Date: 20110909
Docket: IMM-6777-10
Citation: 2011 FC 1064
Ottawa, Ontario, September 9, 2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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OMAR HASSAN KAHIN
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review by Omar Hassan Kahin challenging a
decision by an Immigration Officer refusing his application for a permanent
resident visa on the basis that he had failed to sufficiently document the
particulars of his life after entering Canada in 1993.
[2]
Mr.
Kahin is a Somalian who obtained refugee protection in Canada in 1993. The
Respondent provisionally approved his application for permanent residence in
November of that year.
[3]
For
reasons that are not fully explained in the record before me, the Respondent
did not process or finalize Mr. Kahin’s application for permanent resident
status and portions of the file were eventually either archived or destroyed.
[4]
In
July of 2006, Mr. Kahin’s counsel wrote to the Respondent to ascertain the
status of his application. The Respondent invited Mr. Kahin to submit a fresh
application and he did so in September 2006. At some later point the Respondent
located the original application.
[5]
In
processing Mr. Kahin’s new application, the Respondent had a number of questions
about his whereabouts and activities during the previous 13 years.
[6]
In
his 2006 application, Mr. Kahin declared that he had been employed by a “Hunting
Store” in Edmonton, Alberta in
2006, as a security guard with Vanguard Security in Vancouver, British
Columbia between 2001 and 2003, and as a security guard with Avalon Security in
Surrey,
British
Columbia
between 1994 and 1998. He also advised the Respondent that he had been employed
essentially “under the table” without a social insurance number.
[7]
The
Immigration Officer sought additional details concerning Mr. Kahin’s work
history during the previous ten years including the names of his employers, their
locations, and the nature of his work. Mr. Kahin responded by declaring
employment with the Avalon Company in Surrey between 1994 and 1998 and his current
employment with Ipex in Edmonton.
[8]
The
Immigration Officer wrote once again to Mr. Kahin asking for confirmatory
letters from three of his declared employers, namely Ipex, Vanguard Security,
and the Hunting Store. Mr. Kahin responded cryptically by stating that Ipex
refused his request for a letter and that he could not find either Vanguard
Security or the Hunting Store for the purpose of seeking letters.
[9]
The
Immigration Officer’s Report to File indicates that she quite properly took it
upon herself to verify some aspects of Mr. Kahin’s employment history. She
contacted the office manager of Vanguard Security Ltd. who told her that no
employment record for Mr. Kahin could be found. She also confirmed that all security
guards employed by Vanguard Security were required to be licensed by provincial
authorities. The Immigration Officer then contacted the Ministry of Public
Safety in Victoria and learned that Mr. Kahin had only been licensed to work as
a security guard in British Columbia for a few months in 1994. The Immigration
Officer also carried out an internet search for Avalon Security (a.k.a. Avlon)
and found only one reference to a company in Minnesota. A call to
that business indicated that it had never operated outside of Minnesota. It is
common ground that the Immigration Officer did not disclose any of the above
information she obtained independently to Mr. Kahin or to his counsel before issuing
the decision to reject his application for a permanent resident visa.
[10]
The
impugned decision summarized the Immigration Officer’s concerns as follows:
Having carefully reviewed your case, I am
not satisfied that the information you have provided regarding your personal
history, including your places of residence and activities is factual and
complete. Consequently your application is refused.
No further consideration may be given to
your request for permanent residence as a protected person. Should you wish to
pursue another application for permanent residence, you will be required to
submit a new application requesting humanitarian and compassionate
consideration, accompanied by new processing fees.
This decision does not affect your status
as a protected person in Canada.
[11]
The
determinative issue on this application concerns the duty of fairness which is,
of course, reviewable on the standard of correctness. Specifically, the
question before me is whether the Immigration Officer had a duty to disclose to
Mr. Kahin the information she had obtained from third-party sources and to
provide him with an opportunity to respond.
[12]
Counsel
for the Respondent argues with some persuasion that Mr. Kahin knew that the
information he had provided might be subjected to verification and that it was
well within Mr. Kahin’s capacity to anticipate the nature of the
Immigration Officer’s concerns. In short, she argues that Mr. Kahin ought to have
made the same enquiries and produced whatever evidence he could to corroborate
his employment narrative. Having failed to put his best case forward, he cannot
complain that the Immigration Officer’s investigation undermined his story.
[13]
The
Respondent relies upon the Federal Court of Appeal decision in Mancia v
Canada (Minister of Citizenship and Immigration), [1998] 3 FC 461 at para
26, 147
FTR 307 [Mancia], which holds that generally available or
open source documentary evidence obtained by a decision-maker in advance of the
applicant’s submissions is generally not required to be disclosed.
[14]
The
problem that I have with the Respondent’s position is that the nature of the
information obtained by the Immigration Officer does not conform to the principles
articulated in Mancia, above. Much of the obtained information came from
private discussions with third parties, which would not have been known to Mr.
Kahin and which, had he known of it, might have been open to clarification or
contradiction. By way of example, there is no indication given in the
Immigration Officer’s reasons as to whether she asked the source from Vanguard
Security about its practices for document retention and, more specifically, if
its employment records from 2001 to 2003 were still available.
[15]
It
is impossible to know precisely from the Immigration Officer’s reasons how much
weight she gave to the information provided by Avalon Security. However, if
her failure to locate such a business in British Columbia concerned
her, she should have looked to Mr. Kahin for an explanation.
[16]
This
type of evidence falls squarely within the definition of extrinsic evidence,
which must be disclosed to an interested party before it is relied upon. Having
embarked upon these independent and private enquiries, the Immigration Officer
had a duty to disclose the results and to invite a response. This is consistent
with cases like Zamora v Canada (Minister of Citizenship and
Immigration), 2004 FC 1414 at paras 17-18, 260 FTR 155, where Justice Sean
Harrington noted the importance of disclosing independent research (including
some forms of material obtained on the internet), particularly if the
information is open to potential challenge on the basis of questionable
validity or completeness: also see Mancia at paras 10 to 23. Although I
accept the Respondent’s point that Mr. Kahin could have reasonably anticipated
that the Immigration Officer might seek to verify his declarations, he had no
basis to anticipate what the results of that investigation might be. The
information relied upon here might well be wrong, incomplete, or open to
explanation. Even if it was complete and accurate, that is not the point of
concern. In D.K. v Canada (Minister of
Citizenship and Immigration), 2011 FC 845, [2011] FCJ no 1046 (QL) (TD),
Justice François Lemieux described the relevant concern in the
following passage at para 30:
The Officer may have been right in
concluding that the post-hearing material was of no value and may have been
fraudulent but that is not the point. The point is that the applicant and her
counsel had no opportunity to comment on the evidence which the officer herself
obtained and relied on to render the decision she reached.
Fairness demanded that Mr. Kahin be given
the opportunity to be told about the Immigration Officer’s findings and
afforded the right of response. He did not get that chance and the decision
must accordingly be set aside.
[17]
Neither
party proposed a certified question that would be of any relevance to the above
disposition.
[18]
The
matter must be redetermined on the merits by a different decision-maker.
JUDGMENT
THIS COURT’S JUDGMENT
is that this application for judicial
review is allowed with the matter to be redetermined on the merits by a
different decision-maker.
"R.L.
Barnes"
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