Ottawa, Ontario, October 18, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Araz Najat Sabir is a 23 year old Kurdish citizen of Iraq who applied for permanent residence in Canada as part of the Convention refugee abroad and humanitarian protected persons abroad classes. His application was rejected by a visa officer.
[2] Mr. Sabir now seeks judicial review of the officer’s decision, asserting that the officer erred in finding that he could safely return to Iraq by considering the general situation in Iraq, and not addressing Mr. Sabir’s personal circumstances. The officer further erred, Mr. Sabir says, by
engaging in speculation, by making unreasonable inferences, and by making findings of fact without regard to the totality of the evidence.
[3] For the reasons that follow, I am of the view that the officer did indeed err, and that this application should therefore be allowed.
Background
[4] While he was completing secondary school in the Kurdish region of Iraq, Mr. Sabir says that he became involved with the Patriotic Union of Kurdistan (PUK), and was elected as a student representative of the PUK.
[5] Mr. Sabir asserts that his political beliefs brought him into conflict with fundamentalist Islamic political parties operating in the region, who sought to enforce Islamic practices within his school’s administrative structure. Mr. Sabir alleges that during public speeches and debates, he would often be confronted by members of these parties, and verbal arguments and fights would break out between the participants and members of the religious parties.
[6] Mr. Sabir subsequently took on different roles within the PUK, and was elected head of the PUK student member’s organization in Sulaymaniyah in 1999. He was subsequently re-elected as PUK student representative for his school in 2000.
[7] Mr. Sabir says that in 2000, he began receiving death threats. The threats started around the time that members of the Islamic parties came to his school, trying to force students to join their party.
[8] The threats against Mr. Sabir’s life continued over the next couple of years, he says, increasing in number and intensity. On the advice of his father, Mr. Sabir decided to leave Iraq, eventually arriving in Switzerland, having travelled through Iran, Turkey, Greece and Italy en route. Mr. Sabir made a claim for refugee protection in Switzerland, which was not successful.
[9] A group of five Canadian citizens then offered to assist Mr. Sabir with an application for refugee protection in Canada, and in June of 2004, this group made an application to sponsor him. The group’s sponsorship application was approved by Citizenship and Immigration Canada shortly thereafter.
[10] Mr. Sabir then sent his application for permanent residency to the Canadian embassy in Paris. He stated in his application that he feared returning to Iraq because of the increase in Islamic-based political parties.
[11] As part of his application, Mr. Sabir was required to attend for an interview with the Visa Officer, which took place in Switzerland on December 9, 2005.
The Visa Officer’s Decision
[12] By a letter dated January 6, 2006, Mr. Sabir was advised that he did not meet the requirements for immigration to Canada. The operative portion of the officer’s letter provides that:
… I am not satisfied that you are a member of any of the classes prescribed for the following reasons: you are from the Kurdish region of Iraq where the rest of your family (brothers and sister) are still living. Since your departure of Iraq in 2002, the political situation has changed in Iraq and the Kurdish people is [sic] no longer persecuted by the Iraqi regime in place in 2002. Therefore, you do not meet the requirements of [the Immigration and Refugee Protection Regulations].
[13] The Officer’s contemporaneous notes of the interview, as recorded in the Computed Assisted Immigration Processing System, state :
DIT QU IL A ETE REFUSE CAR LES SUISSES ESTIMENT QUE L,IRAQ EST DESORMAIS SECURISE POUR LES KURDES… SUJ N A PRESENT AUX AUTORITES SUISSES AUCUN ELEMENT DE PREUVE SATISFAISANT CONCERNANT UNE EVENTUELLE PERSECUTION DE LA PART DES AUTORITES DE SON PAYS D ORIGIN. [sic throughout]
[14] The CAIPS notes go on to state :
NOUS AVONS REVU EN DETAIL LES RAISONS POUR LESQUELLES SUJET SE SENTIRAIT PERSECUTE OU EN DANGER S IL RETOURNAIT DANS SON PAYS MAIS CES RAISONS NE M ONT SEMBLES NI CREDIBLES NI SATISFAISANTES.
[15] After discussing the basis of Mr. Sabir’s claim, the CAIPS notes state “SUJ N,A APPORTE AUCUNE PREUVE CONVAINCANTE. N,A APPORTE AUCUN DOCUMENT AVEC LUI DE KURDISTAN.”
[16] The Visa Officer then goes on to state that persecution on the basis of Kurdish ethnicity no longer occurs in Iraq. In this regard the officer noted that the area that Mr. Sabir comes from is predominantly Kurdish. The officer then goes on to observe that since the war in Iraq began in 2003, there has been a change in regime, and that the Kurdish minority in Iraq are now under the protection of American forces. Moreover, the officer found that Mr. Sabir had family members in the Kurdistan area of Iraq, and thus he would not be isolated on his return.
[17] The officer then concluded that Mr. Sabir had left Iraq for economic reasons, finding that the fears that he had expressed about returning to Iraq did not reflect the current reality in that country.
[18] In essence, therefore, it appears the Visa Officer found the situation had improved substantially, and that given his family remaining in Iraq, there was no reason that Mr. Sabir could not return and live safely with them.
[19] The Visa Officer has provided additional reasons for refusing Mr. Sabir’s application in an affidavit sworn in support of this application for judicial review. Before addressing the arguments advanced by the parties with respect to the merits of the application, it is first necessary to address the extent to which the reasons for the decision set out in the officer’s affidavit should be considered.
The Officer’s Affidavit
[20] It is well-settled that the reasons contained in the decision letter of a visa officer may be supplemented by reference to the officer’s contemporaneous CAIPS notes.
[21] However, where, as here, the officer’s reasons have been further supplemented by an affidavit from the officer, the question arises as to how much weight should be accorded to the officer’s reasons for his decision, as they are set out in his affidavit.
[22] In my view, the reasons provided in the officer’s affidavit in this case should be given very little weight. In coming to this conclusion, I adopt my comments in Alam v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 209, 2004 FC 182, at ¶ 19, where, in a similar situation, I observed that:
… It is apparent from the affidavit that, at the time that the affidavit was signed, the officer continued to have a specific recollection of the interview with Mr. Alam. Nevertheless, the affidavit was sworn several months after the interview, presumably at a point where the officer was aware that her decision was being challenged. In the circumstances, I prefer to focus my attention on the reasons expressed in the CAIPS notes, and to give little weight to the after-the-fact explanation provided by the officer.
To this effect, see also Kalra v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1199, 2003 FC 941.
[23] In Mr. Sabir’s case, the officer’s affidavit was also sworn several months after the decision under review was made. Moreover, in the intervening months, the officer had undoubtedly been
called upon to deal with other visa applications, which would inevitably have had a negative impact on his ability to recall the precise details of Mr. Sabir’s interview.
[24] This is not a situation where the officer is merely elaborating on cursory reasons for an assessment provided in CAIPS notes. What the officer has done with his affidavit is to provide entire lines of reasoning that are not reflected anywhere in his contemporaneous notes of the interview.
[25] Moreover, in his affidavit, the officer attributes certain statements to Mr. Sabir, such as his alleged statement that he could not return to Iraq because the economic conditions in that country were difficult. Nowhere in the CAIPS notes is there any reference to Mr. Sabir having made any such statement.
[26] Similarly, there is no reference in the CAIPS notes to Mr. Sabir allegedly having said that his Swiss refugee claim had been rejected because the Swiss authorities did not believe him.
[27] In these circumstances, I am satisfied that little weight should be attributed to the explanation for the decision provided by the officer in his affidavit, and that my analysis should be confined to the reasons set out in the refusal letter and CAIPS notes.
Analysis
[28] There is little in either the CAIPS notes or decision letter to explain why the officer concluded that Mr. Sabir’s reasons for fearing persecution in Iraq were neither credible nor sufficient.
[29] Nowhere in the record is there a copy of the Swiss refugee decision, and thus there is no way of knowing precisely why it was that Mr. Sabir’s claim in that country was refused, apart from the explanation provided by Mr. Sabir himself. As a result, the Swiss decision could not have reasonably formed a basis for the officer’s finding that Mr. Sabir was not credible.
[30] This leaves the officer’s finding that Mr. Sabir had failed to provide any documentary evidence to support his claim to having been a PUK activist as a possible foundation for the officer’s finding that he was not credible. In this regard, it is clear from the jurisprudence that a claimant's testimony cannot be discredited simply because it has not been corroborated by documentary evidence: Ahortor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 705 (T.D.). It seems to me that it would be especially risky to do so where, as is the case here, the claimant comes from an area of the world that is currently in chaos.
[31] Moreover, the officer does not appear to have appreciated the nature of the risk that was being asserted by Mr. Sabir. That is, the officer found that as a result of the regime change in Iraq, Mr. Sabir would no longer have reason to fear the Iraqi authorities. This may well be true. However, the risk that Mr. Sabir claimed to face in Iraq was not from representatives of the Saddam Hussein regime, but rather from Islamic militants. There is no consideration in the officer’s decision as to whether sectarian violence in Iraq has abated to the point that Mr. Sabir would no longer have reason to fear Islamic militants.
[32] As a consequence, I am satisfied that the officer’s finding that Mr. Sabir was not at risk in Iraq was made without regard to the evidence before him, and was thus patently unreasonable.
[33] Finally, the officer’s references to the fact that members of Mr. Sabir’s family continue to reside in Iraq are confusing. There is no suggestion in the record that anyone else in Mr. Sabir’s family was politically active, and thus the fact that his family continues to live in Iraq seems to be of limited relevance to the assessment of the risk faced by Mr. Sabir himself.
Conclusion
[34] For these reasons, the application for judicial review is allowed.
Certification
[35] Neither party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is allowed, and the matter is remitted to a different visa officer for re-determination; and
2. No serious question of general importance is certified.
“Anne Mactavish”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-523-06
STYLE OF CAUSE: SABIR ARAZ NAJAT v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 12, 2006
APPEARANCES:
Shirzad S. Ahmed FOR THE APPLICANT
Ms. Helen Park FOR THE RESPONDENT
SOLICITORS OF RECORD:
Shirzad S. Ahmed FOR THE APPLICANT
Barrister and Solicitor
Calgary, Alberta
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
B.C. Region
Vancouver, British Columbia