Date: 20081124
Docket: IMM-1074-08
Citation: 2008
FC 1300
Toronto, Ontario,
November 24, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
STEPHEN
MACHUNGO SOSI
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
In the present Application, the Applicant mounts a
challenge, as an unrepresented litigant, to two decisions; a negative
Pre-Removal Risk Assessment (PRRA) and a negative Humanitarian and
Compassionate determination (H&C), both dated October 31, 2007. The
decisions under review reject the joint pleas for relief of not only the
Applicant, but also of his mother, father, and sister with respect to their
prospective return to Kenya.
[2]
It is a breach of the Federal Court Rules to apply
for the judicial review of two decisions in a single application:
Rule 302. Limited to
single order – Unless the Court orders otherwise, an application for judicial
review shall be limited to a single order in respect of which relief is sought.
[3]
However, as I understand it, because of personalized risk
and humanitarian and compassionate concerns, as unrepresented litigants the
family members decided to challenge the decisions under review by filing
independent judicial review applications each challenging both decisions; the
mother and father filed together, and the Applicant and his sister filed
separately. Prior to the leave stage, the applications could have been rejected
as flawed in form, thus requiring the decisions to be addressed independently
and perhaps in a single application for leave. Even in their presented form,
the applications could have been rejected at the leave stage without being
determined. Nevertheless, they were not rejected at either stage, and they
entered the decision-making process in flawed form. In my opinion the procedure
adopted by the family was ill advised, because, as detailed below, it has
worked a grave injustice to each member of the family other than the Applicant.
[4]
The procedure is ill advised because the negative PRRA
decision and the negative H&C decision were decided by the same Visa
Officer and each decision is directed to all members of the family jointly.
Consequently, if either the PRRA decision or the H&C decision is set aside
for reviewable error, each member of the family is entitled to a
redetermination on the evidence as it exists on the date of the
redetermination. With respect to the Applicant’s Application challenging the
two decisions, leave was granted, whereas, leave was not granted on the
applications of the other members of the family. Since reasons for granting
leave are not provided it is not possible to determine in which decision the
arguable error was perceived.
[5]
The injustice lies in the fact that the family’s
applications were not considered as a unit. As set out below, I find no
reviewable error in the PRRA decision, but I find that the H&C decision is
fundamentally flawed. Therefore, while the Applicant is entitled to a
redetermination on the H&C decision, the other members of his family are not,
even though the decision does not differentiate their pleas for humanitarian
and compassionate relief. In my opinion this is unjust. The decisions under
review did not make a distinction on the merits of the arguments tendered by
the family, and, indeed, leave should have been determined in the same way; for
an error warranting leave in either decision, all applications should have been
granted leave.
[6]
With respect to the PRRA decision presently under review, I
find that the Applicant’s challenge fails.
[7]
At the Refugee Protection Division level, the joint
protection claim of each member of the family was dismissed on the finding that
state protection would be available to them on their return to Kenya.The Visa
Officer found that, because the Applicant failed to produce new evidence to
warrant a review of the state protection issue, there is no risk to the
Applicant should he return to Kenya.I find no reviewable error in this
determination. From the material filed by the Applicant in the present
Application, and from what he submitted in argument as an unrepresented
litigant during the course of the hearing of the Application, it is clear that
the Applicant’s present concern is that new evidence exists regarding risk to
him in Kenya which post-dates the PRRA decision. As a result, I understand that
the Applicant intends to pursue making a further PRRA application for himself
and the members of his family.
[8]
However, with respect to the H&C decision addressed
jointly to the Applicant, his parents, and his sister, I find that the decision
is made in reviewable error.
[9]
With respect to hardship, the decision is written according
to three separate subject headings: Risk / Hardship Allegations; Risk
/ Hardship Analysis; and Establishment. The Risk / Hardship Allegations
section reads as follows:
The applicants have cited the same risk
of retuning to Kenya as indicated in their refugee
claim. In general the family fear the Mungiki sect and the state authorities in
Kenya. The principal male applicant
[father] is a member of the Kisii tribe and states that he and his family have
been terrorized by members of the Kalenjin tribe and that police were unable to
protect the family. As a result of the violence his farmed [sic] was burned,
his livestock stolen, and ultimately his business was destroyed. The female
principal applicant [mother] states that she was beaten and harassed due to her
refusal to subject her daughters to female genital mutilation (FMG) and her
views against this practice in Kenya.
The applicant’s son states that he was
accused of being Mungiki by police and has been pressured by to [sic] join this
outlawed organization.
The applicant’s daughter was brutally
raped in 2003 and this was reported to police. She became pregnant as a result
of the rape and while pregnant she was robbed at a pharmacy.
The family states that they will be
destitute if returned to Kenya and that the family are [sic]
emotionally attached to Canada.
(Decision, pp. 1-2)
The Risk / Hardship
Analysis begins with this statement:
The applicants do not
appear to have provided any documents as evidence in support of their risk of
returning to Kenya although there has been a significant amount of
documentation attesting to their establishment in Canada.
I have read and
considered the applicant’s statements regarding their risk in Kenya and the
RPD’s reasons for decision regarding their refugee claims in assessing risk in
this case. I have also researched country conditions in Kenya using the
most recent reliable and publicly accessible information available.
(Decision, p. 2)
The statement with respect to risk which centres on the availability of
state protection is a cut and paste from the body of the PRRA decision but with
the following conclusion:
After reviewing all
the information provided to me and my own independent research, I am of the
opinion that the risks described by the applicants would not be sufficient as
to constitute a hardship if they were to return to Kenya.[Emphasis
added]
(Decision, p. 2)
And the Establishment
analysis reads as follows:
The applicants entered Canada less than three years ago and
yet in that timeframe they have made considerable strides towards establishing
themselves in Canada
I note that the principal applicants have
three children who continue to reside in Kenya, with two of these children being even
younger than the two children included in this application. There has been
no information provided by the applicants with regard to the situation in Kenya
with respect to these children or why they did not accompany their parents to
Canada. One can only assume that these children have established
themselves in Kenya and were reluctant, or viewed
it unnecessary to come to Canada. This lack of information tends to negate the hardship
involved in the applicants returning to their home country.
The principal applicants are both
employed and have provided letters of reference from their employers and proof
that they have endeavoured to upgrade their skills as community support
workers. Their son is gainfully employed with UPS and is active in sports and
other areas of the community. Their daughter is enrolled in a course of study
to become a registered nurse and she is also employed, presumably to assist in
the costs associated with her education. I note that the principal applicants
are assisting her in the cost of her education and that they are paying full
international fees to accomplish this. All members have exhibited a regular
pattern of savings.
The applicant’s have received a large
amount of support from their Seventh-Day
Adventist Church community, where they are all
well-known and very active participants.
The applicants have demonstrated a very
high level of establishment in Canada in a short period of time;
however, while establishment is an important factor in assessing hardship it is
not the only factor to be considered. The industriousness of this family
also tends to demonstrate a high level of ability to re-integrate back into
Kenyan society, especially when considering the prospect of them being reunited
with their remaining children on their return.
[Emphasis added]
(Decision, p. 3)
[10]
With respect to the Establishment section of the decision under
review, in my opinion, a critical reviewable error is exposed. As I expressed
during the course of the hearing of the present Application, a critical error
of fact is, on its own, enough to find that the decision is made in reviewable
error. The critical error of fact is the statement that the parents have “three
children who continue to reside in Kenya”. In fact, at the
date of the decision, the “children” were 27, 23, and 20 years of age and the
eldest was resident in Dallas, Texas (H&C Tribunal Record, p. 101). This
error is important because it mischaracterizes the supposed hardship relieving
family well being in Kenya.
[11]
While the error identified is sufficient to require a
redetermination on the H&C decision, I have a number of other judicial
review concerns arising from the decision as quoted. While these concerns are
not addressed in the written arguments, and were not addressed in the oral
hearing of the Application, I find that, nevertheless, it is important to the
quality of the redetermination to state them.
[12]
It is obvious that when a visa officer is charged with
making both a PRRA and an H&C determination, the totality of the evidence
offered by an applicant on both issues is relevant to both determinations. This
is true because the possible repercussions of the return of an applicant to his
or her country of origin are an important factor in giving both risk and
humanitarian and compassionate relief from the return. At the practical level,
a visa officer is required to have a full knowledge of all the evidence
tendered on both issues, and factual findings across both applications must be
based on knowledge of the complete record.
[13]
The Risk
/ Hardship Allegations
section makes a critically important statement about the suffering that the Applicant’s
sister experienced in Kenya.Clarity is brought to this statement by the
following description provided by the Applicant’s father:
At the same time, my daughter Naomi was
also facing turmoil during our absence. She was kidnapped, raped and left for
dead, by unknown masked man. The good Samaritans took her to police and then to
hospital. This man warned her that this was a lesson taught to my family, and
as a result she became pregnant from the raping. She went through many
difficulties during her pregnancy as she was again attacked at gunpoint at the
chemist when the pregnancy was seven months, and almost miscarriaged and was
taken to hospital which saved her life.
(PIF of William Sosi Machungo, PRRA
Tribunal Record, p.16)
In my opinion, if the Applicant’s
sister’s experience is found to be a consideration in reaching a determination,
as it was here, it was incumbent on the Visa Officer to reach a conclusion
about the weight to be placed on the consideration. This was not done.
[14]
The Risk / Hardship Analysis is internally
inconsistent. The Applicants statements of risk upon return to Kenya are contained in the RPD decision, and, in addition, the Applicants
supplied a wealth of material to the Visa Officer on risk arising from
in-country conditions in Kenya. In arriving at the PRRA decision, the Visa Officer was required to read
this evidence. Therefore, the statement that “the applicants do not appear to
have provided any documents as evidence in support of their risk of returning
to Kenya” while at the same time saying that “I am of the opinion that the
risks described by the applicants would not be sufficient as to constitute a
hardship if they were to return to Kenya” does not make sense unless it is
understood that the Visa Officer failed in two respects.
[15]
First, at the opening to the decision this statement is
made:
Items given
consideration include:
● IP-5, Immigrant Applications in Canada made on Humanitarian
or Compassionate Grounds
● Applications for permanent residence &
supporting documentation
● RPD decision dated 24 February 2006 TA4-1967/72/73
& TA5-04488
● U.S. Department of State Country Reports on Human Rights
Practices, 2006
http://www.state.gov/g/drl/rls/hrrpt/2006/78740.htm
● Amnesty International Report 2007, http://thereport.amnesty.org
● Federal Court decision: Mahin Davoudifar v. The
Moinister [sic] of Citizenship and Immigration, 2006, IMM-3632-05,
20060310
(Decision, p. 1)
It is obvious that, in
reaching the decision on the H&C application the Visa Officer did not
consider the entirety of the evidence the applicants supplied on the issue of
risk. While some of this evidence is contained in the material filed on the
PRRA application, I do not think it can be reasonably argued that they should
be required to present the same material on each discrete application when they
are inextricably linked. Indeed, since the Visa Officer was charged with
rendering both decisions, this is absolutely unnecessary. In this kind of
situation, surely some accommodation should be made to not let the form
interfere with the substance. It is important to note that the Visa Officer did
view the PRRA and H&C applications as inextricably linked, because the
analysis of risk in the H&C decision is taken directly from the body of the
PRRA decision.
[16]
Second, the evidence of the experience of suffering the applicants
experienced as recounted in the RPD decision is not refuted; indeed, as stated,
the RPD made no negative credibility finding with respect to it. Therefore, the
experience existed, and the question is: to be humanitarian and compassionate,
should the applicants be returned to face this same risk? The existence of
state protection is not the central issue in a humanitarian and compassionate
deliberation. The issue is whether the applicants should be sent possibly, or
probably, to relive the experiences which caused them to flee. While they did
not succeed in their claim for protection under s.96 and s.97 of the IRPA,
they are entitled to an H&C assessment with the past experiences clearly in
mind. The Visa Officer failed to fully examine this feature of the applicants’
case.
[17]
The Establishment section of the H&C decision exposes a second
material error linked to the factual error which warrants redetermination as
found above. The Visa Officer makes the statement that “there has been no information
provided by the applicants with regard to the situation in Kenya with respect
to these children or why they did not accompany their parents to Canada” to
ground the pivotal assumption that “these children have established themselves
in Kenya and were reluctant, or viewed it unnecessary to come to Canada”. The
assumption is sheer speculation. It is clear that the speculation formed a
central part of the negative decision rendered. Indeed, there is evidence on
the record which refutes the speculative opinion and which, by the exclusive
evidentiary analysis undertaken, was apparently not known or neglected. In his
PIF, the father says about the children in Kenya:
I am still crying for my other two kids
back home who I was unable to rescue because they were in boarding high schools
(that served as their refugee/hiding places) and had not attained certificates
to allow them to get admission and student visas to escape out of the country.
(PIF of William Sosi Machungo, PRRA
Tribunal Record, pp. 16-17)
[18]
In my
opinion, the use of the conclusion that the applicants are well established in
Canada is perverse because it takes the existence of a factor set out in IP 5
as a consideration militating towards granting humanitarian and compassionate
relief and uses it to do just the opposite. Obviously, the proven establishment
of the applicants in Canada should work in their favour because there is
absolutely no way of knowing whether the personal abilities they used to create
this establishment can be used in Kenya
to accomplish the same thing. To speculate that the applicants would be
successful is a primary error, given the evidence of suffering they experienced
in Kenya before fleeing to Canada.
[19]
A final
factor considered in the establishment section requires comment. The Visa
Officer cited from the decision in Mahin Davoudifar to
make the point that a simple plea from a deserving and valued member of the
community who is in Canada with no status is not sufficient qualification to
allow him or her to remain in Canada. The point made is
intended to apply to the applicants. In my opinion, given the circumstances
that the applicants present, this is an unfair standard to apply to them. For
example, the following is the mother’s plea to be allowed to stay on
humanitarian and compassionate grounds:
Having applied for refugee status and was refused, I will
not be permitted to travel outside the country to apply for permanent residence
visa for Canada and be allowed
re-entry. So I am extremely fearful of going out of Canada as required by the
law and Canada is the only country I
can submit my application from within. I am extremely fearful to what will
happen to me if returned to my country. I will only become a destitute having
no home to go after loosing all I possessed on earth. My home was burnt, land grabed
[sic] and family business burnt to ashes by my enemies in my own country, who
wanted to kill me and my family. I became a refugee in my own country. My
relatives contributed greatly to my sufferings by excommunicating me from the
community after refusing my daughters not to go through FGM and thus they
cannot provide or assist me and my family. Canada is the only country I have come to know
that has a good record and respect on Human Rights. Canada has provided homage
and protection to myself and my family. Emotionally and socially I am oriented
and attached to Canadians who have become my brethren in all aspects of life.
Economically I am stable and if returned back home, there is none, not one
person who will provide for me and my husband in terms of daily living, after
being on the run for many years and especially the last past 4 (four) years.
Therefore it is my sincere plea to be given a chance to
submit my application from within.
(Supplementary Information of Christne Moraa, H&C
Tribunal Record, p. 99)
By virtue of this statement,
not only is the mental state of the daughter in issue because of the sexual
assault she suffered, but the mental state of the mother is in issue as well.
The Visa Officer failed to come to grips with this evidence.
[20]
As a
result, I find that the H&C decision, which erroneously addresses the
humanitarian and compassionate pleas of the Applicant, his parents, and his
sister, is unreasonable given the reviewable errors found. It is a miscarriage
of justice to be able to set aside this decision with respect to the Applicant,
but not also the other members of his family. This result calls for some
special consideration.
[21]
While I
only have jurisdiction to set aside the H&C decision with respect to the
Applicant and to order a redetermination with respect to him, out of
fairness, given the processing of this unrepresented family’s pleas for
humanitarian and compassionate relief, in my opinion the Applicant’s parents,
and his sister, are entitled to the same outcome. That is, it is not only fair
for the members of the family to be granted reconsideration, but it is
consistent with the manner in which the family’s H&C application was
conducted; they applied as a family, the decision was rendered in respect to
them as a family, and the reconsideration should be granted to them as a
family.
[22]
I request the Minister to give the Applicant’s father, mother, and sister
careful and expeditious consideration if they choose to file another
humanitarian and compassionate relief application.
ORDER
Accordingly, I set aside the H&C
decision under review, and refer the matter back to a different visa officer
for redetermination.
There is no question to certify.
“Douglas R. Campbell”
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