Docket:
IMM-96-13
Citation: 2013 FC 1152
Ottawa, Ontario, November
18, 2013
PRESENT: The Honourable Mr. Justice O'Reilly
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BETWEEN:
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RASHID HARED BARUD
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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
I. Overview
[1]
Mr Rashid Hared Barud fled Somalia in 1995 and relocated to South Africa where he obtained refugee status in 2011. Mr Barud later
applied for permanent residence in Canada, but an immigration officer dismissed
his application because he had failed to show “no reasonable prospect, within a
reasonable period, of a durable solution in a country other than Canada” (s
139(d), Immigration and Refugee Protection Regulations [IRPR], SC
2001, c 27 – see Annex). The officer found that Mr Barud had a durable solution
available to him in South Africa.
[2]
Mr Barud argues that the officer erred by
applying an incorrect definition of “durable solution” and by unreasonably
concluding that he did not meet that definition. He asks me to overturn the
officer’s decision and order another officer to reconsider his application for
permanent residence.
[3]
I can find no basis for overturning the
officer’s decision and must, therefore, dismiss this application for judicial
review. In my view, there is no precise definition of “durable solution”. The
question, then, is whether the officer reasonably concluded that Mr Barud had a
durable solution in South Africa. Based on the evidence, I cannot find that the
officer’s conclusion was unreasonable.
[4]
There are two issues:
1. Did the
officer apply the wrong definition of “durable solution”?
2. Did the officer unreasonably conclude that Mr Barud
failed to show that he had no prospect of a durable solution in South Africa?
II. The
Officer’s Decision
[5]
The officer reviewed Mr Barud’s personal
circumstances, noting that since 2011he has worked in a Somali grocery shop in Port Elizabeth, South Africa. However, while he was not personally harmed, there were “lots
of troubles for Somali people” there. Mr Barud and his wife constantly felt
afraid.
[6]
However, the officer found that Mr Barud and his
wife had not been subjected to xenophobic violence. They feared being victims
of crime, but crime is commonplace in South Africa. Their circumstances were no
different from those of other residents.
[7]
Based on documentary evidence about the
situation in South Africa, the officer noted the following:
• The
South African government has taken steps to deal with xenophobic violence,
particularly by recognizing international instruments on human rights;
• A
UN Special Rapporteur reported that South Africa had taken measures to address
xenophobic attacks, although further improvements were needed;
• According
to the Consortium for Refugees and Migrants in South Africa (CORMSA), persons
with refugee status in South Africa have most of the rights of citizens except
the right to vote; it is equivalent to permanent resident status in Canada; and
• The
United Nations High Commissioner for Refugees (UNHCR) offers numerous services
to refugees in South Africa.
[8]
In the decision letter to Mr Barud, the officer stated
that he did not qualify for permanent residence because he had not shown that
there was no reasonable prospect of a durable solution in South Africa, given that he had successfully resettled there and, essentially, had been
granted rights akin to citizenship. The officer acknowledged that Mr Barud had
been a victim of crime, but found that he had not experienced the kind of repeated
attacks that would be consistent with xenophobic violence. Like other residents
of South Africa, Mr Barud had been exposed to generalized crime.
III. Did
the officer apply the wrong definition of “durable solution”?
[9]
Mr Barud argues that the officer wrongly relied
on South Africa’s efforts to address xenophobic violence as sufficient to
conclude that a durable solution was available to him there. He contends that efforts
to provide protection do not necessarily result in a durable solution – the real
question is whether the country in question can actually deliver protection.
[10]
Mr Barud contends that the concept of a durable
solution is an international norm and, therefore, should be reviewed on a
standard of correctness in order to foster consistency across jurisdictions (as
in Hernandez Febles v Canada (Citizenship and Immigration), 2012 FCA
324).
[11]
I am not satisfied that “durable solution” is an
international norm that should be reviewed on a correctness standard. Mr Barud
has pointed me to documents showing that one of the larger goals of the Refugee
Convention, as interpreted by the UNHCR, is to achieve a permanent or durable
solution for refugee claimants. On that basis, he maintains that the concept of
a durable solution is an international legal norm.
[12]
I disagree. While the overall goal of the
Refugee Convention may be to provide lasting protection to genuine asylum
seekers, it does not follow that the term “durable solution” in the IRPR incorporates
an international legal norm. It is not equivalent to the definition of a refugee,
or the grounds for exclusion from refugee status (as in Febles, above),
both of which are rooted in the Refugee Convention itself. In my view,
consideration of whether an applicant has a reasonable prospect of a durable
solution in a country other than Canada requires an assessment of the person’s
personal circumstances and the conditions in the person’s country of residence
(Mushimiyimana v Canada (Minister of Citizenship and Immigration) 2010
FC 1124, at para 21). It is a question of mixed fact and law that should
attract a reasonableness standard of review. The real issue before me,
therefore, is whether the officer unreasonably concluded that Mr Barud had a
reasonable prospect of a durable solution in South Africa.
IV. Did the officer unreasonably conclude that Mr Barud failed to show
that he had no reasonable prospect of a durable solution in South Africa?
[13]
Mr Barud argues that the officer failed to
recognize that he was exposed to violence based on his Somali nationality and
refugee status in South Africa. According to Mr Barud, the officer wrongly
concluded that, like other residents of South Africa, he was exposed to
generalized criminal violence.
[14]
In his written materials before the officer, Mr
Barud maintained that he was targeted by gangs and the police, and was
discriminated against on the basis of his status as a Somali refugee. State
protection was not available to persons in his circumstances. Accordingly, he
did not report crimes against him to the police. Further, Mr Barud contends that
the evidence before the officer indicated only a willingness, not an ability,
to protect him. Therefore, even if the burden fell on him to show an absence of
protection, the evidence on which the officer relied did not show that state
protection was available.
[15]
In my view, the officer’s decision was not
unreasonable. The question was whether Mr Barud had a reasonable prospect of a
durable solution in South Africa within a reasonable period of time. Given that
forward-looking standard, it was open to the officer to cite state efforts to
improve the treatment of foreigners. The officer reasonably concluded, based on
the status Mr Barud enjoyed in South Africa and the documentary evidence
relating to country conditions, that Mr Barud had a reasonable prospect of a
durable solution there, notwithstanding that he had been a victim of crime in
the past.
[16]
The standard for a durable solution differs from
the test for state protection. In the latter case, the question is whether the
claimant will face a well-founded fear of persecution on return to his or her
country of origin, given the state’s resources and willingness to protect the
person. In the case of a “durable solution”, the state’s plans and intentions,
as compared to its existing capacity and desire, is far more relevant. Here,
the officer properly considered the evolving situation in South Africa for foreign nationals.
[17]
Accordingly, I cannot conclude that the
officer’s decision was unreasonable. It represented a defensible outcome based
on the facts and the law.
V. Conclusion
and Disposition
[18]
The officer’s conclusion that Mr Barud had a
reasonable prospect of a durable solution in South Africa was not unreasonable.
I must, therefore, dismiss this application for judicial review.
[19]
Mr Barud proposed the following questions for
certification:
1.
Is the standard of review for legal
interpretation of the concept of durable solution found in Immigration and
Refugee Protection Regulation 139(1)(d) correctness or reasonableness?
2.
Does a durable solution in a country other than Canada for an applicant for permanent residence to Canada who claims to be in need of refugee
protection require that the country manifest both a willingness and an ability
to protect the applicant?
3.
Is the existence of risk from generalized criminality
relevant to a determination of a durable solution in a country other than Canada for an applicant for permanent residence to Canada who claims to be in need of refugee
protection?
[20]
In my view, these
questions should not be stated. Question 1 raises an issue that has been
settled in the case law (eg, Mushimiyimana, above). Similarly,
regarding Question 2, the cases make clear that the applicant’s personal
circumstances and the prevailing conditions must be assessed. This obviously
includes the state’s ability and willingness to protect its residents. With
respect to Question 3, the existence of generalized crime was merely one of the
factors cited by the officer here. Even if it were to be decided that the
officer wrongly took that factor into account, the officer’s conclusion that Mr
Barud had a durable solution in South Africa would likely stand. The answer to
the proposed question would, therefore, not be dispositive of this application.
Accordingly, none of the proposed questions raises a matter of general
importance.
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