Docket: IMM-2044-24
Citation: 2025 FC 434
Toronto, Ontario, March 7, 2025
PRESENT: Madam Justice Whyte Nowak
BETWEEN: |
NOAH ABDI ABSUGE |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Noah Abdi Absuge [Applicant], seeks judicial review of a decision made by an Immigration Officer [Officer] dated January 5, 2024 [Decision] refusing the Applicant’s permanent residence application as a member of the Convention Refugee Abroad class or as a member of the Humanitarian-Protected Persons Abroad designated class pursuant to sections 145 and 147, respectively, of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations].
[2] For the reasons that follow, I find that the Decision was neither unreasonable nor unfair. Rather, the Applicant failed to satisfy the Officer that he met all of the legislative requirements for immigration to Canada. Accordingly, this application is dismissed.
II. Facts
[3] The applicant is a 51-year-old Somali national who fled Somalia in August 2016 due to his fear of Al-Shabaab and its affiliated groups. He claims to have been detained and tortured in a secret jail in Mogadishu from which he managed to escape, travelling by bus and eventually crossing the border through Kenya to Uganda where he currently resides.
A. The Applicant’s Application and Interview
[4] The Applicant submitted a permanent residence application, and on November 4, 2023, he was invited to attend an interview with the Officer at the International Organization for Migration in Kampala, Uganda.
[5] During the course of the Applicant’s interview by the Officer on November 15, 2023, the Officer advised the Applicant of concerns that the Applicant had presented information that was not credible, including contradictory information.
[6] The Officer’s first concern was with the Applicant’s evidence that he had only worked one job as a salesman from 1992–2014 in Somalia. The Officer noted that the civil war in Somalia began in 1991 and mandatory conscription began in 1984, making the Applicant’s statement that he was never in the military service or army suspect. In answer to the Officer’s concern, the Applicant claimed that as an educated person he did not participate in the civil war.
[7] The Officer’s second concern related to the Applicant’s story about his travel to Kenya and his procurement and use of a fake passport. The Applicant claimed to have been in Kenya for five days, during which time he met smugglers in a restaurant and obtained a fake passport and flight ticket using money he borrowed from his friends in Kenya. The Applicant says he travelled with the smugglers to Dubai, and despite being caught by airport authorities using the fake passport with another man’s name and likeness, the authorities allowed him to skip security and escorted him to the plane to return to Nairobi.
[8] In answer to the Officer’s concern about his airport story, the Applicant claimed that he suspected that the smugglers were part of a “ring”
with links to immigration authorities but provided no corroborating evidence to support this link. When asked by the Officer why this information was not contained in the Applicant’s Basis of Claim, the Applicant said that the people who were sponsoring him told him not to share it with the authorities.
B. The Decision
[9] The Officer concluded that the Applicant had provided insufficient clear information with which to assess whether the Applicant meets the requirements of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] or Convention Refugee Abroad Class. The Decision reads in part as follows:
After carefully assessing all factors relative to your application, I am not satisfied that you are a member of any of the classes prescribed because you presented information that is not credible during your interview. Specifically, this was due to a significant amount of contradictory verbal information from you about the gaps in your personal and work history, the travel document you obtained illegally and your time spent in Kenya and how you were able to leave your country of origin to enter Uganda.
You presented contradictory information pertaining to your basis of claim and presented a response to my concerns which was not clear. I explained to you that I didn't feel I had sufficient clear information with which to make my assessments on your file. I gave you the opportunity to respond to my concern.
In your case, on a balance of probabilities, I am not satisfied that you have been truthful and forthcoming with the information you provided in support of this application. At interview, your obligation to be truthful and honest was made clear to you from the outset. Still, you presented information which was not credible. Concerns over the credibility of the information you were providing was made known to you during the interview and you were given an opportunity to respond. Your response, however, did not allay that concern.
Having removed all the information with which there are credibility concerns from the assessment of your application, there remains insufficient evidence remaining with which to be satisfied that you are not in admissible to Canada and that you meet the requirements of the Act …
[10] The Applicant now brings this application for judicial review.
III. Legislative Framework
[11] Pursuant to paragraph 139(1)(e) of the Regulations, a permanent resident visa shall be issued to a foreign national in need of refugee protection if, following an examination, it is established that they are a member of one of the prescribed classes, which includes the Convention Refugee Abroad class and the Humanitarian-Protected Persons Abroad designated class under sections 145 and 147, respectively, of the Regulations.
[12] A member of the Convention Refugee Abroad class must demonstrate that they are a foreign national outside Canada who meets the definition of a Convention refugee under section 96 of the Act as a person, who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
IV. Issues and Standard of Review
[13] The Applicant has raised the following issues for consideration on judicial review:
Was the Officer’s negative credibility finding unreasonable?
Was the Applicant denied procedural fairness by reason that the Officer did not give the Applicant a reasonable amount of time to respond to the Officer’s concerns regarding the truthfulness of the Applicant’s evidence?
[14] The applicable standard of review of the merits of a decision is that of reasonableness as articulated by the Supreme Court in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paragraphs 16-17 and 23-25. In determining whether a decision is reasonable, the court must consider whether it is justified, transparent and intelligible to those who are subject to it (Vavilov at paras 86, 95). Both the rationale and the outcome must be justified in relation to the relevant factual and legal constraints that bear on the decision maker (Vavilov at para 99). The Court must engage in a robust review while showing deference to the expertise of the administrative tribunal below and must refrain from re-weighing or re-assessing the evidence (Vavilov at paras 94, 125).
[15] The Applicant has also raised a question of the fairness of the process by which the Officer considered his application. Issues of procedural fairness are reviewed on a standard akin to correctness (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 34-35, 54-55 [Canadian Pacific], citing Mission Institution v Khela, 2014 SCC 24 at para 79). The Court looks to ensure that those affected by a decision understand the case they have to meet and have a chance to respond before an impartial decision maker (Canadian Pacific at para 41).
V. Analysis
A. The Officer’s negative credibility findings were not unreasonable
[16] The Applicant submits that the Officer’s reasons for finding that the Applicant was not credible lacked justification, transparency and intelligibility.
[17] The Applicant argues that the Officer erred by speculating that the Applicant was lying about the fact that he did not serve in the Somalian military, arguing that just because mandatory military conscription began in 1984, it is a false assumption to say that every citizen participated in the military. This may be so; however, I find that it was reasonably open to the Officer to find that the Applicant’s actual response which was more nuanced, was insufficient to allay the Officer’s concerns regarding the accuracy of the Applicant’s personal and work history.
[18] The Applicant also argues that the Officer erred by wrongly concluding that the Applicant’s story about his use of a fake passport in Kenya amounted to an implausible story. The Applicant relies on caselaw holding that refugee claimants should not be penalized for obtaining the assistance of a smuggler to escape from persecution or for their use of fraudulent documents (citing Koffi v Canada (Citizenship and Immigration), 2016 FC 4).
[19] Contrary to the Applicant’s submission, I do not read the Officer’s notes to amount to a critique of the Applicant’s methods for fleeing persecution. Rather, the Officer found the Applicant’s story that airport authorities in Dubai would simply look the other way in the face of the Applicant’s fraudulent use of an obviously fake passport to be implausible, and the suggestion that the Dubai officials were part of the smuggling ring to be uncorroborated. Not only was this reasonable, but the Global Case Management System notes show that the Officer’s concerns also included the fact that the Applicant’s story lacked sufficient detail and involved belated disclosure of the Applicant’s possession and use of multiple passports.
B. The Applicant was not denied procedural fairness
[20] The Applicant submits that the Officer breached the duty of procedural fairness by not providing the Applicant with a reasonable amount of time to respond to the Officer’s concerns or by providing him with a procedural fairness letter. The Applicant submits that, had he received such a letter, he would have had the opportunity to think through his responses and consider whether he should retain counsel. The Applicant cites the cases of Divya v Canada (Citizenship and Immigration), 2022 FC 620 at paragraph 22 and Gautam v Canada (Citizenship and Immigration), 2022 FC 550 at paragraph 31 for the proposition that a refugee claimant is owed a high level of procedural fairness that requires that an applicant be provided with a meaningful chance to respond to credibility concerns.
[21] The cases cited by the Applicant are distinguishable, as they deal with misrepresentation findings. While the Applicant suggests that the Officer made not only a credibility and plausibility finding, but also a finding of misrepresentation, this is not the case. The only provision cited by the Officer was subsection 16(1) of the Act, which provides that a person who makes an application must answer truthfully all questions put to them for the purpose of the examination. This is distinct from a finding of inadmissibility due to misrepresentation under subsection 40(1) of the Act, which renders a claimant inadmissible for a period of five years and therefore understandably calls for an elevated level of procedural fairness given the severe consequences that flow from such a finding.
[22] I agree with the Respondent that the Applicant was treated fairly in the circumstances considering that he: (i) had 11 days to consider whether to retain the assistance or advice of counsel in advance of the interview; (ii) never expressed his desire to speak to counsel during the course of the interview; (iii) was given detailed notice of the Officer’s concerns with the credibility of his answers at the interview and was given a chance to respond to those concerns; and (iv) at the end of the interview, the Officer gave the Applicant the immigration email address in the event that the Applicant located additional information regarding one of the Officer’s concerns.
VI. Conclusion
[23] The Applicant has not met his onus of showing the Decision to be unreasonable and I find that the Applicant was not denied procedural fairness. Accordingly, this application is dismissed.
Email this Content