Dockets:
IMM-2719-13
IMM-2716-13
IMM-2718-13
IMM-2722-13
Citation: 2014 FC 192
Ottawa, Ontario, February 27, 2014
PRESENT: The Honourable Mr. Justice Boivin
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Docket:
IMM-2719-13
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BETWEEN:
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SUADA ADEN MOHAMED
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Defendant
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Docket:
IMM-2716-13
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AND BETWEEN:
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NIMA MOHAMED ARAB
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Defendant
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Docket:
IMM-2718-13
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AND BETWEEN:
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HODAN MOHAMED ARAB
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Defendant
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Docket:
IMM-2722-13
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AND BETWEEN:
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YONIS MOHAMED ARAB
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Defendant
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
These four (4) applications for judicial review
of four (4) related decisions made on March 25, 2013 by a visa officer of
Citizenship and Immigration Canada (CIC), wherein the visa officer denied the
applicants’ applications for permanent residence as members of the Convention
refugee abroad class. The visa officer rejected the four (4) applications
because he was not satisfied that the applicants had demonstrated a
well-founded fear of persecution or that they would be seriously affected by
the conditions in Somalia.
Factual background
[2]
Suada Aden Mohamed (the main applicant), her son
Yonis Mohamed Arab, and her two (2) daughters Nima Mohamed Arab and Hodan
Mohamed Arab (collectively, the applicants) are citizens of Somalia. The applicants live in Saudi Arabia under private sponsorship.
[3]
The four (4) applicants applied to the Embassy
of Canada in Abu Dhabi to become permanent residents as members of the
Convention refugee abroad class. The applicants applied separately, but their
claims are based on the same facts and rely on the main applicant’s testimony.
They claim that the main applicant’s husband – and father of the three (3) other
applicants – was killed by Al-Shabaab and that they fear returning to Somalia.
[4]
On March 17, 2013, Timothy Lee, First Secretary
of the Embassy of Canada in Abu Dhabi (the visa officer), interviewed the main
applicant in Riyadh, Saudi Arabia. An interpreter named Malcolm Alidja Melmony,
who was chosen by the main applicant (Tribunal’s Record at 5), provided
interpretation from English to Arabic. The CAIPS notes indicate that “the PA
[did] not understand Arabic very well so has requested for one of her children
to also be present (sic).” The request was granted and her son
Yonis, who is also an applicant in the present case, assisted her in understanding
the interpreter. The CAIPS notes add that, at the beginning of the hearing, the
officer “confirmed that PA and interpreter understand each other.”
[5]
The visa officer rendered his decision on March
25, 2013.
Impugned
decision
[6]
In individual letters dated March 25, 2013, the
visa officer informed each applicant that he was not satisfied that they had
demonstrated a well-founded fear of persecution or that they were or would
continue to be seriously affected by the conditions in Somalia.
[7]
After summarizing the statutory provisions
applicable to their case, the visa officer mentioned that the applicants have
never been to Somalia because of insecurity. He also noted that, while they
stated that the main applicant’s husband and father of the other applicants had
been killed by Al-Shabaab, no reason was provided to explain his death nor was
the identity of his killers established.
Issues
[8]
The case at bar raises the following issues:
1.
Did the respondent breach procedural fairness by
denying the applicants’ right to interpretation?
2.
Was the visa officer’s application of gender
guidelines or relevant country condition information reasonable?
Relevant
provisions
[9]
The following provisions of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) are relevant to the
present case:
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PART
2
REFUGEE
PROTECTION
Division 1
Refugee Protection, Convention Refugees and
Persons in Need of Protection
…
Convention refugee
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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PARTIE
2
PROTECTION
DES RÉFUGIÉS
Section 1
Notions d’asile, de réfugié et de personne à
protéger
…
Définition de « réfugié »
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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[10]
The following provisions of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the Regulations) are also
relevant to the case at bar:
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PART
8
REFUGEE
CLASSES
Division 1
Convention Refugees Abroad,
Humanitarian-protected Persons Abroad and Protected Temporary Residents
…
General
General requirements
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;
…
Convention Refugees Abroad
…
Member of Convention refugees abroad
class
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.
…
Member of country of asylum class
147. A
foreign national is a member of the country of asylum class if they have been
determined by an officer to be in need of resettlement because
(a) they are outside all of their
countries of nationality and habitual residence; and
(b) they have been, and continue
to be, seriously and personally affected by civil war, armed conflict or
massive violation of human rights in each of those countries.
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PARTIE
8
CATÉGORIES
DE RÉFUGIÉS
Section 1
Réfugiés au sens de la Convention
outre-frontières, personnes protégées à titre humanitaire outre-frontières et
résidents temporaires protégés
…
Dispositions
générales
Exigences générales
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;
…
Réfugiés
au sens de la Convention outre-frontières
…
Qualité
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.
…
Catégorie de personnes de pays d’accueil
147. Appartient
à la catégorie de personnes de pays d’accueil l’étranger considéré par un
agent comme ayant besoin de se réinstaller en raison des circonstances
suivantes :
a) il se trouve
hors de tout pays dont il a la nationalité ou dans lequel il avait sa
résidence habituelle;
b) une guerre
civile, un conflit armé ou une violation massive des droits de la personne
dans chacun des pays en cause ont eu et continuent d’avoir des conséquences
graves et personnelles pour lui.
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Standard of
review
[11]
Questions of procedural fairness are reviewable as
questions of law and no deference is owed to a decision-maker in his procedural
choices (Canadian Union of Public Employees (CUPE) v Ontario (Minister of
Labour), 2003 SCC 29 at paras 100, 102, 103, [2003] SCJ No 28).
[12]
The issue of determining whether an applicant is a
member of the Convention refugee abroad class is a question of mixed fact and
law and is reviewable under the reasonableness standard (Nabizadeh v Canada
(Minister of Citizenship and Immigration), 2012 FC 365 at para 28, [2012]
FCJ No 406 (QL); Kamara v Canada (Minister of Citizenship and Immigration),
2008 FC 785 at para 19, [2008] FCJ No 986 (QL) [Kamara]).
Analysis
[13]
The applicants argue that the three-way interpretation
that was adopted at the interview adds confusion to a process already fraught
with the possibility of misunderstanding, especially given the knowledge of the
linguistic abilities of the main applicant’s son. The latter was directed not
to assist his mother when providing interpretation and was therefore prevented
from giving useful information he might have had. Since the duty of fairness
requires precise, competent, impartial and contemporaneous interpretation, the
process chosen by the visa officer breached procedural fairness and no need to
prove an actual prejudice is necessary (Mohammadian v Canada (Minister of
Citizenship and Immigration), 2001 FCA 191, [2001] 4 FC 85). The applicants
further contend that the respondent, by permitting a three-way interpretation
and by not ensuring that the relative used as second interpreter was fully
fluent in the languages of both the interviewer and the applicant, did not
respect its own guidelines and practices (Representations of the applicant at
paras 17-22). In those circumstances, the applicants submit that the visa
officer should not have continued with the interview (Faiva v Canada
(Minister of Employment and Immigration) (FCA), [1983] FCJ No 224).
[14]
However, upon reviewing the record, the Court
cannot agree with the applicant that the visa officer breached procedural
fairness. Indeed, the main applicant never requested to replace the interpreter
she chose herself, but rather that her son Yonis accompany her and assist her,
if needed. That request was granted by the visa officer as a matter of
practical necessity. It is to be reminded that, in this case, the accommodation
request was done at the request of the main applicant. Moreover, the main
applicant never mentioned during the interview that she had issues in
understanding the hearing before the visa officer.
[15]
The CAIPS notes confirm that, at the beginning of the
hearing, the visa officer observed that the main applicant and the interpreter
understood each other. In his affidavit, the visa officer who conducted the
interview stated that the son “did not speak for most of the time” (Affidavit
of Timothy Lee at para 6). In his sworn statement, the visa officer further
affirms that he made sure the applicant understood him before starting the
interview and insisted that she could interrupt him at any time if she did not
understand a question (Affidavit of Timothy Lee at paras 7-8). The Court is
hard pressed to find evidence on record that the accommodation granted by the
officer at the request of the main applicant was prejudicial to the applicants.
The affidavit of Abdi-Khadir Osman Irbrahim, adduced by the applicants, remains
vague and does not convince this Court that the quality of the interpretation
was deficient. The Court gives it little probative value. The Court is
therefore of the view that the evidence does not support the claim that a
breach of procedural fairness occurred.
[16]
The applicants also contend that the visa
officer committed a reviewable error in failing to consider the Gender
guidelines and in its evaluation of the country conditions. The Court does not
agree.
[17]
The visa officer did not err in not considering the
Gender guidelines or by not asking questions related to the situation of the
main applicant as a woman, as the applicants’ claim was not gendered-based.
Furthermore, the applicants did not provide any indication that such questions
ought to have been asked, or that they would have impacted in any way the visa
officer’s determinations. Also, arguments raised at the hearing before this
Court, with respect to the three (3) female applicants being at risk, were not
part of the applicants written submissions.
[18]
The Court agrees with the applicants that the
country information referred to by the applicants confirms that conditions are
generally difficult in Somalia. However, they do not specifically deal with the
threat to Somali nationals returning to the country. Moreover, it does not
contradict the visa officer’s finding that the applicants failed to provide
sufficient evidence to establish a well-founded fear of persecution. The visa
officer’s key finding was that the applicants failed to provide any reason why
the main applicant’s husband was killed, or why he was of any interest to
Al-Shabaab. The record also demonstrates that the visa officer asks many
questions during the interview concerning risks – e.g. the cause and the people
responsible for the death of the main applicant’s husband (Tribunal’s Record at
6). The main applicant did not know the identity and the reason for her
husband’s death, but speculated that it was Al-Shabaab since the group is
responsible for violence in Somalia.
[19]
The evidence on record does not suggest that the visa officer’s
conclusion is unreasonable and the Court cannot agree with the applicants that
the visa officer erred in concluding that the applicants failed to demonstrate
that they had a well-founded fear of persecution.
[20]
For all of these reasons, the Court finds that the visa
officer’s decision is reasonable as it “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
The Court’s intervention is not warranted and the four (4) applications will be
dismissed.
[21]
Counsel for the applicants suggested 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 to 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.
[22]
Given the conclusion of this
Court and that the proposed question for certification is factual and can only
be answered on a case-by-case basis, it is not dispositive of this case and it
is not a question of general importance. The Court therefore declines to
certify the proposed question.
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