Oraha v. Canada (Citizenship and Immigration), docket IMM-2659-96

     IMM-2659-96

B E T W E E N:

     MANHAL ABED ORAHA

     DHAFIR NOONA, WAAD NOONA and

     NADIR YOUSEF

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     SECRETARY OF STATE

     Respondents

     REASONS FOR ORDER

GIBSON, J.:

     These reasons arise out of an application for judicial review of a decision of a visa officer at Rome, Italy rejecting Manhal Abed Oraha's (the "principal applicant") application for immigration to Canada as a member of the Convention refugees seeking resettlement designated class. The decision is dated the 25th of March, 1996.

     The principal applicant is a national of Iraq. His three co-applicants are sponsors of the principal applicant's application for immigration to Canada.

     The visa officer, in the letter conveying the decision under review, wrote:

After carefully and sympathetically assessing all factors relative to your application, I have determined you do not meet this definition [the definition "Convention refugee" in section 2 of the Immigration Act1]. A Senior Immigration Officer has concurred in this decision.

     In effect, the visa officer, having determined the principal applicant not to be a Convention refugee, inevitably concluded that the principal applicant could not be a member of the "Convention refugees seeking resettlement" designated class.

     In his affidavit filed on this application, the visa officer attested in part as follows:

4.          As is my practice at all refugee interviews, I reviewed with Mr. Oraha the information in his application form ... and in his Refugee Questionnaire ... .

5.          Mr. Oraha told me that he is a Christian. His problems began in 1987 when Baath party members tried to force him to join the Baath party. When he refused, they accused him of joining a Christian movement opposed to the government.

6.          Mr. Oraha claimed to have been subsequently arrested, detained and badly mistreated on several occasions on suspicion of being opposed to the Iraqi regime. He was released on each occasion. Mr. Oraha told me that the event which precipitated his decision to leave Iraq in August 1993, was his arrest and detention for five months by the security police in March, 1993. They accused him of aiding a Kurdish terrorist group by stealing a car and selling it to someone involved in the group. The car was subsequently used to smuggle food stuffs and medical supplies to the Kurds. Mr. Oraha claimed that he was badly mistreated while in detention. He was released in August, 1993 on bail and was told he would be required to attend his trial at a later date.

7.          I did not find Mr. Oraha's story to the [sic] plausible. Given the nature of the Iraqi regime, the treatment to be expected by a suspected opponent of the regime is long-term imprisonment or death, yet Mr. Oraha claims to have been released on several occasions after relatively brief detentions. Moreover, with respect to the last detention, when he was accused of supporting the Kurdish terrorists, he said he was released on "bail" pending his trial. In my opinion this was far too implausible to be believed, had Mr. Oraha really been accused of being involved with Kurdish terrorists.

8.          In addition, Mr. Oraha remained in Iraq for five years after his alleged difficulties with the authorities arose. In my opinion, to remain in a country wherein one claims to fear persecution for five years prior to leaving, is conduct very inconsistent with a well-founded fear of persecution.

9.          Given the above, I found Mr. Oraha's statements in general, and in particular with respect to his subjective fear of persecution, to lack credibility. I believe that he has at most, suffered no more than the general pattern of discrimination to which all Iraqis (Christian or Muslim) who are non-Baath party members may be subjected. In my opinion, however, this in itself, does not amount to persecution. It is also a well-known fact that Christians in Iraq, although a minority, are free to practise their religion, may hold very high level positions in political life (fox example, Tariq Aziz, the foreign Minister) and are able to obtain state protection from the government. Consequently, even if Mr. Oraha had satisfied me that he had a subjective fear of persecution, I could not have found his fear to be objectively well-founded.

10.          Based on the above, I advised Mr. Oraha that I would likely be refusing his application as I did not find, based on the record before me, that he had demonstrated a well-founded fear of persecution in Iraq based on one or more of the Convention refugee grounds. However, as per Mr. Oraha's request, I agree to wait for a more detailed written statement from him setting out all of the incidents upon which he based his claim, before making a final decision. Mr. Oraha did forward this written statement, dated March 11, 1996 to me after the interview... Upon a careful review of this written statement, I was of the opinion that there was no new information in it to alter my decision or my negative assessment of his credibility. Consequently, I refused Mr. Oraha's application by letter dated March 25, 1996 ... .

11.          With respect to paragraph 5 of the Affidavit of Waad Noona, dated July 18, 1996, I deny that Mr. Oraha's interview took ten minutes. I do not recall ever having conducted a refugee claim interview lasting ten minutes. Typically, such interviews take from thirty minutes to one hour. To the best of my recollection, Mr. Oraha's interview lasted thirty minutes.

The visa officer was not cross-examined on his affidavit.

     The principal applicant's written submissions referred to in paragraph 10 of the visa officer's affidavit appear in the Tribunal Record that was before me and run to four-and-a-half pages of carefully hand written material. They describe in some detail four periods of detention and physical and psychological abuse between November, 1987 and August of 1993. Shortly after the last period of detention, the principal applicant fled through Turkey to Greece.

     Counsel for the Applicants raised three issues: first, whether the process and procedure by which refugee claims are determined abroad contravene section 7 of the Canadian Charter of Rights and Freedoms² and the decision of the Supreme Court of Canada in Singh v. the Minister of Employment and Immigration³; second, whether the process is ultra vires the statutory scheme of the Immigration Act; and third whether, on the facts before him, the visa officer made perverse findings of fact and conclusions and drew inferences without evidence and in total disregard to the evidence. No notice of a constitutional question was served on the Attorney General of Canada and the attorney general of each province in accordance with section 57 of the Federal Court Act⁴.

     In Jallow v. the Minister of Citizenship and Immigration⁵, Mr. Justice Rouleau had before him an application for judicial review of a similar decision of the same visa officer. The issues advanced on behalf of the Applicant in that matter, also a national of Iraq, were essentially the same as the issues here. I am satisfied that the disposition of this matter should be the same as in Jallow, that is to say, that this application for judicial review should be dismissed.

     In light of the lack of notice under section 57 of the Federal Court Act, the argument based upon a contravention of section 7 of the Charter was, before me, converted to an argument that the process and procedure followed in this matter constituted a breach of natural justice and of the duty to act fairly. In his reasons in Jallow, Mr. Justice Rouleau wrote:

A potential immigrant must answer truthfully to a Visa Officer. The officer's decision is purely administrative; he is afforded considerable latitude in exercising his authority and he enjoys extensive discretion. Though not unlimited, he has the duty to follow the Immigration Act and a duty to act fairly. He must provide the applicant with an opportunity to be heard when possible and to provide material in support.

Without necessarily adopting Mr. Justice Rouleau's characterization of the decision under review, I am in agreement that a visa officer, in matters such as this, has a duty to follow the Immigration Act and to act fairly. That duty of fairness is, I think, somewhat limited by comparison with that owed Convention refugee claimants applying from within Canada by reason of the fact that persons such as the principal applicant are not in Canada and do not face the possibility of deportation by Canadian authorities to the country where they claim to fear persecution if their claims are disallowed. Here, as in Jallow, the principal applicant was afforded a hearing. On the evidence before me, I find no basis to conclude that the hearing was other than full and fair. The visa officer advised the principal applicant of his preliminary conclusion. In response to a request from the principal applicant, the visa officer refrained from reaching a final decision until the principal applicant had an opportunity to make quite detailed written supplementary submissions. I accept the evidence of the visa officer that he took those submissions into account. The fact that the visa officer sought the concurrence of a Senior Immigration Officer before transmitting his decision, as he was in fact required to do, in no sense detracted from the fairness of the process. The Senior Immigration Officer, who was not a party to the hearing afforded the principal applicant, did not make the decision or, according to the material before me, in any sense influence it. He merely concurred in the decision of the visa officer who heard the principal applicant, considered his submissions and reached his own conclusion.

     On the issue of the impact of the decision in Singh, I can do no better than quote from the reasons of Mr. Justice Rouleau in Jallow:

In reviewing Singh, ... it is clear to me that the process which was eventually put in place in Canada is not applicable to claimants outside the country. Wilson J. makes numerous references in her reasons wherein she emphasizes the duty of fairness on decision makers but it is very clear to me that other consequences which flowed from the decision are only applicable to Refugee claimants within Canada. In her opening paragraph at p. 442, she wrote:

The issue raised by these appeals is whether the procedures set out in the Immigration Act, 1976,-77 (Can.), c. 52, as amended, for the adjudication of the claims of persons claiming refugee status in Canada deny such claimants rights they are entitled to assert under s. 7 of the Canadian Charter of Rights and Freedoms.

(emphasis added)

And she continues:

First, the Court should decide whether refugee claimants physically present in Canada are entitled to the protection of s. 7 of the Charter.

... The Act envisages the assertion of a refugee claim under s. 45 in the context of an inquiry, which presupposes that the refugee claimant is physically present in Canada and within the jurisdiction of the Canadian authorities. The Act and the Immigration Regulations, 1978, SOR/78-172, do envisage the resettlement in Canada of refugees who are outside the country but the following observations are not made with reference to these individuals.

...I am prepared to accept that the term includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.

(emphasis added)

Resultant changes to Canadian immigration law did not impact on the process for determination of Convention refugee claims for persons outside of Canada and the Singh decision in no sense commented adversely on that process.

     Counsel argued that, where a Convention refugee claimant attends at a Canadian embassy abroad for an interview with respect to his claim, he effectively becomes a person claiming refugee status in Canada and therefor the principles enunciated in Singh apply. I reject that argument. Persons such as the principal applicant file their applications outside Canada or, at the time of filing, are outside Canada. The fact that they may briefly attend at a Canadian embassy for an interview or other related purpose can in no sense be said to make them persons claiming refugee status from within Canada. In this case, the visa officer's decision was addressed to the principal applicant in Greece.

     Finally, I find no basis on which to conclude that the visa officer's decision in this matter, on the material and interview before him, was perverse or capricious or made without regard to the material and the substance of the interview. The visa officer found the principal applicant's story to be implausible. In the portion of his affidavit quoted above, he explains the bases for his findings of implausibility. Those bases cannot be said to be inconsistent with the material that was before him. In Aguebor v. Canada (Minister of Employment and Immigration)⁶, Mr. Justice Décary wrote:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.

I am satisfied that the same can be said with respect to the role of visa officers who make determinations of Convention refugee status outside of Canada. I cannot conclude that the visa officer's determination regarding implausibility in this matter is so unreasonable as to warrant this Court's intervention.

     In the result, this application for judicial review will be dismissed.

     At the end of the hearing in connection with this matter, it was agreed that I would distribute draft reasons and provide counsel an opportunity to make written submissions on certification of a question or questions. Draft reasons were provided to counsel. Counsel for the applicants submitted that two questions should be certified in the following terms:

1.      Does the Immigration Act apply to determinations made by visa officers at Canadian Embassies, with respect to foreign nationals, in being assessed as Convention refugees, more specifically, do the duties of visa (immigration) officers apply and does the CRDD retain "sole and exclusive" jurisdiction to determine Convention Refugee status at the Canadian Embassies?

2.      If the answer to 1 above is "no", is the procedure employed by visa officers at Canadian Embassies:

(a)      Subject to the Singh decision of the SCC?; and

(b)      If "yes" to (b)[sic], does the procedure comply with Singh?

Counsel for the applicants urged that both questions are appropriate for certification and address important issues of general interest.

     In Liyanagamage v. Canada (Minister of Citizenship and Immigration).⁷ Mr. Justice Hugessen wrote:

In order to be certified pursuant to s. 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application... but it must also be one that is determinative of the appeal.

     Counsel for the respondent submits that no serious issue of law was raised at the hearing before me challenging the "...overseas determination process for persons in the designated class "Convention Refugee Seeking Resettlement" and none is identifiable for appeal." With respect to the second question, counsel for the respondent takes the position that, at the hearing of this application, the Applicants abandoned the argument that the procedure in question did not comply with section 7 of the Charter or the Singh decision and instead, as indicated in these reasons, based their argument "...on the requirements of the duty of procedural fairness in the context of the decision-making process in question."

     While I am in general agreement with the position of counsel for the respondent on both questions, I am of the view that this matter does raise questions for certification against the test from Liyanagamage, although not in the terms proposed by counsel for the Applicant. Accordingly, the following questions will be certified:

1.      Where an individual applies to a Canadian embassy for a determination that he or she is a Convention refugee, within the meaning of the Immigration Act, seeking resettlement in Canada, does the Immigration Act, and more specifically sections 44, 46.02 and 67 of the Act confer sole and exclusive jurisdiction on the Convention Refugee Determination Division of the Immigration and Refugee Board to hear and determine the individual's claim?

2.      If the answer to question 1 is "no", was the Applicant in this matter accorded the requisite degree of natural justice and procedural fairness in the determination of his claim to Convention refugee status?

    

     Judge

Ottawa, Ontario

June 6, 1997

__________________

¹      R.S.C. 1995, c. I-2

²      Constitution Act, 1982 (R.S.C.)1985, Appendix II, No. 44, (being Schedule B to the Canada Act 1982 (U.K.), c. 11.

³      [1985] S.C.R. 177">[1985] S.C.R. 177

⁴      R.S.C. 1985, c. F-7

⁵      Court File IMM-2679-95, November 6, 1996 (unreported) (F.C.T.D.)

⁶      (1993), 1060 N.R. 315 (F.C.A.)

⁷      (1994), 176 N.R. 4 (F.C.A.)