Al-Ghazali v. Canada (Minister of Citizenship and
Immigration)
Between
Al-Ghazali Fouad, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 768
2012 FC 460
Docket IMM-2130-11
Federal Court
Toronto, Ontario
Mactavish J.
Heard: April 18, 2012.
Judgment: April 19, 2012.
Docket IMM-2130-11
Federal Court
Toronto, Ontario
Mactavish J.
Heard: April 18, 2012.
Judgment: April 19, 2012.
(31 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MACTAVISH J.:-- Fouad Al-Ghazali seeks
judicial review of the decision of a visa officer finding him to be
inadmissible to Canada because there were reasonable grounds to believe that he
was a member of the al-Jabha al-Wataniya Lilmu'ardha (or "MOG"), an organization that engaged in the
subversion of a government by force.
2 Mr.
Al-Ghazali asserts that he was treated unfairly in the inadmissibility process,
as the visa officer precluded him from adducing evidence to show that the MOG
was not an organization that had engaged in the subversion of a government by
force. He further submits that the visa officer's membership finding was
unreasonable.
3 For
the reasons that follow, I am not persuaded that Mr. Al-Ghazali was treated
unfairly or that the visa officer's inadmissibility finding was unreasonable.
As a result, the application for judicial review will be dismissed.
Background
4 Mr.
Al-Ghazali is a citizen of Yemen. He left Yemen for Switzerland in 1999. On his
arrival in Switzerland he made an application for refugee protection. The basis
for his refugee claim was his membership in the MOG. Mr. Al-Ghazali's refugee
claim was dismissed on credibility grounds.
5 Mr.
Al-Ghazali married a Canadian citizen in 2003, and his wife subsequently submitted
an application to sponsor him for permanent residence as a member of the family
class.
6 In
an interview with Canadian immigration authorities in 2005, Mr. Al-Ghazali
denied having ever been a member of MOG in Yemen. He claimed that he had left
Yemen for family reasons, and that he had fabricated his story of MOG
involvement to support his refugee claim in Switzerland.
7 Mr.
Al-Ghazali was interviewed again in 2010, this time by the visa officer. In the
course of this interview, the officer asked him to resolve the discrepancies in
his story and to provide evidence to corroborate his claim not to have been a
member of the MOG. Mr. Al-Ghazali declined the officer's offer of additional
time to adduce such evidence, submitting that the only evidence available to
him was the rejection of his Swiss refugee claim on credibility grounds.
The Visa Officer's Decision
8 The
visa officer found Mr. Al-Ghazali to be inadmissible to Canada under paragraph
34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and refused his application for permanent
residence.
9 The
officer found that there were reasonable grounds to believe that Mr. Al-Ghazali
was a member of the MOG, an organization that had engaged in the subversion of
the Yemeni government by force. The officer was satisfied that Mr. Al-Ghazali
associated with members of the MOG over a lengthy period of time, and that he
was involved in writing slogans, distributing flyers and instigating people
against the government of Yemen on behalf of the MOG.
10 The
visa officer based his finding on the sworn declarations that Mr. Al-Ghazali
had provided to the Swiss government in connection with his refugee claim. The
officer was of the view that these statements created a presumption that Mr.
Al-Ghazali was a member of the MOG, and that he now bore the burden of
rebutting that presumption which he had failed to do simply by recanting his
earlier claims.
11 Nor
was the visa officer persuaded that the rejection of Mr. Al-Ghazali's refugee
claim by the Swiss authorities was enough to establish that he had fabricated
his claim of MOG involvement. The officer observed that the two cases involved
different standards of proof and that the evidence before him was sufficient to
satisfy the lower "reasonable grounds to believe" threshold.
Was Mr. Al-Ghazali Treated Unfairly by the Visa
Officer?
12 Mr.
Al-Ghazali submits that the visa officer treated him unfairly by failing to
afford him an opportunity to adduce evidence that the MOG was not an
organization that had engaged in the subversion of the Yemeni government by
force.
13 Where
an issue of procedural fairness arises, the task for the Court is to determine
whether the process followed by the decision-maker satisfied the level of fairness
required in all of the circumstances: see Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339 at para. 43.
14 The
content of the duty of procedural fairness owed by the visa officer in this
case was at the lower end of the spectrum. The Federal Court of Appeal has held
that inadmissibility determinations give rise to a lesser duty of fairness
where they involve the refusal of a visa to a person outside Canada. The
interests at stake in such cases are less serious, and the visa applicant
always bears the burden of proving admissibility: Chiau
v. Canada (Minister of Citizenship and Immigration),
[2001] 2 F.C. 297, [2000] F.C.J. No. 2043 (QL) at para. 54 (F.C.A.); Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345, [2001] F.C.J. No. 1699 (QL) at para. 30; Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539 at para. 46.
15 In
this case, the visa officer's concerns arose from the wording of the statute.
Mr. Al-Ghazali was thus on notice of the determinative issues by virtue of the
wording of paragraph 34(1)(f) of IRPA.
16 There
is no obligation on officers to give notice of any concerns arising directly
from the provisions of the Act or its Regulations: Patel
v. Canada (Minister of Citizenship and Immigration),
2002 FCA 55, 288 N.R. 48 at para. 10; Pan v. Canada
(Minister of Citizenship and Immigration), 2010 FC 838,
90 Imm. L.R. (3d) 309 at para. 26; Johnson v. Canada
(Minister of Citizenship and Immigration), 2008 FC 2,
163 A.C.W.S. (3d) 439 at para. 34; Ayyalasomayajula v.
Canada (Minister of Citizenship and Immigration), 2007
FC 248, 155 A.C.W.S. (3d) 941 at para. 18.
17 Indeed,
the evidentiary options open to Mr. Al-Ghazali to establish his admissibility
to Canada were obvious from a reading of subsection 34(1) of Immigration and Refugee Protection Act, and
the officer was not required to help Mr. Al-Ghazali make his case for him.
18 Even
if the visa officer should have expressly advised Mr. Al-Ghazali that it was
open to him to adduce evidence with respect to the nature of the MOG as an
organization, Mr. Al-Ghazali has failed to persuade me that he was prejudiced
in any way by the failure of the officer to do so.
19 Mr.
Al-Ghazali has produced some country condition information which refers to the
MOG in support of his application for judicial review. I have reviewed this
information carefully. There is nothing in that documentation that contradicts
or otherwise calls into question the officer's finding that the MOG was engaged
in the subversion of the Yemeni government by force. Indeed, much of the
information relied upon by Mr. Al-Ghazali actually reinforces the visa
officer's finding in this regard.
Was the Visa Officer's Finding that Mr. Al-Ghazali
was a Member of the MOG Reasonable?
20 Mr.
Al-Ghazali also argues that the visa officer's membership finding was
unreasonable as it was made in the absence of a compelling or credible
evidentiary base as required by Mugesera v. Canada
(Minister of Citizenship and Immigration), 2005 SCC 39,
[2005] 2 S.C.R. 100 at para. 114.
21 According
to Mr. Al-Ghazali, the only evidence supporting the officer's membership
finding was his sworn statements given to the Swiss authorities, which he has
since recanted. Mr. Al-Ghazali argues that his contention that he lied about
his MOG involvement is corroborated by the Swiss authorities' finding that his
refugee claim was not credible.
22 I
do not accept this argument. It was reasonably open to the visa officer to find
that there were reasonable grounds to believe that Mr. Al-Ghazali had been a
member of the MOG based upon his sworn declaration to that effect in the
context of his Swiss refugee claim.
23 Even
though the Swiss authorities found that Mr. Al-Ghazali's refugee claim was not
credible, it does not follow that the visa officer had to accept Mr.
Al-Ghazali's new and alternative account of events: Shkabari
v. Canada (Minister of Citizenship and Immigration),
2006 FC 856, 150 A.C.W.S. (3d) 201 at paras. 19, 28-29; Cheung
v. Canada (Minister of Citizenship and Immigration),
2003 FCT 710, 235 F.T.R. 150 at paras. 3-4, 7, 20; Dust
Parast v. Canada (Minister of Citizenship and Immigration), 2005 FC 660, 153 A.C.W.S. (3d) 1210 at paras. 13-14.
24 Moreover,
it is apparent from a review of the Swiss refugee decision that a different
standard of proof was applied to Mr. Al-Ghazali's refugee claim than is
applicable to an inadmissibility finding under subsection 34(1) of IRPA. Mr. Al-Ghazali was required to
establish his Swiss refugee claim on a balance of probabilities, whereas the
visa officer only needed to have reasonable grounds to believe that Mr.
Al-Ghazali was a member of the MOG.
25 The
Supreme Court of Canada described the "reasonable grounds to believe"
evidentiary standard in Mugesera
as requiring "something more than mere suspicion, but less than the standard applicable in civil matters of proof on the
balance of probabilities". [my emphasis] The Court
went on to hold that reasonable grounds will exist "where there is an
objective basis for the belief which is based on compelling and credible
information": at para. 114.
26 Mr.
Al-Ghazali has told two fundamentally different stories regarding his
involvement with the MOG, changing his story only when it was in his interest
to do so. It is clear that at least one of his stories is not true. The officer
concluded that the other story was true.
27 I
recognize that it may be difficult for Mr. Al-Ghazali to understand how he can
be found to have been lying about being a member of the MOG by the Swiss
authorities, and then be found to have been lying about not being a member of
the MOG by the visa officer.
28 However,
as the Federal Court of Appeal observed in Agraira v.
Canada (Minister of Public Safety and Emergency Preparedness), 2011 FCA 103, 415 N.R. 121 at para. 73, this absurdity "is
more apparent than real. Mr. Al-Ghazali claimed to be a member of the MOG when
it suited his purposes and then denied being a member of the organization when
it suited a different purpose.
29 The
visa officer interviewed Mr. Al-Ghazali in person, and was thus in a position
to assess his credibility and decide which of his stories was to be believed.
The officer concluded that the information provided by Mr. Al-Ghazali under
oath to the Swiss authorities was credible, and that his subsequent recantation
was not. That was an assessment that the visa officer was best positioned to
make, and Mr. Al-Ghazali has not persuaded me that the officer's credibility
assessment was unreasonable.
30 Having
determined that Mr. Al-Ghazali's statements to the Swiss authorities were
credible, the visa officer clearly had reasonable grounds to believe that Mr.
Al-Ghazali was a member of the MOG.
Conclusion
31 For
these reasons, the application for judicial review is dismissed. I agree with
the parties that the case does not raise a question for certification.
JUDGMENT
· THIS COURT'S JUDGMENT is that:
This application for
judicial review is dismissed; and
No serious question of
general importance is certified.
MACTAVISH J.
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