Adan v. Canada (Minister of Citizenship and Immigration), 2011 FC 655

• Judge: Kelen, J.
• Court: Federal Court (Canada)
• Case Date: May 21, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 655;(2011), 391 F.T.R. 33 (FC)

Adan v. Can. (M.C.I.) (2011), 391 F.T.R. 33 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. JN.034

Abdi Wahid Adan (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-6177-10; 2011 FC 655)

Indexed As: Adan v. Canada (Minister of Citizenship and Immigration)

Federal Court

Kelen, J.

June 8, 2011.

Summary:

Adan, a 23 year old citizen of Somalia, applied for permanent residence in Canada as a member of the "Convention refugee abroad" class or as a member of the "Country of asylum" class. An immigration officer refused the application. The officer found that Adan was not a member of the Convention refugee abroad class because he did not face persecution in Somalia on a Convention ground and that he was not a member of the country of asylum class because he had a durable solution (internal flight alternative) in Somaliland. Adan applied for judicial review.

The Federal Court allowed the application and remitted the matter for redetermination.

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer (incl. duty of fairness) - Adan, a Somalian citizen, applied for judicial review of an immigration officer's rejection of his application for permanent residence as a member of either the "Convention refugee abroad" class or the "Country of Asylum" class - Adan argued that the officer failed to exercise his legal duty to consider all of the grounds for recognition of a refugee claim that could be inferred from the evidence, even if the grounds were not raised by a claimant - Adan submitted that although the officer acknowledged that membership in a minority clan in Somalia constituted membership in a social group, a recognized ground of persecution, the officer did not assess that ground of Adan's claim - Rather, the officer found that Adan had not stated any persecution, but only generalized risk - The Federal Court agreed with Adan - The officer erred in law by failing to exercise his legal duty to consider whether Adan's claim supported a finding of persecution based on his membership in a minority clan, even though Adan did not explicitly raise that ground himself - The officer had a duty to explore Adan's responses with a view to discovering whether the evidence could support that ground - See paragraphs 26 to 40 - Further, even if the officer had exercised his legal duty, the court would have found that the officer's assessment of the evidence was unreasonable - See paragraphs 41 to 52.

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - Adan, a citizen of Somalia, applied for permanent residence as a member of either the "Convention refugee abroad" class or the "Country of Asylum" class - An immigration officer refused the application - Adan applied for judicial review - The Federal Court discussed the standard of review - The court held that the officer's decision about whether an applicant fell within these two particular classes was a question of fact and mixed fact and law to be determined on a standard of reasonableness - The court stated that in reviewing the decision using a standard of reasonableness, it would consider the existence of justification, transparency and intelligibility within the decision-making process and whether the decision fell within a range of possible, acceptable outcomes which were defensible in respect of the facts and law - Questions of procedural fairness would be reviewed on a standard of correctness - See paragraphs 22 to 25.

Aliens - Topic 1316.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee classes (IRPA Regulations) - Convention refugees abroad - [See Aliens - Topic 1230 and second Aliens - Topic 1316.2 ].

Aliens - Topic 1316.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee classes (IRPA Regulations) - Humanitarian-protected persons abroad (incl. country of asylum class) - Adan, a citizen of Somalia, applied for permanent residence as a member of either the "Convention refugee abroad" class or the "Country of Asylum" class (i.e., Immigration and Refugee Protection Regulations, s. 139(1)) - Section 139(1) provided that a permanent resident visa shall be issued to a foreign national in need of protection if the foreign national was a member of a prescribed class and had no reasonable prospect of a "durable solution" in a country other than Canada - An immigration officer refused Adan's application - Adan applied for judicial review, arguing that the officer failed to assess the "country of asylum" class - The Federal Court rejected this argument, holding that the officer committed no error in that regard - The officer stated correctly the criteria for membership in that class - Although the officer did not use the language of "durable solution", it was clear from his reasons that the officer found that Hargeisa represented a "durable solution" that excluded Adan from membership in the country of asylum class - See paragraphs 32 to 34 - However, the court determined that while the officer completed the assessment, his decision was unreasonable - See paragraphs 41 to 52.

Aliens - Topic 1316.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee classes (IRPA Regulations) - Humanitarian-protected persons abroad (incl. country of asylum class) - Adan, a citizen of Somalia, applied for permanent residence under the "Convention refugee abroad" class or the "Country of Asylum" class (Immigration and Refugee Protection Regulations, s. 139(1)) - An immigration officer found that Adan was not a member of the Convention refugee abroad class because he did not face persecution in Somalia on a Convention ground and that he was not a member of the country of asylum class because he had a durable solution in Somaliland - Adan applied for judicial review, arguing that the officer's decision was unreasonable based on the evidence - The Federal Court agreed that the officer's decision was unreasonable in his assessment of the evidence that was before him - The officer failed to consider both Adan's evidence and objective documentary evidence that supported Adan's testimony evidence - The officer had a duty to be knowledgeable of the country conditions of the country for which he was making a determination - See paragraphs 41 to 52.

Aliens - Topic 1316.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee classes (IRPA Regulations) - Humanitarian-protected persons abroad (incl. country of asylum class) - [See Aliens - Topic 1230 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 22].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd. to. [para. 22].

Qarizada et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 944; 2008 FC 1310, refd to. [para. 23].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321; 103 D.L.R.(4th) 1, refd to. [para. 26].

Viafara v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 880; 2006 FC 1526, refd to. [para. 27].

Saifee et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 384; 2010 FC 589, refd to. [para. 32].

Li (Y.) v. Canada (Minister of Citizenship and Immigration) (2005), 329 N.R. 346; 2005 FCA 1, refd to. [para. 35].

Haj Khalil et al. v. Canada (2007), 317 F.T.R. 32; 2007 FC 923, affd. (2007), 389 N.R. 48; 2009 FCA 66, refd to. [para. 57].

Enterprises Sibeca Inc. v. Frelighsburg (Municipalité), [2004] 3 S.C.R. 304; 325 N.R. 345; 243 D.L.R.(4th) 513; 2004 SCC 61, refd to. [para. 57].

Statutes Noticed:

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 139(1) [para. 17, Appendix].

Immigration and Refugee Protection Regulations - see Immigration and Refugee Protection Act Regulations (Can.).

Counsel:

Hadayt Nazami, for the applicant;

Martin Anderson, for the respondent.

Solicitors of Record:

Jackman & Associates, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard on May 21, 2011, in Toronto, Ontario, before Kelen, J., of the Federal Court, who delivered the following decision on June 8, 2011.