Date: 20060620
Docket: IMM-4610-05
Citation: 2006 FC 779
BETWEEN:
Najat Shamoon Toma
Dawood Saleem Dawood Saleem
Sara Saleem Dawood Saleem
Yousif Saleem Dawood Saleem
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review of a decision of the visa officer at the Canadian Embassy, Damascus, Syria, (the visa officer) dated May 26, 2005, declaring the applicants not to be members of the Convention refugee abroad class and not to be members of the Humanitarian-protected persons abroad designated class.
[2] Najat Shamoon Toma and her children, Dawood Saleem Dawood Saleem, Sara Saleem Dawood Saleem, and Yousif Saleem Dawood Saleem (the applicants) are citizens of Iraq who claim to be members of the Convention refugee abroad class and of the Humanitarian-protected persons abroad class.
[3] The May 26, 2005 decision of the visa officer at the Canadian Embassy in Damascus, Syria determined that the applicants are not members of the Convention refugee abroad class or the Humanitarian-protected persons abroad designated class. In a letter, the visa officer reviewed the applicable provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and then stated the following:
After carefully assessing all factors relative to your application, I am not satisfied that you are a member of any of the classes prescribed. As indicted(sic) to you during your interview, I had concerns with regards to your credibility and I provided you an opportunity to respond, but you were not able to provide a satisfactory explanation to my concerns. I am not satisfied that you have a well founded fear of persecution if you return to Iraq or that you have a credible evidence to show that you have been and continue to be seriously and personally affected by civil war, armed conflict or massive violation of human rights. Therefore, you do not meet the requirements of this paragraph.
[4] The Computer Assisted Immigration Processing System (CAIPS) notes indicate that the officer found that the applicants' claim was not credible based on his concerns regarding the circumstances that led to the kidnapping and death of Saleem Dawood Saleem, the principal applicant's husband. The officer noted that:
- although the principal applicant indicated that her husband was kidnapped for a ransom and died as a result of sudden heart failure following his torture at the hands of his kidnappers, the death certificate on file stated that he died at home as the result of sudden heart failure. Though the applicant stated that she asked the doctor to write this to avoid an autopsy and having to go to the police, the officer noted that it would be risky for a doctor to do so and wondered why he would take the risk;
- it did not make sense for the principal applicant's husband to have been kidnapped for ransom, and then for the kidnappers to have only called once;
- it was strange that the kidnappers returned the dead body to the applicants' residence;
- the principal applicant's account of taking her husband's body to the hospital was inconsistent with that of her brother-in-law (the principal applicant in
IMM-4613-05). While she said that her brother-in-law had driven the body to the hospital, he stated that they had taken a taxi.
* * * * * * * * * * * *
I. Preliminary Matter
[5] The applicants rely on an affidavit sworn by a family member in Canada. This affidavit purports to describe the applicants' interview with the visa officer, including extensive detail as to what questions were asked and what their responses were. The affidavit also contains opinions such as "the officer did not understand Arabic very well" and "[h]e [the officer] was very upset".
[6] The respondent objects to this affidavit as it does not conform with the Federal Court Immigration and Refugee Protection Rules, SOR/93-22, as amended. Rule 12(1) requires that affidavits filed in connection with an application for leave shall be confined to such evidence as the deponent could give if testifying as a witness before the Court. This rule means that the usual common-law rules of evidence apply, including the twin requirements of necessity and reliability for the admissibility of hearsay evidence (R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; Akomah v. Canada (M.C.I.), [2002] F.C.J. No. 152 (T.D.) (QL)).
[7] Indeed, the contents of the affidavit of Jalila Shamoon Toma are not restricted to statements of fact, but comprise opinions directly contradicted by the officer's unchallenged evidence (e.g., regarding his fluency in Arabic). This calls into question the reliability of the applicants' hearsay evidence.
[8] In my opinion, therefore, the affidavit of Jalila Shamoon Toma, the sister of the applicant Najat, should be accorded little or no weight. This has been the result in numerous other cases of this Court in which an affidavit based on information and belief (and not sworn by someone with personal knowledge of the decision-making process) has been tendered (Huang v. Canada (M.C.I.), [1998] F.C.J. No. 788 (T.D.) (QL); Muntean v. Canada (M.C.I.), [1995] F.C.J. No. 1449 (T.D.) (QL); Ling v. Minister of Citizenship and Immigration, 2003 FC 1198; Zheng v. Canada (M.C.I.), 2002 F.C.J. No. 1562 (T.D.) (QL)).
II. Reasons
[9] The applicants submit that the visa officer's paragraph of "reasons" does not constitute reasons. According to the applicants, since the visa officer is rejecting a claim on the ground that the applicants are not credible, reasons for the credibility finding must be given, and a failure to state such reasons is a reviewable error.
[10] In the context of decisions by visa officers, it is well established that CAIPS notes may form part of the reasons for decision. In Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, at paragraphs 43 and 44, the Supreme Court held that "notes to file" will suffice as reasons for an immigration officer's decision.
[11] In my opinion, the visa officer did provide adequate reasons for his decision in this case. The letter stated that he denied the claim based on credibility concerns. The CAIPS notes indicate that the officer found that the applicants' claim was not credible based on his concerns regarding the circumstances that led to the kidnapping and death of the principal applicant's husband.
[12] It is my opinion that the visa officer provided reasons for his decision in his letter to the applicants and additionally, the CAIPS notes contain reasons for his decision. These documents meet any requirement to provide reasons for the decision. Therefore, there was no breach of the duty of procedural fairness.
[13] The officer can also not be said to have erred in failing to provide the applicants with a copy of his CAIPS notes. The applicants stated in their Application for Leave and for Judicial Review that they had "received written reasons from the Canadian Embassy, Damascus, Syria on 4 June 2005." As a result, the applicants waived their right to receive the CAIPS notes reasons for decision under Rule 9 of the Federal Courts Immigration and Refugee Protection Rules (see also Mensah v. Canada (Secretary of State), [1994] F.C.J. No. 1082 (T.D.) (QL) and Paul v. Canada (M.E.I.), [1994] F.C.J. No. 1018 (T.D.) (QL)).
[14] The applicants' concern with regard to the use of a "form letter" that was also used to inform their relatives that their claim had been refused is erroneous. Different reasons were provided for the decision at issue in IMM-4613-05.
III. Opportunityto Explain Inconsistencies
[15] The applicants submit that the visa officer must act fairly. The duty to act fairly requires the visa officer to allow the applicants an opportunity to respond to any concerns the visa officer has with respect to the application, and to explain inconsistencies between the evidence (Muliadi v. Canada (M.E.I.), [1986] 2 F.C. 205 (C.A.)). If there is an area which is central to the claim, and the visa officer finds the evidence implausible, the visa officer should put his concerns to the applicants and provide them with an opportunity to explain why the evidence is plausible. Furthermore, when relying on extrinsic evidence, fairness dictates that the applicant be given an opportunity to explain apparent inconsistencies. According to the applicants, the visa officer did not afford them this opportunity. The applicants submit that the visa officer did not act fairly and therefore this decision ought to be quashed.
[16] The applicants submit that while the visa officer asked the applicant about the contradiction in how her husband's body was transported to the hospital, he did not ask the co-related applicant for an explanation and thereby did not act fairly and breached procedural fairness to the applicants in these two related matters.
[17] The applicants are correct that when a visa officer is relying on extrinsic evidence, fairness dictates that the applicant be given an opportunity to explain apparent inconsistencies.
[18] In the Federal Court decision of Dasent v. Canada (M.C.I.), [1995] 1 F.C. 720 (T.D.) at pages 730-731, Justice Rothstein explained what was meant by "extrinsic evidence, not brought forward by the applicant". He stated:
. . . In the case at bar, having regard to the words "not brought forward by the applicant" used by Hugessen J.A. to qualify the term "extrinsic evidence," and his reference to Muliadi, I interpret the term "extrinsic evidence not brought forward by the applicant" as evidence of which the applicant is unaware because it comes from an outside source. This would be evidence of which the applicant has no knowledge and on which the immigration officer intends to rely in making a decision affecting the applicant. While this would include information obtained from an outside party as in Muliadi, I fail to see why it would not also include evidence form a spouse obtained separately from the applicant, or other information in the immigration file that did not come from the applicant, of which the applicant could not reasonably be expected to have knowledge.
[19] The Court of Appeal reversed the Federal Court decision in Dasent ([1996] F.C.J. No. 79 (C.A.) (QL)), and found that inconsistent statements by a spouse in a separate interview who is there to support the applicant's claim that there was a bona fide marriage are not "extrinsic evidence not brought forward by her" that officers are required to disclose.
[20] However, in this case, it doesn't matter whether the applicants actually had a right to be provided with an opportunity to explain inconsistencies between their version of events and the version of events tendered by the principal applicant's brother-in-law (in IMM-4613-05), because they were, in fact, provided with this opportunity. Furthermore, the officer's CAIPS notes indicate that the applicants were informed of his concerns and provided with an opportunity to respond. Upon reviewing the evidence, I find that it was not patently unreasonable for the officer to not be satisfied with the explanations given and to find the applicants' story not to be credible.
IV. Judicial Notice
[21] The applicants submit that the underlying lack of fairness stems from the visa officer taking judicial notice of the fact that the kidnappers would make several calls to negotiate the ransom, which was an inappropriate use of judicial notice (Lawal v. Canada (M.E.I.), [1991] 2 F.C. 404 (C.A.)).
[22] However, the visa officer did not take "judicial notice" of anything in the decision. Instead, the officer's negative credibility finding related to the plausibility of the kidnappers - whose goal the officer noted was to get ransom money - beating the applicant's husband to the point that he died, after calling her only once, and then returning his body to the applicants' home.
[23] In my opinion, this finding was reasonable, especially when it is considered that immigration decision-makers are entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole (see, for example, Shahamati v. Canada (M.E.I.), [1994] F.C.J. No. 415 (C.A.) (QL) and Alizadeh v. Canada (M.E.I.), [1993] F.C.J. No. 11 (C.A.) (QL)).
V. Proper Test
[24] The applicants submit that a finding that an applicant is not a credible witness is not determinative of the question of whether the applicant is a Convention refugee.
[25] However, in the case at bar, the visa officer found the subjective element of the applicants' claim to not be credible. As such, there was no subjective basis for their claim, and the other bases of fear cited by the applicants are irrelevant, as the officer found no justification for their claimed fear of persecution (Adjei v. Canada (M.E.I.), [1989] 2 F.C. 680 (C.A.)).
VI. Documentary Evidence
[26] In my opinion, the applicants' assertion that the officer misconstrued or ignored the documentary material is incorrect. The officer in this case stated that he considered all of the documentation provided by the applicants. He further stated that he has kept up-to-date on the political and security situation in Iraq by reviewing and referring to current media reports and country information reports from a variety of non-governmental organizations. Nothing in the excerpts cited by the applicants corroborated the credibility of their personal story. As there is therefore no good reason for believing that the officer ignored evidence, he should be presumed to have considered all of the evidence before him (Hassan v. Canada (M.E.I.), (1999), 147 N.R. 317 (F.C.A.) and Florea v. Canada (M.E.I.), [1993] F.C.J. No. 598 (C.A.) (QL)).
VII. Related Case
[27] Moreover, according to the applicants, a related third case was approved by a different visa officer. The applicants submit that this third case is linked to the other two cases. The evidence of the applicant's niece, Jonfyef M. Yakowb, in the third case was that the applicant's niece believes her husband was kidnapped because they were helping her aunts, the co-related applicants.
[28] In my opinion, it is a faulty argument that their claim was refused while a third unrelated claim was approved by a different officer. As every case turns on its facts, the facts of the third related claim appear to be distinct from those at issue in this application, and the visa officer's decision was reasonable in this case.
VIII. Interpreter
[29] Lastly, the applicants submit that the visa officer erred by acting as decision-maker and interpreter. According to the applicants, the visa officer breached procedural fairness by not conducting the interview in either of Canada's official languages, and by questioning the applicant in Arabic without the use of an interpreter.
[30] The applicants submit that the visa officer did not follow protocol and breached procedural fairness.
[31] The visa officer's affidavit states the following:
10. Jalila Shamoon Toma suggests in both of her affidavits that there were communication difficulties during the Applicants' interviews and that I did not understand all of the Arabic words they used.
11. I do not think this is a fair or accurate characterization of my interview with the Applicants. As noted above, I speak Arabic fluently and I have conducted numerous refugee interviews in Arabic. I had no real problems understanding the Applicants, but sought clarification on a few words they were using in ways I was unfamiliar with. Moreover, as noted in the Applicants' decision letters, the Applicants did not indicate that they had any difficulty understanding me at the interviews or that they had any difficulty expressing themselves.
[32] It is my opinion that the applicants' argument is without merit, as it is one that overlooks paragraph 11.3 of Citizenship and Immigration Canada's Overseas Processing Manual (OP) 5, which notes that the officer should review the application prior to conducting the interview so as to determine if the applicant needs an interpreter.
[33] If the officer speaks the applicant's language - as was the case here - it would be strange indeed for the officer to use an interpreter. There would be no need to do so. The preferable options, as the Manual suggests, is to conduct the interview in the applicant's language. The various Manual provisions referred to by the applicants have no relevance unless an interpreter is required.
[34] The applicants have therefore established no reviewable error.
IX. Conclusion
[35] The officer committed no error in finding the applicants not to be members of the Convention refugee abroad class nor the Humanitarian-protected persons abroad designated class. The visa officer provided reasons for his decision in his letter to the applicants and the CAIPS notes. These documents meet any requirement to provide reasons for the decision. During the interviews, the applicants were informed of the visa officer's concerns and provided with an opportunity to respond. Based on his negative credibility findings, it was entirely reasonable for the visa officer to reject the applicants' application as members of the Convention refugees abroad or country of asylum class.
[36] Consequently, the application for judicial review is dismissed.
"Yvon Pinard"
Ottawa, Ontario
June 20, 2006
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