BETWEEN:
Amjad Dawood Nissan
Steela Nissan
Aden Nissan
Lorita Nissan
and
AND IMMIGRATION
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review of a decision of the visa officer at the Canadian Embassy, Damascus, Syria, (the visa officer) dated May 26, 2005, declaring the applicants not to be members of the Convention refugee abroad class and not to be members of the Humanitarian-protected persons abroad designated class.
[2] Sahira Shamoon Toma, Amjad Dawood Nissan, Steela Nissan, Aden Nissan, and Lorita Nissan (the applicants) are citizens of Iraq who claim to be members of the Convention refugee abroad class and of the Humanitarian-protected persons abroad class.
[3] The May 26, 2005 decision of the visa officer at the Canadian Embassy in Damascus, Syria determined that the applicants are not members of the Convention refugee abroad class or the Humanitarian-protected persons abroad designated class. After reviewing the applicable provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, the visa officer stated:
After carefully assessing all factors relative to your application, I am not satisfied that you are a member of any of the classes prescribed. As indicted(sic) to you during your interview, I had concerns with regards to your credibility and I provided you an opportunity to respond, but you were not able to provide a satisfactory explanation to my concerns. I am not satisfied that you have a well founded fear of persecution if you return to Iraq or that you have a credible evidence to show that you have been and continue to be seriously and personally affected by civil war, armed conflict or massive violation of human rights. Therefore, you do not meet the requirements of this paragraph.
[4] The Computer Assisted Immigration Processing System (CAIPS) notes indicate that the visa officer found that the applicants' claim was not credible because the applicant Amjad's version of the story of the kidnapping of the husband of his sister-in-law was different from that provided by his sister-in-law in her related claim (see IMM-4610-05). The officer also had concerns about the credibility of the applicant Amjad's story of being threatened and beaten for doing work for the U.S. forces.
[5] As a preliminary matter, the respondent objected to an affidavit filed on behalf of the applicants and sworn by a family member in Canada. This affidavit purports to describe the applicants' interview with the visa officer, including extensive detail as to what questions were asked and what their responses were. The affidavit also contains opinions such as "the Visa officer didn't understand all Arabic words".
[6] The respondent objects to this affidavit as it does not conform with the Federal Court Immigration and Refugee Protection Rules, SOR/93-22, as amended. Rule 12(1) requires that affidavits filed in connection with an application for leave shall be confined to such evidence as the deponent could give if testifying as a witness before the Court. This rule means that the usual common-law rules of evidence apply, including the twin requirements of necessity and reliability for the admissibility of hearsay evidence (R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; Akomah v. Canada (M.C.I.), [2002] F.C.J. No. 152 (T.D.) (QL)).
[7] Indeed, the contents of the affidavit of Jalila Shamoon Toma are not restricted to statements of fact, but comprise opinions directly contradicted by the officer's unchallenged evidence (e.g., regarding his fluency in Arabic). This calls into question the reliability of the applicants' hearsay evidence.
[8] In my opinion, therefore, the affidavit of Jalila Shamoon Toma, the sister of the applicant Sahira, should be accorded little or no weight. This has been the result in numerous other cases of this Court in which an affidavit based on information and belief (and not sworn by someone with personal knowledge of the decision-making process) has been tendered (Huang v. Canada (M.C.I.), [1998] F.C.J. No. 788 (T.D.) (QL); Muntean v. Canada (M.C.I.), [1995] F.C.J. No. 1449 (T.D.) (QL); Ling v. Minister of Citizenship and Immigration, 2003 FC 1198; Zheng v. Canada (M.C.I.), 2002 F.C.J. No. 1562 (T.D.) (QL)).
[9] The applicants submit, inter alia, that the visa officer must act fairly. The duty to act fairly requires the visa officer to allow the applicants an opportunity to respond to any concerns the visa officer has with respect to the application, and to explain inconsistencies between the evidence (Muliadi v. Canada (M.E.I.), [1986] 2 F.C. 205 (C.A.)). If there is an area which is central to the claim, and the visa officer finds the evidence implausible, the visa officer should put his concerns to the applicants and provide them with an opportunity to explain why the evidence is plausible. Furthermore, when relying on extrinsic evidence, fairness dictates that the applicant be given an opportunity to explain apparent inconsistencies. According to the applicants, the visa officer did not afford them this opportunity.
[10] More specifically, the applicants submit that, while the visa officer asked a co-related applicant (in IMM-4610-05) about the contradiction in how her husband's body was transported to the hospital, he did not ask the applicant in the case at bar, Amjad, for an explanation and thereby breached procedural fairness.
[11] The applicants are correct that when a visa officer is relying on extrinsic evidence, fairness dictates that the applicant be given an opportunity to explain apparent inconsistencies.
[12] It is my opinion that, with regard to the officer's credibility concerns surrounding the threats Amjad received as a result of his work with a contractor that provided services for the U.S. forces, the CAIPS notes indicate that he was informed of these concerns and provided with an opportunity to respond. When asked about why the anti-American group would telephone him and threatened to kill him for six months and then when they stopped him all they did was beat him up and let him go, his answer was "well that is what happened to me". It is not patently unreasonable for the officer to not be satisfied with this explanation.
[13] However, with regard to the visa officer's credibility concerns as to Amjad's testimony of the transportation of his brother-in-law to the hospital, such an opportunity to explain was not provided.
[14] In the Federal Court decision of Dasent v. Canada (M.C.I.), [1995] 1 F.C. 720 (T.D.), Justice Rothstein explained what was meant by "extrinsic evidence, not brought forward by the applicant". He stated, at pages 730 and 731:
. . . In the case at bar, having regard to the words "not brought forward by the applicant" used by Hugessen J.A. to qualify the term "extrinsic evidence," and his reference to Muliadi, I interpret the term "extrinsic evidence not brought forward by the applicant" as evidence of which the applicant is unaware because it comes from an outside source. This would be evidence of which the applicant has no knowledge and on which the immigration officer intends to rely in making a decision affecting the applicant. While this would include information obtained from an outside party as in Muliadi, I fail to see why it would not also include evidence form a spouse obtained separately from the applicant, or other information in the immigration file that did not come from the applicant, of which the applicant could not reasonably be expected to have knowledge.
[15] The Court of Appeal reversed the Federal Court decision in Dasent ([1996] F.C.J. No. 79 (C.A.) (QL)) and found that inconsistent statements by a spouse in a separate interview who is there to support the applicant's claim that there was a bona fide marriage are not "extrinsic evidence not brought forward by her" that officers are required to disclose.
[16] In my opinion, though the applicant was likely aware that his sister-in-law would be questioned on similar matters, the testimony of Amjad's sister-in-law was not evidence brought forward by Amjad. Amjad's sister-in-law was being questioned as part of her own application for Convention refugee and protected person abroad status. Therefore, it seems that this evidence would, unlike the evidence of a spouse being interviewed solely to support the claim of his partner, be considered to be "extrinsic evidence not brought forward by the applicant."
[17] There is nothing in the record, and there is no affidavit that asserts that this inconsistency was raised by the visa officer so that Amjad could explain the inconsistency between his testimony and that of his sister-in-law (in IMM-4610-05).
[18] It is my opinion that fairness was denied to the applicants when the visa officer determined their claim on extrinsic evidence that was central to the claim and that was not disclosed to any of them. As we cannot reasonably assume that this claim would have been rejected on the basis of the other credibility concerns, this matter should be sent back for reconsideration in accordance with the principles of fairness.
[19] Consequently, the application for judicial review is allowed, the decision of the visa officer at the Canadian Embassy, Damascus, Syria, dated May 26, 2005 is set aside and the matter is sent back to a different visa officer at the same Canadian Embassy for reconsideration in accordance with these Reasons.
Ottawa, Ontario
June 20, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4613-05
STYLE OF CAUSE: Sahira Shamoon Toma, Amjad Dawood Nissan,
Steela Nissan, Aden Nissan, Lorita Nissan v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 25, 2006
REASONS FOR JUDGMENT: Pinard J.
DATED: June 20, 2006
APPEARANCES:
Mr. John Rokakis FOR THE APPLICANTS
Mr. John Provart FOR THE RESPONDENT
SOLICITORS OF RECORD:
John Rokakis FOR THE APPLICANTS
Windsor, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada