Docket: IMM-2043-11
IMM-2045-11
Citation: 2011 FC 1423
Ottawa, Ontario, December 6,
2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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CLARA KIZA MUTENDE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Clara Kiza Mutende seeks judicial review of two
decisions made by an Immigration Officer. In the first decision, the Officer
declared her to be ineligible to claim refugee protection in Canada because she had entered Canada
through a safe third country and had not established that she had a family
member in Canada. Ms. Mutende
also challenges the Officer’s decision to issue an exclusion order against her.
[2]
For the reasons that follow, both of Ms.
Mutende’s applications will be dismissed.
Background
[3]
Ms. Mutende endeavoured to enter Canada from the United
States. She sought to apply for refugee protection in Canada, claiming to have a well-founded
fear of persecution in the Democratic Republic of Congo [DRC], allegedly her
country of birth and citizenship.
[4]
The combined effect of Canada’s Safe Third
Country Agreement with the United States, subsection 100(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, and section 159.5 of the Immigration
and Refugee Protection Regulations, SOR/2002-227, is that Ms. Mutende
needed to have an ‘anchor relative’ in Canada in order to be eligible to claim
refugee protection in this country.
[5]
Ms. Mutende attended at the offices of Canada
Border Services Agency [CBSA] in Fort Erie on March 11, 2011, in order to file
her refugee claim. She was accompanied by Byatanga Ilango Mutende, a Canadian
citizen who Ms. Mutende says is her brother.
[6]
An Immigration Officer interviewed the two
individuals separately in order to assess the bona fides of their
sibling relationship. The Officer determined that there were material
inconsistencies in the information provided by the pair. The Officer also had
concerns about the identity documents produced by Ms. Mutende.
[7]
The Officer advised Ms. Mutende and her putative
brother of the various inconsistencies in their statements and asked for an
explanation. Although Ms. Mutende could offer no explanation, Mr. Mutende
suggested that the discrepancies were due to Ms. Mutende being 20 years younger
than him, with the result that she might not remember family details from when
she was a child.
[8]
The Immigration Officer was not satisfied that
the age gap explained the many inconsistencies in their stories. Accordingly,
she advised Ms. Mutende and her putative brother that she would issue an
exclusion order against Ms. Mutende as she was ineligible to claim refugee
protection in Canada.
[9]
After the Officer had advised the pair of her
decision, Mr. Mutende asked the Officer if the CBSA could perform a DNA test to
prove their biological relationship. The Officer responded that CBSA did not itself
perform DNA testing, and that it was open to the applicant and Mr. Mutende to
have tests done at an accredited lab. However, because she was convinced from
the interviews that there was no sibling relationship between the pair, the
Officer was not prepared to delay her decision in order to allow them to undergo
testing.
[10]
Consequently, the Officer declared Ms. Mutende ineligible
to claim refugee protection in Canada and issued an exclusion order against her. She was returned to the United States later that day.
[11]
Three days later, the CBSA received the results
of Ms. Mutende’s RCMP/FBI fingerprint search. They revealed that Ms. Mutende
had used at least two other aliases in the United
States. More significantly, the search revealed that
Ms. Mutende was born in the city of Brazzaville, in the Republic of Congo, and not in the Democratic Republic of Congo, as she had claimed.
The Failure of the Officer to Put Inconsistencies to the Applicant
[12]
Ms. Mutende alleges in her memorandum of fact
and law that she was treated unfairly as the Officer failed to identify the
inconsistencies in her answers and give her a chance to explain. She did not
pursue this argument at the hearing, and in any event, it appears from the
record that the Officer did in fact confront Ms. Mutende and her putative
brother with the inconsistencies in their stories and afforded them an opportunity
to explain the discrepancies.
The Officer’s Assessment of the Inconsistencies
[13]
Ms. Mutende asserts that the Officer’s
assessment of the answers provided by Ms. Mutende and her putative brother was
unreasonable.
[14]
Ms. Mutende argues that the consistencies in
their stories outweighed the inconsistencies, and supported the existence of a
sibling relationship. She says that the Officer also erred by failing to
consider that a number of the ‘discrepancies’ that she identified may have actually
been different descriptions of the same facts. Ms. Mutende further contends
that the Officer failed to take into account the explanation that Ms. Mutende
had been separated from her brother from a young age, and would thus have had less
knowledge of family matters dating from that time.
[15]
I am satisfied that the Officer’s assessment was
reasonable. While some of the information provided was undoubtedly consistent,
there were also material differences in the information provided by Ms. Mutende
and her putative brother.
[16]
By way of example, both individuals stated that
their sister Mariamou (as Ms. Mutende called her) or Marie (as Mr. Mutende
referred to her) had died. However, Ms. Mutende told the Officer that she was
murdered in 2009 by people who came to her home and killed her. In contrast,
Mr. Mutende stated that she died of an illness in 2004.
[17]
While Ms. Mutende is evidently much younger than
the man she claims is her brother, she was an adult by the time her sister
allegedly died, whether it was in 2004 or in 2009. Her assertion that she had
been separated from her putative brother for many years simply did not explain
this significant divergence in their stories.
[18]
There was also a discrepancy regarding the
number and identity of Ms. Mutende’s father’s siblings. Moreover, Ms. Mutende
claims that she and her putative brother had the same mother and the same
father. However, as the Officer noted, Ms. Mutende did not mention a sibling
named André when she was asked to identify her father’s siblings. This is not
surprising, as Ms. Mutende identified André as her father. What is surprising
is that Mr. Mutende identified André as his father’s brother.
[19]
Ms. Mutende and her putative brother also
disagreed about the number of times he had been married. The fact that she had
been separated from her putative brother for many years might have explained
Ms. Mutende not knowing the answer to this question. However, she claimed to
know the answer, stating categorically that although her brother had been
involved with a number of women, he had only been married once. This answer was
different than the one provided by Mr. Mutende.
[20]
These are just some of the discrepancies in the
answers that were identified by the Immigration Officer. As a consequence, I am
satisfied that the Officer’s finding that Ms. Mutende had failed to demonstrate
that she had a brother in Canada was entirely reasonable.
The Officer’s Treatment of the Identity Documents
[21]
The Officer had several concerns about Ms.
Mutende’s identity documents, particularly the manner in which the documents
were procured. While most of these concerns were reasonable, I do accept that
the Officer did not properly understand Ms. Mutende’s explanation that the
documents were obtained in the city of “Uvira”, and not from a person called “Vera”.
[22]
However, I am not persuaded that this one error
provides a sufficient basis to call into question the Officer’s overall
assessment of the evidence, given the reasonableness of the Officer’s numerous
other findings.
[23]
I am also not persuaded that it was an error for
the Officer not to make specific reference to the identity documents of Ms.
Mutende’s putative brother. Mr. Mutende may very well be the person he claims
to be. Indeed, there is no reason to think otherwise. It does not matter
whether or not his documents are reliable, however, if it has not been
established that Ms. Mutende is who she claims to be.
The Failure of the Officer to Wait for DNA Testing
[24]
Ms. Mutende also claims that it was unfair for
the Officer not to defer her decision in order to allow the pair to undergo DNA
testing. I do not agree.
[25]
In support of her contention that she was
treated unfairly, Ms. Mutende explained the “Catch-22” situation facing
applicants who want to obtain DNA testing in order to satisfy Canadian immigration
authorities as to their familial relationships.
[26]
According to Ms. Mutende, the CBSA will not
accept the results of DNA tests unless it has been involved in the testing
process, as it understandably wants to ensure the integrity of that process.
However, Ms. Mutende claims that the CBSA will not involve itself in the
testing process until such time as the individual has actually presented him-
or herself to immigration authorities, by which time it is too late to have
testing done.
[27]
Ms. Mutende says that this is unfair, and cries
out for some form of policy guidance.
[28]
As interesting as this argument may be, I do not
need to address it in this case as there is nothing in the record before me to
suggest that Ms. Mutende and her putative brother ever made any efforts to
involve the CBSA in DNA testing prior to presenting themselves at the border at
Fort Erie on March 11, 2011.
Indeed, there is nothing in the record that would indicate that the pair gave
any consideration to DNA testing until the Immigration Officer advised them
that her decision would be unfavourable.
[29]
I am also not persuaded that fairness required
the Officer to delay her decision in order to allow for DNA testing. While it
would have been open to the Officer to allow the parties to seek such a test,
she was under no obligation to do so. The onus is on applicants to satisfy
Canadian immigration authorities of their eligibility and admissibility. This
they had failed to do.
[30]
Given the numerous and material discrepancies in
the information that Ms. Mutende and her putative brother provided to the
Officer, the Officer had quite reasonably determined that the two were not
brother and sister. In the circumstances, it was neither unfair nor
unreasonable for the Officer to refuse to delay matters, and to confirm the
decision that she had already made.
The Clean
Hands Issue
[31]
Although I have chosen to deal with this matter
on its merits, it would also have been open to me to dismiss Ms. Mutende’s
application for judicial review on the grounds that she does not come before
the Court with clean hands.
[32]
Ms. Mutende has failed to answer, or even
address, the results of the fingerprint search in her affidavit. As a result, I
have uncontradicted evidence before me that Ms. Mutende made a material
misrepresentation as to her country of origin, a matter that would clearly have
been central to her identity and, ultimately, to her refugee claim.
[33]
More significantly, insofar as the issues
involved in this application are concerned, the results of the fingerprint search
cast further doubt on Ms. Mutende’s eligibility to claim refugee protection in Canada, which depended on her establishing
that Mr. Mutende is indeed her brother. Ms. Mutende claims that she and her
brother were born and raised together in the DRC by the same parents. The fact
that Ms. Mutende was apparently born in Brazzaville in the Republic of Congo
casts grave doubt on the veracity of her entire story.
Conclusion
[34]
For these reasons, the application for judicial review is dismissed. On
the consent of the parties, the style of cause is amended to add the Minister
of Public Safety as a respondent.
Certification
[35]
I agree with the parties that this case turns on its facts and does not
raise a question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This application for judicial review is dismissed;
2.
The style of cause is amended to add the Minister of Public Safety as a
respondent; and
3. No
serious question of general importance is certified.
“Anne
Mactavish”
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