Date: 20000731
Docket: IMM-850-99
BETWEEN:
ABDIKARIM ABDULLE AHMED
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
Introduction
[1] These reasons arise out of an application for judicial review of a decision of a Post Claim Determination Officer (the "PCDO") in the respondent"s ministry wherein the PCDO determined that the applicant is not a member of the post-determination refugee claimants in Canada class (the "PDRCC") within the meaning assigned to that phrase in subsection 2(1) of the Immigration Regulations, 19781. The decision of the PCDO is dated the 4th of February, 1999.
[2] The PCDO"s decision was based upon a determination that, the applicant, who had been determined not to be a Convention refugee, was additionally a person who, if removed to his country of origin, Somalia, would not be "...subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country, to the [applicant"s] life, other than a risk to the [applicant"s] life that is caused by the inability of that country to provide adequate health or medical care, of extreme sanctions against the [applicant], or of inhumane treatment of the [applicant]".
Background
[3] The Applicant arrived in Canada, indirectly from Somalia, on the 15th of March, 1992. He was interviewed at his port of entry and made a Convention refugee claim. He based his claim on his membership in the Habar Gedir sub-clan of the Hawiye clan in Somalia and more specifically on the basis that he resisted recruitment into militias while he was in Somalia and had not contributed to Somalian militias while in Canada. It was not disputed that the applicant suffers from schizophrenia and depression, nor was it apparently in dispute, at least in connection with his PRDCC review, that he has no identifiable family support in Somalia.
The Decision Under Review
[4] In the PCDO"s reasons in support of the decision under review, the PCDO noted the foregoing risks identified by the applicant, other than the lack of family support in Somalia and, as well, noted that the applicant took the position that he would be at risk in every part of Somalia due to the continued instability in that country which has rendered the safety in various areas "illusory or unpredictable". The PCDO noted "...several contradictions and inconsistencies evident in the information provided by the applicant in his Port of Entry...notes, his Personal Information Form..., and his testimony at the CRDD hearing".
[5] The PCDO concluded:
| - the applicant has not been in Somalia for at least seven years, there is no compelling evidence to indicate that any particular group or individual would be interested in pursuing the applicant or in targeting him for harm upon his return to Somalia |
| - although documentary evidence indicates that the human rights record of Somalia is far from favourable, this in itself is insufficient to make a positive finding |
| - in order to do so, there must be a link between the applicant"s personal circumstances and the country conditions, there is no such link in the case presently before me |
| - after a careful analysis of all the evidence, it is my finding that the applicant may be at risk if he were to return to an area where a clan other than his own is in control, however, documentary evidence indicates that certain areas of Somalia are controlled by the applicant"s clan and hence, would be able to provide him with protection if necessary |
| - due to the conflicting evidence provided by the applicant, I cannot find that he would be at risk due to any previous attempts to recruit him into a militia while he was still in Somalia, nor that he would be at risk because he has not contributed financially to his sub-clan while residing in Canada |
| - even though an effective national government does not exist in Somalia, there are several "de facto" authorities in control of particular regions of the country, therefore, it would not be inhumane or unreasonable for the applicant to locate to an area where his clan is in control |
| - furthermore, although the PDRCC submissions state that the applicant would be more vulnerable due to his mental illness, a person cannot be found to be a member of the PDRCC class due to the inability of that country to provide adequate health or medical care. |
| [emphasis added] |
Analysis
[6] On two interrelated grounds, I conclude that this application for judicial review must be allowed based upon the particular circumstances of this applicant.
[7] The PCDO clearly relied on the Port of Entry notes made when the applicant entered Canada, almost seven years before the date of the PCDO"s decision. It was not in dispute before me that the Port of Entry notes had never before been a factor in the consideration of the applicant"s immigration status in Canada. Indeed, the applicant attested following receipt of the reasons in support of the PCDO"s decision that, to the best of his recollection, he had never seen the Port of Entry notes, they were not entered at his Convention refugee hearing and they did not form part of the record of that hearing. He further attested that they were not disclosed to him prior to his counsel making submissions in support of his application for landing as a member of the PDRCC. Further, the Port of Entry notes were not provided to the applicant or his counsel at any time following the making of submissions in support of his PDRCC claim and prior to a determination to reject it.
[8] In Haghighi v Canada (Minister of Citizenship and Immigration)2 Mr. Justice Evans wrote at paragraph 38:
| In view of the potentially grave consequences for an individual who is returned to a country where, contrary to the PCDO"s report there is a serious risk of torture, the increased accuracy in the decision likely to result from affording the respondent the procedural right sought here [that is to say access to the report and an opportunity to comment on it] justifies whatever administrative delays might thereby be occasioned. In order to minimize delay, it would be appropriate for immigration officers to give to applicants a relatively short time within which to submit written comments on the report. |
[9] I am satisfied that precisely the same could be said with respect to the Port of Entry notes in this matter, on its particular facts, those particular facts being, the long lapse of time since the applicant entered Canada, the acknowledged instability in Somalia, the fact that the Port of Entry notes had not been raised to the attention of the applicant at any other stage in his dealings with immigration officials, and his mental condition. Against these particular facts, I am satisfied that the PCDO breached the duty of fairness owed by him to the applicant in failing to disclose the Port of Entry notes on which the PCDO intended to rely and to provide the applicant an opportunity to comment on the contradictions and inconsistencies between those notes on the one hand and the applicant"s personal information form and his testimony at his Convention refugee hearing on the other.
[10] In the reasons for decision, the PCDO noted:
| according to the applicant"s PDRCC submissions, he suffers from schizophrenia and depression which would make him even more vulnerable if returned to Somalia. |
The applicant"s lack of family support in Somalia was not acknowledged in the reasons. Neither of these concerns on the part of the applicant was addressed by the PCDO in the reasons save for the commentary in the portion of the reasons quoted above to the effect that "...a person cannot be found to be a member of the PDRCC class due to the inability [of Somalia] to provide adequate health or medical care". That, of course, was not the concern expressed on behalf of the applicant. His concern was that, in the absence of family support, particularly given his mental condition, he would be particularly vulnerable in the unstable conditions prevailing in Somalia. I am satisfied that this was a central concern expressed on behalf of the applicant and that the failure on the part of the PCDO to address it in the reasons, in the very particular circumstances of this applicant, constituted a further reviewable error.
Conclusion
[11] Based upon the foregoing analysis, this application for judicial review will be allowed, the decision of the PDCO that is under review will be set aside and the matter will be referred back to the respondent for reconsideration and redetermination in a manner not inconsistent with these reasons.
Certification of a Question
[12] The respondent will have seven days from the date of these reasons to serve and file submissions on certification of a serious question of general importance. Thereafter, the applicant will have a further seven days to file and serve any reply submissions. In the event that reply submissions are so served and filed, the respondent will have a further three days to file and serve any reply to those reply submissions.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
July 31, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-850-99 |
| STYLE OF CAUSE: ABDIKARIM ABDULLE AHMED |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: THURSDAY, JULY 27, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
DATED: MONDAY, JULY 31, 2000
| APPEARANCES BY: Ms. Ann McRae |
| For the Applicant |
| Ms. Ann Margaret Oberst |
| For the Respondent |
| SOLICITORS OF RECORD: Rexdale Community Legal Clinic |
215-1530 Albion Rd.
Etobicoke, Ontario
M9V 1B4
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000731
Docket: IMM-850-99
BETWEEN:
| ABDIKARIM ABDULLE AHMED |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |
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