Shire v. Canada (Minister of Citizenship and Immigration), (2014) 461 F.T.R. 222 (FC)

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: July 08, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 461 F.T.R. 222 (FC);2014 FC 795

Shire v. Can. (M.C.I.) (2014), 461 F.T.R. 222 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. AU.025

Siyad Mohamed Shire (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-8367-13; 2014 FC 795; 2014 CF 795)

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

Federal Court

Strickland, J.

August 12, 2014.

Summary:

A senior immigration officer rejected the applicant's pre-removal risk assessment application made pursuant to s. 112(1) of the Immigration and Refugee Protection Act. The applicant applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Application for protection (IRPA, s. 112) (incl. procedure and considerations) - The applicant was a citizen of Somalia - A senior immigration officer rejected the applicant's pre-removal risk assessment (PRRA) application - The applicant applied for judicial review - The applicant submitted that the officer erred in stating that Somalia was subject to an administrative deferral of removals (ADR) - The applicant submitted that the officer might have been comforted, in error, by the thought that even with a negative decision the applicant would not be removed - The applicant was not provided with a chance to respond to that assumption and he submitted that this amounted to a breach of the duty of fairness - At the very least it was unreasonable and tainted the decision rendering it unreasonable - The Federal Court held that while the officer erred in stating that there was an ADR for Somalia, the error was immaterial and did not prejudice the decision - The officer's reference to an ADR did not suggest that the officer was comforted by the thought that, even if he rendered a negative PRRA decision, the applicant would not be removed - Further, nothing in the remainder of the decision or the evidence supported the applicant's assertion that the mistaken belief had to have an impact on the officer's mind about the significance of his decision and the risk the applicant faced - As the error was not material to the ultimate outcome, the fact that the applicant was not provided with an opportunity to correct it did not amount to a breach of the duty of fairness or render the decision unreasonable - See paragraphs 15 to 20.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Application for protection (IRPA, s. 112) (incl. procedure and considerations) - A senior immigration officer rejected the applicant's pre-removal risk assessment (PRRA) application made pursuant to s. 112(1) of the Immigration and Refugee Protection Act - The applicant applied for judicial review - The applicant was a citizen of Somalia and was of the Darod (Daarood) tribe, specifically from the Marehan (Marlehaan) subtribe or subclan - He argued that it was essential for the officer to consider the evidence about the risk the applicant faced as a member of the Marehan subclan and the failure to do so suggested that the decision was made without regard to the evidence - The Federal Court dismissed the application - The officer did not err in failing to mention or address the Marehan clan - The applicant did not identify or claim his ethnic ties to that subclan, as distinct from his Darod clan membership, as being a source of his fear of persecution or harm upon return to Somalia - Further, the officer reasonably found that the applicant did not effectively detail his fear due to clan affiliation and that the documentary evidence did not support his claim that as a returnee he would be at particular risk due to clan affiliation - To succeed on his s. 96 claim the applicant had to demonstrate a well-founded fear of persecution with a nexus to one of the Convention grounds - The applicant did not assert and the evidence did not support past persecution of the Marehan clan - Even if it had, that would not have been sufficient to establish a fear of future persecution as the test was prospective, not retrospective - See paragraphs 37 to 48.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Application for protection (IRPA, s. 112) (incl. procedure and considerations) - The applicant was a citizen of Somalia - A senior immigration officer rejected the applicant's pre-removal risk assessment (PRRA) application made pursuant to s. 112(1) of the Immigration and Refugee Protection Act - The applicant applied for judicial review - The applicant claimed that he feared returning to Somalia because of his clan membership and because he would now be viewed as a Westerner - The Federal Court dismissed the application - The officer found that if the applicant was targeted because of his perceived wealth then he would be the victim of generalized violence as any such returnee would be targeted in that event - Further, there was no evidence that the applicant would be personally targeted by Al Shabaab or others for that reason - The applicant's submission that s. 97 of the Act did not require personal targeting, as he was similarly situated to a group being targeted, was not accurate - Section 97 required the applicant to demonstrate a personalized risk - The officer reasonably found that the applicant had not established a personalized risk - It was correct that under s. 96, the applicant could establish a risk of persecution by evidence of similarly situated individuals - However, the documentary evidence relied upon by the applicant did not support his assertion that returnees, as a group, were at risk due to perceived wealth or Westernization - The officer's findings of fact dealt with all of the risks raised by the applicant, whether as a refugee under s. 96 or as a person in need of protection under s. 97 - See paragraphs 49 to 59.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Application for protection (IRPA, s. 112) (incl. procedure and considerations) - The applicant was a citizen of Somalia - A senior immigration officer rejected the applicant's pre-removal risk assessment (PRRA) application made pursuant to s. 112(1) of the Immigration and Refugee Protection Act - The applicant applied for judicial review - The applicant claimed that he feared returning to Somalia because of his clan membership and because he would now be viewed as a Westerner - The Federal Court dismissed the application - The court stated, inter alia, "the Officer referred to the documentary evidence submitted by the Applicant. He stated that he had read the reports and that they describe the corruption, less than ideal country conditions, and, human rights violations currently facing Somalia. However, this was a description of the general country conditions and the Applicant had not linked this evidence to his personalized and forward-looking risk in Somalia. He had not provided objective documentary evidence to support that his profile is similar to those persons that would currently be at risk of persecution or harm in Somalia. Further, that the documents relate to conditions faced by the general population or describe specific events or conditions not faced by persons similarly situated to the Applicant. ... Viewed in whole, the documentary evidence supports the Officer's finding that the Applicant does not fall within the profile of persons at risk should he return to Somalia" - See paragraphs 60 to 67.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Application for protection (IRPA, s. 112) (incl. procedure and considerations) - A senior immigration officer rejected the applicant's pre-removal risk assessment (PRRA) application made pursuant to s. 112(1) of the Immigration and Refugee Protection Act - The applicant applied for judicial review - The applicant was a citizen of Somalia and was of the Darod (Daarood) tribe, specifically from the Marehan (Marlehaan) subtribe or subclan - He claimed that he feared returning to Somalia because of his clan membership and because he would now be viewed as a Westerner - The applicant submitted that the Officer erred in failing to consider his grounds of persecution cumulatively - The Federal Court stated that "It is correct that where the evidence establishes a series of actions characterized to be discriminatory, and not persecutory, there is a requirement to consider the cumulative nature of the conduct ... However, what the Applicant proposes in this case is that the Officer failed to consider the grounds of persecution and risk of being perceived to be a Westerner and of being a Marehan together. This is not a series of discriminatory actions but rather two separate alleged grounds of risk, both of which were assessed by the Officer. The cases cited by the Applicant do not support his interpretation and the Officer did not err in failing to consider these separate risks cumulatively" - See paragraph 68.

Aliens - Topic 1590

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112-116) - Duty of fairness - [See first Aliens - Topic 1583 ].

Aliens - Topic 1594

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112-116) - Judicial review (incl. standard of review) - A senior immigration officer rejected the applicant's pre-removal risk assessment (PRRA) application made pursuant to s. 112(1) of the Immigration and Refugee Protection Act. The applicant applied for judicial review - The Federal Court stated that "When a PRRA officer is called on to decide whether a claimant faced a risk under sections 96 or 97, this has been held to be an issue to be evaluated on the reasonableness standard ... Similarly, the appropriate standard of review of a PRRA officer's findings of fact, or mixed fact and law, such as the existence of risk of persecution, has been found to be reasonableness ... Therefore, those issues in this case which concern a question of mixed fact and law are reviewed on a reasonableness standard" - See paragraph 14.

Cases Noticed:

Qin v. Canada (Minister of Citizenship and Immigration) (2013), 451 N.R. 336; 2013 FCA 263, refd to. [para. 10].

Covarrubias et al. v. Canada (Minister of Citizenship and Immigration) et al. (2006), 354 N.R. 367; 2006 FCA 365, refd to. [para. 10].

Salim v. Canada (Minister of Citizenship and Immigration) (2011), 399 F.T.R. 179; 2011 FC 1283, refd to. [para. 10].

Munderere et al. v. Canada (Minister of Citizenship and Immigration) (2008), 377 N.R. 259; 2008 FCA 84, refd to. [para. 10].

Retnem and Rajkumaar v. Minister of Employment and Immigration (1991), 132 N.R. 53 (F.C.A.), refd to. [para. 10].

Bobrik et al. v. Canada (Minister of Citizenship and Immigration) (1994), 85 F.T.R. 13 (T.D.), refd to. [para. 10].

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. 12].

Kisana v. Canada (Minister of Citizenship and Immigration) (2009), 392 N.R. 163; 2009 FCA 189, refd to. [para. 12].

Ozomma v. Canada (Minister of Citizenship and Immigration) et al. (2012), 419 F.T.R. 218; 2012 FC 1167, refd to. [para. 14].

Hnatusko v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 15; 2010 FC 18, refd to. [para. 14].

Hassan v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 359; 2011 FC 613, refd to. [para. 14].

Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; 163 N.R. 27; 115 Nfld. & P.E.I.R. 334; 360 A.P.R. 334, refd to. [para. 20].

Umana v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 248; 2003 FCT 393, refd to. [para. 33].

Manickavasagar v. Canada (Minister of Citizenship and Immigration) (2012), 408 F.T.R. 52; 2012 FC 429, refd to. [para. 47].

Ormankaya v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 747; 2010 FC 1089, refd to. [para. 47].

Fernandopulle v. Canada (Minister of Citizenship and Immigration) (2005), 331 N.R. 385; 2005 FCA 91, refd to. [para. 48].

Li (Y.) v. Canada (Minister of Citizenship and Immigration) (2005), 329 N.R. 346; 2005 FCA 1, refd to. [para. 55].

Prophète v. Canada (Minister of Citizenship and Immigration) (2009), 387 N.R. 149; 2009 FCA 31, refd to. [para. 55].

Loyo de Xicara et al. v. Canada (Minister of Citizenship and Immigration) (2013), 433 F.T.R. 263; 2013 FC 593, refd to. [para. 56].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 57].

Fi v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 655; [2007] 3 F.C.R. 400; 2006 FC 1125, refd to. [para. 57].

Kaur v. Canada (Minister of Citizenship and Immigration) (2014), 455 F.T.R. 220; 2014 FC 505, refd to. [para. 59].

Jama v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2009] F.T.R. Uned. 600; 2009 FC 781, refd to. [para. 59].

Surajnarain v. Canada (Minister of Citizenship and Immigration) (2008), 336 F.T.R. 161; 2008 FC 1165, refd to. [para. 66].

Portillo v. Canada (Minister of Citizenship and Immigration) (2012), 409 F.T.R. 290; 2012 FC 678, refd to. [para. 66].

Pineda v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 949; 2011 FC 403, refd to. [para. 66].

Neri et al. v. Canada (Minister of Citizenship and Immigration) (2013), 441 F.T.R. 206; 2013 FC 1087, refd to. [para. 66].

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), refd to. [para. 70].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 96, sect. 97 [para. 7]; sect. 112(1) [para. 1].

Authors and Works Noticed:

UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, para. 53 [para. 10].

Counsel:

David Matas, for the applicant;

Alexander Menticoglou, for the respondent.

Solicitors of Record:

David Matas, Winnipeg, Manitoba, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Winnipeg, Manitoba, for the respondent.

This application was heard on July 8, 2014, at Winnipeg, Manitoba, before Strickland, J., of the Federal Court, who delivered the following decision on August 12, 2014.