Docket: IMM-3783-19
Citation: 2020 FC 665
Ottawa, Ontario, June 3, 2020
PRESENT: The Honourable Mr. Justice Mosley
| BETWEEN:
|
| HAYDER SABRI SAIWAN RUBAYE
|
| Applicant
|
| and
|
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application to judicially review the decision of an immigration officer [the Officer] with the Canadian Embassy in Ankara to reject an application for permanent residence. The Applicant claimed he is a member of the Convention Refugee Abroad Class pursuant to sections 144 and 145 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR] or the Humanitarian-Protected Persons Abroad Class pursuant to sections 146 and 147 of the IRPR. The Applicant was sponsored under a Private Sponsorship Agreement [PSA] by the Anglican Diocese of Niagara, a Sponsorship Agreement Holder [SAH] pursuant to section 139 of the IRPR, in conjunction with the Applicant’s family members living in Hamilton, Ontario.
[2]
The Applicant is a citizen of Iraq who currently resides in Turkey. In 2006, the Applicant fled Iraq with his family due to the ongoing conflict, seeking refuge in Syria. After conflicts began in Syria in 2012, the Applicant joined his family as they fled to Turkey. The Applicant’s parents, brother and sister (along with his siblings’ families) were accepted as Government Assisted Refugees [GARs] by the Canadian government, arriving in Canada in 2014. The Applicant’s family pursued the Applicant’s application for resettlement to Canada through the Privately Sponsored Refugee [PSR] Program. This application was refused in December 2016. This Court granted leave for judicial review of that decision and, on consent, the application for permanent residence was sent back for re-determination by a different officer. In a decision dated April 18, 2019 [the Decision], the application was refused again.
[3]
On this application for judicial review, the Applicant submits the Officer erred in making credibility findings and in failing to properly consider evidence pointing to the fact that the Applicant was accorded refugee status by the United Nations High Commissioner for Refugees [UNHCR] in Syria and Turkey; evidence that refugees from Iraq are considered prima facie refugees and that there is a temporary suspension of removals to Iraq; and evidence that the Applicant’s family members had been accepted for refugee sponsorship on the same grounds as alleged by the Applicant.
[4]
For the reasons that follow, the application for judicial review will be granted.
II.
Background
A.
The Applicant
[5]
Mr. Hayder Sabri Saiwan Rubaye [the Applicant] is a citizen of Iraq in his mid-thirties, living in Turkey. The Applicant has a Grade 3 education and is illiterate. The Applicant’s sponsors have also suggested the Applicant may have a developmental disability, and provided a medical report dated May 15, 2018, which diagnosed the Applicant with an anxiety disorder.
[6]
From February 2004 to June 2006, the Applicant alleged that he and his brother, Sameer, worked for the U.S. Forces in Iraq at Forward Operating Base [FOB] Falcon, and that as a result, he and his family were accused of being spies and traitors, and threatened with death. In 2006, the Applicant fled Iraq with his family due to the ongoing conflict and lived in Syria for a number of years. However, after conflicts began in Syria in 2012, the family was forced to flee again to Turkey. The Applicant’s parents, brother and sister (as well as their families) were accepted by the Canadian government as GARs, and currently reside in Hamilton, Ontario. The Applicant’s parents came to Canada in February 2014, and the Applicant’s siblings came in 2015.
[7]
In December 2015, the Applicant was sponsored for permanent residence by the Anglican Diocese of Niagara through the PSR Program. The Applicant’s father was listed as a co-sponsor. On November 29, 2016, the Applicant attended an interview with the Canadian visa office in Ankara, Turkey.
[8]
By decision dated December 1, 2016, the Applicant’s application for permanent residence was refused. After leave for judicial review was granted on this decision, the Respondent settled the matter (IMM-3062-17). As a result, the decision was set aside and sent back for re-determination by a different officer. The terms of settlement specified that the reconsideration shall occur as soon as practically possible and on a priority basis, and that the Applicant would be provided with an opportunity to submit updated documentation in support of his application.
[9]
On re-determination, the Applicant was invited for an interview on July 18, 2018. A procedural fairness letter was sent to the Applicant on August 29, 2018. The procedural fairness letter indicated that the Applicant continued to have difficulties responding to questions regarding his work with the U.S. Forces in Iraq. The Applicant’s sponsors noted that they attempted, but were unable to obtain any supporting documentation from U.S. authorities to validate the Applicant’s work experience on the U.S. base.
[10]
By decision dated April 18, 2019, the Applicant’s application for permanent residence was refused again. This is the underlying decision to be considered in the present judicial review application.
B.
The Underlying Decision
[11]
The Officer was not satisfied that the Applicant met the definition of a Convention Refugee or that he had been, or continues to be, seriously and personally affected by civil war, armed conflict, or a massive violation of human rights. The Officer found that the Applicant had been unable to provide supporting documentation showing the Applicant’s employment at a U.S. military base in Iraq, apart from letters from his close family members. The Officer found that the Applicant’s statements at the interview regarding the employment were not credible. For example, the Officer found that the Applicant’s explanation as to why he had not been issued an ID card like that of his brother made “little sense”
. The Applicant stated that he was a temporary worker, but also noted that he worked on the military base for two years, and sometimes slept overnight on the base. The Officer drew adverse credibility findings against the Applicant based on these explanations.
[12]
The Officer also found it problematic that the Applicant did not recognize the name of the contractor that employed his brother in the military base’s laundry unit, despite having worked in laundry himself. Although the Officer was satisfied that the Applicant’s brother was employed at a U.S. military base, the Officer found insufficient evidence that the Applicant would face risk in Iraq more than twelve years after the end of his brother’s employment on the base. The Officer concluded that the Applicant’s responses to the procedural fairness letter did not alleviate the Officer’s concerns about the credibility of the claim and the truthfulness of the Applicant’s responses during the interview.
[13]
The Global Case Management System [GCMS] also notes the following:
● The Applicant’s first application was refused, in part, because the Applicant’s stated duties on his application were different from those described at the interview, and because the Applicant could not produce any evidence of having access to the U.S. base. In his application, the Applicant had noted “construction work”
, and in his interview, he stated that he performed laundry work.
● In the second interview (for the decision on re-determination) in July 2018, the Applicant stated that he “mainly”
worked in construction but helped out in laundry when there was a shortage of work.
● The Applicant presented his brother’s base ID card but did not have “similar evidence”
regarding his own employment. The Applicant stated that he never had an ID card, and that he wore his regular clothes while working. The Applicant stated that he had a “different kind of badge”
that only had his name and that he was given this badge when he entered the base.
● The Applicant did not know the meaning of KBR, which was a government contractor (according to the Officer’s internet search). The Officer recognized that the Applicant had little education but found that he should have recognized the name of the company employing the workers given the Applicant’s statement that he worked on the base for two years.
● The Officer found it “unlikely”
that the Applicant would be permitted to remain on the base at night if he was only working part-time, and that it was “even more unlikely”
that the Applicant was never issued any proper identification if he was sleeping on the base.
● The Officer considered the support letters from the Applicant’s brother and brother-in-law, who both stated that they worked at FOB Falcon with the Applicant. However, the Officer assigned less weight to these letters because family members “have an obvious interest in assisting”
the Applicant. The Officer also noted that the approval of the Applicant’s application would assist the Applicant’s parents in Canada. A letter from the parents’ doctor noted that it would be in the parents’ interests for the Applicant to come to Canada to care for them, as his siblings were occupied with their own families.
● The Officer found that the statements made by the Applicant and his family members—that the Applicant was a temporary worker for two years, that he worked part-time hours, and that he worked in both construction and laundry—were efforts to “try and explain away the mistakes that the [Applicant] made during his first interview when he provided a different occupation than that indicated on his forms and stated that he never had an ID card for the base”
.
● In response to the procedural fairness letter, the Applicant’s sponsors stated that threats to the Applicant would also result from the fact that his brother worked for the U.S. Forces. The Applicant’s sponsors referenced the 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq, which stated that civilians (formerly) employed or affiliated with the U.S. Forces, and their families, are at risk of being targeted by non-state actors for their (imputed) political opinion.
○ The Officer acknowledged the reference to “families”
but found that there was insufficient evidence to suggest that individuals similarly situated to the Applicant are at risk in Iraq.
○ The Officer noted that the Applicant’s brother served with U.S. Forces in a “low level position more than 12 years ago”
, and was not satisfied that the Applicant would be of interest to or targeted by armed groups if he returned to Iraq.
● The Officer noted that the Applicant had submitted a refugee status determination from the UNHCR dated November 2012, but found, “As the [Applicant] has never been referred to Canada by the UNHCR, I do not know the basis of that determination or how the information provided by the [Applicant] to the UNHCR compares to the information provided by the [Applicant] to IRCC.”
III.
Issues
[14]
Having considered the parties’ submissions, I find that the issues on this application for judicial review are:
1)
Whether the Officer erred in the credibility findings.
2)
Whether the Officer erred in ignoring or failing to properly consider the evidence, particularly regarding:
I. The Applicant’s UNHCR refugee determination status.
II. The Canadian government’s position that individuals from Iraq are prima facie refugees, and the government’s position on the Temporary Suspension of Removals to Iraq.
III. The fact that the Applicant’s family members had been accepted for refugee sponsorship on the same grounds as alleged by the Applicant.
IV.
Standard of Review
[15]
Prior to the recent decision of the Supreme Court of Canada [SCC] in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) [Vavilov], this Court held that decisions of visa officers in the determination of refugee resettlement applications raise issues of fact or of mixed fact and law, and thus are reviewable under the reasonableness standard: Kabran v Canada (Immigration, Refugees and Citizenship), 2018 FC 115 (CanLII) [Kabran] at para 14; Wardak v Canada (Citizenship and Immigration), 2015 FC 673 (CanLII) at para 12; Qarizada v Canada (Citizenship and Immigration), 2008 FC 1310 (CanLII) at para 17; Nassima v Canada (Citizenship and Immigration), 2008 FC 688 (CanLII) at para 9; Gebrewldi v Canada (Citizenship and Immigration), 2017 FC 621 (CanLII) at paras 14 and 17. Reasonableness also extends to the review of a visa officer’s credibility assessments: Kabran at para 14. The Vavilov decision does not alter the standard of review analysis for this type of judicial review.
[16]
As noted by the majority in Vavilov, “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”
(Vavilov at para 85). Furthermore, “the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”
(Vavilov at para 100).
[17]
In Vavilov the SCC also commented on the effect of administrative decisions on individuals at para 135, writing that “[m]any administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. The corollary to that power is a heightened responsibility on the part of administrative decision makers to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law”
. In the case at bar, the Applicant faces significant personal consequences from a negative determination, particularly in terms of family separation.
V.
Analysis
A.
Credibility Findings
(1)
Letters of Support
[18]
The Applicant submits that the Officer erred in reaching negative credibility findings. The Applicant submits that the Officer erred by giving “less weight”
to the letters provided by the Applicant’s brother and his brother-in-law to support the claim that the Applicant had worked on the U.S. military base in Iraq, simply on the basis that the family members had “an obvious interest in assisting the [Applicant]”
. The Applicant relies on Singh v Canada (Citizenship and Immigration), 2015 FC 1210 (CanLII) [Singh] at para 12 for the proposition that immigration officers may not disregard evidence merely on the basis that the evidence is self-serving.
[19]
The Applicant submits that the evidence from a refugee claimant’s family or friends “must be assessed and cannot be dismissed simply because the witness has an interest in the proceeding,”
as noted by this Court in Varon v Canada (Citizenship and Immigration), 2015 FC 356 (CanLII) at para 37 (See also Mata Diaz v Canada (Citizenship and Immigration), 2010 FC 319 (CanLII) at para 37; Nagarasa v Canada (Citizenship and Immigration), 2018 FC 313 (CanLII) at para 25). The Applicant submits that the letters corroborated the fact that the Applicant had worked on the U.S. military base, and that the family members’ willingness to explain misunderstandings from the Applicant’s first interview is rational given the risks faced by the Applicant in Iraq. The Applicant argues that the Officer erred in failing to indicate how or why the evidence should be given less weight, beyond the reason that the evidence was self-serving.
[20]
The Respondent submits that the Officer did not err in assigning low probative value to the family members’ letters because of their inherently self-serving nature. The Respondent relies on Pathmaraj v Canada (Citizenship and Immigration), 2016 FC 1273 (CanLII) at para 11, where the Court found that the officer’s determination that affidavits from the applicant’s relatives were self-serving was not a reviewable error because they lacked reliability and emanated from biased witnesses. The Respondent argues that the assessment of weight on a piece of evidence is a matter within the discretion of the Officer, and further submits that it was reasonable for the Officer to consider the family member’s motivations in conjunction with the lack of corroboration from an objective source.
[21]
The issue of how the Court should regard the self-serving nature of support letters has received differing judicial treatments. In my view, there are varying degrees to which support letters can be self serving. While families are naturally inclined to assist a family member, in some instances the family members writing these letters have a more direct incentive. In this case, for instance, the Applicant’s parents have expressed a desire to have their son join them to provide care to them in their old age. Evidence of this nature may raise questions about its value, as Justice Annis recognized in Fadiga v Canada (Citizenship and Immigration), 2016 FC 1157 at para 15.
[22]
Nonetheless, in the present matter the Officer did not explain why he did not accept this evidence, particularly the letters of the brother and brother-in-law, other than by referring to its provenance. Further explanation was required as to why the letters were given little or no weight. It is not enough that the Officer’s reasons simply note the fact that the family members had an interest in assisting the Applicant as this does not substantively address why the evidence is being dismissed or minimized.
(2)
Explanations about the Applicant’s Employment
[23]
The Applicant submits that the Officer’s concerns regarding the Applicant’s work with the U.S. Forces was based on irrelevant and minor considerations. He argues the Officer’s implicit conclusion that the explanations provided by the Applicant were contradictory and mutually exclusive is unreasonable. He takes the position that the Officer concluded the Applicant lacked credibility because he did not possess an ID badge like his brother did, he did not know what “KBR”
referred to, and because he worked part-time but sometimes slept at the base.
[24]
The Applicant submits that there is no contradiction to the Applicant’s explanation that he worked in laundry as well as construction because he did both, and no contradiction that he worked part-time, but also slept on the base. The Applicant argues that the Officer erred by taking a microscopic examination of the evidence and erred by forming conclusions based on “pure conjecture”
(Gorqaj v Canada (Citizenship and Immigration), 2012 FC 920 (CanLII) [Gorqaj] at paras 6-13; Satiacum v Canada (Minister of Employment & Immigration), [1989] FCJ No. 505, 99 NR 171 at para 33). The Applicant submits that it is unreasonable for the Officer to dismiss claims simply because they find evidence at the fringes not to be reliable or trustworthy (Joseph v Canada (Citizenship and Immigration), 2011 FC 548 (CanLII) at para 11).
[25]
The Respondent notes that an Officer’s credibility findings are entitled to deference (Alkhairat v Canada (Citizenship and Immigration), 2017 FC 285 (CanLII) at paras 19-22; Habte v Canada (Citizenship and Immigration), 2019 FC 327 (CanLII) at para 36). The Respondent submits that the basis for the adverse credibility findings were clearly set out by the Officer in this case. Absent reliable evidence of the Applicant’s work for the U.S. Forces, the Respondent argues that the Officer reasonably concluded that the Applicant did not meet his evidentiary burden.
[26]
While it was not unreasonable for the Officer to question the Applicant about this aspect of the Applicant’s narrative, there are not necessarily any significant contradictions to the Applicant’s statements given his clarifying explanations. For instance, it was possible that the Applicant’s duties involved tasks both in construction and laundry, according to the work needed. It does not seem inconsistent or odd that an individual may be working “part-time”
for a period of two years without being given an opportunity for full-time employment. Further, it is unclear on what basis the Officer concluded that the Applicant could not sleep on the base as a part-time worker. Finally, the Applicant’s inability to identify the name of the American engineering, procurement, and construction firm “KBR”
does not seem incongruous with his being an Iraqi national doing only part-time work at a U.S. base. In my view, these are the type of unjustified reasons that decision-makers are cautioned against in Vavilov. The judicial review could be decided in the Applicant’s favour on this basis alone, but I will turn next to comment on the further issues brought before the Court.
B.
Consideration of Evidence
(1)
UNHCR Refugee Status
[27]
The Applicant submits that the Officer’s assessment of the Applicant’s UNHCR refugee status was inadequate, and that the Officer failed to properly consider this evidence. The Applicant notes that he had been granted refugee status by the UNHCR twice, once in Syria and again in Turkey. Nonetheless, the Officer only noted the 2012 UNHCR status determination in Turkey.
[28]
The Applicant relies on Ghirmatsion v Canada (Citizenship and Immigration), 2011 FC 519 (CanLII) [Ghirmatsion] at paragraphs 55 to 59 where the Court found that the officer’s failure to mention the UNHCR refugee designation was an error sufficient to overturn the decision. In Ghirmatsion, the Court found that the officer, being guided by the Citizenship and Immigration Canada [CIC] Guideline OP 5, was obligated to have regard to the designation and should have explained why the officer did not concur with the decision of the UNHCR (Ghirmatsion at para 58). The Applicant submits that the CIC Guideline OP 5 specifically states that a decision regarding an applicant’s refugee status is a factor to be considered in determining eligibility for refugee status. The Applicant submits that the Officer erred by failing to properly consider how the Applicant’s refugee status was relevant in assessing eligibility as a member of the Convention Refugee Abroad Class. Specifically, the Applicant argues that the Officer failed to distinguish the fact that the Applicant had been twice recognized as a refugee by the UNHCR. The Officer simply stated that the basis of the UNHCR determination was unknown, as was the way in which the UNHCR claim compared with the Applicant’s application for permanent residence in Canada.
[29]
The Respondent submits that the case at bar can be distinguished from Ghirmatsion, because the Officer acknowledged and discussed the Applicant’s UNHCR designation, at least that in Turkey, whereas in Ghirmatsion, the officer failed to mention the designation altogether. The Respondent relies on B231 v Canada (Citizenship and Immigration), 2013 FC 1218 (CanLII) [B231] where the Court distinguished its case from Ghirmatsion and noted that the UNHCR status was not determinative. The Board in B231 had specifically mentioned the applicant’s UNHCR status unlike in Ghirmatsion and made strong negative credibility findings against the applicant that undermined the findings of the UNHCR (B231 at paras 58-60).
[30]
As discussed above, I do not consider the Officer’s negative credibility findings to have been reasonable. In the circumstances, particularly the fact that the Applicant and his family had to flee twice, once from the conflict in Iraq and again when fighting broke out in Syria, both UNHCR designations were relevant and should have been adequately considered by the Officer. The Officer accepted that the Applicant’s brother had worked with the U.S. Forces in Iraq and acknowledged a UNHCR document, which indicated the existence of risks to civilians formerly employed by the U.S. Forces in Iraq and to their families. Notwithstanding the passage of time, this required greater consideration.
(2)
Prima facie Refugees, Temporary Suspension of Removals
[31]
The Applicant submits that the Officer failed to note the Canadian government’s policy on the treatment of Iraqi refugee claimants as prima facie refugees, and that the Officer erred in failing to indicate why the Applicant’s claim was not considered under this policy. Moreover, the Applicant submits that the Officer failed to consider the fact that there is a Temporary Suspension of Removals [TSR] for Iraq since 2003, due to the “generalize risk”
in the country. The Applicant relies on Ntunzwenimana v Canada (Citizenship and Immigration), 2006 FC 826 (CanLII) [Ntunzwenimana] at para 29 for the proposition that a TSR or “moratorium”
is a significant factor to consider in the determination of whether a refugee claimant faces a well-founded fear of persecution, especially with regard to “effective state protection”
.
[32]
The Respondent submits that although the Applicant benefited from a prima facie status, it was still necessary for the Applicant to meet the requirements of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and IRPR. The Respondent submits that the burden of proof rested upon the Applicant to substantiate his claim, and given the Applicant’s lack of credibility, the Officer reasonably refused the application (Alakozai v Canada (Citizenship and Immigration), 2009 FC 266 (CanLII) at paras 32-40).
[33]
Given that the Applicants have not provided objective evidence from the Canadian government that citizens of Iraq are still considered prima facie refugees, I am unable to assess the validity of the argument that this policy was in place at the time of the Officer’s determination of the Applicant’s application. With regard to the TSR, I am not persuaded that the Ntunzwenimana case is applicable to the case at bar, as the consideration of a TSR or moratorium was discussed in that case in the context of the availability of state protection. The Officer’s decision is not unreasonable on this issue.
(3)
Applicant’s Family Members’ Grounds for Refugee Claim & Country Conditions
[34]
The Applicant submits that the Officer failed to properly consider the fact that the Canadian government had accepted the Applicant’s family members claims on the same basis as the Applicant’s claim, i.e. that they faced risk arising from an association with U.S. Forces in Iraq. The Applicant submits that the Officer erred by failing to acknowledge this evidence or distinguish it, despite having recognized that the Applicant’s brother had worked on the U.S. military base.
[35]
The Applicant also submits that the Officer failed to properly consider the country condition documentation that indicated the ongoing danger to the Applicant, at the very least as a family member of someone that worked on the U.S. military base. The Applicant refers to the UNHCR Eligibility Guidelines (2012) and UNHCR Position on Returns (2016) documents that remain current, as they are contained in the most recent National Documentation Package [NDP]. The Applicant also notes that the U.K. Report (2019) corroborates the claim of ongoing danger to the Applicant. The Applicant cites Saifee v Canada (Citizenship and Immigration), 2010 FC 589 (CanLII) at paras 30-32, where the Court found that it is a reviewable error for a visa officer to make refugee claim determinations without knowledge of country conditions (see also Ghirmatsion at para 69).
[36]
The Respondent submits that the Officer reasonably considered the Applicant’s argument regarding the risk arising from association with the Applicant’s brother. The Respondent further submits that the Officer considered the UNHCR Eligibility Guidelines and acknowledged that there is a risk for family members in certain circumstances. However, given that the Applicant’s brother worked for the U.S. Forces in a low level position more than 12 years ago, the Officer reasonably found that there was insufficient evidence to suggest that individuals similarly situated to the Applicant would be at risk in Iraq.
[37]
The Officer erred by failing to properly consider the country condition documentation in light of the alleged risk to the Applicant, at the very least, as a family member of a civilian who formerly worked with the U.S. Forces. Although the UNHCR documents were from 2012 and 2016, they were nevertheless contained in the recent NDP package as relevant documents to be considered in the determination of refugee claims. Although the Applicant’s brother worked with the U.S. Forces in a “low-level position more than 12 years ago”
, the UNHCR Eligibility Guidelines do not qualify that the risk is only applicable to those in higher positions. In fact, the document states that risks exist even against groups such as subcontractors and drivers. Given the relevancy of the country documentation, I find that the Officer unreasonably failed to properly consider this evidence.
VI.
Costs
[38]
In written submissions the Applicant argued there are special reasons for granting costs on the basis that the Respondent has “unnecessarily or unreasonably prolonged proceedings”
or “acted in a manner that may be characterized as unfair, oppressive, improper or actuated by bad faith”
(Johnson v Canada (Minister of Citizenship and Immigration), 2005 FC 1262 (CanLII) at para 26; Qin v Canada (Minister of Citizenship and Immigration), 2002 FCT 1154 (CanLII) at para 34). The Applicant requests that costs should be awarded given the particular circumstances of this case and the errors noted. These arguments were not repeated in the oral hearing.
[39]
In my view the process that was followed in considering the application for permanent residence in this case and the two decisions rendered thus far do not warrant a finding of special reasons to grant costs.
VII.
Conclusion
[40]
The Officer erred in the credibility findings against the Applicant. The Officer also failed to properly consider the evidence with regard to the UNHCR designations and the country condition evidence. Thus, the Officer’s decision is unreasonable, and the application will be granted.
[41]
No questions for certification were proposed and none will be certified. There are no special reasons for granting costs.
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