisdiction-shopping”.
[18]
In
light of the exclusion decision, the RPD determined not to examine the
Applicant’s claim for protection against return to Iraq. That being
said, the import of the RPD’s decision is such that, if it stands, the
Applicant now has no alternative but to return to Iraq, although removals to Iraq are
“temporarily” suspended.
THE LEGISLATIVE SCHEME
[19]
Section
98 of the Immigration and Refugee Protection Act excludes
from Convention refugee protection and like protection persons referred to in
section E or F of Article 1 of the United Nations Convention Relating to the
Status of Refugees, signed at Geneva on July 28, 1951, and the Protocol to that
Convention, signed at New York on January 31, 1967.
Those sections of Article 1 of the Convention are set out in the Schedule to
the Immigration and Refugee Protection Act.
[20]
Article
1 E reads as follows:
|
E.
This Convention shall not apply to a person who is recognized 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.
|
E. Cette Convention ne sera pas applicable à une
personne considérée par les autorités compétentes du pays dans lequel cette
personne a établi sa résidence comme ayant les droits et les obligations
attachés à la possession de la nationalité de ce pays.
|
THE ISSUES
[21]
In
the Memorandum of Argument filed in this matter on behalf of the Applicant,
counsel for the Applicant identifies two (2) issues which I paraphrase as
follows: first, did the Board err by finding that the Applicant was excluded
by Article 1 E of the Refugee Convention and secondly, did the RPD exceed its
jurisdiction and err in law in assessing the Applicant’s claim against
Australia? At the hearing before me, counsel for the Applicant restated the
issues and subdivided them into three (3). I am satisfied that there is
essentially only one issue on this application for judicial review which I
would identify broadly as: Did the RPD err in a reviewable manner in
determining the Applicant to be excluded under Article 1 E of the Refugee
Convention?
ANALYSIS
a) Standard
of Review
[22]
In
Romero v. Canada (Minister of Citizenship and Immigration), my
colleague Justice Snider, on a judicial review of an exclusion decision
involving Article 1 E wrote at paragraph 6 of her reasons:
The first task before me
is to establish a standard of review for the Board’s decision on the exclusion
issue. The Applicants held permanent resident status, as evidenced by their
Permanent Resident Cards. These cards were described as “conditional” in that
they expired two years after issuance but could be extended pursuant to the
provisions of s. 216 of the U.S. Immigration and Naturalization Act.
Thus, the Board’s decision, in part, required that the Board analyze and
interpret relevant provisions of this statute. In my view, this particular
aspect of the Board’s decision is a question of law that is reviewable on a
correctness standard. However, provided that the Board’s interpretation of
this statute is correct, its findings of whether the Applicants meet the
requirements of s. 98 of the IRPA have been held to a standard of review
of patent unreasonableness…
[citations
omitted, emphasis added]
I agree with the foregoing and adopt it
as my own.
b) The
Burden of Proof
[23]
Justice
Snider, in her reasons in Romero, continued at paragraph 8:
The recent case law on
this issue has established the relevant burden of proof for each party in
determining whether Article 1 (E) applies… . Initially, the burden is on the
Minister to establish a prima facie case that a claimant can return to a
country where he or she enjoys the rights of the nationals of that country. At
that point, the onus shifts to the claimant to demonstrate why, having allowed
the permanent residency to expire, she could not have re-applied and obtained a
new permanent resident card .
[citations
omitted]
[24]
On
the facts of this matter, the Minister did not participate before the RPD. The
RPD was left to its own devices, apparently without the relevant Australian law
before it, on the issue of the Applicant’s right of return to Australia on the
relevant date. This begs the question as to the “relevant date” for
determination of a right of return.
c) The
relevant date for determination of a right of return
[25]
In
Mahdi v. Canada (Minister of Citizenship and Immigration), the Federal
Court of Appeal addressed the issue of the relevant date for determination of
exclusion under article 1E of the Convention. On the facts before it, Justice
Pratte, for the Court, wrote at paragraph 12:
…the real question that
the Board has to decide in this case was whether the Respondent was, when
she applied for admission to Canada, a person who was still recognized by
the competent authorities of the United States as a permanent resident
of that country. ….
[emphasis
added]
On the facts of this matter, and
substituting Australia for “United States” in the foregoing quotation, there
can be no doubt that the Applicant had the status of a resident of Australia
“…when she applied for admission to Canada”, albeit that her visa was of a
temporary nature.
[26]
In
Canada (Minister of
Citizenship and Immigration) v. Manoharan, I commented
on the Mahdi decision in light of a subsequent decision of this Court in
Canada (Minister of
Citizenship and Immigration) v. Choovak. I wrote at paragraph
28 of my reasons:
The evidence before the
Court indicates that, when the Respondent applied for admission to Canada, to
paraphrase the words of Article 1 E of the Convention, he was a person who was
recognized by the competent authorities of Germany as having
the rights and obligations attached to the possession of the nationality of Germany. That being
said, I do not read the words of the Mahdi decision as being absolute.
I prefer an interpretation of those words that reflects the rationale provided
by Justice Rouleau in the Choovak decision. While Article 1 E should be
read in a manner that precludes the abuse of “jurisdiction shopping”, it should
also be read, in the words of Justice Rouleau, “…in a more purposive light so
as to provide safe-haven to those who genuinely need it…”. Such a reading is
consistent with the first objective stated in subsection 3(2) of the Immigration
and Refugee Protection Act, which provides that among the objectives of
that Act with respect to refugees [is] “…to recognize that the refugee
programme is in the first instance about saving lives and offering protection to
the displaced and persecuted”. That objective was not a stated objective of
Canadian Refugee law at the time of either the Mahdi or Choovak
decisions,… That being said, on the very particular facts of this matter, I am
satisfied that the “exclusion” decision in favour of the Respondent and his
mother was correct and that the Mahdi decision is distinguishable by
reason of the different factual background that was there at issue and of the
newly stated statutory objective just referred to.
[some text
omitted]
Counsel for the Applicant in Manoharan,
there the Minister of Citizenship and Immigration, sought certification on
precisely the issue of interpretation of Mahdi raised by the foregoing
quoted paragraph. I declined to certify the proposed question on the ground
that the paragraph in question was “obiter” in the context of that
decision.
[27]
On
this issue in this context, the RPD wrote:
The first factor to
consider is the ability to return and remain in the putative Article 1 E
country before this provision can be invoked to exclude from protection under
the Refugee Convention. The provision is not limited to a consideration of
those countries in which the claimant took up residence as a refugee.
The claimant joined her
husband in Australia once she was given permission to enter Australia and
subsequent to a sponsorship by her husband.
The panel finds that the
claimant is excluded under Exclusion 1 E.
[emphasis
added]
[28]
While
the RPD cites the Mahdi decision in conjunction with the first paragraph
of the foregoing brief passage, it is not in relation to the element of the Mahdi
decision of the Federal Court of Appeal that relates to the effective date for
determination of the applicability of Article 1 E. Indeed, the RPD ignores the
issue of effective date for a determination as well as the concern that I
expressed in Manoharan, supra, regarding the impact of the first
stated objective in subsection 3(2) of the Immigration and Refugee
Protection Act. While I expressed the view that the passage from Manoharan
quoted above was, in the context of that decision, obiter, in refusing
to certify a question based on that paragraph, that is not to say that it is
for the RPD to ignore entirely the issue of “effective date”.
[29]
I
am satisfied that the issue of effective date is critical to the determination
of the applicability of the Article 1 E exclusion on the facts of this matter.
[30]
There
can be no doubt that the Applicant obtained her conditional Australian visa
with the support of her husband and, arguably, only because of the support of
her husband. At the time she applied for protection in Canada, her visa
remained in effect, which is to say that she had a right of return and of
residence, albeit for a limited period, in Australia. The
Applicant’s husband withdrew his support for the Applicant’s efforts to achieve
a permanent resident visa in Australia. In light of that, the
Applicant was asked by Australian authorities to indicate her intentions. The
Applicant withdrew her application for permanent resident status in Australia. In so
doing, it would appear that her temporary resident visa may have expired before
her hearing took place before the RPD, which is to say that, as of the date of
the hearing before the RPD, and certainly as of the date of the decision under
review, she may have had no right of residence in Australia. If such
were the case, and if the date of the hearing before the RPD or the date of its
decision were indeed the relevant date, the effect of the decision under review
would be to leave the Applicant with no right of return other than to Iraq, a
nation against which the Applicant claimed protection and which claim was never
examined.
CONCLUSION
[31]
In
light of the foregoing brief analysis, I conclude that the RPD, on whatever
standard of review might be applied, erred in a reviewable manner, by
conducting a flawed and incomplete analysis, to determine that the Applicant,
in her claim for protection, was excluded by Article 1 E of the Refugee Convention.
The decision under review will be set aside and this matter will be returned to
the RPD for rehearing and redetermination. Given the quotation from Romero,
above, dealing with the initial burden on the Minister to establish a prima
facie case that a claimant such as the Applicant can return to a country
where he or she enjoys the right of the nationals of that country, the
Respondent may wish to consider whether or not it should take an active role in
the rehearing of this matter.
CERTIFICATION OF A
QUESTION
[32]
At
the close of the hearing of this matter, I undertook to provide counsel with an
opportunity to make submissions on certification of a question. These reasons
will be distributed. Counsel for the Respondent will have ten (10) days from
the date of the reasons to serve and file any written submissions. Thereafter,
counsel for the Applicant will have seven (7) days to serve and file any
responding submissions. The Respondent will then have three (3) days to serve
and file any reply submissions.
“Frederick
E. Gibson”
Ottawa, Ontario
February
28, 2008
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