Date:
20130228
Docket:
IMM-4253-12
Citation:
2013 FC 204
Ottawa, Ontario,
February 28, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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ABDI ABDULLAHI AHMED
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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
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of an immigration officer (the officer) at the High Commission of
Canada in Nairobi, wherein the applicant was determined not to be a Convention
refugee within the meaning of section 96 of the Act.
[2]
The applicant requests that the officer’s
decision be set aside and the application be returned for redetermination by a
different officer.
Background
[3]
The
applicant and his brother, Habib Abdullahi Ahmed (who is pursuing a parallel
judicial review in Federal Court file IMM-4254-12) are citizens of Somalia currently living in Kenya. They fled Somalia in 2007 after their father was killed by a
militia group.
[4]
The
brothers were interviewed separately for their applications for permanent
residence under the Convention refugee abroad class and the country of asylum
class. The applicant was interviewed on February 15, 2012.
Officer’s Decision
[5]
A
letter dated February 18, 2012, informed the applicant his application had been
refused. The officer was not satisfied that the applicant was a member of
either the Convention refugee abroad class or the country of asylum class.
[6]
The
officer’s notes describe the rationale for refusal:
On
balance, I am not satisfied that the PA is credible. The PA appears to have
memorized his story and was unable to respond genuinely to the questions posed.
The story the PA provided about the death of his father contradicts what his
brother told me during his interview. The PA said that they saw their father’s
body lying in front of the shop while it was being looted by the militia. The
PA told me the militia was standing outside the shop when they arrived.
The
PA also has not sought protection from the UNHCR since arriving in Kenya and as such has no documents with which I can confirm his identity. I did not find
the PA’s explanation for why he has not gone to the UNHCR plausible.
[7]
In
the letter, the officer indicated the applicant had been given an opportunity
to respond to the officer’s concerns, but the officer had considered them and the
assessment remained unchanged.
Issues
[8]
The
applicant submits the following point at issue:
Does this refusal breach the
duty of fairness owed to the applicant on the basis that the visa office
considered extrinsic evidence without disclosure and an opportunity to respond?
[9]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
breach procedural fairness?
Applicant’s Written Submissions
[10]
The
applicant argues the standard of review for the duty of fairness is
correctness.
[11]
The
applicant points out that the notes give no indication whether the applicant’s
brother was interviewed before or after the applicant. At the time of the
applicant’s written submissions, such notes had not been disclosed for the
brother’s application.
[12]
The
applicant argues the notes do disclose that there was no mention in the
interview of the applicant or his brother’s interview. Therefore, the
officer’s claim in the decision letter is untrue: the applicant had no
opportunity to respond to these concerns.
[13]
Due
to not knowing what is in the notes in the brother’s case, the applicant argues
it is unclear whether there was an actual conflict between the content of the
two interviews, but it is clear that fairness was breached. The Overseas
Processing (OP1) Manual indicates the applicant must be made aware of the case
to be met. The applicant had a legitimate expectation this process would be
followed.
[14]
Even
if the interview of the brother was not extrinsic evidence, these concerns
still should have been put to the applicant. This is a clear-cut case of a
breach of the duty of fairness.
Respondent’s Written Submissions
[15]
The
respondent agrees that the standard of review is correctness.
[16]
The
respondent argues that fairness was not breached. The officer put the credibility
concerns to the applicant and the applicant has not provided any affidavit
evidence suggesting what response he would have provided if given the
opportunity.
[17]
The
respondent argues that even if fairness was breached, this matter should not be
redetermined because the outcome is inevitable. The material in the
respondent’s affidavit shows that the applicant was interviewed before his
brother. The notes indicate the officer had many other concerns: the
applicant’s lack of identity documents, the failure to seek United Nations High
Commission for Refugees (UNHCR) protection and the vague responses to questions
about his travel and his father’s death. Therefore, even before interviewing
the brother, the officer had credibility concerns. Those concerns were
furthered by the interview of the brother, but it is apparent the decision
would not have been different even if the applicant had satisfactorily
explained the perceived contradiction.
Applicant’s Further Written
Submissions
[18]
The
applicant argues the result of the application is not inevitable. The refusal
letter identifies the contradictions in the undisclosed interview as a reason
for refusal.
[19]
The
applicant also points out the notes (disclosed after the filing of the
applicant’s initial memorandum) of the two interviews show there was actually
no contradiction. The brother did not say in his interview that he went in the
shop, but that he saw their father’s body in the shop, which is consistent with
seeing the body while looking into the shop from outside. Both interviews were
conducted through interpreters. The distinction between the body being outside
the shop, or inside the shop at the front, could only be clarified through
direct questioning, which did not happen.
[20]
The
applicant argues it was impractical to provide an affidavit with his response
to the hypothetical disclosure of the brother’s interview, given the time frame
for leave and the difficulty of obtaining affidavits and notarization. However,
an affidavit is not required since these submissions have given a partial
response to the disclosure and this Court is not expected to make the decision
the officer would have made given full disclosure.
Respondent’s Further Written
Submissions
[21]
The
respondent argues the officer had several credibility concerns, of which the contradictory
evidence was only one. The applicant’s interpretation of the notes is based on
confusing the two brothers. The letter was honest since the concerns in the
second paragraph had been put to the applicant.
Analysis and Decision
[22]
Issue
1
What is
the appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[23]
It
is trite law that the appropriate standard of review for issues of procedural
fairness is correctness (see Wang v Canada (Minister of Citizenship and
Immigration), 2008 FC 798 at paragraph 13, [2008] FCJ No 995 and Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339
at paragraph 43). No deference is owed to decision makers on these
issues (see Dunsmuir above, at paragraph 50).
[24]
Issue
2
Did the
officer breach procedural fairness?
The respondent
relies on the decision of Madam Justice Anne Mactavish in Ali v Canada (Minister of Citizenship and Immigration), 2012 FC 710, [2012] FCJ No 886, for
the proposition that non-disclosure of an interview is not a breach of the duty
of fairness.
[25]
I
do not agree. As the very passage excerpted in the respondent’s memorandum
shows, Madam Justice Mactavish found in that case “there is thus nothing in the
record to indicate that either applicant was unaware of the other’s evidence or
that they were unable to address Officer Mjanes’ concerns” (at paragraph 44).
[26]
In
this case, the officer’s notes did not disclose any opportunity granted to the
applicant to respond to the concern of contradictory testimony, despite the
letter’s claim to the contrary. In Ali above, contradictory testimony
between the two interviews was not part of the officer’s reasons for decision (as
summarized at paragraphs 19 and 20), so it would follow that there is no duty
to give those applicants an opportunity to respond to such evidence.
[27]
Here,
the alleged contradictory evidence with respect to the location of their
father’s body was central to the officer’s credibility determination.
Therefore, the applicant should have been given an opportunity to respond to
the officer’s concern that the brother’s interview contradicted the applicant.
[28]
I
also do not agree with the respondent’s argument that it is so clear the
applicant’s claim will fail that I should decline to return it for
reconsideration, even if fairness was breached. The officer’s two paragraphs of
reasons devoted one long paragraph to the contradictory evidence issue and
there is no finding in the alternative. The officer may very well have viewed
other credibility issues differently, such as the reasons offered for a lack of
identification, if the applicant had been given an opportunity to respond to
the alleged contradiction with his brother.
[29]
The
application for judicial review is therefore granted and the matter returned to
a different officer for redetermination.
[30]
The
applicant proposed four serious questions of general importance for my
consideration for certification:
1. 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 an interview with
another, related applicant, but not disclosing the part of the other interview
to the applicant which contradicts the applicant’s evidence with an opportunity
to respond?
2. Is there a breach in the duty of fairness
owed an application for immigration at a visa post abroad where
a) the visa office interviews related
applicants separately,
b) refuses the application of the applicant
based on inconsistencies with the interview of the other related applicant, and
c) the visa office does not disclose to the
applicant the inconsistencies with an opportunity to respond?
3. Does the visa office breach the duty of
fairness by failing to notify a person who is applying for permanent residence
at a visa post abroad as a member of the Convention refugee abroad class or a
member of the humanitarian protected persons abroad designated class that the
visa office will consider statutory declarations of identity where there is a
reasonable and objectively verifiable explanation related to the circumstances
in the applicant’s country of nationality or national residence for the
applicant’s inability to obtain an identity document?
4. Can a decision stand despite a breach of
the duty of fairness solely because there is another basis for the decision
than the conclusion reached in breach of the duty of fairness?
[31]
The
respondent did not wish to submit a proposed serious question of general
importance for my consideration for certification but opposed the certification
of the applicant’s questions.
[32]
I
am not prepared to certify the proposed serious questions as they do not
transcend the interests of the immediate parties nor do they contemplate issues
of broad significance or general application (see Canada (Minister of
Citizenship and Immigration) v Liyanagamage, (1994) 176 NR 4 (FCA), [1994]
FCJ No 1637, at paragraph 4). The level of procedural fairness for each case
depends on the facts of the case.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed and the matter is returned to a different officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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