Date: 20101110
Docket: IMM-4225-09
Citation: 2010 FC 1124
Ottawa, Ontario, November 10, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
BEATRICE
MUSHIMIYIMANA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of an immigration officer (the officer) of the Immigration Section,
High Commission of Canada in Pretoria, South Africa (the Commission), dated
June 5, 2009, wherein the applicant was refused permanent residence in Canada
as a member of the Convention refugee abroad class.
[2]
The
applicant requests:
1. That the decision of
the Board be quashed;
2. A declaration that
the applicant is a Convention refugee;
3. In the alternative,
a declaration that there are grounds upon which an officer should determine the
applicant to be a Convention refugee; and
4. That the matter be
referred back to the Commission for reconsideration in accordance with such
orders this Court considers appropriate.
Background
[3]
The
applicant fled to South Africa from her native Burundi with her
parents and siblings on December 8, 1999. The family of mixed Hutu and Tutsi
origin was being targeted by both ethnic groups. The family was granted
Convention refugee status by South Africa in 2001, however, the
family continued to face persecution from the Burundian community there. The
applicant’s father approached the United Nations High Commission for Refugees (UNHCR)
who referred him to the Canadian Embassy to apply for resettlement. The
applicant’s father included all of his children in the application, but the
applicant and her older brother, Richard Ndagijimana, were rejected because
they were over 22 and both were married.
[4]
The
applicant’s father, mother and five younger siblings left for Canada in October
of 2005. The applicant and her brother then applied individually for resettlement
in Canada and
described in a narrative the violent incidents from the Burundian community
beginning in March of 2000. The applicant finalized her application on March
18, 2008. Shortly thereafter, the applicant alleges that new incidents of persecution
arose, this time at the hands of the South African community, angry at
foreigners for taking jobs. The applicant described these incidents in a letter
to the Commission in May of 2008.
[5]
The
applicant and her husband, a fellow Burundian refugee, were interviewed by the
officer on January 27, 2009 at the Canadian Consulate in Cape Town. The
applicant alleges that the officer did not allow them to fully describe the
incidents of persecution. The applicant also alleges that the officer told them
there was no problem with the information on the security problems they were
having, so when the officer asked at the conclusion if they had anything to
add, the applicant only asked how long it would take for the application to be
processed. At the conclusion of the interview, the officer said he was going to
compare the information the applicant had provided with the information on her
family’s file in Pretoria.
[6]
On
June 5, 2009, the officer denied the application. The officer found that the
last incident involving the applicant occurred in December of 2006 and that
protection of the South African police could be obtained if further problems
were to occur. The applicant had a durable solution in South Africa, in the
officer’s view, and could apply there for permanent residency and citizenship
in the long term. The officer also cited the applicant’s husband’s gainful
employment in South
Africa
since 2001 and that the applicant and her dependents had the right to work and
study there.
[7]
The
applicant found the denial particularly striking in light of the fact that her
older brother’s application had been accepted.
Issues
[8]
The
issues are as follows:
1. What is the standard
of review?
2. Did the officer deny
the applicant procedural fairness by relying on extrinsic evidence?
3. Did the officer
contradict himself by finding that the applicant had both a founded claim and a
durable solution?
4. Was it reasonable
for the officer to conclude that the applicant had a durable solution in South Africa?
Applicant’s Written Submissions
[9]
The
applicant submits that it was unfair for the officer to rely on the extrinsic
evidence from the files of the applicant’s family members. The applicant was
unaware of the contents of those files and had no opportunity to respond to any
concerns the officer may have had regarding the contents.
[10]
The
officer appeared to acknowledge the applicant’s need for resettlement when he
stated that the claim appeared to be founded. Since the applicant’s refugee
status regarding persecution in Burundi had already been confirmed, it can be
inferred that the officer was referring to her claim against South Africa. It was
incongruous for the officer to then go on to state that the applicant had a
durable solution in the very same country. The reasons are not sufficiently
clear to permit the applicant to know why her claim failed and this, submits
the applicant, was an additional breach of the duty of fairness.
[11]
On
the merits, the applicant says that the officer’s ultimate conclusion was
unreasonable because it was based on an erroneous belief that the applicant
would obtain permanent resident status in South Africa and because
the officer ignored a key piece of evidence. The applicant submits that the
test for a durable solution in the country of asylum is called local
integration and, according to UNHCR documents, is comprised of legal, economic
and socio-cultural integration factors. With regard to her legal status, the
applicant submits that the officer engaged in speculation and submits that her
ability to get permanent residency is far from assured. The officer similarly
erred in considering her family’s socio-cultural integration because he
completely ignored the evidence that the applicant’s family had been
experiencing persecution at the hands of the general South African community
and felt unsafe.
[12]
In
a further memorandum, the applicant submits that the officer also erred for
failing to mention and distinguish the UNHCR Resettlement Registration Form
dated February 12, 2007 which details the persecution the applicant faces in South Africa and the
importance of reunification with family members in Canada.
Respondent’s Written Submissions
[13]
The
respondent agrees that relying on undisclosed extrinsic evidence is a breach of
procedural fairness but submits that there is no evidence that the officer in
fact relied on the information from the other files. There is no reference to
anything contained in the files. Nor is there any reference to an adverse
credibility finding or the presence of prejudicial information which would
warrant providing the applicant an opportunity to correct or address those
concerns.
[14]
The
applicant’s application was assessed on an individual basis. Not every member
of a family is in an identical situation and the circumstances which led to the
applicant’s older brother or other family members gaining acceptance were not
material to her application.
[15]
There
was no contradiction in the officer’s reasons. The officer merely noted that
the applicant’s claim appeared to be well-founded in relation to Burundi. South Africa is the
country which has granted the applicant asylum and where she has a durable
solution.
[16]
On
the merits, there were ample reasons to support his finding that South Africa provided a
durable solution as discussed in the reasons. The officer did not speculate
that she will or shall obtain permanent residency. The officer merely raised
the prospect that she could avail herself of the opportunity. Based on the
applicant’s evidence, she could have applied for permanent residency by now but
has chosen to remain in the precarious position of having to renew her refugee
status every two years.
[17]
With
respect to the evidence of xenophobic attacks, there is no evidence that this
evidence was ever put before the officer and therefore, it could not be
considered in rendering his decision. Furthermore, the officer was not required
to mention the UNHCR opinion that the applicant did not have a durable
solution. The officer was required to come to his own determination.
Analysis and Decision
[18]
Subsection
139(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations), lists the general requirements for the issuance
of permanent resident visas to the designated classes of protected persons
abroad.
[19]
In
order to comply with the requirement in paragraph 139(1)(e), an applicant needs
to establish that he or she fits into either the Convention refugees abroad
class or the humanitarian protected persons class described in subsections 144 to
148 of the Regulations.
[20]
Someone
determined to be a Convention refugee however, is still required under
subparagraph 139(1)(d)(ii) to establish that there is no reasonable prospect,
within a reasonable period, of a durable solution in another country such as an
offer of resettlement in another country. It is the officer’s determination
that a durable solution existed for the applicant in South Africa that
prevented him from allowing the application even though it appeared that the
applicant satisfied the requirement in paragraph 139(1)(e) as a Convention
refugee.
[21]
Issue
1
What is the
standard of review?
A
determination by an immigration officer of a foreign national’s applicability
under section 139 of the Regulations will generally be subject to the deferential
standard of reasonableness. The determination of whether the applicant has a
durable solution of resettlement in another country requires a review of the
applicant’s circumstances in his or her country of nationality or habitual
residence, or in another country. Such a determination is clearly a question of
mixed fact and law and is thus subject to review on the standard of
reasonableness (see Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190).
[22]
On
the issue of procedural fairness in relation to the undisclosed extrinsic
evidence the applicant says the officer relied on, I agree that the standard of
review is correctness (see Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3).
[23]
Issue
2
Was it unfair
for the officer to rely on undisclosed extrinsic evidence?
The CAIPS notes confirm that
the officer explained to the applicant at the conclusion of the interview that
he would review the information on the applicant’s relative’s file. Both
parties agree that those documents constitute extrinsic evidence such that
reliance on them without giving the applicant an opportunity to explain
apparent inconsistencies, constitutes a breach of procedural fairness (see Toma
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 780, 55 Imm. L.R. (3d) 197 at
paragraph 11). The only issue appears to be whether or not the officer in fact
relied on that extrinsic evidence in any material way.
[24]
The
respondent asserts that there is nothing in the decision letter or the CAIPS
notes to indicate that the officer based his decision to deny the application
on the contents of the applicant’s family’s file.
[25]
I
would agree, in part, that the reasons do not suggest that the officer used the
files or anything therein to impugn the truth or reliability of any of the
applicant’s other evidence. However, I would reject the respondent’s general
assertion that the files were not relied upon. I would agree with the applicant
that such an assertion is pure speculation and also unlikely.
[26]
The
officer clearly indicated to the applicant that something in her family’s file
was material to the disposition of her application. As noted, it does not
appear that he used the file to contradict the applicant’s evidence, but there
is the more troubling possibility that the case of the applicant’s other family
members was to determine the comparative merits of the applicant’s file.
Applications must be processed individually and as much as possible, only
assessed against the abstract requirements.
[27]
In
any event, the applicant has certainly given the impression during the
interview that her family’s file was material to the decision and quite
logically inferred that something contained therein when compared with her
application, led to her denial.
[28]
As
a result, the applicant was denied a fair process.
[29]
Consequently,
the application for judicial review must be allowed and the matter is referred
back for redetermination.
[30]
Because
of my finding on the above issue, I need not deal with the other issues.
[31]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[32]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27
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96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
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The Immigration
and Refugee Protection Regulations, SOR/2002-227
|
139.(1) A permanent resident visa shall be
issued to a foreign national in need of refugee protection, and their
accompanying family members, if following an examination it is established
that
(a) the
foreign national is outside Canada;
(b) the
foreign national has submitted an application in accordance with section 150;
(c) the
foreign national is seeking to come to Canada to establish permanent residence;
(d) the
foreign national is a person in respect of whom there is no reasonable
prospect, within a reasonable period, of a durable solution in a country
other than Canada, namely
(i) voluntary
repatriation or resettlement in their country of nationality or habitual
residence, or
(ii)
resettlement or an offer of resettlement in another country;
(e) the
foreign national is a member of one of the classes prescribed by this
Division;
(f) one of the
following is the case, namely
(i) the
sponsor's sponsorship application for the foreign national and their family members
included in the application for protection has been approved under these
Regulations,
(ii) in the
case of a member of the Convention refugee abroad or source country class,
financial assistance in the form of funds from a governmental resettlement
assistance program is available in Canada for the foreign national and their
family members included in the application for protection, or
(iii) the
foreign national has sufficient financial resources to provide for the
lodging, care and maintenance, and for the resettlement in Canada, of themself and their family members included in the
application for protection;
(g) if the
foreign national intends to reside in a province other than the Province of Quebec, the foreign national and their family members included
in the application for protection will be able to become successfully
established in Canada, taking into account the following
factors:
(i) their
resourcefulness and other similar qualities that assist in integration in a
new society,
(ii) the
presence of their relatives, including the relatives of a spouse or a
common-law partner, or their sponsor in the expected community of
resettlement,
(iii) their
potential for employment in Canada, given their education, work
experience and skills, and
(iv) their
ability to learn to communicate in one of the official languages of Canada;
(h) if the
foreign national intends to reside in the Province of Quebec, the competent
authority of that Province is of the opinion that the foreign national and their
family members included in the application for protection meet the selection
criteria of the Province; and
(i) subject to
subsection (3), the foreign national and their family members included in the
application for protection are not inadmissible.
. . .
144. The
Convention refugees abroad class is prescribed as a class of persons who may
be issued a permanent resident visa on the basis of the requirements of this
Division.
145. A foreign
national is a Convention refugee abroad and a member of the Convention
refugees abroad class if the foreign national has been determined, outside Canada, by an officer to be a Convention refugee.
|
139.(1)
Un visa de résident permanent est délivré à l’étranger qui a besoin de
protection et aux membres de sa famille qui l’accompagnent si, à l’issue d’un
contrôle, les éléments suivants sont établis :
a) l’étranger
se trouve hors du Canada;
b) il a
présenté une demande conformément à l’article 150;
c)
il cherche à entrer au Canada pour s’y établir en permanence;
d)
aucune possibilité raisonnable de solution durable n’est, à son égard,
réalisable dans un délai raisonnable dans un pays autre que le Canada, à
savoir :
(i) soit le
rapatriement volontaire ou la réinstallation dans le pays dont il a la
nationalité ou dans lequel il avait sa résidence habituelle,
(ii) soit la
réinstallation ou une offre de réinstallation dans un autre pays;
e)
il fait partie d’une catégorie établie dans la présente section;
f) selon le
cas :
(i)
la demande de parrainage du répondant à l’égard de l’étranger et des membres
de sa famille visés par la demande de protection a été accueillie au titre du
présent règlement,
(ii)
s’agissant de l’étranger qui appartient à la catégorie des réfugiés au sens
de la Convention outre-frontières ou à la catégorie de personnes de pays
source, une aide financière publique est disponible au Canada, au titre d’un
programme d’aide, pour la réinstallation de l’étranger et des membres de sa
famille visés par la demande de protection,
(iii) il
possède les ressources financières nécessaires pour subvenir à ses besoins et
à ceux des membres de sa famille visés par la demande de protection, y
compris leur logement et leur réinstallation au Canada;
g)
dans le cas où l’étranger cherche à s’établir dans une province autre que la
province de Québec, lui et les membres de sa famille visés par la demande de
protection pourront réussir leur établissement au Canada, compte tenu des
facteurs suivants :
(i)
leur ingéniosité et autres qualités semblables pouvant les aider à s’intégrer
à une nouvelle société,
(ii) la
présence, dans la collectivité de réinstallation prévue, de membres de leur
parenté, y compris celle de l’époux ou du conjoint de fait de l’étranger, ou
de leur répondant,
(iii)
leurs perspectives d’emploi au Canada vu leur niveau de scolarité, leurs
antécédents professionnels et leurs compétences,
(iv) leur
aptitude à apprendre à communiquer dans l’une des deux langues officielles du
Canada;
h)
dans le cas où l’étranger cherche à s’établir dans la province de Québec, les
autorités compétentes de cette province sont d’avis que celui-ci et les
membres de sa famille visés par la demande de protection satisfont aux
critères de sélection de cette province;
i)
sous réserve du paragraphe (3), ni lui ni les membres de sa famille visés par
la demande de protection ne sont interdits de territoire.
. . .
144.
La catégorie des réfugiés au sens de la Convention outre-frontières est une
catégorie réglementaire de personnes qui peuvent obtenir un visa de résident
permanent sur le fondement des exigences prévues à la présente section.
145. Est un réfugié au sens de
la Convention outre-frontières et appartient à la catégorie des réfugiés au
sens de cette convention l’étranger à qui un agent a reconnu la qualité de
réfugié alors qu’il se trouvait hors du Canada.
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