Docket: IMM-5765-14
Citation:
2015 FC 164
Ottawa, Ontario, February 10, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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MUNA AHMED ABSHIR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Ms. Abshir challenges a decision of an
immigration officer of the Embassy of Canada in Cairo, Egypt, refusing her application for permanent residence in Canada as a member of the Convention
refugee abroad class or the humanitarian-protected persons abroad designated
class.
[2]
For the reasons that follow, this application
must be dismissed.
Background
[3]
Ms. Abshir claims to be a citizen of Somalia. She made her application for permanent residence on July 15, 2011, while living
in Cairo. Her sponsor indicated that she is from the “heavily
persecuted, unarmed minority Midgaan tribe.”
[4]
In her application she says that she lived with
her family in Mogadishu, where there was fighting between the transitional
government and “Islamic courts union militants.”
They fled to Kismayo, which later came under the control of Al-Shabaab in
August 2008. She alleges that Al-Shabaab tried to extort her father on a daily
basis.
[5]
On June 18, 2010, her father was approached by a
group of Al-Shabaab members who wanted Ms. Abshir to be married to one of their
members. He told them that his daughter was a student and not ready for
marriage. The men reported back to their superior, who ordered them to kill
Ms. Abshir’s father if he refused to allow the marriage and to take her by
force. Fearing retaliation, Ms. Abshir’s father had her stay away from the
family home.
[6]
On June 20, 2010, Al-Shabaab attacked the family
home in the night. When the men realized that Ms. Abshir was not there, they
beat her father with their gun butts. He was hospitalized and asked his
business partner to arrange for her to leave Kismayo as soon as possible. They
paid a smuggler who first took her to Nairobi by car and then to Cairo by air, arriving on July 1, 2010.
[7]
Ms. Abshir has no legal status in Egypt. She is not allowed to work or attend school and has difficulties traveling. She
stated that she was scared of being caught and deported to Somalia. Her sponsor indicated that as a young, single woman from a minority clan, she is
at risk of being enslaved, raped or forced into marriage if she returns to Somalia.
[8]
A preliminary review of her application was
conducted by an officer in Cairo on April 2, 2013. That officer noted a
concern about delay in seeking protection, but noted that her claim “appears credible and consistent with the country
conditions,” the evidence confirmed her identity and ethnicity, and her
fears appeared genuine given the current situation in Somalia.
[9]
A second review of the application took place on
May 23, 2013, by a different officer. The second officer noted several concerns
with the application, including that there was no mention in her application
that she was from a minority tribe, aspects of her story were inconsistent with
the country condition evidence, there was no reliable proof of identity, and her
long delay in seeking protection. As a result of these concerns, that officer
concluded that an interview was required.
[10]
On September 3, 2013, Ms. Abshir was
interviewed by a third officer. The officer’s notes are documented in the
Global Case Management System [GCMS]. In a GCMS entry dated March 24, 2014,
the officer noted that, during the interview, Ms. Abshir had provided “very confusing, contradictory and vague information about
when and where she went to school and when she lived in Kismayo, which is where
the events which lead to her flight from Somalia occurred.”
[11]
A procedural fairness letter [PFL] was sent to Ms.
Abshir on March 24, 2014, which advised her of the officer’s credibility
concerns, including the following:
•
Ms. Abshir stated at the interview that she was
born in Kismayo, attended the Yassin Artan School and the 15 May Secondary
School in Kismayo, and completed grade 11 in 2009;
•
Ms. Abshir was advised at the interview that
this information contradicted her application which states that she attended
the Yassin Artan School from 1997 to 2005 and the 15 May Secondary School from
2005 to 2007;
•
Ms. Abshir contradicted her prior declaration,
stating that she had attended primary school in Mogadishu and secondary school
in Kismayo;
•
Ms. Abshir was unable to clearly explain which
years she lived in Mogadishu or how old she was when she lived there;
•
Ms. Abshir was unable to explain why her
application states that she was born in Mogadishu but she said in the interview
that she was born in Kismayo; and
•
Ms. Abshir’s evidence about where and when she
lived in Kismayo was not credible because “there were several contradictions
between the statements [she] made in [her] application and at interview, and because
[she] was unable to provide a detailed account of when and why [she and her
family] moved between Mogadishu and Kismayo.”
[12]
Ms. Abshir responded to the PFL on April 16,
2014, stating:
•
She had never stated she was born in Kismayo;
•
Her family fled to Kismayo in 2007 from Mogadishu;
•
She did not recall making the contradictory
statements about the years she attended the Yassin Artan School and the 15 May
Secondary School in Kismayo;
•
She attended those schools in Mogadishu;
•
She dropped out of school at grade 10 after the
family fled Kismayo;
•
While in Kismayo, she only attended evening
classes for upgrading;
•
Due to the conflict in Somalia and her long journey, she is not very knowledgeable about her birth country;
•
The stress of the interview may have made her sound
less credible but she tried to answer the officer’s questions as truthfully as
she could; and
•
The interpreter could not take enough time to
translate the questions because the officer was “asking questions
simultaneously without...providing sufficient time” for the translation.
[13]
The decision, dated June 22, 2014, found that
Ms. Abshir did not meet the requirements of the Convention refugee abroad class
or the humanitarian-protected persons designated class. The officer noted that
the interview was conducted with an interpreter fluent in English and Somali
and that Ms. Abshir did not indicate that she had any difficulty with the
translation. The response to the PFL was acknowledged, but the officer concluded
that it failed to overcome his or her concerns. The officer concluded that she
had failed to adequately explain why she provided different information in the
interview and the prior written submissions about “important
facts about [her] life in Somalia” (where she was born and raised, where
and when she attended school, and when and why they moved between Mogadishu and Kismayo). The officer notes that Ms. Abshir was asked several specific
questions about the facts in issue and that her complete answers had been
recorded. The officer was not satisfied that any discrepancies resulted from
the interpretation. Further, the officer says that he or she had typed
verbatim notes while Ms. Abshir was speaking and had not asked any new
questions until she had finished answering and the officer had finished recording
her answer. The officer further noted that he or she had generally asked short
simple questions.
[14]
The officer concluded that Ms. Abshir was not
credible and therefore he or she was not satisfied that there is a serious
possibility that she has a well-founded fear of persecution or that she has
been and continues to be seriously and personally affected by civil war, armed
conflict or massive violation of human rights in Somalia.
Issues
[15]
Two issues are raised by Ms. Abshir:
1.
Did the Officer base the finding that she was
not credible on irrelevant considerations?
2.
Did the Officer breach the duty of procedural
fairness during the interview?
[16]
The standard of review when evaluating and
officer’s credibility findings and the weighing evidence is reasonableness.
When it comes to issues of procedural fairness, the standard is correctness.
Analysis
[17]
Ms. Abshir makes a number of submissions about
the interview, all of which go to the question of whether it was conducted
fairly.
[18]
First, she says that the concerns raised by the
decision-maker in the PFL were not those raised by the file review officer, all
of which had been addressed by the applicant in the interview. I see no error
here. The second reviewing officer indicated those areas which led him or her
to the view that an interview was required. However, the interview was held
because that officer concluded, based on the specific areas of concern, that “identity has not been established and bona fides are in
doubt.” The applicant’s success in addressing those specific areas of
concern is not a complete answer to the overall question of identity and bona
fides when other anomalies or contradictions are apparent during the interview,
which is exactly what occurred in this case.
[19]
The applicant then says that the anomalies and
contradictions raised in the PFL relating to her place of birth, schooling, and
her movement between Mogadishu and Kismayo arose from a leading question asked
by the officer which misdirected the interview. The applicant states in her
memorandum:
The interviewer, rather than asking the
applicant where she was born, and raised, and when she moved between Kismayo
and Mogadishu, told the applicant, out of the blue: “you were born and raised
and lived your whole life in Kismayo” and asked the applicant to agree which
she did.
…
Generally answer[s] to leading questions
should be given little or no weight. The officer was wrong to hold against the
applicant her answers to leading questions. See for instance Shotclose v
Stony First Nation, 2011 FC 750, Mosley J. paragraph 72.
It is not clear what led the officer to make
the initial leading question which generated the ensuing confusion.
[20]
In my view, it is abundantly clear why the
officer asked the leading question. He did so because the applicant had failed
to respond to his earlier question or responded in a way that suggested that
she had never been in Mogadishu. As a consequence, the leading question was
asked, somewhat sarcastically I suspect. The complete relevant exchange is as
follows:
Q: when did you move to Kismayo?
A: I left Kismayo late June 2010.
Q: you were born and raised and lived your
whole life in Kismayo?
A: yes.
[emphasis
added.]
[21]
There is no question that this response is
contrary to her application which states that she moved from Mogadishu to
Kismayo. The interview continues and that contradiction is pointed out to her
and she has an opportunity to correct her statement or provide an explanation
for the contradiction. Her explanation is, as the officer later noted,
confusing and vague:
Q: did you go to school?
A: I used to go to Yassin Artan school in Kismayo and secondary
school 15 May school in Kismayo. My grade was high school
Q: what grade did you finish?
A: grade 11
Q: when did you do grade 11?
A: 2009
Q: So that is different from what is written in your paper
application forms which states that you went to the same school but different
years and in a different location
A: I went to primary school in Mogadishu several years but my high
school is in Kismayo
Q: When did you live in Mogadishu?
A: I cannot remember. I was very young
Q: So when I asked you if you were born and raised and lived your
whole life in Kismayo why did you say yes?
A: I mean most of my life
Q: why did you tell me you went to school in
Kismayo?
A: the primary school was in Mogadishu. High school was Kismayo
Q: what years did you live in Mogadishu?
A: several years
Q: Which ones?
A: I cannot remember
Q: Do you remember living in Mogadishu?
A: yes
Q: So how old were you when you lived there?
A: I cannot say the year but I remember it
Q: please try because it is very important to your credibility that
you can tell me where you were living in Somalia and when
A: I cannot say the year
Q: How old were you?
A: I remember only that when we left from Kismayo to Mogadishu I was very young and then we come back but I cannot remember exact dates.
Q: but you were born in Kismayo?
A: yes
Q: so why does it say on your application that you were born in Mogadishu?
A: I was born in Kismayo but my sponsor wrote that I was born in Mogadishu
Q: did you sign this application form?
A: yes, but its in English so I don’t know.
[22]
In her response to the PFL, Ms. Abshir states
that she was born in Mogadishu and states “I never said
that I was born in Kismayo City.” She further says that she and her
family fled from Mogadishu to Kismayo in 2007 when she was in grade 10 and as a
consequence she had to drop out of school. She says she attended both Yassin Artan Primary School and 15 May High School in Mogadishu.
[23]
It is evident that Ms. Abshir has provided
numerous contradictions to information which she ought to have known without
hesitation, such as the city of her birth.
[24]
By way of explanation, counsel states in his
memorandum that “the applicant could easily have been
under the impression that she disagreed with the visa officer at her peril,
both at the interview and in response to the fairness letter.” He also
says that “while one would hope that the officer did
not intend to intimidate the applicant into agreeing with the leading
statements the officer made, the power relationship between the two and the
manner in which the visa officer statements were made had to have to the
applicant an intimidating effect.”
[25]
These observations are mere speculation. There
is nothing from the applicant herself to the effect stated by her counsel.
Further, her response to the PFL does not show a timid woman afraid to disagree
with the officer. Rather, she is quite direct and forceful in writing,
contrary to the statement written by the officer in the PFL, that “during my interview I never stated that I was born in Kismayo City.”
[26]
It is true that officers are advised to avoid
leading questions. However, I am not persuaded that the question Ms. Abshir
complains of was the cause of her providing contradictory responses. Rather,
as counsel for the respondent suggested, when she did not have her story in
front of her, she forgot it.
[27]
Contrary to the submissions of the applicant,
the contradictions in her evidence were directly relevant to the question that
prompted the interview – her identity and bona fides.
[28]
I find no breach of procedural fairness or
natural justice and I further find that the decision of the officer was
reasonable based on the record that was before him or her.
[29]
No question was proposed for certification.
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