Date:
20120606
Docket:
IMM-5650-11
Citation:
2012 FC 710
Toronto, Ontario, June 6, 2012
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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MURSAL FARAH ALI
HOSPITALITY
HOUSE REFUGEE MINISTRY INC.
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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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AND
BETWEEN:
Docket: IMM-5652-11
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ABDULLAH MOHAMMED KARSHE
HOSPITALITY
HOUSE REFUGEE MINISTRY INC.
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
These
reasons pertain to two applications for judicial review brought by Mursal Farah
Ali and his brother-in-law, Abdullah Mohamed Karshe, from decisions refusing their applications for
permanent resident visas as members of the ‘Convention refugee abroad’ or ‘country
of asylum’ classes. In accordance with the Order of Justice Scott, the two
applications were heard together.
[2]
For
the reasons that follow, I am not persuaded that the applicants were treated
unfairly in the visa assessment process. Nor have they persuaded me that the
decisions refusing their applications for permanent residence were
unreasonable. Consequently, the applications for judicial review will be
dismissed.
Background
[3]
Mr.
Ali, Mr. Karshe and their respective family members are asylum seekers who
currently reside together in Nairobi, Kenya.
[4]
The
Hospitality House Refugee Ministry and Abdelaziz Mohamed Karshe sponsored the
applicants for permanent residence in Canada as Convention refugees abroad or
as humanitarian-protected persons abroad. Abdelaziz Mohamed Karshe lives in Winnipeg and is Abdullah
Mohamed Karshe’s
brother.
[5]
Abdullah
Mohamed
Karshe is a 39-year-old Somali national and former truck driver. Mr. Karshe
says that in July of 2007, his truck was bombed and his wife and son were
killed in Mogadishu. He and his family fled to Kenya shortly thereafter. On his
application for a permanent resident visa, Mr. Karshe listed three dependent
children, including his putative daughter, Farhia Abdullahi Mohamed, who was
allegedly born in 1991.
[6]
Mr.
Karshe’s sister, Sahro Mohamed Karshe, is married to the second principal
applicant, Mr. Ali. The two families claim to have fled Somalia together and to have arrived in Kenya on August 2, 2007. Mr. Ali listed seven dependents on
his visa application, including his putative son, Abdihodan Mursal Farah, who
was allegedly born in 1993.
[7]
On
June 15, 2011, the applicants were interviewed by Visa Officer Carole Sauvé at
the Canadian High Commission in Nairobi in connection with their applications
for permanent resident visas. Officer Sauvé interviewed Mr. Ali and Mr. Karshe
separately, one after the other. She was satisfied that their stories were
credible, that they did not have a reasonable prospect of a durable solution in
a country other than Canada, and that they did not raise any admissibility
concerns. Accordingly, she informed Mr. Ali and Mr. Karshe that they met the country
of asylum class definition and referred them for medical examinations.
[8]
The
medical examinations were scheduled to take place at the International
Organization for Migration Clinic in Nairobi on July 5, 2011. The examinations
were not completed, however, as discrepancies were noted between the
photographs on file for Farhia Abdullahi Mohamed and Abdihodan Mursal Farah and
the people who actually presented themselves for medical examinations. The
Clinic contacted the Canadian High Commission to inform it of the situation.
This led to the applicants being called in for a second interview at the High
Commission offices.
[9]
On
July 13, 2011, Visa Officer Erik Mjanes interviewed the applicants. He noted
that it was obvious that the photographs submitted with the applications did
not match two of the children attending the interview. The Officer noted that
the person identified as Farhia in the photo looked to be about 20 years old,
whereas the young woman in front of him appeared to be about 13 or 14 years of
age.
[10]
Farhia
told the visa officer that she was in Grade 8. She explained that she did not
look like the person in her photo because she had been ill with typhoid fever
at the time that the photo was taken, and that she had since gained weight.
[11]
Abdihodan
explained that he did not look like the person in the photograph as he had been
much younger when his photo was taken in 2006.
[12]
Once
he had interviewed the two children, Officer Mjanes
brought Mr. Karshe into the room. Mr. Karshe appeared to be very nervous, and
was unable to answer basic questions about his putative daughter.
[13]
When
pressed by the Officer to tell the truth, Mr. Karshe asked the children to
leave the room. He then explained to Officer Mjanes that he had found Farhia
lying on the ground during the fighting in Mogadishu on the day his wife and
son were killed. He adopted her as his child, and neither she nor his other
children were aware that she is not his biological daughter. Mr. Karshe stated
that he did not disclose Farhia’s true identity on his application for
permanent residence because he did not want the children to discover the truth
about her origins. According to Mr. Karshe, the photo on file was of his real
daughter, who is married and lives in Ethiopia with her two children.
[14]
On
its face, Mr. Karshe’s explanation for his deception makes no sense. His
putative daughter would have been around 10 years old at the time of her
alleged adoption. Mr. Karshe’s other children would have been 15 and 17 years
old at the time of the adoption. All of the children would therefore clearly
have been aware of another child suddenly joining the family.
[15]
Officer
Mjanes questioned Mr. Karshe about the fact that he did not have any documents
from the United Nations High Commission for Refugees (UNHCR) or any other
identity documents issued prior to May of 2011, even though he claimed to have
attended at the UNHCR offices and Kenyan Department of Refugee Affairs (DRA)
offices in Nairobi on several occasions after arriving in Kenya in 2007. The
Officer noted that all asylum seekers who approach the UNHCR for assistance
receive documentation. After further questioning, Mr. Karshe changed his story
and claimed that he had never gone to the UNHCR offices.
[16]
Mr.
Karshe was excused, and Officer Mjanes then interviewed Mr. Ali. Mr. Ali
explained that the person identified as his son, Abdihodan, was not in fact his
real son but was his nephew, an orphan by the name of Ali Mohamed Farah. Mr.
Ali told Officer Mjanes that the child’s mother had died during childbirth and
that his father was killed during the war in Somalia in July of 2007. A few
minutes later, however, Mr. Ali told Officer Mjanes that Ali’s father was alive
still at the time of the visa application.
[17]
According
to Mr. Ali, the real Abdihodan had left Nairobi for Sudan the year before, and
Mr. Ali had not heard from him since. Mr. Ali said he had adopted Ali Mohamed,
but he had not been included on the visa application because the application
was filled out by the sponsor. Mr. Ali says that he misrepresented the child’s
identity because he was concerned that Canadian immigration authorities would
expect him to produce his son Abdihodan. He also did not want to leave his
nephew behind in Kenya.
[18]
Officer
Mjanes also asked Mr. Ali about his flight from Mogadishu and the lack of any
documentation from the UNHCR dating back to his arrival in Kenya. Mr. Ali insisted that the families had visited the UNHCR offices on a number of occasions
during their four years in Kenya, contradicting Mr. Karshe’s revised claim that
they had not attended at the UNHCR offices.
[19]
Mr.
Karshe was then invited back into the interview room. With both Mr. Karshe and
Mr. Ali present, Officer Mjanes summarized his credibility concerns, explaining
that he was not satisfied that either man was credible. He was also not
satisfied as to the identities of any of their putative family members, based
upon the misrepresentations as to some of the children’s dates of birth and
parentage.
[20]
Officer
Mjanes went on to state that he was not even certain that the two families were
Somalis from Somalia. He advised them that if they were indeed Somali, that
they should attend at the UNHCR offices and be registered as refugees. In the
meantime, the applications for permanent residence were being refused based
upon the applicants’ lack of credibility.
Was Officer Mjanes Functus?
[21]
According
to the applicants, the assessment of applications for permanent resident visas
for Convention refugees - whether inland or abroad - involve two discrete
decisions: a risk determination and then a decision on health, security and
criminality.
[22]
The
applicants argue that because Officer Sauvé had determined that they met the country
of asylum class definition, that issue had already been decided. They say that
this was a final decision made under section 147 of the Immigration and
Refugee Protection Regulations, SOR/2002-227, which provides that an
officer may “determine” whether a foreign national is a member of the country
of asylum class. Once this determination was made, the applicants submit that
it could not be revisited by Officer Mjanes because of the principle of functus
officio.
[23]
The doctrine
of functus officio provides that once a decision-maker has done
everything necessary to perfect his or her decision, he or she is then barred
from revisiting that decision, other than to correct clerical or other minor
errors. The policy rationale underlying this doctrine is the need for finality
in proceedings: Chandler v. Alberta Association of Architects, [1989] 2
S.C.R. 848, [1989] S.C.J. No. 102 (QL) at paras. 20-21.
[24]
The Supreme
Court also noted in Chandler that the doctrine of functus officio
is not limited to judicial decisions, but can apply as well to decisions of
administrative tribunals. However, it may be necessary to apply the doctrine
in a more flexible and less formalistic fashion in the administrative tribunal
context, where, for example, a right of appeal may exist only on a point of
law. Indeed, the Court held that “[j]ustice may require the reopening of
administrative proceedings in order to provide relief which would otherwise be
available on appeal”: Chandler, above at para. 21.
[25]
For the doctrine
of functus officio to be engaged, it is necessary that the decision in
issue be final. In the context of judicial decision making, a decision may be
described as final when “... it leaves nothing to be judicially determined or
ascertained thereafter, in order to render it effective and capable of
execution, and is absolute, complete and certain ...”: G. Spencer Bower & A.K.
Turner, The Doctrine of Res Judicata 2d ed. (London:
Butterworths, 1969) at 132, as cited in D.J.M. Brown & J. M. Evans, Judicial
Review of Administrative Action in Canada, 2d ed., looseleaf (Toronto:
Canvasback Publishing, 2009) vol. 3 at 12:6222.
[26]
I
am not persuaded that the doctrine of functus officio applies here, as Officer
Sauvé had not reached a ‘final decision’ in relation to the applicants’
application for permanent residence under section 11 of Immigration and
Refugee Protection Act, S.C. 2001, c. 27.
[27]
The
determination that the applicants met the requirements of the country of asylum
class was but one step in the process that could lead to the issuance of a
permanent resident visa, which was what the applicants had applied for. There
were still aspects of the application for permanent residence that remained to
be determined in order
to render Officer
Sauvé’s decision effective
and capable of execution.
[28]
Indeed,
as the CAIPS notes state, Officer Sauvé’s decision was merely a “selection
decision”. This Court has described such decisions as “an internal
intermediate step on the road to a final decision about a visa”: Patel v. Canada (Secretary of State) (1999), 31 Imm. L.R. (2d) 120, [1995] F.C.J. No. 1410 (QL)
at para. 6.
[29]
A number of
cases of this Court have determined that visa officers are not functus
officio until a visa is issued or refused: Brysenko v. Canada (Minister of Citizenship and Immigration) (2000), 193 F.T.R. 129, 10 Imm. L.R.
(3d) 257 at para. 6.
[30]
Intermediate
decisions made in the course of the assessment process are not ‘final decisions’ for the
purposes of the functus officio doctrine. Indeed, a visa officer may
reverse an initial or preliminary finding made in the context of an application
for a permanent resident visa: see Brysenko, above; Vimalenthirakumar
v. Canada (Minister of Citizenship and Immigration),
2010 FC 1181, [2010] F.C.J. No. 1481 (QL) at paras. 20-24; Patel, above
at para. 6.
[31]
Moreover,
even if I were satisfied that Officer Sauvé had made a final decision (which I
am not), I would nevertheless conclude that visa officers retain the discretion
to reopen a visa application to do justice in unusual circumstances: see, for
example, Kheiri v. Canada (Minister of Citizenship and Immigration)
(2000), 193 F.T.R. 112, 8 Imm. L.R. (3d) 265 at para. 8; Moumivand v. Canada (Minister of Citizenship and Immigration), 2011 FC 157, [2011] F.C.J. No. 354
(QL) at para. 17; Grigaliunas v. Canada (Minister of Citizenship and
Immigration), 2012 FC 87, [2012] F.C.J. No. 87 (QL).
[32]
Visa
officers must retain the discretion to look at previous decisions in order to
ensure that immigrants are not inappropriately let into Canada: Lo v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1155, 229 F.T.R. 145
at para. 33. This policy concern applies equally in the refugee context where
the identity of one of the applicants is at issue.
[33]
There are
strong policy considerations militating against recognizing several ‘final’
decisions leading up to the granting of a visa. Courts have recognized the
practical reality that visa officers are often transferred before a visa is
issued, and thus have held that “it is the visa officer who issues the visa who
must satisfy himself or herself that the selection criteria have been met”: Brysenko,
above at para. 6; see also Lo, above at para. 32.
[34]
A
finding of functus would mean that a visa officer who has taken over the
caseload of a departing officer could not review or alter an assessment made by
another officer, even though a visa has not yet issued. In such cases, the new
visa officer “could only act as [a] rubber stamp” for earlier assessments, even
though it would be the new officer who would actually issue the visa: Lo at
para. 32.
[35]
It will,
moreover, be in the interests of justice to correct mistakes where new
information comes to light during the processing of an application that would
call into question an applicant’s admissibility to Canada: Lo, above at
para. 33.
[36]
Indeed,
in Chan v. Canada (Minister of Citizenship and Immigration), [1996] 3
F.C. 349, 114 F.T.R. 247 at para. 28, this Court recognized that new evidence
demonstrating an applicant’s inadmissibility may legitimately require the
reconsideration of a visa application, even after the visa has issued.
[37]
As
a consequence, I am satisfied that Officer Mjanes did not err in law in
reconsidering whether the applicants met the country of asylum class
definition.
Did Officer Mjanes Err in
Departing from the Findings of Officer Sauvé Without Providing Clear and
Compelling Reasons for doing so?
[38]
Relying upon
the decision of the Federal Court of Appeal in Canada (Minister of Citizenship
and Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572 at para. 11, the
applicants argue that Officer
Mjanes erred by failing to provide
clear and compelling reasons for departing from Officer Sauvé’s finding that the applicants met the
country of asylum class definition.
[39]
I
have real concerns as to whether the decision in Thanabalasingham has any application
here, given that it relates to successive detention reviews. It is not,
however, necessary to decide this question as it is quite clear on the face of
the record why Officer
Mjanes revisited the issue of the applicants’ membership in the country of asylum
class.
[40]
The
applicants misrepresented the identity of two family members and provided
implausible and contradictory reasons for so doing. They were also unable to
provide a coherent explanation for their inability to produce any documentation
supporting their claim to have escaped Somalia in 2007. It was therefore
entirely reasonable for Officer Mjanes to doubt the truthfulness of their
entire story, including the date and circumstances of their flight from Somalia. He did, moreover, provide
clear and compelling reasons for his decision to revisit Officer Sauvé’s
earlier decision.
The Fairness Arguments
[41]
The
applicants submit that they were treated unfairly by Officer Mjanes in several
ways. Where issues
of procedural fairness arise, 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.
[42]
The
applicants first argue that it was unfair for Officer Mjanes to interview each
of the principal applicants in the absence of the other. They say that the
evidence of each of the principal applicants was extrinsic evidence in the
other’s case with the result that it should have been disclosed to each
applicant and an opportunity provided to respond to that evidence before a
decision was made in relation to each application.
[43]
I
do not accept this submission. It is clear from Officer Mjanes’ interview notes
that he raised with each applicant his concerns regarding the lack of
documentation, the identity of the family members, and the length of time the
family had been in Kenya, and that he provided each principal applicant with
the opportunity to respond to those concerns.
[44]
It
is also clear from the notes that Officer Mjanes provided Mr. Ali and Mr.
Karshe with a summary of his credibility concerns. Neither applicant has
provided an affidavit in support of his application, and there is thus nothing
in the record to indicate that either applicant was unaware of the other’s
evidence or that they were unable to address Officer Mjanes’ concerns. Nor have
they produced any evidence that could have been provided to address the
Officer’s concerns.
[45]
The
applicants also contend that Officer Mjanes breached procedural fairness by
refusing to give them an opportunity to submit further documentation to address
the Officer’s credibility concerns. After Officer Mjanes advised the applicants
that their applications were being refused, they offered to try to obtain
documents from the UNHCR or the DRA. The Officer declined to give them an
opportunity to do so and confirmed the refusal of the applications.
[46]
The
applicants submit that the positive decision issued by Officer Sauvé created a
legitimate expectation that a certain result would be reached in their case. In
light of this, they say that Officer Mjanes ought to have accorded them more
extensive procedural rights in this case than would otherwise be accorded,
citing Baker v. Canada (Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817, [1999] S.C.J. No. 39 (QL) at para. 26. Specifically, the
applicants argue that Officer Mjanes had a duty to allow them to provide
documentation from the UNHCR or the DRA before reaching his decision.
[47]
A
review of Officer Mjanes’ decision confirms that his concern was with the lack
of documentation confirming that the two families actually arrived in Kenya from Somalia in 2007. Counsel for the applicants explained that the timing of the families’
arrival in Kenya was important as there are Somali applicants who have lived in
Kenya for many years who are now seeking to come to Canada claiming to have
recently fled the violence in their country of origin.
[48]
Given
the nature of the Officer’s concerns, registration documentation issued to the
applicants by either the UNHCR or the DRA in 2011 could not have addressed
Officer Mjanes’ concerns. In these circumstances, I am not persuaded that the Court
should intervene in this regard.
[49]
Finally,
the applicants contend that Officer Mjanes erred in issuing a collective or
combined decision for both families, rather than assessing each of the
principal applicant’s applications on an individual basis. The joint nature of
the decision is apparent when one considers that the reasons for the decision
(the CAIPS notes) make no distinction between the applications, and use the
plural throughout.
[50]
The
applicants argue that because of the way that Officer Mjanes conducted the
interviews, it is impossible to know whether factors relevant to one case
affected the disposition of the other case. Moreover, the Officer was obliged to
respond to the individual circumstances of each case in assessing credibility,
rather than assessing credibility on a group basis. Overlapping or similar
facts do not entitle an officer to make a collective decision.
[51]
I
do not agree. The two applications were clearly interconnected, with common facts and issues. The families were
related. They claim to have travelled together from Somalia to Kenya and to have lived together in Nairobi. It
would, in my view, be unduly formalistic to require an officer to make two
almost identical sets of CAIPS notes in such circumstances.
[52]
The determinative
question is not one of fairness, but instead of whether the reasons demonstrate
“justification, transparency and intelligibility”: Dunsmuir, above at
para. 47. It is apparent from Officer Mjanes’ notes that he assessed each
application individually, and he provided clear reasons for rejecting each
application. There is no basis for this Court’s intervention.
Conclusion
[53]
For these
reasons, the applications are dismissed.
Certification
[54]
Counsel
for Mr. Karshe and Mr. Ali has proposed 13 questions for certification in this
case.
[55]
I
would start by observing that in Varela v. Canada (Minister of Citizenship
and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129, at para. 28, the
Federal Court of Appeal stated that section 74 of the Immigration and Refugee
Protection Act refers to the certification “of ‘a’ serious question of general
importance, not of ‘one or more’ serious questions of general importance”.
While recognizing that it is possible that a specific case could raise more
than one question of general importance, the Court held that “this would be the
exception rather than the rule”. The Federal Court of Appeal clearly did not
contemplate the certification of 13 questions in a single case.
[56]
Five
of the applicants’ questions relate to the functus issue. As discussed
earlier in these reasons, the law on this issue is well developed and well settled,
and thus the questions proposed by the applicants are not appropriate for
certification.
[57]
The
applicants’ sixth question asks whether a person in Officer Mjanes’ situation was
obliged to give an applicant notice and an opportunity to respond before was
reconsidering a determination that the person is a member of the humanitarian protected
persons abroad class. This is not an appropriate question for certification. It
would not be dispositive of this case in light of the fact that Officer Mjanes
did provide the applicants with notice of his concerns and an opportunity to
respond to them.
[58]
Question 7 is
also not an appropriate question for certification as it is premised on there
being a failure to apprise one applicant of the content of interviews with the
other applicant. As noted earlier, there is nothing in the record before me to
contradict the statement in Officer Mjanes’ notes that he provided Mr. Ali and
Mr. Karshe with a summary of his credibility concerns.
[59]
Question
8 asks whether applicants are entitled to separate reasons which relate
specifically to each applicant’s case. I am not persuaded that this is a serious question of general
importance given the fact-specific inter-relatedness of these particular
applications. I also do not agree that question 9, which related to collective
decision-making, should be certified, as it is premised on the decisions not
being linked to the individual cases, a premise that is not borne out on the
record.
[60]
Question 10
and 11 relate to whether Officer Mjanes should have afforded the applicants the
opportunity to obtain documents prior to refusing their application. Once
again, I am not persuaded that this question should be certified as the
Officer’s decision not to afford the applicants with such an opportunity in
this case was predicated on the precise nature of his concerns and the ability
of the specific documents in issue to address those concerns.
[61]
The applicants’
final two questions relate to de facto family members. Neither question
arises in this case. Officer Mjanes’ concerns did not relate to the fact that Farhia Abdullahi
Mohamed and Abdihodan Mursal Farah were
de facto family members rather than blood relatives. His concern was
that the applicants had lied about the children’s identities.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1.
These
applications for judicial review are dismissed;
2.
No serious
question of general importance is certified; and
3.
A copy of
these reasons shall be placed on IMM-5652-11 and IMM-5650-11.
“Anne Mactavish”
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