Docket:
IMM-12346-12
Citation: 2014 FC 154
Ottawa, Ontario, February, 19, 2014
PRESENT: The Honourable Mr. Justice Mosley
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BETWEEN:
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ABDIQANI MOHAMED HASHI
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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 for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 (“IRPA”), of a decision by an officer of the Canadian High
Commission (“CHC”) in Nairobi refusing Abdiqani Mohamed Hashi’s application for
a permanent resident visa as a member of the Convention refugee abroad class,
or as a member of the humanitarian-protected persons abroad designated class.
BACKGROUND:
[2]
The applicant is a citizen of Somalia. He was interviewed twice by the CHC in Nairobi; on August 8, 2011 and again on November
24, 2011.
[3]
The applicant’s visa application was considered
in light of the information provided in the interviews and applications of his
sister, Ms. Sudi Mohamed Hashi (“Ms. Sudi”) and a relative, Ms. Faduma Yassin
Omar (“Ms. Omar”), who also had pending visa applications. While the notes from
the interviews with Ms. Sudi and Ms. Omar do not form part of the decision,
they were produced on application by Ms. Sudi in the judicial review
proceedings concerning her failed visa application and form part of the record
in this case.
[4]
In his first interview on August 8, 2011, the
applicant stated that he and Ms. Sudi had travelled to Nairobi in August 2007
with another sister, Ms. Istahil Mohamed Hashi (“Ms. Istahil”), after their
father was shot and killed by members of Al Shabab. For identification
purposes, the applicant provided a Government of Kenya, Department of Refugee
Affairs (“DRA”) asylum seeker pass dated July 27, 2011, which stated that his
date of arrival in Kenya was August 29, 2007. He had no other identifying
documents or record of his travel from Somalia to Kenya.
[5]
The officer who interviewed the applicant on
August 8, 2011 reviewed the notes of an earlier interview with Ms. Sudi, and
was concerned about contradictions in their accounts. The applicant indicated
in his application that he had one brother and three sisters, but stated in his
interview that he had 3 half-brothers and 4 sisters. In her interview, Ms. Sudi
stated she had twelve siblings. Only four of these siblings had been disclosed
in her application. Ms. Sudi stated that apart from the applicant, all of her
siblings were in Somalia. There was no reference to Ms. Istahil in Ms. Sudi’s
application. There was also a concern as to whether the siblings had registered
with the UNHCR upon arrival in Nairobi. The officer recommended that the two
applicants be called back for further interviews.
[6]
At the second interview, on November 24, 2011,
the applicant stated that he had not registered with the UNHCR because their
offices were too far from where he was staying with friends. When asked about
his sister Ms. Istahil, he said that she remained in Somalia. He said he fled Somalia with Ms. Sudi five days after their father was killed on August 10, 2007, when a
“big bomb” was dropped on the market where the applicant’s father was working.
Members of Al Shabab had threatened and later killed the applicant’s father
because he and his children had not joined them. The applicant denied the
statement from his first interview that he had travelled with two sisters. He
stated that he did not personally experience any problems with Al Shabab, but
that everyone in Somalia was in danger. When asked about the contradiction with
his application, the applicant stated that the application was correct, that he
did personally have trouble with Al Shabab. The applicant was also unable to
explain how he had been able to stay in Kenya for four years without any
identification documents.
[7]
In her first interview, Ms. Sudi claimed to have
left Somalia after her father was shot at his shop on August 10, 2007, but
stated that she did not have any problems with Al Shabab. She claimed to have
travelled with the applicant, Ms. Omar, a cousin, and others. In her second
interview, Ms. Sudi stated that a bomb had fallen on her father’s shop and
destroyed it the same day her father was killed by members of Al Shabab.
Members of Al Shabab had threatened the family and told Ms. Sudi that she could
only have the shop if she joined them. The shop was destroyed because she had
refused. In this second interview she claimed to have travelled alone with the
applicant, and to have met Ms. Omar in Nairobi. However, Ms. Omar stated that
the applicant and Ms. Sudi’s father had died well before 2007, when Ms. Omar
was still a child. Ms. Omar claimed to have arrived in Kenya by herself in 2006. She left Somalia for Kenya because her aunt in Canada told her that she would sponsor her and not for any other reason. She was not aware
of Ms. Sudi having any problems in Somalia and was not afraid to return.
[8]
The applicant said that Ms. Omar was a cousin.
Ms. Sudi claimed that she was a distant relative. Ms. Omar stated that the
applicant was her uncle, Ms. Sudi was her aunt, and the applicant and Ms.
Sudi’s father was her grandfather.
DECISION UNDER
REVIEW:
[9]
The applicant’s visa application was rejected in
a letter dated December 16, 2011 on the ground that the visa officer was not
satisfied that he is a member of the Convention refugee abroad class, or the
Humanitarian-protected persons abroad class. The determinative issue was
credibility. The letter stated:
During your
interview, you provided vague responses and contradicted information previously
submitted to us in your application regarding your persecution and flight from Somalia. As a result, I was not satisfied on the balance of probabilities that the evidence
provided to me was credible.
[10]
The reasons for the decision are also set out in
the officer’s Computer Assisted Immigration Processing System (“CAIPS”) notes. The
CAIPS notes indicate that the visa officer’s credibility finding was based on
concerns about the sufficiency of detail regarding threats allegedly made
against the applicant by Al Shabab, inconsistencies between statements made in
his interviews and those of his sister and Ms. Omar, and a lack of clarity on
family composition, date of arrival and the date of the applicant’s father’s
death. While the applicant stated that he experienced regular harassment in Nairobi because of a lack of documentation, he had failed to register with UNHCR. Doubts about the length of the applicants stay in Kenya also arose from the date of issue of the Government of Kenya pass. Based on all of these factors, the visa officer was not satisfied,
on a balance of probabilities, that the applicant’s narrative was credible.
[11]
The officer concluded
that there were not reasonable grounds to believe that the applicant had a
well-founded fear of persecution based upon his race, religion, nationality,
membership in a particular social group or political opinion. The officer noted
that the Asylum and Source Country Classes had also been considered, but
concluded that the applicant did not meet the requirements of these classes either.
ISSUE:
[12]
The applicant concedes that there were inconsistencies
between his application and the information he provided in the first and second
interviews. He submits, however, that the officer breached procedural fairness
by failing to disclose the substance of Ms. Omar’s interview to give him an
opportunity to respond to her contradictory and highly prejudicial statements
at the second interview. He had learned of her statements only when disclosure
was made in the application for judicial review brought by his sister, Ms. Sudi,
from the denial of her visa application (IMM-5725-12). The respondent
acknowledges that the officer failed to disclose what Ms. Omar had stated but
contends that the non-disclosure was not material to the outcome.
[13]
The issue on this application is therefore, in
my view, whether the failure to disclose the substance of Ms. Omar’s interview
to the applicant to give him an opportunity to respond constituted a breach of
procedural fairness requiring that the decision be quashed and the matter sent
back for reconsideration.
ANALYSIS:
Standard
of Review
[14]
Where an issue of procedural fairness arises,
the Court must determine whether the process followed by the decision-maker
satisfied the level of fairness required in all of the circumstances. Deference to the decision maker is not at issue: Canada
(Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 43; Ahmed v Canada (Minister of Citizenship and Immigration), 2013 FC 204
at para 23. This is commonly referred to as the standard of correctness,
however the question is not whether the decision is ‘correct’ but whether the
procedure was fair: Ontario (Commissioner Provincial
Police) v MacDonald, 2009 ONCA 805, 3 Admin LR (5th)
278 at para 37 and Bowater Mersey Paper Co. v Communications, Energy and
Paperworkers Union of Canada, Local 141, 2010 NSCA 19, 3 Admin LR (5th)
261 at paras 30-32. In determining the duty of fairness,
Courts must guard against imposing a level of procedural formality that would
unduly encumber efficient administration: Khan v Canada (MCI), [2002]
2 FC 413 (FCA).
[15]
A breach of procedural fairness will render a decision invalid if
the breach affects an essential requirement of the duty of fairness in the
particular circumstances of the case: Cardinal v Director of Kent
Institution, [1985] 2 S.C.R. 643 at paras 23-24; Yassine v
Canada (Minister of Employment and Immigration), [1994] FCJ no 949 (FCA) at para 9; Uniboard Surfaces Inc. v
Kronotex Fussboden GmbH and Co., 2006 FCA 398 [Uniboard Surfaces]
at para. 13. A breach of natural justice will not warrant setting aside the
tribunal's decision if correcting the error would not affect the result of the
case. The reviewing court may disregard a breach of procedural fairness “where
the demerits of the claim are such that it would in any case be hopeless”: W.
Wade, Administrative Law (6th ed. 1988) at 535, as cited in Mobil Oil Canada
Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 SCR
202 at 228, [1994] SCJ no 14 (QL) [Mobil Oil]. An example cited in Mobil
Oil, at 228 is where the circumstances of the case involve a legal question
which has an inevitable answer. Such is not the case here.
Was the applicant denied procedural fairness?
[16]
In this matter, it appears that the officer was
concerned that the applicant, like Ms. Omar, had lately
come to Kenya from a relatively safe place in Somalia because he had a
sponsorship under way from Canada, and that the visa application did not
reflect actual events which he had experienced.
[17]
The applicant submits that this case is similar
to those involving a “poison pen letter” from a third party. This Court has
found, he contends, that the content of such letters should be disclosed to
applicants in order to allow them an opportunity to respond: Mozumder v
Canada (Minister of Citizenship and Immigration), [1997] FCJ no 327 at
paras 2, 6-7; Zhong v Canada (Minister of Citizenship and Immigration),
2004 FC 1636 at paras 14-15, 29-30; Patel v Canada
(Minister of Citizenship and Immigration), 2012 FC
1389 at paras 29-32. The applicant also cites Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC 9 at paras 59-60 for the principle that disclosure must be specific, complete and
not partial.
[18]
The applicant argues that
it is not necessary for him to show that the breach resulted in unfairness. The
onus falls on the respondent to establish that there was no prejudice and no
possibility or likelihood of prejudice: Kane v University of British Columbia, [1980] 1 S.C.R. 1105 at p 1116; Uniboard Surfaces, above, at para 22.
The Court, he submits, is in no position to determine whether the breach of the
duty of fairness might have worked to his disadvantage. The duty is concerned
with process, not result. A breach is not remedied by a reasonable result, or
immunized by the fact that the breach is not explicitly admitted in the
reasons.
[19]
The respondent submits that the officer found the applicant lacked credibility for three reasons:
1. The
applicant did not provide sufficient detail regarding his fear of persecution;
2. There was significant inconsistency among the statements
made by the applicant, Ms. Sudi and Ms. Omar; and
3. The lack of documentation and failure to register with
the UNHCR upon arrival in Kenya.
[20]
On the basis of the first and third reasons
alone, the respondent contends, the credibility finding is reasonable and ought
to stand. The respondent concedes that the inconsistency relating to the date
of the applicant’s father’s death arising from Ms. Omar’s interview was not put
to him. However, the applicant was questioned several times about the timing
and circumstances of his father’s death. The respondent acknowledges that it
would have been preferable for the visa officer to have been more specific on
this issue, but argues that it is not fatal to the decision given that it was
only one of a series of concerns about the applicant’s evidence.
[21]
The respondent relies on Musse v Canada
(Minister of Citizenship and Immigration), 2012 FC 883 [Musse] for
the proposition that as the inconsistency between the applicant and Ms. Omar’s
evidence was only one of a series of concerns about the applicant’s evidence,
the decision ought to stand. I note that in Musse, the officer had
brought the several applicants together, after interviewing them separately, to
discuss her concerns about their varying accounts of events. She did not tell
them how their evidence was inconsistent. While the Court found that it would
have been better if she had been clearer about the inconsistencies, her
concerns about their identities and accounts of how they had lived in Addis
Ababa for four years were common to all of the applicants and the officer gave
them a chance to allay those concerns. In the result, Justice O’Reilly was
unable to find that they were treated unfairly.
[22]
In a similar matter involving related Somali
applicants and conflicting accounts of events, Justice O’Keefe distinguished Musse
on the ground that the inconsistency in the matter before him could not be said
to be “only one of a series of concerns” about the applicant’s credibility. The
contradictory evidence was cited as the primary reason for refusal in both the
officer’s notes and the refusal letter: Ahmed v Canada (Citizenship and
Immigration), 2013 FC 205 at para 29.
[23]
In the case arising from the denial of the visa
application submitted by the sister of the applicant herein, Ms. Sudi, Justice
Russell discussed the visa officer’s duty to disclose extrinsic information upon which they intend to rely in making their
determination as follows:
The Applicant's
argument amounts to a claim that the Officer failed to disclose extrinsic
evidence, defined by Justice Rothstein in Dasent v Canada (Minister of
Citizenship and Immigration), [1995] 1 F.C. 720 [Dasent] at
paragraph 23 as "evidence of which the applicant has no knowledge and on
which the immigration officer intends to rely in making the decision affecting
the applicant". It is well established that an immigration officer must
disclose extrinsic information upon which they intend to rely in coming to
their decision (Muliadi v Canada (Minister of Employment and Immigration),
[1986] 2 F.C. 205 (FCA); Haghighi v Canada (Minister of Citizenship and
Immigration), [2000] 4 F.C. 407 (FCA)), including information gathered
through separate interviews of persons connected with the claim (Dasent,
above). However, there is no obligation to disclose information that is not
relied upon: Pan v Canada (Minister of Citizenship and Immigration),
2010 FC 838 at para 40; Bavili v Canada (Minister of Citizenship and
Immigration), 2009 FC 945 at para 47; see also Adams v Canada (Minister of Citizenship and Immigration), 2009 FC 1193 at paras 22-26 [Adams].
Hasi v Canada (Minister of Citizenship and Immigration), 2013 FC 1115
at para 49.
[24]
Justice Russell found that Ms. Sudi was unable
to explain how the failure to disclose the substance of the interviews with Ms.
Omar and the applicant herein had affected the inconsistencies in her own
evidence that were put to her in the second interview. He concluded that the
officer’s credibility concerns were not based upon everything that Ms. Omar had
said, but inconsistencies that were put to the applicant which she could not
explain. In the result, he could find nothing procedurally unfair or
unreasonable about the decision.
[25]
In this instance, the officer’s CAIPS notes
disclose the following reasons for decision:
(a)
PA did not provide sufficiency of detail or
specificity regarding the threats made against him; PA had to regularly be
prompted for further information and provided vague responses. Application
states father was killed by Al Shabab insurgents because he refused to join
them. Application further states that his children were demanded [sic]
to carry out missions as human bombers and that PA was being sought by Al
Shabab. During his interview, PA alternately stated that Al Shabab was trying
to recruit his father, his brothers and himself and that he did not have any
problems with Al Shabab.
(b)
There is significant inconsistency among
statements made by PA, his half-sister and Faduma at interview. Faduma
indicated that PA’s father died when she was a child, many years before 2007.
PA states that his father died in 2007. PA stated at his first interview
that he came with his sister [sic] Sudi and Istahil. Today he indicates
that he came alone with Sudi and that Istahil is in Somalia. There is a lack of
clarity on family composition, dates of arrival and date of father’s death
generated by inconsistency of testimony among the three linked cases.
(c)
PA states that he experiences regular harassment
in Nairobi because of a lack of documentation, yet in 4 years he has not
registered with UNHCR, who provides prima facie recognition to Somalis. This
raises doubts about the length of his stay in Kenya.
[Emphasis
added]
[26]
It is clear that the officer relied on the contradiction
between the evidence of the applicant and that of Ms. Omar with respect to the
death of the father. In her interview, Ms. Omar displayed a remarkable degree
of candour in answering questions about her own motives for seeking a visa and the
family’s history in Somalia, much of which contradicted the evidence given by
the applicant and his sister. Among other things, she stated that the
applicant’s father, her grandfather, had died during the Siad Barre regime
which would have been prior to 1991. The family lived in Galkacyo, in a
relatively peaceful region, and not Mogadishu, as claimed by the applicant. She
knew nothing about the claim in her application that her reason for seeking a
visa was an attack by Al Shabab in 2007. She did not believe that her aunt, Ms.
Sudi, had encountered problems in Somalia because she would have heard of them.
[27]
The father’s death was a significant part of the
applicant’s narrative that he had fled Somalia in 2007 shortly after his father
had been killed by Al Shabab in Mogadishu following threats against the family.
Given that the blatant contradiction between his evidence and that of Ms. Omar
went to the issue at the heart of the claim, persecution by Al Shabab, the
failure to disclose the extrinsic evidence and provide an opportunity to
respond was not a minor omission. The contradiction between his account and
that of Ms. Omar should have been put to the applicant if the officer intended
to rely upon it in reaching his decision. That contradiction was not the only
basis for the officer’s decision. The CAIPS notes reflect other concerns about
the applicant’s credibility that have not been satisfactorily answered. But the
disparity over the father’s death was the most striking difference.
[28]
In this instance, the visa officer may have felt
constrained in sharing the information obtained from Ms. Sudi and Ms. Omar with
the applicant given the restrictions on disclosure of personal information in
the Privacy Act, RSC 1985, c P-21 [Privacy Act]. The CIC’s
Operational Manual: IN 1: Overview on Information Sharing states that
information concerning individuals in immigration records falls within the
definition of personal information in s 3 of the Privacy Act. Section 8
of the Privacy Act states that personal information cannot be disclosed
without the written consent of the individual concerned or for specific
purposes authorized under an Act of Parliament or regulation. While IRPA and
its regulations allow for the sharing of information without written consent in
some circumstances, none of those appear to be applicable in this case.
[29]
The officer could not simply ignore the glaring
contradictions between the evidence of the three linked applicants. In the
circumstances, it would have been preferable for the visa officer to have
brought the three claimants together to discuss the inconsistencies, as was
done in Musse. I note that the officer who conducted the applicant’s
first interview had recommended that he and Ms. Sudi be interviewed again on
the same day. It does not appear that this was done. In any event, the greater
inconsistencies were between the applicant’s evidence and that of Ms. Omar. I
recognize that it may have been difficult to present those discrepancies to the
applicant without disclosing Ms. Omar’s personal information, but the substance
of the concern could have been put to him without identifying the source. This
appears to have been what Justice Blanchard suggested could have been done in Zhong,
above, at paragraph 29, without disclosing the source of the poison pen letter.
[30]
As the applicant submits, this is not a case involving a question of law which has an inevitable answer, as in Mobil Oil, above, and
the visa officer would not be duty bound in law to reject the claim on
reconsideration. It may be that the applicant who is now apprised of the
conflicting information and its source can provide a credible explanation. For
that reason, I will grant the application.
Certified question
[31]
The applicant has proposed the following
question for certification:
Where a visa officer,
when deciding an application for membership in the Convention refugee abroad
class or humanitarian protected persons abroad designated class, breaches the
duty of fairness owed the applicant,
a) must the decision
be quashed even where the remedy would be apparently futile as long as the visa
officer is not bound in law to reject the application on reconsideration or,
b) can the decision
be sustained as long as the breach of the duty of fairness is not material to
the decision and the decision as a whole, removing from consideration any
elements affected by the breach, is reasonable?
[32]
The respondent opposes certification of the
proposed question on the ground that it is not a serious question of general
importance. Not every breach of procedural fairness is a reviewable error. The
applicant’s question can only be answered on a case by case basis. I agree.
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