Date:
20121015
Docket:
IMM-9811-11
Citation:
2012 FC 1201
Ottawa, Ontario,
October 15, 2012
PRESENT: The
Honourable Mr. Justice Mandamin
BETWEEN:
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SALEEM RASHEED
KHAMES
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Applicant
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and
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MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
This
is an application for judicial review pursuant to section 18.1 of the Federal
Courts Act, RSC 1985, c F-7, of the decision made by an Immigration Officer
of Citizenship and Immigration Canada rejecting the Applicant’s application for
permanent resident status.
[2]
The
Applicant arrived in Canada from Kenya in December of 2006. He claims to be a
citizen of Somalia, but has never produced any documentation to that effect. He
claims that this is because Somalia has not had a functioning government since
1990, and is unable to issue such documents.
[3]
In
December 2006, he claimed refugee status in Canada. In May 2008, the Refugee
Protection Division (RPD) of the Immigration and Refugee Board rejected his
claim. The Federal Court refused leave for judicial review of the RPD’s
decision on October 6, 2008.
[4]
The
RPD was not satisfied that the Applicant had established his identity as a
Somali citizen. The RPD found that the witnesses testifying in support of the
Applicant’s claim for refugee status lacked credibility. It also found that the
results of a Sprakab linguistic analysis report (the Sprakab report) were an
obstacle to his claim. Sprakab examined the Applicant’s language and concluded with
certainty that the Applicant was not from Somalia, and was most likely from Tanzania. It was conducted by Analyst 249 at the Swedish linguistic analysis company,
Sprakab. The RPD was also not satisfied that the Applicant’s knowledge of Somalia was at a level above what is available from public sources.
[5]
In
February 2009, the Applicant married Nasra Said, a Canadian citizen. She
sponsored the Applicant in his permanent residence application. Immigration Canada accepted that their marriage was genuine.
[6]
In
November 2011, the Ministry of Citizenship and Immigration (MCI) Canada wrote to the Applicant to tell him that he was required to submit documentation that
established his Somali citizenship. The Applicant failed to do so. Thus, on
December 15, 2011, the MCI refused the Applicant’s application for permanent
residence.
[7]
The
Officer noted that the Applicant’s permanent residence application was approved
in principle. Next, the Officer decided whether to waive the passport
requirement and accept the Applicant’s statutory declarations instead.
[8]
The
Officer found the witnesses were not credible.
[9]
The
Officer put much weight on the Sprakab report, and found that “the language
report is particularly discrediting to the applicant’s claim of being a
national of Somalia…”
[10]
The
Supreme Court of Canada has held in Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir] that there are only two standards
of review: correctness for questions of law and reasonableness involving
questions of fact and questions of mixed fact and law. Dunsmuir
at paras 50 and 53. The Supreme Court has also held that where the
standard of review has been previously determined, a standard of review
analysis need not be repeated. Dunsmuir at
paras 57 and 62.
[11]
Upon
closer examination of the Sprakab report, I find that the Officer erred in
relying on it without regard to internal errors in the report.
[12]
First,
the Sprakab report is qualified as follows: “The analysis is made more
difficult… by the fact that the interpreter constantly interrupts the person...”
[Emphasis added]. Linguistic analysis analyzes the various linguistic features
of spoken language. I find a question arises whether reliable results can come
from data tainted with “constant” interruptions of the subject’s speech.
[13]
Second,
the Officer noted that “A recording was made… at the offices of the Immigration
and Refugee Board for approximately forty minutes.” Yet the Sprakab report
notes the length of recording as being 24 minutes. Clearly 24 minutes is only
60% of 40 minutes and not ‘approximately’ 40 minutes.
[14]
Third,
the Sprakab report sets out the qualifications for their analysts: “In order to
be employed at SPRAKAB analysts must have at least a bachelor’s degree in
linguistics; it is also recommended that he/she is specialized in a
concentration such as phonetics.” [Emphasis added]. Yet, Sprakab’s Analyst 249,
who conducted the analysis of the Applicant’s linguist interview, has a degree
in language instruction and not linguistics.
[15]
It
appears to me that Sprakab’s results are questionable at best, and seriously
flawed at worst. I find it unreasonable that the Officer relied on the Sprakab
report as “particularly discrediting to the applicant“. This
is sufficient for me to grant this judicial review.
[16]
I
also note that Sprakab’s work has been the subject of academic criticism, and
that this criticism was before the board. Dr. Derek Nurse of Memorial University is a linguist specialized in African languages, and in particular Swahili
and the dialects of Swahili in Somalia. He participated in a IRB report titled:
Immigration
and Refugee Board of Canada, Somalia: Information on whether Kibajuni
is commonly referred to as Bajuni; whether a Bajuni who speaks Kibajuni is
considered to be speaking Kibajuni or Swahili; whether someone who speaks
Kibajuni understand Swahili and vice-versa; whether an interpreter, translator
or linguist would refer to Kibajuni as Swahili; information on the differences
and similarities between Kibajuni and Swahili and where the two languages are
spoken in the world (November 2005), 14 November 2005, SOM100785.E.
The report identifies Kibajuni and Bajuni as the same dialect. In that report
Dr. Nurse stated that, according to his observations, the Sprakab’s
“recordings suggest that interpreters, translators, or linguists ‘are not
always sure of the difference’ between Swahili and Kibajuni.”
[17]
The
Applicant submits the following question for certification: “Is an immigration
officer in an administrative proceeding required to assess whether the author
of a report is an expert based on the criminal law standard for the admission
of expert evidence found in R. v. Mohan [1994] 2 S.C.R. 9.”
[18]
I
do not certify this question, as I am satisfied that the Federal Court has
already pronounced on this issue. See Snider J in Toussaint v Canada (Minister of Citizenship and Immigration) 2009 FC 873 at para 94; Lemieux J in Almrei
v Canada (Minister of Citizenship and Immigration) 2007 FC 1025 at para 37;
Mosley J in Re Almrei 2009 FC 1263 at para 262. Furthermore, I am
satisfied that the Federal Court of Appeal has also pronounced on this issue.
See Es-Sayyid v Canada (Minister of Public Safety and Emergency
Preparedness) 2012 FCA 59 at para 41.
[19]
The
Applicant also submits the following question for certification: “Is there any
basis to quash a decision of an immigration officer for relying on an expert
report when there was no evidentiary foundation before the officer to challenge
the reliability of the report?”
[20]
I
decline to certify this question since there is evidence sufficient to grant the
application for judicial review.
[21]
Finally,
the Applicant submits this final question for certification: “Can the Court on
a judicial review consider fresh evidence submitted by an applicant to assess
the reliability of a report relied on by an immigration officer when such
evidence was available or obtainable prior to the decision but not proffered
for the immigration officer’s consideration?”
[22]
I
do not certify this question since I do not need to consider fresh evidence
since I based my decision on the flaws of the Sprakab report itself.
[23]
The
application for judicial review is granted.
[24]
No
question of general importance is certified.
ORDER
THIS
COURT ORDERS that:
1.
The application for judicial review is granted.
2.
No question of general importance is certified.
“Leonard S. Mandamin”
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