Date: 20030210
Docket: IMM-2548-02
Neutral citation: 2003 FCT 142
Toronto, Ontario, Monday, the 10th day of February, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
ABDULAHI MOHAMED ABDI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Mr. Abdulahi Mohamed Abdi (the "Applicant") seeks judicial review of the decision of Visa Officer Gary Hawkes (the "Visa Officer"), dated April 17, 2002. In his decision, the Visa Officer refused the Applicant's application for permanent residence in Canada.
[2] The Applicant is a citizen of Somalia and a member of the Rahenwein Tribe. He lived in Mogadishu, Somalia until 1996 when he fled to Ethiopia where he currently remains.
[3] The Rahenwein Resistance Army (the "RRA") controls the region where the Applicant has been living. He claims that he was never a member of the RRA.
[4] The Applicant claims that his father had been a low ranking military captain during the Siad Barre regime, which took control of Somalia in 1969. The Applicant was then two years old. He claims that he never occupied any official position in the Siad Barre regime which ended in 1991.
[5] The Applicant's application for permanent residence in Canada was the subject of a private group sponsorship as a Convention refugee seeking resettlement by St. Boniface Parish, Calgary, Alberta. His application for permanent residence was received at the Canadian High Commission in Nairobi, Kenya on September 15, 1998.
[6] The Applicant was interviewed by Visa Officer, Linda Bowler, on March 10, 1999. Her notes from the interview are included in the Tribunal Record and were later transcribed in the Computer Assisted Input Program System ("CAIPS") on March 24. 1999. The Visa Officer made further notes about the March interview on August 13, 1999. The hand-written notes although difficult to read, appear to support this contention.
[7] The Applicant was requested to attend a second interview which took place in Addis Abbaba, Ethiopia on January 26, 2000. This interview was conducted by a Security Liaison Officer ("SLO"). The notes for this interview were lost.
[8] The CAIPS notes indicate that an SLO "planned" to reinterview the Applicant in Addis Abbaba in March 2002. The Applicant says he never received a letter advising him about this interview and that he did not attend on March 31, 2002. The Tribunal Record does not contain a copy of any letter sent to the Applicant informing him of the March 31, 2002 interview. The Visa Officer, in the affidavit filed in this proceeding, does not say that a letter was sent to the Applicant.
[9] By letter dated April 17, 2002, the Visa Officer refused the Applicant's application on the basis of sections 19(1)(l) and 19(1)(f)(iii) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act"). After referring to and quoting from these provisions of the Act, the Visa Officer wrote as follows:
During your interview on 10 March 1999 you stated that you were in the Rahenwein Resistant Army and that your father was a military captain in the Said Barre Government.
On March 31, 2002 an interview was scheduled for you in order for you to explain your situation in more detail, but you failed to attend the interview.
Your application has been refused because I am not satisfied that you are not inadmissible to Canada pursuant [to] paragraphs 19(1)(l) and 19.(1)(f) of the Immigration Act, 1976, you are inadmissible under paragraph 19(2)(d) of the Immigration Act, 1976.
[10] Upon the hearing of this application for judicial review, the Respondent conceded, on the record and in his written argument, that the finding of inadmissibility on the basis of section 19(1)(l) of the Act was erroneous. The written argument submitted by the Respondent says, at paragraph 14, as follows:
The Respondent concedes that the visa officer did not have sufficient evidence to conclude that the Applicant was a person described in section 19(1)(l) of the Immigration Act. The next question is whether that error was material to the ultimate decision, since the visa officer also determined the Applicant to be a member of the inadmissible class of persons described in section 19(1)(f)(iii) of the Immigration Act.
[11] The Applicant argues that the decision of the Visa Officer should be vacated because it was made in breach of his right to procedural fairness, in that he was not given notice of the March 31, 2002 interview or given a chance to respond to the Visa Officer's concerns and furthermore, that the finding of inadmissibility pursuant to section 19(1)(f)(iii) of the Act represents an error of law.
[12] The Respondent argues that the Applicant bears the burden of showing that his admission into Canada meets the requirements of the Act and Regulations. The Respondent says that this onus requires the Applicant, among other things, to keep the Respondent advised of any changes in addresses and says that the High Commission used the best address available for the Applicant.
[13] As well, the Respondent argues in his written submissions, that the Applicant had received one interview and the lack of a second interview did not deprive him of a right to a fair hearing. Finally, the Respondent argues that a prospective immigrant is not entitled to an interview before a visa officer, here relying on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 843.
[14] The Respondent submits that there is no error of law arising from the Visa Officer's finding of inadmissibility pursuant to section 19(1)(f)(iii) of the Act. He says that the handwritten notes maintained by visa officer Linda Bowler during the March 10, 1999 interview refer to the Applicant's membership in the RRA.
[15] The Respondent refers to page 11 of the Tribunal Record where the following sentence appears: "He ran away then and established RRA Rahenwein Resistance Army". The Respondent says this sentence shows that the Applicant had said he was a member of the RRA.
[16] The Respondent further submits that the Visa Officer clearly states in his affidavit that he based his decision upon the notes of Linda Bowler and the fact that the SLO had conducted an interview and prepared a report. The Visa Officer, according to the Respondent, did not base his conclusion on speculation that the missing security report would likely contain information that could place the Applicant within the inadmissible class.
[17] Relying on Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642 (T.D.) and Sabour v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 69, the Respondent argues that the Visa Officer had a bona fide belief, based on credible evidence, that there was a serious possibility that the Applicant had been a member of the RRA. Consequently, his determination that the Applicant was a member of an inadmissible class, pursuant to section 19(1)(f)(iii), was not patently unreasonable.
[18] Sections 8 and 19(1)(f)(iii) are relevant to this application and provide as follows:
| 8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. (2) Every person seeking to come into Canada shall be presumed to be an immigrant until that person satisfies the immigration officer examining him or the adjudicator presiding at his inquiry that he is not an immigrant. |
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8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. (2) Quiconque cherche à entrer au Canada est présumé être immigrant tant qu'il n'a pas convaincu du contraire l'agent d'immigration qui l'interroge ou l'arbitre qui mène l'enquête. |
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19. (1) No person shall be granted admission who is a member of any of the following classes: ... f) persons who there are reasonable grounds to believe ... (iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in (A) acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, or (B) terrorism, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; |
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19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_: ... f) celles dont il y a des motifs raisonnables de croire qu'elles_: ... (iii) soit sont ou ont été membres d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée_: (A) soit à des actes d'espionnage ou de subversion contre des institutions démocratiques, au sens où cette expression s'entend au Canada, (B) soit à des actes de terrorisme, |
The Applicant argues that the Visa Officer breached the duty of fairness by basing his refusal on the Applicant's failure to attend a further interview, in the absence of evidence in the Tribunal Record that any notice was sent out to him.
[20] There is merit in this submission. As noted by the Supreme Court of Canada in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, the concept of procedural fairness is variable and its content is to be assessed in the context of each case.
[21] In my opinion, there is a breach of the duty of fairness when a visa officer bases a negative decision relative to an application for permanent residence in Canada upon the failure of that applicant to attend an interview when there is no evidence to show that the applicant was sent notification to attend the interview. This conclusion is consistent with the accepted jurisprudence that an oral hearing is not always necessary for prospective immigrants and that a meaningful opportunity to participate in the decision-making process can occur in different ways in different situations (see: Baker, supra, at paras. 30-34 and Chow v. Canada (Minister of Citizenship and Immigration) (2001), 17 Imm. L.R. (3d) 235 (F.C.T.D.) at para. 12.).
[22] This finding is sufficient to allow this application for judicial review. However, there is a more serious and substantive error in this case which deserves some comment. That is the finding by the Visa Officer that the Applicant is inadmissible pursuant to section 19(1)(f)(iii) of the Act.
[23] According to the Respondent, that finding is reasonably supported by the evidence, particularly part of the handwritten notes of visa officer, Linda Bowler, recorded at the interview on March 10, 1999. The following sentence is quoted above but bears repeating, together with the rest of the paragraph as follows:
Before 1996 the fighting was only between tribes. Idid - warlord - captured the region, Byedoa Region - Nov. 1995. He ran away then and established RRA Rahanwein Resistant Army. His tribe is Rahanwein - RRA - AlamayLtte in Mog (green line - north). Not a member of RRA. He ran away because he did not want to be a member of RRA and did not wish to fight.
[24] The entry in the CAIPS notes in connection with the interview of March 10, 1999 is not exactly the same, possibly due to the fact that they were recorded two weeks later, on March 24, 1999. The CAIPS notes read as follows:
CR3 - INTERVIEWED 10 MAR99 (SEE CASE NOTES ON FILE) DID NOT LEAVE SOMALIA UNTIL 1996. NOT MARRIED, NO CHILDREN. HE WAS IN MOGADISHU UNTIL 1996. STATES HE LIVED IN THE NORTHERN PART OF MOG - THERE IS A GREEN LINE IN CITY - HE WAS ON THE ALAMATHY SIDE - THE RRA. HE WAS FORCED TO TRAIN TO FIGHT WITH THE RRA AND THAT IS WHY HE RAN AWAY - IF HE CHOSE NOT TO FIGHT HE FEARS THEY WOULD KILL HIM. UP UNTIL RECENTLY HE SAID IT WAS OKAY BUT THE "IDID" AND WARLORDS ARE TAKING OVER MANY AREAS OF SOMALIA AND PEOPLE ARE FORCED TO OBEY AND GIVE UP THEIR LAND ETC. IF THEY DO NOT SUPPORT THE "IDID" THEY WILL BE KILLED.
[25] A further entry was written by Ms. Bowler, August 13, 1999, following a discussion about the Applicant's file. This entry provides as follows:
BASED ON INFO ON FILE AND INTERVIEW - DISCUSSED WITH SLO - REQUIRES SLO INT. MEMBER OF RAHENWEIN CLAN - AT ONE TIME STATED HE WAS IN RRA (RAHENWEIN RESISTANT ARMY) BUT LATER STATED NOT A MEMBER - HOWEVER HE REMAINED IN MOGAD UNTIL 1996. FATHER WAS IN SAID BARRE GOVT. SO THEY STAYED. FATHER DIED 94. FATHER WAS MILITARY CAPT. IN NORTHERN MOG. DURING SAID BARRE. HE FELT HE COULD REMAIN AS HE WAS NEITHER DAROD OR AWEED - HOWEVER LEFT IN 1996 AS IT BECAME LESS SAFE. IT IS MY OPINION THAT HE WAS MORE INVOLVED IN ACTIVITIES THAN HE STATED - ESPECIALLY GIVEN FACT OF FATHER'S POSITION IN SAID BARRE GOVT AS WELL AS FACT PA REMAINED IN MOGADISHU WITH RRA. HE STATES HE NEVER FOUGHT NOR HAS ANY INTEREST IN FIGHTING THE WARLORDS NOW IN POWER THROUGH OUT SOMALIA. STATES HE IS A PEACEFUL MAN. STATED HE KNOWS NOTHING OF THE SOMALI NATIONAL FRONT (SNF).
[26] This later entry does not say that the Applicant was a founder of the RRA, simply that he may have been a member for awhile until he ran away. This entry, however, contains speculation by visa officer, Linda Bowler, that is her comment that "it is my opinion that he was more involved in activities than he has stated".
[27] The reliance placed by the Respondent upon the initial notes made by visa officer Bowler on March 10, 1999 is misplaced. The pronoun "he" seems to refer to "Idid", a warlord, and not to the Applicant. The interpretation adopted by the Respondent is misleading, as there is more than one way to interpret these notes. This one sentence, which can reasonably be interpreted another way, appears to provide the foundation for the Visa Officer's speculation that the Applicant knew more than he admitted regarding the RRA.
[28] Both the Applicant and Respondent rely on Chiau, supra, as establishing the legal test relating to the standard of proof required, where an inadmissibility finding is made pursuant to section 19(1) of the Act. In Chiau, supra, the Court said at paragraph 27:
The standard of proof required to establish "reasonable grounds" is more than a flimsy suspicion, but less than the civil test of balance of probabilities. See Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.); and Al Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174 (T.D.). And, of course, a much lower threshold than the criminal standard of "beyond a reasonable doubt". It is a bona fide belief in a serious possibility based on credible evidence.
[29] This definition of "reasonable grounds" was affirmed by the Federal Court of Appeal in Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.).
[30] In my opinion, the Visa Officer who denied the Applicant's application erred in finding that the evidence submitted met this test. In fact, the evidence before the Visa Officer fell far short of reaching the level of "bona fide belief in a serious possibility based on credible evidence". In my opinion, there was no credible evidence to support the conclusion by the Visa Officer. It is doubtful whether the Visa Officer held a bona fide belief relative to the speculative evidence before him of the serious possibility of the Applicant's membership in the RRA..
[31] In my opinion, the Applicant has been poorly treated. He attended two interviews between 1999 and 2000. The notes from the second interview were lost by the SLO. The record reasonably suggests that a third interview was contemplated to compensate for this loss of notes, but there is nothing in the record to show that a third interview was in fact requested. The Visa Officer subsequently based his inadmissibility finding, in part, on the Applicant's non-attendance at this third interview.
[32] Furthermore, another basis for the inadmissibility finding was the fact that a report had been written by the SLO, but the Visa Officer never saw the contents of this report. This course of events and speculation reflects a lack of diligence and inquiry that is expected from administrative decision-makers, particularly when dealing with such an important decision for an individual applicant.
[33] These factors would appear to be "special reasons", pursuant to Rule 22 of the Federal Court Immigration and Refugee Protection Rules, SOR/2002-232, to justify an award of costs, had costs been requested. However, the Applicant did not seek costs and none will be awarded.
[34] The application for judicial review is allowed and the matter is remitted for redetermination in accordance with the law and these reasons. Counsel advised that there is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is remitted for redetermination in accordance with the law and these reasons. There is no question for certification arising.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2548-02
STYLE OF CAUSE: ABDULAH MOHAMED ABDI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: THURSDAY, NOVEMBER 7, 2002
REASONS FOR ORDER
AND ORDER: HENEGHAN J.
DATED: MONDAY, FEBRUARY 10, 2003
APPEARANCES: Mr. Stephen G. Jenuth For the Applicant
Mr. Brad Hardstaff For the Respondent
SOLICITORS OF RECORD:
Ho MacNeil Jenuth
Barristers & Solicitors
2819 Centre Street N.W.
Calgary, Alberta
T2E 2V7
For the Applicant
Morris A. Rosenberg, Q.C. Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030210
Docket: IMM-2548-02
BETWEEN:
ABDULAHI MOHAMED ABDI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER