Date:
20130228
Docket:
IMM-4254-12
Citation:
2013 FC 205
Ottawa, Ontario,
February 28, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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HABIB 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, Abdi Abdullahi Ahmed (who is pursuing a parallel
judicial review in Court file IMM-4253-12) 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 in February 2012 for their applications
for permanent residence under the Convention refugee abroad class and the
country of asylum class.
Officer’s Decision
[5]
A
letter dated February 18, 2012, informed the applicant his application had been
refused. The officer described the reasons for refusing the application as
follows:
During
your interview you provided information about the events that prompted you to
and your brother to flee Somalia which contradicted what he told me at
interview. You appeared to have memorized the story you told me at interview
and were unable to respond genuinely to questions. Since arriving in Kenya you have not sought protection from the UNHCR and have not secured any form of
identity documents for yourself. I did not find the explanation you gave me
credible. As a result I was unable to confirm your identity.
[6]
The
officer’s notes also provided a record of the interview with the applicant.
Issues
[7]
The
applicant submits the following points at issue:
1. Does this refusal
breach the duty of fairness owed to the applicant on the basis that the visa
officer considered extrinsic evidence without disclosure and an opportunity to
respond?
2. Did the officer
breach fairness by failing to notify the applicant to submit a statutory
declaration from his uncle confirming his identity?
[8]
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
[9]
The
applicant argues the standard of review for the duty of fairness is
correctness. The Overseas Processing (OP1) Manual instructs officers that
applicants must be aware of the case to be met. This creates a legitimate
expectation.
[10]
The
evidence of the applicant as described in the notes pertaining to his brother’s
application do not match the notes from this file. The applicant did not say he
went in the shop, but that he saw his father’s body in the shop. This
description is consistent with looking into the shop from outside.
[11]
The
applicant points out that in his interview, the officer stated that there were
differences between the two stories, but did not tell the applicant what those
differences were, thereby giving him a chance to respond. Both brothers gave
evidence through an interpreter and the slight difference between “in front of
the shop” or “in the front of the shop” could only be clarified by specific
questioning, which did not happen here. Both statements regarding the militia
could be true: its members could be split between inside and outside the shop.
[12]
The
applicant argues the refusal letter is incorrect, since he was not given a
chance to respond to concerns about inconsistent evidence. This was extrinsic
and failing to disclose it is a violation of the duty of fairness.
[13]
The
applicant argues that while the officer noted the applicant had no identity
documents, section 178 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 allows an applicant to submit a statutory declaration. This could
have been provided by the applicant’s uncle, but was not on the list of
requested documents from the officer. The Regulation applies to protected persons
in Canada, but there is no reason in principle why identity documents accepted
inland should not be acceptable abroad. There was a breach of the duty of
notification.
Respondent’s Written Submissions
[14]
The
respondent agrees that the standard of review is correctness. This Court has
previously found that interviewing family members separately for the Convention
refugee abroad class is not a violation of procedural fairness. It is
sufficient for the officer to raise the relevant issue from a separate interview
without providing full transcripts. In this case, the officer did so. The
applicant has not provided an affidavit suggesting that he was unaware of his
brother’s evidence or unable to address the officer’s concerns, nor any
response that he would have provided if given the opportunity. Even if the
brother’s evidence was extrinsic, the applicant was given a chance to respond.
[15]
On
the subject of identity, the respondent points out the applicant provided no
documents and claimed to have no identity documents after five years in Kenya. The list of documents in the letter from the officer was generic and there was no
requirement to list a statutory declaration. Regulation 178 is inapplicable as
this is not an inland application. It is not clear a statutory declaration
would have alleviated the officer’s concern about the applicant’s identity. The
onus was on the applicant.
Applicant’s Further Written Submissions
[16]
The
applicant argues the cases identified by the respondent are those where the
officer alerted the interviewees to the differences between interview evidence.
This was not done here, as the officer only referred to differences without
providing any specificity. The applicant was foreclosed from responding to the
officer’s concern since he had no idea what details the officer was concerned
with. The applicant was invited to guess at what his brother had said that
contradicted his evidence. The importance of this decision requires a high
level of procedural fairness.
[17]
The
policy rationale for Regulation 178 is that in some countries, it is impossible
to obtain identity documents. That applies equally to refugee claimants abroad.
No one who read the officer’s letter would believe a statutory declaration
would satisfy the officer.
Respondent’s Further Written Submissions
[18]
The
respondent argues the duty of fairness is variable. This Court has held an
officer is not required to describe concerns relating to contradictory
interviews in detail. On the matter of identity documents, the applicant had
been put on notice to provide evidence of his identity and he failed to do so.
Analysis and Decision
[19]
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).
[20]
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).
[21]
Issue
2
Did the
officer breach procedural fairness?
The officer’s notes describe
the exchange where the inconsistency in the interview content was put to the
applicant:
NOTED
THE STORY ABOUT HIS FATHER’S DEATH DIFFERS FROM HIS BROTHER TOLD ME. PA SAYS
THAT THE DEATH OCCURRED ON 17 JULY 2007. IT MAY HAPPEN THAT HE DID NOT CORRECT
THE MISTAKE ON THE PERSONS FORM. THE PERSON ASSISTING HIM WROTE THE WRONG DATE.
NOTED
THE ISSUE WAS NOT THE DATE BUT THE DETAILS AND DESCRIPTION OF WHAT HAPPENED
THAT DAY. PA SAYS THEY WERE AT THE MARKET, THEY DIDN’T SEE WHAT HAPPENED. WHEN
THEY CAME BACK THEY SAW THE MILITIA STILL THERE. ITS BEEN A LONG TIME AND THEY
ARE TRYING TO REMEMBER WHAT HAPPENED AFTER A LONG TIME, BUT IT IS HARD.
[22]
It
is clear from this description that the applicant had no idea what
inconsistency the officer was referring to. In the notes, the officer indicated
that he had a very specific inconsistency in mind:
THE
PA SAID THE FATHER WAS DEAD INSIDE THE STORE THAT THE MILITIA GROUP WAS LOOTING
WHILE HIS BROTHER STATES THAT THEY COULD NOT GO INSIDE THE STORE BECAUSE THE
MILITIA GROUP WAS INSIDE LOOTING THE STORE.
[23]
I
would note there is not necessarily a contradiction between these two
statements due to the simple possibility that the brothers could see into the
store without entering it. If there is a contradiction, it seems an incredibly
minor one given the brothers were describing a traumatic event from five years
earlier, through an interpreter.
[24]
As
a matter of procedural fairness, however, the question is whether the officer
put the concern of ostensibly contradictory evidence to the applicant is
specific enough in terms that he can be said to have had a fair opportunity to
know the case to be met.
[25]
The
respondent relies on three decisions of this Court: Osman v Canada (Minister of Citizenship and Immigration), 2012 FC 906, [2012] FCJ No 1006; Ali v Canada (Minister of Citizenship and Immigration), 2012 FC 710, [2012] FCJ No 886; and Musse v
Canada (Minister of Citizenship and Immigration), 2012 FC 883, [2012] FCJ
No 1056. The respondent argues these cases held that analogously vague
descriptions of credibility concerns did not violate procedural fairness.
[26]
In
Ali above, the credibility concern was put to the applicant, but there
is no indication the officer was concerned with contradictory evidence (at paragraphs
19 and 20).
[27]
In
Osman above, the officer asked specific questions about discrepancies in
interview evidence, namely, the duration of the family members’ detention and
three other areas of conflict (at paragraph 15). The Court found that the
officer gave her a fair chance to present her version of events. This is not
analogous to the case at bar, where the applicant was simply informed there was
a discrepancy in the “description of events” and given no further detail.
[28]
In
Musse above, Mr. Justice James O’Reilly agreed that the officer did not
make clear what the inconsistencies were and found that it would have been
better if she had (at paragraph 28). However, he found that the inconsistency
was just one of a series of concerns related to credibility, and the applicant
had had a chance to respond to all other concerns.
[29]
I
do not believe that in this case, the inconsistency concerning the father’s
death can be said to be “only one of a series of concerns” about the applicant.
Although the officer was also concerned with the applicant’s lack of identity
documents, the contradictory evidence was cited as the primary reason for
refusal in both the officer’s notes and the refusal letter.
[30]
There
was no reason for the officer not to inquire further; indeed, simply asking the
applicant to repeat his description of the events might have yielded a result
more harmonious with his brother’s narrative given the inconsistencies of
speaking through an interpreter and the microscopic inconsistency identified by
the officer. To deny the applicant this simple opportunity is a breach of
procedural fairness.
[31]
Credibility
was a major reason given for the refusal of this application and the applicant
was not given a chance to respond to the central credibility allegation against
him. It is therefore not obvious how the officer would have decided the
application had procedural fairness been respected.
[32]
The
application is therefore granted and the matter returned to Citizenship and
Immigration Canada for redetermination.
[33]
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?
[34]
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.
[35]
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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