Docket: IMM-2417-16
Citation:
2017 FC 285
Ottawa, Ontario, March 17, 2017
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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HASSEN
ALKHAIRAT, ANDALIB ALKAIRAT, and HAYA ALKHAIRAT
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Applicants
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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]
Hassen Al Khairat [Mr. Al Khairat], Andalib Al Khairat
[Ms. Al Khairat], and Haya Al Khirat [the Applicants] are Syrian refugees. The
family applied for permanent resident status in Canada while in Jordan using private
sponsorship under the Syrian Refugee Resettlement Project. After two in-person
interviews, the Applicants were notified in a letter dated April 19, 2016, that
their application for a permanent resident visa in Canada was rejected. The immigration
officer writing the decision found the evidence presented by the Applicants was
not credible and therefore it could not be determined whether they were
inadmissible. For the reasons that follow, I find the officer’s determination
was reasonable.
A.
Style of Cause
[2]
After discussion at the hearing, the Style of
Cause in this matter must be amended. The Applicants confirmed the English spelling
of their names in their respective passports as: Hassen Al Khairat, Andalib Al
Khairat, Haya Al Khirat and yet in Arabic their last names would all be the
same (Al Khairat). The Applicants indicate that this is a translation error. For
consistency with their passports, I will amend the Style of Cause to reflect
the English version and where applicable refer to them as such in this
decision.
II.
Background
[3]
While living in Syria, Mr. Al Khairat worked as
a manager of the Syrian-Jordan Free Zone managing the transit of goods between
the two countries. The allegations are that after the outbreak of civil war he
spoke publicly against the government’s use of chemical weapons. The Applicants
claim that Mr. Al Khairat’s brother was kidnapped and members of the Free Syrian
Army [FSA] – a rebel group – twice contacted Mr. Al Khairat demanding financial
aid and threatening Mr. Al Khairat.
[4]
The Applicants fled Syria in July of 2012 after
civil war broke out and settled in Jordan. They applied for refugee status in
Canada on October 31, 2015, subsequent to an announcement by the Canadian
government to resettle Syrian refugees. They were sponsored by Mr. Al Khairat’s
nephew and the Mennonite Central Committee Canada.
[5]
The Applicants were interviewed twice in Jordan
during the application process: first on January 24, 2016 and second on
February 22, 2016. The first interview involved six members of the Al Khairat
family. Three of those applicants have since been granted refugee status in
Canada. Mr. Al Khairat was the sole person present at the second interview.
[6]
The secondary interview was held at the request
of Canada Border Services Agency [CBSA] to inquire further about Mr. Al Khairat’s
association with Moosa Ahmad Al Masalma. Mr. Al Masalma is a CBSA person of
concern to whom the Applicants referred in the first interview.
[7]
After the second interview, the immigration officer
was not satisfied that Mr. Al Khairat was truthful and forthcoming with his
information. The officer determined that there remained insufficient evidence
to satisfy him that Mr. Al Khairat was not inadmissible to Canada under sections
11 and 34(1)(f) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act].
III.
Standard of Review
[8]
The applicable standard of review to the
officer’s decision is that of reasonableness (Wang v Canada (Minister of
Citizenship and Immigration), 2008 FC 798 at para 11). The officer is
entitled to deference in his fact-finding and his assessment of an applicant’s
credibility (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]).
IV.
Analysis
[9]
If an applicant is not honest and forthcoming it
can affect the reliability of their whole testimony. An officer may be left
with insufficient information to conclude that they are not inadmissible under
section 11(1) of the Act. The officer does not need to make a specific finding
of inadmissibility. A failure by the applicant to provide a complete picture of
their background may result in an inability by the officer to determine that an
applicant is not inadmissible (Ramalingam v Canada (Citizenship and
Immigration), 2011 FC 278 at para 37 [Ramalingam]).
[10]
This case turns on whether the officer’s
credibility finding was reasonable and was within the range of acceptable
outcomes defensible in respect of the facts and the law (Dunsmuir,
above, at para 47). The officer’s credibility findings are determinative
regardless of whether the matter is considered under sections 11, 16 or 34 of
the Act.
[11]
The burden is on an applicant to satisfy a visa
officer that he or she has met the requirements for immigration to Canada (Muthui
v Canada (Minister of Citizenship and Immigration), 2014 FC 105 at para
33). In the officer’s opinion, Mr. Al Khairat failed to meet this burden.
[12]
The Applicants argue that the officer’s findings
fail to provide a reasonable basis to disbelieve their evidence. Furthermore,
they submit that the officer erroneously found their story implausible based on
his own speculation. The Applicants take issue with the following three aspects
of the findings.
[13]
First, the Applicants submit it was unreasonable
for the officer to find that Mr. Al Khairat’s evidence changed regarding his
financial support of an armed group. The Applicants argue that Mr. Al Khairat
never denied there was a request for support but Mr. Al Khairat consistently denied
that he provided financial support to the FSA.
[14]
Second, the Applicants submit that the officer
made unreasonable findings based on the nature of the FSA threats and demands.
They suggest that support could mean a number of things including a public
statement of support or money which the officer failed to appreciate. Their
position is that Mr. Al Khairat was unable to relate how much money was
demanded as no specific amount was mentioned. Mr. Al Khairat explained to the
officer the full range of threats and demands and the officer should not have
required a specific threat or demand as it could not be his fault that Mr. Al
Masalma did not specify what type of support he desired or the amount he was
seeking or the specifics of the threats.
[15]
The third unreasonable finding the Applicants argue
is Mr. Al Khairat’s alleged lack of credibility surrounding his brother’s
kidnapping. The Applicants submit that Mr. Al Khairat’s evidence on the
kidnapping was consistent and never varied. The basis for this finding was because
the kidnapping did not happen the way the officer thought a reasonable
kidnapper would behave. The Applicants say it was impossible for Mr. Al Khairat
to explain the motives and methods of the kidnappers and it was an error of the
officer to assume the kidnappers would act reasonably. The Applicants claim this
was a plausibility finding rather than a credibility finding; as such, it is an
entirely plausible scenario and that negative plausibility findings should only
be made in the clearest of cases.
[16]
I disagree with the Applicants’ characterization
of the officer’s findings. The officer’s reasons for his decision are found in
the contemporaneously produced Global Case Management System [GCMS] notes and
the notes from both interviews. In contrast, Mr. Al Khairat’s affidavit now
explains in great detail each of his answers and provides context that does not
appear in the GCMS notes. It is trite law that a judicial review will proceed
on the material that was before the decision maker. The onus is on the
applicant to put their best foot forward at the time. Given he had two
interviews in which to tell the Canadian official about his dealings with Mr.
Al Masalma, little weight will be given to evidence not before the decision
maker at the time.
[17]
In the visa officer’s affidavit the process for
entry into the GCMS is explained. The officer’s evidence is that in his normal
course of business his notes are typed into a computer word processing program
and this is facilitated by the time needed for the translation. After the
hearing he edits for spelling and form. Then the officer pastes the notes into
to the GCMS which date stamps and initials the entry. The notes cannot be
changed after they are entered. The GCMS notes confirm that on February 22,
2016, notes with the officer’s initials were entered and the refusal letter
emailed to Mr. Al Khairat on April 21, 2016.
[18]
In this case the officer told Mr. Al Khairat
directly in the second interview his concerns about credibility. He then gave
Mr. Al Khairat an opportunity to respond to those concerns. However, Mr. Al
Khairat’s response did not address the officers concerns.
[19]
When the notes from both interviews are reviewed
there are many discrepancies in Mr. Al Khairat’s evidence, some of which are
noted by the officer and some that are not contained in his reasoning. To
determine if the decision is reasonable is of course different than if my role
was to make a decision de novo. I must only look at what was before the
decision maker and determine if it was reasonable. Justice Reed cautioned in Khan
v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 13, 1999 CarswellNat 42 at paragraph 1: “I am also mindful that one should not be too ‘picky’, if I
may use a colloquial expression, when reading CAIPS notes.”
[20]
Unlike a Refugee Protection Division hearing that
has a transcript contained in an often large Certified Tribunal Record, in this
case we only have the GCMS notes and no transcript of the interview. This leads
the Applicants to microscopically dissect the notes to prove the decision was
unreasonable. Just as I am not to conduct a line-by-line treasure hunt for
errors, it is not for the Applicants to do so either (Communications, Energy
and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd,
2013 SCC 34 at para 54).
[21]
Though the officer may have made minor errors,
such as referring to Mr. Al Khairat’s brother-in-law instead of his brother. In
Ms. Al Khairat’s interview she described her brother-in-law (ie Mr. Al Khairat’s
brother) who was kidnaped, thus explaining the potential confusion. This was
not a material error that affected the determination.
[22]
Deference must be given to the officer that “had the benefit of a direct contact with the Applicant who
had also been forewarned that he would be interviewed” (Ramalingam,
above, at para 47).
[23]
I find that the Applicants being given two
interviews, told of the credibility concerns and then given an opportunity to
respond is more procedural fairness than would normally be asked of or expected
from a visa officer in this kind of situation. Particularly with the local
expertise of the officer who interviewed the Applicants in person, as well as
having notes from another officer who also gave an in person interview. Given
this additional opportunity the Applicants still could not convince the officer.
The officer’s credibility findings were supported by evidence making the determination
reasonable. Although there may be slight issues with the officer’s reasons, its
cumulative effect reasonably concludes that the officer could not determine
that the Applicants were not inadmissible (Sellan v Canada (Citizenship and
Immigration), 2008 FCA 381 at paras 3-4). I find that the decision when
read as a whole is reasonable.
[24]
Nor will any weight be given to the Applicants’
argument regarding possible translation issues given the detailed instructions
concerning translations noted in the GCMS notes and the fact nothing was said
at the time concerning misunderstandings.
[25]
Reasonableness requires that the decision must
exhibit justification, transparency and intelligibility within the decision
making process and also the decision must be within the range of possible,
acceptable outcomes, defensible in fact and law (Dunsmuir; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12). I find that this
decision is reasonable and will dismiss the application.
[26]
Neither party presented a certified question and
none arose from the facts.
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