Docket: IMM-2466-17
Citation:
2018 FC 115
Ottawa, Ontario, February 2, 2018
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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ODAI MOHAMMAD
KABRAN
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES, AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
Visa Officer’s decision, dated February 6, 2017, refusing the
Applicant’s application for a permanent resident visa in the Convention refugee
abroad or country of asylum class, defined in ss 145 and 147 of the Immigration
Refugee Protection Regulations, SOR/2002-227 (“IRP Regulations”).
The Applicant alleges the Officer breached procedural fairness and that the
decision is unreasonable.
Background
[2]
The Applicant is a 24 year old Syrian national.
His mother, younger brother, and he applied for permanent residence from Jordan.
An older sister separately applied.
[3]
The family were initially interviewed by the
Officer in Jordan on January 25, 2016. The Officer noted that both sons looked
much younger than their claimed ages of 21 and 23, their mother indicated that
the Applicant had a thyroid problem but that the younger son did not. When
asked about this, the Applicant stated that it was not the thyroid but another
gland that did not develop properly. This was discovered when he was about 5
years old and it was noticed that his brother looked older than him. He received
treatment in Syria but found it not to be useful. Treatments in Jordan resulted
in a better appetite and an improvement of sexual related functions.
[4]
The Applicant and his brother indicated that
they left Syria when they were 18 and 16, respectively. The Applicant had been
injured in a shooting on May 5, 2012 and was carried across the border on a stretcher,
arriving in Jordan on May 29, 2012. Their mother and sister followed the next
day. They indicated that their father died at the end of April 2012, a few
days before the Applicant’s injury. The Applicant’s mother indicated that
there was no connection between the death of her husband, who was selling
groceries using his truck, and the Applicant’s injuries. She stated that she
did not know how her husband died, he could have had a stroke or been shot. She
had tried to call him but someone else answered and told her he had died, she
did not know if there had been a funeral, the person on the phone told her that
her husband had already been buried. Although her sons often went with their
father when he was selling groceries, on that day they had not. This was
because her younger son had epilepsy and the Applicant took care of him.
[5]
The Officer asked the Applicant questions. She
noted the family’s application indicated that the Applicant had been shot by
snipers. The Applicant stated he did not know who shot him. He stated that he
used to stay with his brother and they were in a taxi to get things that were
needed at home. When asked if his family was being targeted, he denied this.
When asked about his father’s disappearance and if there was any connection to
the Applicant being shot, he said no, because of the war in Syria this happened
all of the time. When the Officer indicated that these events occurred in 2012
at which time the conflict had not escalated to that point, the Applicant
replied that the beginning of the bad events occurred in Daraa, where they were
much worse. The Officer also noted the application indicated that in 2007 the
Applicant had been hit by a car and sustained skull damage. The Applicant
confirmed this, stating that he and his brother were selling items when he was
hit by a car on a roundabout. The Applicant indicated that he was not employed
because of the injury to his legs and that he needed an operation because of
shrapnel in his legs. When asked how he had gotten shrapnel in his legs if he
was shot with a bullet, he indicated that he did not know exactly what he was
shot with, he was sitting in front with the taxi driver, he was shot from the
left side and the bullet went through both legs. The Officer also asked the
younger son for more information. The Officer then explained that the family’s
application was being accepted, contingent upon finding a sponsor given their
high level of need (including medical needs), and that a background check and
medical examination had to be completed before a final decision was made. The
Officer indicated in the Global Case Management System notes (“GCMS Notes”)
that the family were prima facia Syrian refugees but listed as a concern the
need for a comprehensive security screening.
[6]
Subsequently, physical examinations were carried
out. A GCMS Information Request: Matching Centre Resettlement Needs document
indicates, with respect to the Applicant, that on physical examination his
status was abnormal, and he would need post arrival services, being consultation
within weeks. However, as to cognitive impairment or other impairment, it
indicated “no” and under activities of daily
living, it indicated “independent”.
[7]
In the family’s application for refugee
protection, the Schedule A, Background section pertaining to the Applicant
indicates that he is the dependent child aged 18 years or older of the principal
applicant, his mother. The box asking if he suffered serious disease or
physical or mental disorder is checked off as “yes”,
requiring explanation, which was that in May 2012, he was shot by snipers in
both legs and in May 2007, he was hit by a car and suffered skull damage. Schedule
A also indicates that the Applicant had five years of elementary school
education. The application itself states his intended occupation as an electronic
technician student. The Schedule A pertaining to his younger brother also
identified his younger brother as a dependant, with a serious disease or
physical or mental disorder, being epilepsy as a result of being beaten in February
2012 while in detention.
[8]
A February 2, 2016 entry in the GCMS Notes
indicates that although the United Nations High Commission on Refugees (“UNHCR”)
had not formally designated Syrians fleeing the conflict in that country as
prima facia refugees, from Canada’s perspective the situation was consistent
with that determination. As such, and based on the information then available,
the family’s case met the requirements of ss 145 and 147 of the IRP Regulations.
[9]
The Applicant was interviewed a second time on
December 4, 2016. The GCMS Notes indicate that the Officer advised the
Applicant that the purpose of the interview was to clarify background
information, confirmed that the Applicant understood the interpreter, advised
him to be truthful and to advise the Officer if there was something he did not
understand or if he was having difficulties, but that no issues were raised during
the interview. The GCMS Notes indicate that the Officer asked the Applicant
about his injuries, he responded that he was injured by a sniper in Syria and
was brought to Jordan via stretcher, however, when he was asked for details of his
injury, he was not forthcoming. Few details were offered about location, circumstances,
or possible perpetrators.
[10]
The Applicant was then asked about social
media. He responded that he had a Facebook profile. When asked if the Officer
could view his profile, he agreed. He then confirmed that the profile shown to
him was his account, he had 652 friends. The Officer showed him several photos
he had “liked” and commented upon. Specifically, a photo of a deceased and
mutilated person on which the Applicant had offered condolences. When asked
who the person was, the Applicant denied knowing the person or making the
comment. When shown a picture of a Facebook friend holding a gun, the Officer
asked the Applicant why he had “liked” that photo, but the Applicant denied
knowing the person or liking the photo. When shown a Facebook friend’s profile
and asked why he “liked” a photo of a masked militant holding a weapon, he
again denied knowing the person or liking the photo. He later disclosed that he
had met this person on Facebook, contacted him and solicited funds as he had
seen that he was a part of a charity and thought he would get money from him. When
asked if he had received funds from that person or others on Facebook, he
advised that he had not. The Applicant was then directed to another Facebook
friend with a profile picture of a young armed man who appeared to be a rebel
fighter and was asked who he was and how he knew him, the Applicant denied
knowing the person. Similarly, when shown another photo of a Facebook friend,
an armed rebel which he had “liked”, the Applicant denied knowing the person or
liking the photo. The GCMS Notes indicate that throughout the interview the
Applicant was not forthcoming and that the Officer was concerned that he was
not being truthful in relation to his contacts and friends. The Officer was
not satisfied that he was being truthful in relation to his prior comments and
actions on social media or in relation to the circumstances surrounding his
injuries sustained in Syria. The Officer recorded that the Applicant had been
provided with several opportunities to be forthcoming and overcome the Officer’s
concerns, but had not done so.
Decision Under Review
[11]
By letter of February 6, 2017, the Officer
advised the Applicant that she was not satisfied that the Applicant was a
member of the Convention refugee abroad class or the country of asylum class.
During his interview, he had given contradictory responses about his knowledge
of and relationship with members or supporters of armed groups in Syria. He
had provided responses about his activities on social media which were
contradicted by the information found on social media sites. The Officer
stated that she was not satisfied that the Applicant had been truthful in all
of his responses in relation to his interaction with armed groups in Syria. As
a result, the Officer was not satisfied that the evidence presented was
credible. Further, that concerns over the credibility of the information
provided by the Applicant were made known to him and he was given an
opportunity to respond, however, his response did not allay the Officer’s
concerns. Therefore, the Officer was not satisfied that there were reasonable
grounds to believe that the Applicant possessed a well-founded fear of
persecution based upon his race, religion, nationality, membership in a
particular social group or political opinion and was not satisfied that he met
the requirements of the Immigration Refugee Protection Act, SC 2001, c
27 (“IRPA”) or that he was not inadmissible to Canada.
[12]
On the same date, the Applicant’s mother was
advised that the Applicant had been refused and that he would be separated from
her file. She stated that she knew the Officer refused the Applicant because
of Facebook but asserted that his phone had been stolen a year ago and his
Facebook account hacked. She was very disappointed and saddened but stated
that she would travel to Canada without him. The Officer was advised of the
Applicant’s mother’s claim and reconsidered the decision. The GCMS Notes
indicate the Officer weighed that information along with the totality of the
information before her, in particular the interview at which the Applicant
confirmed that the Facebook account shown to him was his current Facebook
account and did not mention his phone being lost or his account hacked.
Weighing the two conflicting statements, the Officer concluded, on a balanced
of probabilities, that the mother’s statement was not credible and maintained
the original decision.
Issues and Standard of
Review
[13]
In my view, five issues arise from the Applicant’s
submissions, the first three being preliminary evidentiary issues:
1. Is the July 28, 2017 Affidavit of Rawdah Ali Shame, the Applicant’s
mother, admissible?
2. Is the November 22, 2017 Affidavit of Rawdah Ali Shame, the
Applicant’s mother, attaching a Psychiatric Report of Dr. Walid M. Shnaigat,
dated October 1, 2017, admissible?
3. Is the academic paper entitled “Taking Facebook at face value: The
Refugee Review Tribunal’s use of social media evidence” (“Facebook Article”)
admissible?
4. Was the Applicant denied procedural fairness in the interview
process?
5. Was the Officer’s decision reasonable?
[14]
The parties submit and I agree that issues of
procedural fairness are to be reviewed on the correctness standard (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Mission
Institution v Khela, 2014 SCC 24 at para 79; Qarizada v Canada (Minister
of Citizenship and Immigration), 2008 FC 1310 at para 18 (“Qarizada”);
Nassima v Canada (Minister of Citizenship and Immigration), 2008 FC 688
at para 10 (“Nassima”)) and that whether or not the Applicant meets the requirements
of the IRPA or is not inadmissible is a question of mixed fact and law and is
reviewable on a standard of reasonableness (Wardak v Canada (Citizenship and
Immigration), 2015 FC 673 at para 12 (“Wardak”); Qarizada at
para 15). The Officer’s credibility assessment and factual findings are also
reviewable on the reasonableness standard (Wardak at para 12; Qarizada
at para 17; Nassima at para 9; Gebrewldi v Canada (Citizenship and
Immigration), 2017 FC 621 at paras 14 and 17 (“Gebrewldi”)).
Analysis
Procedural fairness
[15]
For purposes of context, it is perhaps easiest
to summarize the parties’ positions on the issue of procedural fairness and
then address the admissibility issues.
[16]
In that regard, the Applicant submits that the
Officer breached procedural fairness by refusing to allow the Applicant’s
mother to attend the second interview. According to the Applicant, he is a
dependent child, as defined in s 2 of the IRPA, with physical and psychological
disabilities and was therefore not capable of appreciating the nature of the
interview process or fully and fairly presenting his case. Further, his mother
raised these concerns with the Officer but was ignored and the Officer
incorrectly treated him as an adult. Moreover, the Applicant’s intellectual
disability also placed a higher duty of fairness on the Officer.
[17]
Conversely, the Respondent submits that as
required by OP5 Selection and Processing of Convention Refugees Abroad Class (ss
10.4 and 25.5), the Officer interviewed the Applicant as a member of a family
in the application for protection. Further, the Applicant’s mother’s assertion
that the Applicant suffers from a cognitive disability was made after the
Officer rendered her decision and is not supported by the evidence that was
before the Officer.
[18]
The disputed July 28, 2017 Affidavit of Rawdah
Ali Shame (“Affidavit #1”) is 61 paragraphs in length. It asserts that the
Applicant has an intellectual deficit and the mentality of a child, is
developmentally delayed, has multiple psychiatric problems and that he is, and
always has been, dependent upon his mother. It also speaks to the
circumstances surrounding the second interview, the allegedly lost and/or
hacked phone, the reasons for delay in bringing the application for judicial
review and many other matters.
[19]
I would first note that, as stated by the
Federal Court of Appeal in Association of Universities and Colleges of
Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA
22 at para 19 (“Association of Universities”), in determining the
admissibility of an affidavit in support of an application for judicial review
the differing roles played by the Court and the administrative decision-maker
must be kept in mind. Parliament gave the administrative decision-maker, and
not the Court, jurisdiction to determine certain matters on their merits.
Because of this demarcation of roles, the Court cannot allow itself to become a
forum for fact-finding on the merits of the matter. Accordingly, as a general
rule, the evidentiary record before a reviewing Court on judicial review is
restricted to the evidentiary record that was before the decision-maker.
Evidence that was not before the decision-maker and that goes to the merits of
the matter is, with certain limited exceptions, not admissible.
[20]
In Association of Universities, Justice
Stratas listed three such exceptions and noted that the list may not be
closed. The exceptions are an affidavit that provides: general background in
circumstances where that information might assist the Court in understanding
the issues relevant to the judicial review; brings to the attention of the reviewing
court procedural defects that cannot be found in the evidentiary record of the
administrative decision-maker so that the reviewing court can fulfill its role
of reviewing for procedural unfairness; and, highlighting the complete absence
of evidence before the administrative decision-maker when it made a particular
finding (Association of Universities at paras 19-20; Bernard v Canada
(Revenue Agency), 2015 FCA 263 at paras 17-19 (“Bernard”)).
[21]
In Bernard, Justice Stratas restated the
general rule that evidence that could have been placed before the
administrative decision-maker is not admissible before a reviewing court (para
13) and discussed the exceptions to that general rule. This included the
exception that concerns evidence relevant to an issue of natural justice,
procedural fairness, improper purpose or fraud that could not have been placed
before the decision-maker and does not interfere with the role of the
decision-maker as the merits decider (Bernard at paras 25-27).
[22]
To the extent that Affidavit #1 spoke to the
delay in bringing the application for judicial review, its content was
admissible and the request for an extension of time, which was not opposed by
the Respondent, was granted by the Order of Justice Diner dated October 24,
2017. Similarly, to the extent that the affidavit speaks to the allegation of
a breach of procedural fairness that cannot otherwise be ascertained from the
record, it is admissible. However, much of the affidavit is concerned with
assertions, facts and evidence that were not before the Officer and which do
not fall within an exception. These are not admissible and are therefore
afforded no weight.
[23]
As seen from the background set out above, there
was no information before the Officer indicating that the Applicant suffered an
intellectual impairment of any kind. The application itself indicates that
there was no mental disorder and identifies the two injuries that the Applicant
himself addressed in the first interview. The GCMS Notes of that interview do
not suggest that the Applicant was in any way unable to understand the
questions put to him. This included questions concerning his growth problems
to which he indicated that it was not his thyroid, as his mother had stated,
but another gland that caused this problem. This is confirmed by the panel physician’s
Medical Assessment (“Medical Assessment”), discussed below, which indicated the
problem was hypopituitarism. Nor do the GCMS Notes indicate any concern raised
by the Applicant’s mother at the first interview as to the Applicant’s mental
capacity, which is in direct contrast to her detailed and multiple assertions
contained in Affidavit #1.
[24]
As to the second interview, the Applicant’s
mother deposes in Affidavit #1 that a call from the Canadian Embassy requested
the Applicant to attend. When she asked the purpose of this interview she was
told that the Applicant would have to be checked by a committee of doctors. However,
he was instead met by the Officer and an interpreter. The Applicant’s mother
states she was told she had to leave the room. Further, when the interview
went on for an hour and a half, she became concerned as she knew the Applicant
would not be capable of responding to questions and must be confused. She then
entered the room to ask what was going on and stated that the Applicant had a
broken skull and did not know what he was saying. She said this in Arabic but
the interpreter was present. The Officer told her to leave the room and not to
say anything more. She asserts that later the Applicant told her that the
Officer was yelling at him and that he was scared and confused. She asserts
that the Applicant has a grade three or four education, barely knows how to
read and write and could not have written statements on social media, that a
third party had access to the Applicant’s phone, and that it additionally was stolen
by another third party.
[25]
Affidavit #1 also states that as soon as the
negative decision was received the Applicant’s mother took the Applicant to a
psychiatrist in Jordan who provided a letter describing his many psychological
problems, that he has developmental issues which have deteriorated due to the
war, and his short stature due to hypopituitarism. However, when she took the
letter to the Canadian Embassy in Jordan and tried to appeal the decision, she
was not allowed entry. Further, the affidavit states that she had been
examined by a doctor in Jordan before leaving for Canada and brought the
Applicant with her. This doctor could see that the Applicant was sick and
could not believe he would be left alone in Jordan. The doctor contacted the
Canadian Embassy but was told it was not her business. The Applicant’s mother
deposed that her son is now in the care of a neighbour but, as the neighbour
does not have room for him, he lives alone on the roof of her house. The neighbour
is having difficulty dealing with him, advises his memory is deteriorating, he
is being targeted because of his disabilities and is unhappy and confused.
[26]
The Officer also filed an affidavit in this
matter, dated August 28, 2017. The Officer deposes that at the outset of the
second interview she confirmed that the Applicant understood the translator, she
advised the Applicant to be truthful and to inform the Officer if there was
something the Applicant did not understand or if he was having difficulties but
that no issues were raised by the Applicant. This confirms the content of the
contemporaneous GCMS Notes. The Officer also addressed Affidavit #1 and states
that at the time of the interview the Applicant did not appear to have an
intellectual disability. Further, that he was medically assessed by a panel
physician in January 2016 which assessment disclosed no indication of intellectual
or developmental disability. The Applicant was diagnosed with a nervous system
disorder and hypopituitarism (resulting in short stature). In terms of his
medical history, while he suffered head trauma in 2006, according to the panel
physician’s notes he was “fully recovered”. And
while he had gun shots and shrapnel in both feet, the notes indicate it is not “affecting his activities or mobility”. A copy of the
Medical Assessment is attached as an exhibit to the Officer’s affidavit. The
Officer also points out that the Schedule A to the application concerning the
Applicant does not make mention of a mental disorder.
[27]
The Officer deposes that while the Applicant’s
mother asserts that it should have been obvious that the Applicant had a mental
disability because he speaks slowly and stumbles through his speech, the
Applicant’s level of speech was not unusual, he did not indicate difficulty in
understanding questions and his words were not slurred.
[28]
The Officer also deposed that while the
Applicant’s mother claims that she was initially with him at the interview and
was asked to leave and that she entered the interview a second time and said
that her son had a skull injury, neither of these statement are accurate. His
mother did attend at the Embassy but did not enter the interview room or
participate in the interview. She waited in the waiting room as is the normal
process. And while Affidavit #1 states that after the interview she attended
at the Embassy with a letter from the Applicant’s psychologist but was not
allowed to enter the Embassy, access is restricted to those with interviews or
who are requested to attend or provide documents, nor is there any record of
the attempted entry or additional medical assessments. As to the assertion
that the mother’s doctor attempted to follow up on the Applicant’s behalf with
the Embassy but was refused, the Officer stated that she had conducted a
complete file review but that Immigration, Refugees and Citizenship Canada has
no medical records or submissions beyond the initial immigration medical
examination in 2016. The Officer also denies the Applicant’s mother’s
allegations that she was yelling at the Applicant.
[29]
In my view, Affidavit #1 is to be afforded no
weight as regards the Applicant’s intellectual incapacity as all of the issues
his mother alleges are, according to her, long standing, serious and resulted
in his total dependence upon her from a young age. If true, this was
information that was known to the Applicant’s mother before the first interview
and would have been a major concern to her, but was not raised with other
identified health issues. In that regard, it is of note that during the first
interview the Applicant’s mother stated that it was the Applicant’s role to
look after his younger brother, who has suffered from epilepsy since an injury
while in detention, a task unlikely to be left to a person with the impairments
she describes in Affidavit #1.
[30]
While the Applicant argues that there are many
possible explanations as to why his alleged mental disability was not disclosed
at an earlier stage, this is speculation. Even if the Applicant was unable to
do so, his mother was interviewed and offers no explanation in Affidavit #1 as
to why this was not raised. She deposes only that when the family was seeking
to be certified by the UNHCR as asylum seekers she told them that she had
always been responsible for her sons. This may be so and may explain why they
are indicated as dependents on the application. However, s 2(b) of the IRP
Regulations defines a dependent child, in respect of a parent, as a child who
is in one of two situations of dependency. Either the child is less than 22
years of age and is not a spouse or common-law partner, or, is 22 years of age
or older and has depended substantially on the financial support of the parent
since before attaining the age of 22 years and is unable to be financially
self-supporting due to a physical or mental condition. A UNHCR Asylum Seeker
Certificate was issued to the Applicant’s mother on October 7, 2015. This
appears to be a family registration number and also identifies her two sons.
It is probable that at the time the family applied for UNHCR Asylum Seeker
status, both sons were less than 22 years old. Thus, identifying the Applicant
on the application for refugee protection in Canada as a dependent child does
not in and of itself establish a mental condition. I also note that the
family’s application identified him as a child of the principal applicant who
would accompany her to Canada, but that nothing is entered under “dependant type”.
[31]
In summary, the allegations of an intellectual
disability and other concerns with the Applicant’s psychological health were not,
according to Affidavit #1, new information. They could have been but were not
raised at the first interview. Thus, this evidence was not before the Officer
when she made the decision. I also prefer the evidence of the Officer
concerning the Applicant’s ability to respond to questions put to him, which is
also reflected in the GCMS Notes, as well as the Officer’s evidence concerning the
assertions of the Applicant’s mother as to her intervention in the second
interview; her attempt to file a psychiatrist’s report after the Applicant was
rejected (a copy of which was not attached to her affidavit); and, her
physician’s rebuffed attempt to contact the Canadian Embassy (of which there
was no record). The latter was also not consistent with the Officer’s response
to events following the second interview when the Applicant’s mother asserted
that her son’s phone had been stolen and hacked. When that information was
relayed to the Officer, she reconsidered her decision in light of it. In the
result, the evidence contained in Affidavit #1 concerning the alleged
intellectual disability of the Applicant is not admissible under the procedural
fairness exception to the general rule that the Court can only consider the
record that was before the decision-maker, because that evidence could have
been placed before the Officer during the first interview, but was not. And,
in any event, given the evidence in the record and the Officer’s affidavit
evidence, I am not persuaded that it establishes a breach of procedural
fairness or that the decision deprived the Applicant of natural justice.
[32]
As to the November 22, 2017 Affidavit of Rawdah
Ali Shame (“Affidavit #2”) attaching a handwritten psychiatric report of Dr.
Walid M. Shnaigat (“Psychiatrist’s Report”), dated October 1, 2017, the report
post-dates the Officer’s decision. It states that the Applicant has been a
patient of Dr. Shnaigat since February 9, 2017, when the Applicant came to the
clinic with his neighbour. He presented as an anxious, irritable person, it noted
his hypopituitarism and his claim to have been physically mistreated by the
Syrian police (which the Applicant had not asserted when seeking refugee
protection). It states that upon psychiatric assessment, he was found to be
severely depressed, anxious, worried, with multiple phobias and persecution
delusions and that his being left alone in Jordan deteriorated his
psychological condition. The report goes on to state that the Applicant has
limited cognitive capabilities; he cannot explain or look after himself
properly; has poor judgment; is not fully aware of the current situation; and,
is not insightful. The Applicant therefore has difficulty concentrating on
answering questions meaningfully. Severe depression, post-traumatic stress
disorder, paranoid disorder and low IQ are diagnosed. The report does not
indicate the basis of the assessment, that is, if any psychological testing was
undertaken, the duration of the assessment or reference any past psychological
history or treatment.
[33]
The medical evidence on the record that
pre-dates the Officer’s decision is the Medical Assessment. While the
Applicant argues that this was merely a physical assessment, it is of note that
the GCMS Information Request: Matching Centre Resettlement Needs is intended to
identify the needs of a refugee that would require attention upon arrival in
Canada. As regards to the Applicant, this specifically states that there is no
cognitive impairment and that he is capable of independent living. Similarly,
it is difficult to accept that an assessing physician would not address a
significant mental disability, particularly when noting the prior skull injury
and full recovery from it. In my view, considered in the context of the
evidence in whole, in particular the medical record evidence and the Officer’s
affidavit evidence, the Psychiatrist’s Report, even if admissible, would be of
limited weight in supporting the Applicant’s post-decision claim of mental
impairment.
[34]
The Applicant submits that this Court has
previously accepted extrinsic evidence which was not before the decision-maker
in cases where there has been a violation of the principles of fairness (Ontario
Assn of Architects v Assn of Architectural Technologists of Ontario, 2002
FCA 218 at para 30; Nyoka v Canada (Citizenship and Immigration), 2008
FC 568 at paras 17-18 (“Nyoka”)). However, both of these cases pre-date
the more recent decisions of the Federal Court of Appeal in Association of Universities
at para 20, Bernard at para 17, and Canada (Citizenship and
Immigration) v Ishaq, 2015 FCA 151 at para 15. And, in any event, Nyoka
concerned the admission of new evidence which established militant groups were
active at a particular time. This directly contradicted the tribunal’s finding
based on evidence it found when conducting its own research. That evidence
also contradicted the applicant’s own evidence, but the contradiction was not
put to the applicant. This resulted in a breach of natural justice. In my
view, this is not such a situation. There was no evidence before the Officer
as to any mental incapacity of the Applicant and the Psychiatrist’s Report does
not serve to demonstrate an error in the Officer’s findings. It is simply new
evidence intended to support a claim of procedural unfairness on a basis that was
raised only after the Officer made her decision.
[35]
In these circumstances, I cannot conclude that
the Officer breached the duty of procedural fairness by interviewing the
Applicant in his mother’s absence nor that the Psychiatrist’s Report
demonstrates that the outcome of the decision is a gross breach of natural
justice as the Applicant submits.
Reasonableness
[36]
The Applicant also challenges the Officer’s
decision on the basis that her reasons were inadequate. He submits that while
alone this is insufficient basis to quash the decision, the quality of the
reasons goes to the reasonableness of the decision. Here, the Officer failed
to state what the specific grounds were for her belief that the Applicant was
inadmissible. Nor do the reasons provide any analysis as to why the Applicant
failed to meet the requirements of the IRPA and the IRP Regulations. For
example, there were no reasons to support the absence of grounds to believe
that the Applicant possessed a well-founded fear of persecution based on race,
religion, nationality, membership in a particular social group or political opinion.
Thus, the Applicant could not understand why his application was refused. And,
while the Officer questioned the Applicant’s truthfulness, her reasons do not
provide the basis for this belief.
[37]
In the Applicant’s reply memorandum he asserts
that it was unreasonable to conclude, because he allegedly “liked” photos
posted by someone else, that he supports armed groups in Syria. In this
regard, the Facebook Article suggests that social media rarely conveys accurate
or consistent information about an individual. Viewed in the context of that
article, the Applicant’s explanation that he did not know the people he was
asked about was reasonable and it is not clear why the Officer dismissed the
explanation.
[38]
In my view, the Officer’s reasons were
adequate. The Applicant’s claim for protection, as a person fleeing the
conflict in Syria, had already been deemed to prima facia meet the requirements
of ss 145 and 147 of the IRP Regulations, subject to security and other clearances.
Further, the Officer clearly indicated in the GCMS Notes, which form a part of
the reasons (Gebrewldi at para 29; Qarizada at para 30) that when
asked for details of the Applicant’s injuries by sniper fire, he offered little
detail about the surrounding circumstances and was not forthcoming. Similarly,
when asked about his Facebook profile, the Applicant denied making the comment
or knowing who the indicated persons were. Nor did he explain why he “liked”
certain photos. The Officer concluded that throughout the interview the Applicant
was not forthcoming. The Officer was concerned about the Applicant’s
truthfulness as to his social media activities and the circumstances
surrounding his injuries and found that the Applicant had not overcome those
concerns. In the result, the decision turned on credibility, and the Officer’s
negative credibility findings are to be afforded deference (Mezbani v Canada
(Citizenship and Immigration), 2012 FC 1115 at para 26; Aguebor v Canada (Minister of Employment and
Immigration) (1993), 160 NR 315
at para 4 (FCA); Wardak at para 12). Similarly, an applicant’s failure to provide a complete
picture of their background may result in an officer being unable to determine
if the applicant is not inadmissible; the officer does not need to make a
specific finding of inadmissibility (Alkhairat v Canada (Citizenship and
Immigration), 2017 FC 285 at para 9; Ramalingam v Canada (Citizenship
and Immigration), 2011 FC 278 at para 37 (“Ramalingam”); Ye v
Canada (Citizenship and Immigration), 2014 FC 647 at para 23).
[39]
The Applicant asserts that the Officer was
compelled to provide grounds for being inadmissible, referencing s 34 of the
IRPA which sets out the basis for a finding of inadmissibility on security
grounds. However, the section that applies in this matter is s 11(1) which
states that a visa or document shall be issued if, following an examination,
the officer is satisfied that the foreign national “is
not inadmissible” and meets the requirements of the IRPA. Further, a
similar argument as to the necessity of making a specific finding of
inadmissibility was recently addressed by Justice Southcott in Noori v
Canada (Citizenship and Immigration), 2017 FC 1095 at paras 17-18 (“Noori”):
[17] Finally, the Applicants argue that
the Decision is unreasonable because the Officer asked the Principal Applicant
no questions about his admissibility to Canada and conducted no analysis of his
admissibility. The Respondent’s position on this argument is that the
inconsistencies in the Principal Applicant’s evidence caused the Officer’s
sufficient concerns about the veracity of his testimony that further inquiries
were precluded and the Officer was unable to conduct an admissibility
assessment.
[18] I agree with the Respondent’s
characterization of this aspect of the Decision. The GCMS notes expressly state
that the discrepancies in the Principal Applicant’s evidence identified by the
Officer and his lack of truthfulness after repeated questioning raised concerns
about the veracity of the rest of the testimony the Principal Applicant had
provided during the interview. The notes state that, as a result, the Officer
was unable to be satisfied that the Principal Applicant is eligible and is not
inadmissible. An immigration officer can reject an application without a
specific finding of inadmissibility, on the basis that he or she cannot
actually determine that the applicant is not inadmissible (see Ramalingam v
Canada (Citizenship and Immigration), 2011 FC 278 at para 37). If an
applicant is untruthful, this can affect the reliability of the whole of his or
her testimony, and an officer may be unable to conclude that the applicant is
not inadmissible (see Muthui v Canada (Citizenship and Immigration),
2014 FC 105 at para 33).
[40]
In my view, this is a factually similar
circumstance.
[41]
As to the Facebook Article, while the Respondent
asserts that the article should not be admitted on the basis that the Applicant
attempts to split his case by filing it in reply, in my view the article is
merely a secondary source general article that does not relate to the Applicant
specifically. It is not expert evidence. And while it points out that people
are frequently not as they appear based on their Facebook profile, the problem
in the Applicant’s case was his failure to meet his onus of alleviating the
Officer’s concerns about his Facebook interactions (Kumarasekaram v Canada
(Citizenship and Immigration), 2010 FC 1311 at para 9; see also Malit v
Canada (Citizenship and Immigration), 2018 FC 16 at para 13). The blanket
denial of knowledge of the friends referred to by the Officer, a comment made
and of liking photos was simply insufficient and, where the information sought
is not provided, the onus does not shift to the Officer to pursue the matter
further. The concern was not so much with the content of the Facebook profile,
but the absence of sufficient explanations for the Applicant’s social media
activity.
[42]
In that regard, when appearing before me the
Applicant emphasized that the Officer failed to explain to the Applicant the
underlying rationale for her questions and breached procedural fairness by
failing to clearly put her security concerns to the Applicant, thereby denying
him the opportunity to respond to them. According to the Applicant, such
opaque questioning would give rise to a question of procedural fairness even in
the absence of his alleged intellectual disability. In my view, this is really
a question of the reasonableness of the Officer’s credibility assessment. That
assessment was based on the Officer’s first hand observation of the Applicant’s
demeanour during the interview and his blanket denials and lack of
forthcomingness, it is owed deference.
[43]
For the reasons set out above, the Officer’s
decision falls within the range of possible, acceptable outcomes defensible in
light of the facts and the law.
Certified Question
[44]
The Applicant proposes the following two
questions for certification pursuant to s 74(d) of the IRPA:
1. Where an officer decides to convoke an interview in respect of a
visa application in order to present evidence of possible inadmissibility, does
procedural fairness require a visa officer to identify to the Applicant the
specific inadmissibility/ies contemplated prior to refusing a visa application?
2. Where an officer refuses a visa application under s.11(1) of the IRPA
for reasons that the officer is not satisfied that the foreign national is not
inadmissible, does procedural fairness require a visa officer to identify to
the Applicant the specific inadmissibility/ies in the decision to refuse a visa
application?
[45]
The Respondent opposes the certification of the
proposed questions as they do not arise on the facts and have been answered by
existing jurisprudence.
[46]
The Federal Court of Appeal in Lunyamila v
Canada (Public Safety and Emergency Preparedness), 2018 FCA 22 recently
revisited the criteria that must be met for certification of a proposed
question:
[46] This Court recently reiterated in Lewis
v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para.
36, the criteria for certification. The question must be a serious question
that is dispositive of the appeal, transcends the interests of the parties and
raises an issue of broad significance or general importance. This means that
the question must have been dealt with by the Federal Court and must arise from
the case itself rather than merely from the way in which the Federal Court
disposed of the application. An issue that need not be decided cannot ground a
properly certified question (Lai v. Canada (Public Safety and Emergency
Preparedness), 2015 FCA 21, 29 Imm. L.R. (4th) 211 at para. 10). Nor will a
question that is in the nature of a reference or whose answer turns on the
unique facts of the case be properly certified (Mudrak v. Canada
(Citizenship and Immigration), 2016 FCA 178, 485 N.R. 186 at paras. 15,
35).
[47] Despite these requirements, this
Court has considered that it is not constrained by the precise language of the
certified question, and may reformulate the question to capture the real legal
issue presented (Tretsetsang v. Canada (Citizenship and Immigration),
2016 FCA 175, 398 D.L.R. (4th) 685 at para. 5 per Rennie J.A. (dissenting, but
not on this point); Canada (Citizenship and Immigration) v. Ekanza Ezokola,
2011 FCA 224, [2011] 3 F.C.R. 417 at paras. 40-44, affirmed without comment on
the point, Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40,
[2013] 2 S.C.R. 678). Any reformulated question must, of course, also meet the
criteria for a properly certified question.
[47]
In my view, the proposed questions are not
suitable for certification. As discussed above, in this matter the Officer
found the Applicant not to be credible. This Court has previously found that
an officer can reject an application without a specific finding of
inadmissibility, on the basis that the officer cannot actually determine that
the applicant is not inadmissible (Noori at para 18; Ramalingham
at para 37). Thus, the questions do not arise from the facts of the case nor
are they dispositive.
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