Dockets: IMM-1221-15
IMM-1222-15
IMM-1223-15
Citation:
2016 FC 273
Ottawa, Ontario, March 4,
2016
PRESENT: The Honourable Mr. Justice LeBlanc
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Docket: IMM-1221-15
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BETWEEN:
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LAYTH AHMED
JASIM AL-ANBAGI
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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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Docket: IMM-1222-15
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AND BETWEEN:
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SUAD AHMED
JASIM
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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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Docket: IMM-1223-15
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AND BETWEEN:
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ZAINAB LAYTH
AHMED AL-ANBAGI
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
These are three applications for judicial review
made pursuant to section 72 of the Immigration and Refugee Protection Act,
SC 2001 c 27 (the Act), which seek to set aside three separate but related
decisions of a visa officer (the Officer), dated December 2, 2014, denying the
Applicants’ applications for permanent residence as members of the Convention
refugee abroad class under paragraph 139(1)(d) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the Regulations).
[2]
As similar facts and issues pertain to all three
judicial review applications, they will be dealt with together in this
decision.
II.
Background
[3]
Mr. Layth Ahmed Jasim Al-Anbagi (the Principal
Applicant), his wife, two daughters, and sister seek refuge in Canada as
members of the Convention refugee abroad class. They filed their permanent
resident visa applications in July 2013 under three separate applications,
those of (i) the Principal Applicant, which includes his spouse (Izdihar), and
younger daughter (Zahraa) (Court Docket IMM-1221-15); (ii) Suad Ahmed Jasim
(Suad), the Principal Applicant’s blind and illiterate sister (Court Docket
IMM-1222-15); and (iii) Zainab Layth Ahmed Al-Anbagi (Zainab), the Principal
Applicant’s elder daughter (Court Docket IMM-1223-15) (collectively, the
Applicants).
[4]
The Principal Applicant was born in Iraq and
worked as a civil engineer for the Iraqi government. From April 2003 to October
2004, he allegedly worked for the United States army as a civil contractor to
help rebuild the city of Bagdad. As a result of his involvement with the United
States army, his name was put on an assassination list which put him and his
family at risk from Al-Qaeda and other insurgents in Iraq.
[5]
In October 2004, while the Applicants were
driving home one evening, their car was shot at. Sometime later, the person
guarding the Applicants’ house was murdered while guarding the home and attacks
were made on the lives of the Principal Applicant’s brothers. Following these
events, the Applicants fled Iraq and have been residing in Jordan ever since.
[6]
The Principal Applicant and a partner now run a
medical supplies business with an office in Jordan and business ties to Iraq.
The Principal Applicant sometimes travels to Iraq for business purposes. At the
time the Officer’s decision was rendered, his younger daughter, Zahraa, had
recently graduated from high school and his elder daughter, Zainab, was
illegally working for an architectural firm.
[7]
On August 27, 2014, the Principal Applicant, his
wife, and two daughters were interviewed by the Officer in Amman, Jordan, who
assessed the Applicants’ applications for permanent residence visas in Canada. The
principal Applicant’s sister Suad, did not attend the interview.
[8]
The Officer found that the Principal Applicant,
his wife, and two daughters were not members of the Convention refugee abroad
class pursuant to paragraph 139(1)(d) of the Regulations since they have a
durable solution in Jordan. In refusing the Principal Applicant’s application,
the Officer noted the following:
You are able to avail yourself of protection
in Jordan. You have been settled in Jordan for almost ten years and have legal
residency status here. You are settled to the extent that you run a business
with an office in Jordan and ties in Iraq; you and your family travel
internationally, including to countries with visa requirements; your children
attend high quality educational institutions in Jordan. You have stated that
you fear being targeted as Shiahs by Jordanian Sunnis if the monarchy falls;
however, Jordan is currently stable and the possibility of the kingdom giving
way to sectarianism is remote. I note that you feel secure here to the extent
that you have let your UNHCR registration, and the access to protection
services that it entails, lapse.
[9]
The Officer made similar if not identical
findings with respect to the applications filed by Zainab and Suad. In the
case of Suad, the Officer further found that she continues to live part-time in
Iraq with one of her brothers and that, as a result, she has not fled Iraq and
does not fear returning there. Therefore, the Officer determined that Suad is
not a member of the Convention refugee abroad class.
[10]
The Applicants claim that the Officer’s finding
of a durable solution in Jordan in the form of local integration is
unreasonable since the minimum rights they have in Jordan are tenuous. Firstly,
the Applicants’ stay in Jordan is conditional on the Principal Applicant’s
ability to renew his temporary 1-year residency permit each year. Renewal of
temporary resident status in Jordan is highly contingent on a person’s ability
to contribute to the economy. As a result, if the Principal Applicant were to
fail in his business, he would not be in a position to renew the temporary
residence status. Moreover, the Applicants argue that the Principal Applicant
is prohibited from gaining employment in Jordan in his profession as an
engineer and that his daughter, Zainab, is not able to legally work in Jordan.
The Applicants also contend that they have no protection from refoulement
if their temporary status is not extended. For these reasons, Jordan offers the
family a “temporary safety” rather than a
durable solution.
[11]
The Applicants also contend that the Principal Applicant’s
travel history to countries neighbouring Jordan using his Iraqi passport is not
a relevant factor for assessing the existence of a durable solution under
Citizenship and Immigration Canada’s Operational Manual 5 Overseas Selection
and Processing of Convention Refugees and members of the Humanitarian-protected
persons Abroad Classes (the OP5 Manual). The Applicant further argues that this
travel was necessary to sustain his business in Jordan.
[12]
Regarding the lapse of their United Nations High
Commissioner for Refugees (UNHCR) status, the Applicants argue that the Officer
erred when she inferred that the lapse in status is indicative that the
Applicants feel secure in Jordan and suggest that they allowed the UNHCR status
to lapse since they were in the process of being sponsored to Canada.
[13]
With respect to the Officer’s rejection of
Suad’s application, the Applicants contend that it is essential for Suad to
remain with her family from a humanitarian and compassionate perspective since
she is an integrated member and completely dependent on them. The Applicants
argue that while Suad did make periodic trips to Iraq to visit one of her
siblings, these trips were short and she remained indoors. The Applicants also
argue that Suad was not given an opportunity to address the Officer’s concern
that she is not afraid for her safety in Iraq.
III.
Issues and Standard of Review
[14]
The issue in this judicial review is to
determine whether the Officer committed a reviewable error as contemplated by
section 18.1(4) of the Federal Courts Act, RSC, 1985, c F-7 in deciding
that the Applicants have a reasonable prospect of a durable solution in Jordan
within a reasonable period of time.
[15]
The question of whether the Applicants have a
durable solution of resettlement in Jordan is clearly a question of mixed fact
and law and is thus subject to review on the standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para 53 [Dunsmuir];
Mushimiyimana v Canada (Citizenship and Immigration), 2010 FC 1124, at
para 21 [Mushimiyimana]). As is well-established, this standard is
concerned with “the existence of justification,
transparency and intelligibility within the decision-making process” and
with “whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law” (Dunsmuir, at para 47).
IV.
Analysis
[16]
Pursuant to section 139 of the Regulations, a
visa officer cannot issue a permanent resident visa to a foreign national if
the foreign national has a reasonable prospect of a durable solution, either
through voluntary repatriation or resettlement, within a reasonable time in a
country other than Canada. This assessment is forward looking and the
onus is on the visa applicant to establish that no such reasonable
prospect exists (Barud v Canada (Citizenship and Immigration), 2013 FC
1152, at para 15 [Barud]; Dusabimina v Canada (Citizenship and
Immigration), 2011 FC 1238, at para 54).
[17]
In Barud, the Court, noting that there is
no precise definition for the term “durable solution,”
held that the issue to be determined in such instances is whether the visa
officer reasonably concluded that the foreign national, based on an assessment
of his/her personal circumstances and the conditions in the person’s country of
residence, has a durable solution in a country other than Canada (Barud,
at paras 3 and 12). Such analysis depends, in large measure, on the facts of
each case (Ha v Canada (Minister of Citizenship and Immigration), 2004
FCA 49, at para 79, [2004] 3 FCR 195 [Ha]).
[18]
In the absence of a precise definition of what a
durable solution is, both parties have relied on the OP5 Manual as a guide for
determining whether the Officer reasonably found that a durable solution exists
for the Applicants in Jordan. As is well-settled, such guidelines are not law
and, as a result, are neither binding on the Minister or his agents and cannot
fetter the discretion of a visa officer (Lee v Canada (Citizenship and
Immigration), 2008 FC 1152, at para 29; Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125; Vaguedano Alvarez v Canada,
(Citizenship and Immigration), 2011 FC 667, at para 35).
[19]
At the same time, it has long been established
that statutory interpretation requires consideration of the ordinary meaning of
the words used as well as the statutory context, purpose and intent of
Parliament (Canada Trustco Mortgage Co v Canada, 2005 SCC 54, at para
10, [2005] 2 S.C.R. 601; Canada (Citizenship and Immigration) v Patel, 2011
CAF 187, at para 32). In the recent case of Kanthasamy v Canada (Citizenship
and Immigration), 2015 SCC 61 [Kanthasamy], the Supreme Court of
Canada reminded that, although not legally binding and not intended to be
either exhaustive or restrictive, Ministerial guidelines designed to assist immigration
officers are useful in indicating what constitutes a reasonable interpretation
of a given provision of the Act (Kanthasamy, at para 32). Thus, the OP5
Manual can, within these confines, be of assistance to the Court in determining
whether the Officer reasonably applied paragraph 139(1) of the Regulations to
the Applicants’ circumstances.
[20]
Here, section 13.2 of the OP5 Manual lists three
types of durable solutions, namely, voluntary repatriation, local integration,
and resettlement. In the present case, the Officer’s reasons imply that the
Applicants have a durable solution in Jordan because they have been able to
locally integrate there. Section 13.2 describes local integration in the
following terms:
Local integration is a long-lasting solution
to a refugee’s situation. It is more than the granting of safe conditions of
asylum, which is a key obligation of signatories of the Convention Relating to
the Status of Refugees.
[…]
Local integration allows the refugee to live
permanently in safety and dignity in the country of refuge and partake of its
enduring legal, economic and social benefits.
[21]
To determine whether local integration has
occurred, the OP5 Manual indicates that officers must consider “both country conditions, the applicant’s individual circumstances
and a comparison of these circumstances to the Department’s guidelines
described here.” The OP5 Manual includes a list of questions that an
officer should consider to help him/her assess whether local integration has
occurred. In addition to the list of questions, the OP5 Manual explains that “[l]egal status as a long-term resident is a key indicator of
local integration,” but recognizes that de facto local
integration may occur where states have fair procedures for status renewal.
Moreover, the OP5 Manual indicates that officers must compare the treatment of
applicants to that of nationals since “[f]or local
integration to occur, there should be no significant exclusion from access to
the same opportunities available to nationals, such as access to job
opportunities comparable to nationals with similar education and work
experience.” In this respect, the OP5 Manual indicates that “[t]he legal permission to work without restrictions is
normally a sufficient indicator but where that does not exist then de facto
access to employment or self-employment may be sufficient in some
circumstances.”
[22]
These factors are consistent with the UNHCR
standards of local integration found in the UNHCR Resettlement Handbook,
International Protection and the Search for Durable Solutions (the UNHCR
Handbook). While the UNHCR Handbook is not formally binding on signatory states
of the Convention, “the Handbook has been endorsed by
the states which are members of the Executive Committee of the UNHCR, including
Canada, and has been relied upon by the courts of signatory states” (Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689; Elyasi v Canada
(Citizenship and Immigration), 2010 FC 419, at para 28). As such, I am of
the view that the UNHCR Handbook may also be useful in providing guidance to
the Court.
[23]
The UNHCR Handbook defines local integration in
similar terms and recognizes local integration as a “legal,
economic and socio-cultural process aiming at providing the refugee with the
permanent right to stay in the country of asylum, including in some situations,
as a naturalized citizen.” Section 1.3.4 of the Handbook indicates that
local integration should be seen as a gradual process that takes place through
three interrelated dimensions:
legal: refugees are granted a progressively
wider range of rights (similar to those enjoyed by citizens) leading eventually
to permanent residency and, in some situations, to naturalization;
economic: refugees gradually become less
dependent on aid from the country of asylum or on humanitarian assistance and
become increasingly self-reliant to support themselves and contribute to the
local economy;
social and cultural: the interaction between
refugees and the local community allows refugees to participate in the social
life of their new country without fear of discrimination or hostility while not
obliged to abandon their own culture.
[24]
Both the OP5 Manual and the UNHCR Handbook point
to long-term residency and ability to contribute to the host country’s local
economy and community as key indicators of local integration. Indeed, the
UNHCR Handbook states that host countries that provide refugees with limited
and temporary forms of asylum undermine the achievement of local integration.
This is consistent with the guidelines in the OP5 Manual to the extent that the
OP5 Manual warns that refugees may suffer a significant risk of refoulement
if they have settled in states “that have restrictive
refugee status renewal policies” as these states “may not possess the conditions for true local integration.”
[25]
Given the foregoing, in my view, the
Officer committed a reviewable error in ignoring or misapprehending facts and
circumstances personal to the Applicants, which tend to demonstrate that their
settlement in Jordan is temporary in nature rather than leading toward the
recognition of a long term right to stay and integrate locally (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), 157 FTR 35, at paras
15-18, 83 ACWS (3d) 264).
[26]
Jordan is not a signatory to the 1951 Convention
on the Status of Refugees (the Convention). It is, as a result, under no legal
obligation to offer the Applicants long-term residence. In fact, the Applicants
do not have legal status in Jordan as long-term residents. As a result, if and
when Jordan decides not to renew the Applicants’ temporary 1-year residency
permit, the Applicants will not be protected from refoulement to Iraq.
In this regard, the record shows that Jordan does not have fair procedures for
status renewal as the evidence indicates that the residency requirements in
Jordan change constantly in a manner that impedes permanent settlement there.
This evidence is not discussed in the Officer’s decision. In addition, in
determining that the Applicants would have no difficulty in satisfying the residency
requirements in Jordan in the future, the Officer failed to consider that the
family’s ability to retain residency status in Jordan is highly contingent on
the Principal Applicant’s ability to maintain a successful business. If, for
whatever reason, the business fails, it is likely that the temporary residency
status will not be renewed, in which case, the Applicants may face refoulement
to Iraq.
[27]
The Officer also misapprehended the Applicants’
ability to participate in the local economy as the evidence demonstrates that
Iraqi refugees do not have access to the official labour market. While the
Principal Applicant is able to derive an income from operating a business, the
same cannot be said for the rest of his family as evidenced by his daughter
Zainab, who told the Officer during the interview that if she is caught
working, she will be sent to prison.
[28]
In my view, in coming to the conclusion that the
Applicants have a durable solution in Jordan, the Officer erred in considering
irrelevant factors such as the Applicants’ travel history and lapse of UNHCR
registration rather than assessing the country conditions and the Applicants’
individual circumstances as suggested by the OP5 Manual and mandated by this
Court’s jurisprudence (Barud, at paras 12 and 16; Mushimiyimana,
at para 21; Salimi v Canada (Citizenship and Immigration), 2007 FC 872,
at para 11).
[29]
In sum, in view of the fact that Jordan
is not a signatory to the Convention and of the evidence pointing to the fact
that what the Applicants have been offered so far is a temporary place of
refuge now linked to the success or failure of the Principal Applicant’s
business, rather than the opportunity to integrate locally for the long-term,
I am unable to find that the Officer’s decision falls within a range of
possible, acceptable outcomes defensible in fact and in law.
[30]
The Respondent claims that the solution offered
by the third party country is not required to be permanent, only durable. It
seems to me that, to the extent the OP5 Manual and the UNHCR Handbook are to be
of any assistance in interpreting paragraph 139(1) of the Regulations when the
question is related to local integration, the solution offered by the third
party country must at least, on a balance of probabilities, amount to the
reasonable possibility of attaining, within a reasonable delay, legal or de
facto permanent status allowing for local integration in that country or of
residing in that country without fear of refoulement. This view appears
to be more consistent with the overall context and objectives of the Act.
[31]
Regarding the Officer’s determination against
Suad, I have difficulty agreeing with the Respondent’s argument that Suad’s
trips to Iraq demonstrate that she lacks a subjective fear of persecution in
Iraq since, further to a review of the Officer’s Global Case Management System
notes, it is clear that the Officer acknowledged that all the other Applicants
at one point or another since 2004 made brief trips to Iraq. The Officer does
not explain why Suad’s travels to Iraq demonstrate that she is not a member of
the country asylum class while the trips made to Iraq by the other Applicants
do not preclude them from being considered members of the country of asylum
class. But most importantly, considering that Suad, who did not attend the
interview, was not provided with an opportunity to address the Officer’s
concerns regarding her trips to Iraq, I am of the view that the Officer did not
give a fair consideration to Suad’s application (Sekhon v Canada
(Citizenship and Immigration), 2008 FC 561).
[32]
For these reasons, the judicial review
application in all three cases is granted and all three matters are referred
back to a different visa officer for determination.
[33]
The Applicants claim that this would be an
opportune time to seek guidance from the Federal Court of Appeal on the minimal
rights that a person from the Convention refugee abroad class must have in
order to have a durable solution. As they point out, this question was
certified in Ha, above. However, the Federal Court of Appeal declined
to answer that question as it found that it would be “unwise
and inappropriate” to attempt to set out in a factual vacuum all of the
legal rights and obligations that such a person must possess outside Canada, in
all cases, in order to have a durable solution, an issue which is largely
dependent on the facts of each case (Ha, at para 79). The Respondent
opposes certification and notes that the fact that there is no specific
definition of “durable solution” in the
legislation or the case law has not prevented this Court from evaluating the
reasonableness of a visa officer’s decision based on the evidence before the officer.
[34]
For the same reasons stated in Ha, I
shall, with all due respect, refrain from certifying the same question in the
present case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
- The judicial review applications are granted in Court Dockets
IMM-1221-15, IMM-1222-15 and IMM-1223-15;
- The matters are referred back to Citizenship and Immigration
Canada to be determined by a different visa officer;
- No question is certified.
"René LeBlanc"
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