Docket: IMM-1318-24
Citation: 2024 FC 1972
Toronto, Ontario, December 5, 2024
PRESENT: Madam Justice Go
BETWEEN: |
FEDROS MAHMUD MOHAMED |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Ms. Fedros Mahmud Mohamed [Applicant] and her spouse, Mr. Nesredin Murhussen Ibrahim are citizens of Eritrea. The Applicant and Mr. Ibrahim applied to resettle in Canada through the Convention Refugee Abroad class or as a member of the Humanitarian-Protected Persons Abroad class [resettlement application].
[2] Both the Applicant and Mr. Ibrahim allege that they were subject to mandatory and indefinite military service in Eritrea. They both claim that they fled the country but were caught by border patrol officers. The Applicant alleges that she endured torture and imprisonment after her capture but was released in November 2018 with a warning to return to her national service assignment. The Applicant then fled the country with the aid of smugglers. Mr. Ibrahim alleges having undergone a similar experience as the Applicant, including being captured while attempting to flee and enduring over three years of harsh conditions before being released in March 2019. Mr. Ibrahim followed in the Applicant’s footsteps and left Eritrea in November 2019.
[3] The Applicant and Mr. Ibrahim married in Kampala, Uganda in February 2020, where they have received Refugee Status Determination from the relevant authority.
[4] An immigration officer of the High Commission of Canada in Tanzania [Officer] interviewed the Applicant and Mr. Ibrahim in October 2023. In December 2023, the Officer rejected the Applicant’s and Mr. Ibrahim’s resettlement application [Decision]. The Officer did not find the Applicant and Mr. Ibrahim credible, and was therefore not satisfied there were reasonable grounds to believe they possessed a well-founded fear of persecution on Convention grounds.
[5] The Applicant now seeks judicial review of the Decision. I find the Decision unreasonable and I grant the application.
II. Issues and Standard of Review
[6] The Applicant raises the following arguments:
Was the Decision reasonable, specifically:
Did the Officer err by failing to assess all possible grounds of persecution?
i. Did the Officer make illusory findings of inconsistencies; and
ii. Did the Officer err in finding that the Applicant provided vague answers and information about the circumstances of her relationship to Mr. Ibrahim and the circumstances of their imprisonment in Eritrea?
[7] The parties agree that the Decision is reviewable on a reasonableness standard, per Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].
[8] The determinative issue is the reasonableness of the Decision. At the hearing, counsel for the Applicant focused on the Officer’s findings with respect to the Applicant’s relationship with Mr. Ibrahim. I will therefore address these findings first.
[9] The Officer questioned the Applicant’s relationship with Mr. Ibrahim because it was “of concern that neither could provide any single supporting document, photo, or any evidence including for example rings that would substantiate or support their marriage and relationship being as described.”
The Officer acknowledged the marriage certificate but noted this is the only document or evidence of their relationship. The Officer considered the Applicant’s relationship with Mr. Ibrahim to be “central to both of their refugee claims, in that they escaped the country together, were allegedly imprisoned together, were then released together, and escaped separately only to reunite later in Uganda.”
The Officer concluded: “the fact that there is no evidence of this relationship and the explanation given is not satisfactory means that I have a lasting concern with the credibility of these applicants and therefor of their claim.”
[10] In making these findings, I find the Officer erred for two reasons.
[11] First, the Officer failed to justify why the explanation provided by the Applicant about the lack of evidence was not satisfactory.
[12] As indicated in the Global Case Management System [GCMS] notes, the Applicant told the Officer during the interview that she and Mr. Ibrahim could not leave the country together because they could not afford to do so. The GCMS notes read: “Even for PA/herself, took out a loan, found someone else who would borrow money for DEP Spouse – Asmara.”
This seems to suggest that the Applicant had to take out a loan to pay for her own journey, and found someone else to lend money to Mr. Ibrahim for him to leave. The GCMS notes further reflected that the Applicant advised the Officer that Mr. Ibrahim gave her old rings and now they are gone. When asked about any photos or documents, the Applicant advised that she lost her phone and left Eritrea without her phone, and she lost her second phone in Kampala. When the Officer expressed their concerns about the lack of evidence for their relationship, the Applicant explained that they had a hidden relationship in Eritrea due in large part to the restrictive/conservative Muslim culture.
[13] Other than a blanket statement dismissing the Applicant’s explanation as “not satisfactory,”
the Officer did not engage with the testimony of the Applicant providing the reasons for not having other evidence about their relationship. The Officer’s failure to engage with the Applicant’s testimony and provide reasons for rejecting the testimony amounts to a reviewable error.
[14] Second, I find the Officer erred by adopting a North American paradigm as a basis for assessing the genuineness of the Applicant’s marriage, contrary to the jurisprudence of the Court. In Gill v Canada (Citizenship and Immigration), 2010 FC 122, this Court emphasized the importance of considering the cultural background of the couple and the couple themselves as the criteria for assessing the genuineness of a marriage.
[15] It is unclear, for instance, why having a ring was a central issue for the Officer in light of the cultural background of the couple. For the same reason, it is also unclear why the Applicant’s testimony that she and Mr. Ibrahim were in a hidden relationship due to cultural reasons was considered to be an unsatisfactory explanation for the lack of evidence about their relationship.
[16] As the Officer found the genuineness of their relationship to be central to the Applicant’s claim, the Officer’s errors with regard to this finding thus rendered the Decision as a whole unreasonable.
[17] While my conclusion above is determinative of the application, I want to offer some additional comments about the Decision, which I expect would be considered when the matter is returned for review by a different officer.
[18] The Officer found the Applicant and Mr. Ibrahim not credible in part based on the Officer’s findings that the Applicant “provided statements which were inconsistent and lacked credibility.”
However, as the Applicant points out, and I agree, the Officer did not point to what these inconsistencies were and did not provide any concrete examples of inconsistencies.
[19] The case law confirms that inconsistencies relied on by the decision-maker must be real as opposed to illusory: Rahal v Canada (Citizenship and Immigration), 2012 FC 319 at para 43. In this case, without specifying what the Officer meant by inconsistencies, both the Applicant and the Court are left to speculate about the decision-maker’s rationale.
[20] I disagree with the Respondent that the Decision read as a whole makes it clear that the Officer is concerned with the vagueness and lack of detail provided in the Applicant’s account. Concerns regarding vagueness do not amount to findings of inconsistencies, upon which the Officer justified their adverse credibility assessment.
[21] As I find the Decision unreasonable, I need not address the Officer’s failure to assess all possible grounds of persecution.
[22] The application for judicial review is granted.
[23] There is no question for certification.
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