Ottawa, Ontario, December 18, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision by Mr. Norman Morgan, First Secretary (Visa Officer), based in the United Arab Emirates. By letter dated December 28, 2005, the Visa Officer found that the Applicant is not a member of the Convention Refugees Abroad class nor the Humanitarian-Protected Persons Abroad designated class.
ISSUES
[2] Did the Visa Officer make a patently unreasonable finding of fact?
[3] As the reasons below explain, there were patently unreasonable findings of fact. As a result, this application for judicial review shall be allowed.
BACKGROUND
[4] The Applicant is a Somali citizen who fled the unrest in his country on October 21, 1996. His flight brought him to Yemen on November 5, 1996, where he has lived as a refugee ever since.
[5] In 1999, he married Hawa Ali Omar, in Yemen. On April 5, 2005, the Applicant applied for permanent residence in Canada as a refugee outside Canada. His spouse’s name figures on his application. The Applicant was interviewed on December 18, 2005. His application was refused by letter dated December 28, 2005, as a result of which the matter comes to this Court.
DECISION UNDER REVIEW
[6] In refusing the application, the Visa Officer found that the Applicant did not “demonstrate that [he has] any fear of specific, individual persecution against [him] in Somalia or in Yemen”. Furthermore, he was not recognized as a refugee by the United Nations High Commissioner for Refugees (UNHCR) and his alleged attack by Yemeni soldiers gave no evidence that he was specifically targeted.
[7] The Applicant states that he faced persecution based on his clan membership, and due to marrying a woman from a different and more powerful clan than his own. He states that the Visa Officer misunderstood him to mean that he was from a more powerful clan than his wife, and also did not recognize the clan he named as his own. This marriage would cause risk of persecution to them if they returned to Somalia, and already causes risk in Yemen. In addition, he argues he was recognized by the U.N. as a refugee while in Yemen in that both he and his wife were in possession of an identity card co-signed by the Office of the UNHCR and the Government of Yemen that were issued on July 1, 2002, with an expiry date of December 31, 2004.
ANALYSIS
Standard of Review
[8] The parties have not turned their minds to the standard of review applicable to a discretionary decision of a Visa Officer with respect to the determination of membership in the Convention Refugee Abroad class or membership in the Humanitarian-Protected Persons Abroad designated class.
[9] This question was dealt with by my colleague Justice Edmond Blanchard in Khwaja v. Canada (Minister of Citizenship and Immigration), 2006 FC 522, [2006] F.C.J. No. 703 (F.C.) (QL) at paragraph 22 and I adopt his analysis in its entirety as follows:
[…] In Ouafae v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 592, 2005 FC 459, Justice Yves de Montigny reviewed and noted that the Court was divided on whether standard of reasonableness simpliciter or patent unreasonableness applied to decisions of visa officers. After considering the pragmatic and functional analysis conducted by Justice John O'Keefe in Yin v. Canada (Minister of Citizenship and Immigration) (2001), [2001] F.C.J. No. 985, 106 A.C.W.S. (3d) 726 (F.C.T.D.), Justice de Montigny concluded that decisions of visa officers based on purely factual assessments are reviewable on a patently unreasonable standard, whereas decisions of visa officers based on application of the facts to legal standards are reviewable on a reasonableness standard. At paragraphs 18 to 20 and 22, Justice de Montigny held:
[18] Opinion on the appropriate standard of review for decisions by visa officers is divided and appears to have spawned seemingly contradictory decisions. In some cases, reasonableness simpliciter was the chosen standard (see, inter alia, Yaghoubian v. Canada (M.C.I.), [2003] F.C.J. No. 806, 2003 FCT 615; Zheng v. Canada (M.C.I), [2000] F.C.J. No. 31, IMM-3809-98; Lu v. Canada (M.C.I.), [1999] F.C.J. No. 1907, IMM-414-99). In other decisions, patent unreasonableness was chosen instead (see, for example, Khouta v. Canada (M.C.I.), [2003] F.C.J. No. 1143, 2003 FC 893; Kalia v. Canada (M.C.I.), [2002] F.C.J. No. 998, 2002 FCT 731).
[19] And yet, on closer inspection, these decisions are not irreconcilable. The reason for the different choices is essentially that the nature of the decision under review by this Court depends on the context. Thus it goes without saying that the appropriate standard of review for a discretionary decision by a visa officer assessing a prospective immigrant's occupational experience is patent unreasonableness. Where the visa officer's decision is based on an assessment of the facts, this Court will not intervene unless it can be shown that the decision is based on an erroneous finding of fact made in a perverse or capricious manner.
…
[22] ...[T]his Court must show deference when the impugned decision is purely factual. […]
I adopt my learned colleague's reasoning in respect to the applicable standard of review of visa officer's decisions.
[10] Applied to the facts of this case, the decision of the Visa Officer is purely fact driven. As such, this Court will not intervene unless it can be shown that the decision is based on an erroneous finding of fact made in a perverse or capricious manner.
Patently unreasonable findings of fact
[11] The Applicant argues that the Visa Officer made two erroneous findings of fact: the one with respect to the Applicant’s personalized risk; and the other concerning the Applicant’s UNHCR refugee status.
(i) Personalized risk
[12] The Visa Officer found that there was no evidence of “fear of specific, individual persecution against you either in Somalia or in Yemen.” The Applicant’s application referred generally to risks that existed if he was to return to Somalia, in particular in response to Question 6A), the Applicant wrote as follows:
Q6A) the security there is not yet available/certain.
- the country is still under the authority of certain unmerciful warloads.
-we are not feeling confidency in having protection from what ever group/authority. [T]he existence of Segregation behaviours commonly prevailing across the country.
Q6B) I’m not free to work, attend school or traveling freely in this country, the common law of this country does not accept this sort of freedom. [sic]
[13] And in response to a question about being in danger in Yemen, the Applicant wrote:
Q7. I’m in danger and experiencing problem with various categories of bodies in this country because of lack of free movement and should I do so, I would be arrested by the authorities concerned. we sometimes experience some in human assaults from them. they intimidates us and often talk wards that we could not bear. [sic]
[14] However, the Applicant also pointed to more personalized risk when he stated:
Q9. for you information, I tell you that my home country (Somalia) Nowdays have some in human behaviours and cultures, these are some how prevailed in the community and existed for so long years. No regime in the past have waged any compaign to eridicate this negative behaviours and it’s still in full effect across the whole Somali Community, more people became a victim of these attrocities or behaviours these behaviour is known as Segregation among the Society. we honestly inform you that I’m descendent of this Sort of Community who are permenantly look down up on, Being of this category, have married from those who are in favour of this odd custom (such marriage is quite rare), and if we even want to get back home we should get ready to die both of us. even, in this host country we are Experiencing Such Segregation from other Somali refugees. [sic]
[15] Prior to the interview, the following notes were made in the Applicant’s CAIPS notes on June 8, 2005:
PA states he might be executed in Somalia because of traditional constraints as he is married from a highly priviledged clan. [sic]
PA states he cannot return to Somalia because of there is no security.
Unclear what persecution PA faces in Somalia.
[16] The CAIPS notes give the following exchange from the interview of the Applicant by the Visa Officer on December 18, 2005 in Yemen:
ELIGIBILITY
PA [primary applicant] belongs to Mardeban clan (note not Marehan), Omar Mohamed subclan, Diya Nahir sub-subclan.
Wife belongs to Ogaden clan, Reer Abdul subclan.
21Oct96 PA said he left Mogadishu after fighting broke out. He said that he was not member of any militia or involved in any politics. His father was not involved in politics either.
08Nov96 PA arrived in Yemen.
1999 PA married wife in Yemen.
When asked why he cannot return to Somalia, PA said because there is no govt nor law and order there. He did not add anything else.
I then asked PA abt his claim that he fears persecution because he comes from a privileged clan. He could not provide any explanation for this, though interpreter said separately that the Mardeban clan are known as traders.
[17] The Visa Officer’s Affidavit further explained on this exchange:
8. When I asked Mr. Abdulle why he could not return to Somalia, he said because there is no government nor law and order there. I asked him if there were any other reasons and if he had other concerns that I should note. He did not add anything else in response to these questions. I then asked Mr. Abdulle specifically about his claim that he feared persecution because he came from a particular clan, as was indicated in his application. He could not provide any explanation for this statement. The interpreter informed me that the Mardeban clan are known in Somalia as traders. At no time during the interview did Mr. Abdulle state that he had any fear of persecution in Somalia because he had married someone from another clan, let alone someone from an opposing or hostile clan.
(See Affidavit of Norman Earl Morgan [Visa Officer], paragraph 8, page 3 Affidavit)
[18] On cross-examination (by teleconferencing) by the Applicant’s counsel, David Matas, the Visa Officer offered this explanation for his line of questioning (p. 7 of the transcripts):
13. Q. Now, I wanted to go to the CAIPS notes, page 44. It says, “I then asked PA”, “PA”, I assume means “principal applicant.” “About his claim that he fears persecution because he comes from a privileged clan.”
A. Yes.
14. Q. “He did not provide me any explanation for this.”
A. Yes, I have it right in front of me.
15. Q. Now, I gather from your affidavit, what you are referring to was something that is found in the personal information form of Mr. Abdulle.
Well, maybe I should ask you this: What was the purpose of that question, I mean, about his claim that he fears persecution because he comes from a privileged clan? What were you asking him there?
A. You see, as I have indicated in my [CAIPS] notes, I asked him, “Please, tell me why you fear persecution in Somalia?” And he gave a very, very general answer, as you can see in my notes, “The PA explained because there was no government or law in order there.” And I asked him a follow-up question, I said, “Is that it?” And the interpreter interpreted, “That’s it. He has nothing else to add.”
And then to be absolutely fair, to encourage the applicant to say more, in case there was something that he missed, or whatever, I had seen this is in the PIF, as well as in the CAIPS notes prepared, or the prep notes prepared by the immigration officials at the Canadian High Commission in London, which are above, referring to this privileged clan. I did not want to place words or suggestions or ideas in the head of the applicant. However, to be absolutely fair, I said, look, I have given you two chances already to – I didn’t say this to him, but I thought to myself, look, I have already given him two chances to explain the grounds why he fears persecution from Somalia, I will go a little bit farther, I will even ask him about this privileged clan that I had read about and give him an opportunity to see if this elicits any type of response, something that I can use in my assessment. And unfortunately, well, unfortunately for him but, you know, I record and I base my assessments and my decisions based on all the facts and the information that he supplies me and the facts before me, he could not provide any explanation for that statement.
[19] The Applicant’s counsel then asked him to comment on the CAIPS notes referring the possibility of execution in Somalia because of his marriage (as above). He also quoted from the PIF regarding his marriage and clan affiliation. He asked the Visa Officer to comment on the apparent confusion in statements as to which person in the couple was from a privileged clan: the applicant or his wife? The Visa Officer stated that he was trying to find out from his line of questioning, “And yet there was nothing. Nothing on this issue. No response from him. No details. No explanation for this.” The Visa Officer further stated on cross-examination that the Applicant had done nothing to correct the impression that it was the Applicant and not his wife who belonged to a privileged clan. The words “married from” were further discussed as ambiguous (was the applicant or his wife from the privileged clan), and the same words appear also in the addendum to the PIF in the Tribunal Record.
[20] The Visa Officer then discussed the clan to which the Applicant claimed to belong and said he was unable to find any information of it. He further stated that the wife’s alleged clan had been privileged, although it may no longer be so. When asked if he may have misheard the name of the husband’s clan he did not believe that to be the case. The alternate name offered was “Madhiban” rather than “Mardeban”, which is what he heard. The former name is known as a group who have been persecuted and the Applicant’s Further Submissions have information attached regarding this clan.
[21] Altogether the evidence shows the Visa Officer to have made a serious attempt to elicit information regarding this issue from the Applicant. However, there is certainly some confusion concerning who belonged to the privileged clan and which clan the husband claimed to belong to. More importantly, the evidence regarding the risk he alleged existed if he was to return to Somalia based on this marriage is not addressed even though it appears in his PIF and in the CAIPS notes. I do not see that the Visa Officer’s argument that no information was put forward concerning this issue can stand when it was already raised as an indication of risk. For this reason, I believe that the matter should be returned to a different Visa Officer for re-consideration. The Visa Officer did not adequately consider the Applicant’s assertion of risk of persecution (if he remains in Yemen or if he is returned to Somalia) that was raised in the PIF and CAIPS notes. For this reason alone, the application ought to be returned for re-consideration by a different Visa Officer.
(ii) UNHCR Refugee Status
[22] A further issue raised concerns the Visa Officer’s finding that the UNHCR had not recognized the Applicant as a refugee. The Applicant contends that the UNHCR ID he has gives him refugee status. The Respondent replies that although this is an official UNHCR identification, it is not the same as recognition of refugee status.
[23] The Visa Officer explains at length in both his affidavit and on cross-examination his understanding of the significance of the cards and of different types of refugee recognition. The essence of it is that although the UNHCR may, along with the Yemeni government, grant prima facie refugee recognition to Somalis and some other nationals upon arrival in Yemen, these people have not actually been through refugee status determinations where the UNHCR does an assessment to determine whether they meet the Convention refugee definition. As such, the fact that they may have prima facie refugee recognition is not relevant to a Canadian visa officer’s determination as to whether an applicant meets the Convention refugee definition.
[24] Furthermore, as the Visa Officer points out, when the Applicant filled out the PIF Schedule 2, question 3C) which asks “Have you ever applied for Convention refugee status with the United Nations High Commissioner for Refugees (UNHCR)?”, the Applicant answered “No”.
[25] While it seems contradictory for the Applicant to claim that they not only applied for refugee status but attained it also, the Visa Officer overlooked the fact that the Applicant and his spouse both had in their possession an identity card co-signed by the Office of the UNHCR and the Government of Yemen. It would also appear that the Visa Officer relied on extraneous information not available to the public to conclude that the Applicant, in spite of his UNHCR ID card, had not been recognized either as a Mandate or Convention refugee by the UNHCR.
[26] The Applicant proposes the following question for certification:
Is a person who is recognized by a state which has acceded to the United Nations Convention and Protocol on the Status of Refugees as a Convention refugee also a refugee under the mandate of the Office of the United Nations High Commissioner for Refugees?"
[27] The Respondent objects and submits that the case at bar is fact driven and the proposed question for certification does not contain the characteristic of general importance recognized by the jurisprudence. I agree.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is allowed and the matter is sent back to be redetermined before a different Visa Officer. No question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1083-06
STYLE OF CAUSE: OSMAN OMAR ABDULLE
and THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: December 7, 2006
APPEARANCES:
SOLICITORS OF RECORD:
David Matas FOR APPLICANT
Winnipeg, Manitoba
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Winnipeg, Manitoba