Date:
20130814
Docket:
IMM-5094-12
Citation:
2013 FC 868
Ottawa, Ontario,
August 14, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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ABDULETIF YUSUF ABDULAHI
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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) dated February 24, 2012,
wherein the applicant’s permanent residence application was refused. The
officer’s decision was based on the finding that the applicant was not credible
in his claim and thus, the applicant has no well-founded fear of persecution in
Ethiopia.
[2]
The applicant requests that the officer’s
decision be set aside and the application be referred for redetermination by a
different officer.
Background
[3]
The
applicant and his wife are citizens of Ethiopia, currently in Djibouti.
[4]
The
applicant alleges that before fleeing Ethiopia, he was admitted to the
department of engineering at the university in Jimma. He claims that during
his first week of classes, violence broke out at the school and one student of
Tigrea ancestry was killed.
[5]
The
applicant claims that he was involved in a youth organization in high school
that raised the ire of the Ethiopian government. Thus, the Ethiopian
authorities suspected the applicant of being the perpetrator of violence on
campus. The applicant claims that this resulted in his detention and torture at
Hurrso military camp. The government also accused him of being a part of an Oromo
youth organization.
[6]
Fearing
for his life, he fled to Djibouti, where he is a refugee. He seeks refugee
protection in Canada.
[7]
The
applicant is married and claims to have cohabited with his wife prior to their
marriage.
[8]
Their
applications are sponsored by the Anglican Diocese of Rupert’s Land in Winnipeg.
Officer’s Decision
[9]
In
a letter dated February 24, 2012, the officer informed the applicant that his
application had been rejected.
[10]
The
officer noted that the applicant attended the interview with the assistance of
an interpreter fluent in English and Oromo and then canvassed the relevant
legislation, including section 96 of the Act and sections 139 and 145 of the Immigration
and Refugee Protection Regulations, SOR/2002-227.
[11]
The
officer was not satisfied that the applicant and his spouse were members of any
of the classes prescribed by paragraph 139(1)(e) of the Regulations. The
officer found that the applicant provided vague and conflicting answers in
response to questions about his arrest, release and reasons for being unable to
return to Ethiopia. The officer also doubted the authenticity of the applicant’s
documents. The officer also noted that he had provided the applicant with an
opportunity to respond to the officer’s concerns, but that the responses did
not change his decision. The officer maintained that the applicant was not
credible, nor did he have a well-founded fear of persecution in Ethiopia.
[12]
The
officer also considered whether the applicant fit under the country of asylum
classes, but that the applicant did “not meet the requirements of this class
either.”
[13]
In
conclusion, the officer found that the applicant and his spouse did not meet the
requirements of the Act and Regulations and thus the application was refused.
Issues
[14]
The
applicant submits that the following points are at issue:
1. Can an adverse
credibility finding based on mistakes about what is to be found on the record
before the visa officer survive judicial review?
2. Was the duty of
fairness respected by the visa officer who rejected the validity of official
documents provided by the applicant without giving the applicant an adequate
opportunity to respond to the concerns of the visa officer?
3. Is it proper for
a visa officer to find a couple lacked credibility because they told the visa
officer that they lived together without being married?
4. Did the visa
officer err by failing to address the feared risk from the perspective of the
feared agent of persecution?
[15]
I
would rephrase the issues as follows:
1. What is the
standard of review?
2. Did the officer err
with respect to the applicants’s involvement in the youth group at university?
3. Did the officer
err in his decision relating to the falsity of the documents?
4. Was the officer’s
finding of a lack of credibility due to the applicant’s testimony that he and
his wife lived together before they were married which was not appropriate in
their culture?
5. Did the officer
err in asking the applicant why the government was pursuing him?
Applicant’s Written Submissions
Erroneous Findings of Fact: The Youth Group
Involvement
[16]
The
applicant canvassed the CAIPS notes from the interview and found that the
officer erroneously found that the applicant had contradicted himself. The
officer found that the story the applicant told in the interview did not match
the information in the application.
[17]
The
applicant argues that his story in the interview is identical to the story he
presented in his written application. The officer believed the applicant was a
part of a youth organization in university, but the applicant insists he never
stated this. The applicant’s counsel asks “what could have possibly led the
visa officer to state that the applicant was part of a youth organisation at a
university?”.
Procedural Fairness: The ONARS Papers
[18]
The
applicant submitted official identity documents from the government of Djibouti’s “Office National d’Assistance aux Réfugiés et Sinistrés.” (ONARS). The officer
stated that these were “altered documents” and that the documents were “fake”.
[19]
The
applicant admits that the documents appear to be altered, but that he was
unaware of the alterations until the officer pointed them out. The applicant
submits that the officer could have checked with ONARS whether the documents
were reliable or not, but the officer did not do so.
[20]
The
applicant canvassed jurisprudence to argue that visa officers are not experts
in foreign documents. He submits that procedural fairness requires either that
the officer check with ONARS for the legitimacy of the documents or that the
applicant have an opportunity to provide further documentation from ONARS. The
failure to do either is an error on the part of the officer.
Credibility: The Marriage
[21]
The
applicant argues that the officer erred in his negative credibility finding
based on the story the applicant shared of his living arrangements with his wife
prior to their marriage.
[22]
The
officer asked, “is it not inappropriate in your culture for a woman and man to
live together in one room without being married?” The officer wrote in his
notes that “I have concerns as the story included material facts that lacked
detail … were simply implausible considering common knowledge of customs from
the region” (i.e. the fact that he and his wife purportedly resided together
unmarried for an extended period of time).
[23]
The
applicant argues that he had given a reasonable explanation of why he and his
wife had not married and that a negative credibility finding on this point is
perverse.
Persecutor Perspective
[24]
The
applicant argues that the officer erred by asking the applicant to speculate on
why the authorities might be motivated to persecute him and by failing to
consider how the applicant would have been perceived by his persecutors in Ethiopia.
Respondent’s Written Submissions
[25]
The
respondent submits that the officer made a reasonable credibility finding, made
reasonable implausibility findings, did not breach the applicant’s right to
procedural fairness and reasonably determined that the applicant faced no risk
of persecution if he were to be removed to his home country.
Credibility
[26]
The
respondent argues that notwithstanding the officer’s mistake about the
applicant’s involvement in youth organizations, the credibility finding still
stands. The respondent argues that the mistake was immaterial and that once
corrected, the officer did not pursue the matter any further. Indeed, the
officer made no credibility finding on this point, but instead focused his
credibility findings on other points: the applicant’s false documents and vague
answers.
Credibility Finding was Based on
Unreasonable Implausibility
[27]
The
respondent argues that visa officers are free to consider general customs
within a culture and apply them to particular circumstances when assessing an
application. The officer reasonably did so in this case. He found that it was
implausible that the applicant and his wife would have lived together prior to
marriage, as this is not normally the conduct of unmarried people in Ethiopia and Djibouti.
[28]
Furthermore,
the respondent argues that the officer’s implausibility finding was not based
on this point alone. The officer also considered that the applicant provided
vague and confusing answers.
No Breach of Duty of Fairness
[29]
The
officer had no obligation to inquire with ONARS and the Court about the
validity of documents. The officer found that the documents were altered and
that the applicant provided no satisfactory answer as to why this was so. The
respondent said at paragraph 38 of his submissions that: “The handwritten
changes to the dates were clear evidence that the documents were not valid
foreign government-issued documents.” The respondent submits that, contrary to
the applicant’s claim, the officer provided the applicant with several
opportunities to provide explanations for the changes on the documents.
No Risk of Persecution
[30]
The
officer’s question about the perspective of the authorities was intended to get
more information about the applicant’s situation and not to get into the mind
of the persecutor as the applicant argues. The officer considered all the
evidence before him and reasonably found that the applicant had no well-founded
fear of persecution.
Applicant’s Further Written Submissions
[31]
The
applicant replies that if the officer did not base his decision on the error,
he should have submitted an affidavit to that effect. Instead, a close reading
of the reasons shows that the mistakes were a basis for the decision. Given
that the erroneous findings formed the basis of the officer’s decision, they
were prejudicial to the applicant.
[32]
The
applicant replies that the officer made no plausibility findings on the documentary
evidence before it. Rather, the respondent invites the Court to make
plausibility findings, which is not the function of the Court.
[33]
With
respect to whether the applicant and his wife lived together prior to their
marriage, the officer erred by failing to distinguish between cultural norms
and individual behaviour. Evidence of deviation from a cultural norm can never
be the proper basis for questioning credibility.
[34]
The
applicant replies that he has a well-founded fear of persecution.
Respondent’s Further Written Submissions
[35]
The
respondent further submits much the same points as were present in its original
submissions but with more discussion on the factual basis for such arguments,
as well as voicing its disagreement with the applicant’s arguments.
Analysis and Decision
[36]
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 at paragraph 57, [2008] 1 S.C.R. 190).
[37]
Decisions
on applications for permanent residence visas as members of the humanitarian protected
persons abroad class and the Convention refugees abroad class are to be
measured against a standard of reasonableness (see Qurbani v Canada
(Minister of Citizenship and Immigration), 2009 FC 127 at paragraph 8). A
visa officer’s findings of fact, as well as credibility findings are to be reviewed
against the same standard (see Ramos
de Luna v Canada (Minister of Citizenship and Immigration), 2010 FC 726 at paragraph 12; and Rajadurai
v Canada (Minister of Citizenship and Immigration), 2009 FC 119 at
paragraph 23).
[38]
The allegation of a breach of the duty of fairness is an issue of
procedural fairness and thus, is to be measured against a standard of
correctness (see Alakozai v Canada (Minister of Citizenship and Immigration),
2009 FC 266 at paragraph 20).
[39]
In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47 and Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraph 59, [2009] 1 S.C.R. 339). As the Supreme Court held
in Khosa above, it is not up to a reviewing court to substitute its own
view of a preferable outcome, nor is it the function of the reviewing court to
reweigh the evidence (at paragraph 59).
[40]
In
reviewing the officer’s decision on the standard of correctness, this Court
will show no deference. Rather, this Court will substitute its own view and
provide the correct answer (see Dunsmuir above, at paragraph 50).
[41]
Issue
2
Did the officer err with
respect to the applicant’s involvement in the youth group at university?
The respondent concedes the
officer made a mistake with respect to the applicant’s involvement in a youth
group while at university. I agree with the respondent that the mistake was not
material to the decision.
[42]
Issue
3
Did the officer err in
his decision relating to the falsity of the documents?
The officer found that some
of the applicant’s documents were not genuine because they were photocopies and
dates had been changed. The applicant stated that the documents were the
documents the authorities gave to him or his representative. The officer did
not attempt to verify the documents nor did the officer give the applicant the opportunity
to verify the documents in question. Based on the facts of this case, I am of
the view that a breach of procedural fairness resulted.
[43]
Issue
4
Was the officer’s finding
of a lack of credibility due to the applicant’s testimony that he and his wife
lived together before they were married which was not appropriate in their
culture?
Basically, the officer found
it was implausible that the applicant and his now wife would have lived
together before they were married since the customs of their country deem this
to be inappropriate. This implausibility finding was used as a basis to find
the applicant not credible. I am not satisfied that such an implausibility
finding should have been made based on the evidence in this case. The applicant
and his wife could have decided to live together before marriage (as they
stated) despite the customs of their country.
[44]
Issue
5
Did the officer err in
asking the applicant why the government was pursuing him?
I agree with the applicant
that the applicant would not necessarily know whey the government was after
him. He gave answers as to why he thought the government was after him. In my
view, this was the most the applicant could be expected to do based on the
evidence in this case. If the applicant’s lack of knowledge of the reasons why
he was being pursued was used to make a non-credibility finding, this would be
unreasonable.
[45]
For
all of the above reasons, I believe that the officer’s decision was
unreasonable and that there was as well, a breach of the duty of procedural
fairness.
[46]
The
application for judicial review is therefore allowed and the matter is referred
to a different officer for redetermination.
[47]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed and the matter is referred 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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11.
(1) A foreign national must, before entering Canada, apply to an officer for
a visa or for any other document required by the regulations. The visa or
document may be issued if, following an examination, the officer is satisfied
that the foreign national is not inadmissible and meets the requirements of
this Act.
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.
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11. (1) L’étranger
doit, préalablement à son entrée au Canada, demander à l’agent les visa et
autres documents requis par règlement. L’agent peut les délivrer sur preuve,
à la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et
se conforme à la présente loi.
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.
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Immigration and
Refugee Protection Regulations, SOR/2002-227
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139. (1) A
permanent resident visa shall be issued to a foreign national in need of
refugee protection, and their accompanying family members, if following an
examination it is established that
. . .
(e) the
foreign national is a member of one of the classes prescribed by this
Division
145. A
foreign national is a Convention refugee abroad and a member of the
Convention refugees abroad class if the foreign national has been determined,
outside Canada, by an officer to be a Convention refugee.
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139. (1) Un
visa de résident permanent est délivré à l’étranger qui a besoin de
protection et aux membres de sa famille qui l’accompagnent si, à l’issue d’un
contrôle, les éléments suivants sont établis :
. . .
e) il
fait partie d’une catégorie établie dans la présente section
145. Est
un réfugié au sens de la Convention outre-frontières et appartient à la
catégorie des réfugiés au sens de cette convention l’étranger à qui un agent
a reconnu la qualité de réfugié alors qu’il se trouvait hors du Canada
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