Date:
20121004
Docket:
IMM-1775-12
Citation:
2012 FC 1171
Ottawa, Ontario,
October 4, 2012
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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ASADOLLAH FOROOGH
BADRIEH FOROOGH
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is a judicial review of a visa officer’s [Visa Officer] decision denying Mr.
and Mrs. Foroogh’s application for permanent residence as Convention refugees.
The decision first confirmed Mr. Foroogh’s status as a refugee (his wife’s
application was dependent on her husband’s), but then found him “inadmissible”.
[2]
The
applications of the two children, Farzan and Farhad, for refugee protection
have been accepted.
II. FACTS
[3]
The
Applicants are Afghanistan citizens currently residing in Quetta, Pakistan. Their application for refugee protection and necessary visas were sponsored by the
Lutheran Rim ad hoc Committee, a sponsoring organization authorized by the
Respondent.
[4]
The
critical fact in this matter is that Mr. Foroogh served in the military from
1977 to 1979. He claimed that after one month of training, he was stationed in
a communications unit as a clerk. He described his responsibilities as
arranging for the paperwork for attendance, mess and patrol duties. He could
not accurately name the weapon on which he was trained nor did he have his
identity card containing the details of his military service.
[5]
The
Visa Officer’s interview is described in the Computer Assisted Immigration
Processing System [CAIPS] Notes, supplemented by the Visa Officer’s affidavit
filed in this judicial review. There is no transcript and the CAIPS Notes are
at times confusing and apparently incomplete.
[6]
The
interview was conducted with an interpreter. There were apparent problems with
translation and when Mr. Foroogh protested about the quality of the
translation, he was sent out of the interview room by the Visa Officer.
[7]
In
the Decision Letter the Visa Officer described his reason for not being satisfied
that Mr. Foroogh was “not inadmissible” was that Mr. Foroogh was not being
truthful regarding his military service location, when he served and his
related duties. Given that Mr. Foroogh did not have documentary evidence about
his military service (I note that he had been in the military 34 years prior),
the Visa Officer said that he had to rely on Mr. Foroogh’s version of facts
which he said had “significant inconsistencies”.
[8]
The
specific inconsistencies cited against Mr. Foroogh were that he claimed he was
trained on AK47s when AK47s were not used at that time in the Afghan military
and that Mr. Foroogh could not state his assignments, duties, and dates of
assignment with their locations. From this, the Visa Officer determined that he
had not met the requirements of the Immigration and Refugee Protection Act [IRPA].
The specific provision at issue is s 11(1) of the IRPA:
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11. (1) A foreign
national must, before entering Canada, apply to an officer for a visa or for
any other document required by the regulations. The visa or document may be
issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
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11. (1) L’étranger
doit, préalablement à son entrée au Canada, demander à l’agent les visa et
autres documents requis par règlement. L’agent peut les délivrer sur preuve, à
la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se
conforme à la présente loi.
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[9]
In
the Visa Officer’s CAIPS Notes, the Visa Officer added references to events
during the time of Mr. Foroogh’s military service, in particular the end of the
Daoud regime in 1978 and incidents of human rights violations at that time.
There was no correlation drawn or relevance shown between these human rights
violations and Mr. Foroogh’s own military service.
[10]
In
the Visa Officer’s affidavit filed by the Respondent, supposedly to address the
issues of procedural fairness, the Visa Officer draws out more historical facts
said to support his decision. The Visa Officer states, in addressing
credibility, that from his own experience of interviews, soldiers assigned to
clerical duties engaged in patrolling as well. Mr. Foroogh had said that he was
only involved in administrative work and had not been engaged in patrolling.
III. ANALYSIS
[11]
The
substantial legal issues are:
·
was
there a breach(es) of procedural fairness?
·
was
the decision reasonable?
[12]
Before
addressing the substantive issues, some preliminary issues must be considered.
The parties raised other issues such as the use of supplemental materials and
whether Mrs. Foroogh was a protected person.
[13]
Since
Mrs. Foroogh’s application was dependent on Mr. Foroogh’s, that issue need not
be addressed.
[14]
As
to the introduction of supplementary evidence that was not before the
decision-maker, both parties engaged in this tactic. The Applicants are in the
strange position of objecting to the Visa Officer’s affidavit for some matters
but relying on it for others.
[15]
The
Applicants’ supplemental materials are not significant in the context of the
result in this Court. The Visa Officer’s affidavit is highly relevant on the
issue of procedural fairness. The fact that he improperly attempts to further
justify the merits of the decision is a matter relevant to procedural fairness.
A. Standard of Review
[16]
It
is by now trite law that procedural fairness is reviewed on a correctness
standard of review (Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539).
[17]
Issues
of the merits of a visa decision are subject to the reasonableness standard of
review. The standards of review applicable in this case are well described in Saifee
v Canada (Minister of Citizenship and Immigration), 2010 FC 589, 2010
CarswellNat 1510 at paras 25-26:
… decisions of visa officers determining if
applicants are members of the Convention refugees abroad class or the country
of asylum class essentially raise issues of fact or of mixed fact and law, and
are consequently to be reviewed on a standard of reasonableness; however,
issues concerning natural justice and of procedural fairness raised by such
decisions are to be decided on a standard of correctness.
I agree with this approach, but add the
following caveat: decisions by visa officers on pure questions of law
made in the context of such decisions may require review on a standard of
correctness. Consequently, the application of a standard of reasonableness in
this case should not be interpreted as necessarily extending to decisions on
issues of law.
B. Procedural Fairness
[18]
In
assessing the impact of procedural fairness issues in this case, it is
important to bear in mind that Mr. Foroogh was found to be a Convention refugee
but that protection was denied to him and his wife because of the “inadmissibility
issue”. The procedural fairness issues all revolve around the inadmissibility
issue and have significant consequences for the Applicants.
[19]
The
Applicants say that the failure to provide proper translation is a breach of
fairness. However, without a proper record, this Court cannot determine that
the translation was so poor as to constitute a breach of fairness.
[20]
What
is problematic is how the Visa Officer dealt with Mr. Foroogh’s complaint,
midway through the interview, that the translator was not properly translating
his words. No attempt was made to determine if there was a problem and Mr.
Foroogh was banished from the room. On its own, the translation issue might not
rise to the level of a breach of fairness but in the context of other issues, it
points to how unsatisfactory this hearing process was and how infirmed the
ultimate decision is.
[21]
The
most serious breach of procedural fairness was the Visa Officer’s reliance on
the extraneous evidence, in this case the personal experience of the Visa
Officer interviewing other clerks, that clerks were often involved in
patrolling and guarding in addition to administrative duties. It is evident
from the decision that the Visa Officer’s adverse credibility finding was
significantly tied to this extraneous evidence.
[22]
That
extraneous evidence, read together with the comments about human rights, leads
one to conclude that Mr. Foroogh was, in some unspecified and unproven way,
involved in patrolling while human rights violations were being committed.
[23]
The
Visa Officer owed it to Mr. Foroogh to confront him, at the very least, with
the suggestion that clerks did patrols and guarded and therefore Mr. Foroogh’s
evidence was inconsistent with those facts. Mr. Foroogh had a right to comment
and allay any suspicions. He was never afforded that opportunity on a matter of
crucial importance to the Visa Officer.
[24]
This
Court in Chowdhury v Canada (Minister of Citizenship and Immigration),
43 Imm LR (2d) 291, 1998 CanLII 7505 (FC), stated that visa officers could not
be “coy” about their concerns; they act as a questioner and judge and therefore
have a duty to be scrupulous about exposing their concerns.
[25]
This
issue alone justifies granting judicial review of the inadmissibility finding.
C. Reasonableness of
Decision
[26]
The
reasonableness of the decision is substantially linked to the facts underlying
the procedural fairness issues.
[27]
The
Visa Officer did not accept Mr. Foroogh’s version because the Visa Officer
relied on extraneous evidence.
[28]
Absent
that evidence, the Visa Officer’s conclusion that Mr. Foroogh had not provided
sufficient evidence of his military service is unreasonable. Mr. Foroogh
described when he joined, where he was stationed, what unit he was attached to
and what his duties were. It is difficult to determine what more the Visa
Officer could reasonably need or want to know.
[29]
The
Visa Officer never indicates in what way Mr. Foroogh could be inadmissible such
as through complicity in human rights violation or some other offending
conduct. Therefore, the only basis for being “not inadmissible” is the
sufficiency of Mr. Foroogh’s evidence.
[30]
If
insufficiency of evidence was the basis of the decision, and this Court has
concluded that it was not, then the finding is unreasonable by reason of
paragraph 28 herein. If the decision is said to have any semblance of
reasonableness, it rests on the truth of extraneous evidence and its relevance
to the Applicant but not put to him.
[31]
Therefore,
the decision is also unreasonable.
IV. REMEDY
[32]
The
appropriate remedy is a challenge. The Applicants were successful on being
found Convention refugees. It seems unfair that this positive finding could be
put at risk by virtue of this case being remitted back for a new decision.
[33]
However,
this Court is concerned that this whole process was flawed. The Court will
quash the decision in whole and remit the matter back to a different officer.
Given the findings with respect to the two sons and the refugee finding in
respect of Mr. Foroogh, it would be unusual to not have the original refugee
conclusion reaffirmed.
[34]
There
is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted, the decision of the Canadian High Commission is quashed and the matter
is to be remitted back to a different officer.
“Michael L. Phelan”
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