Docket: IMM-5855-13
Citation:
2014 FC 1240
Calgary, Alberta, December 18, 2014
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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NAOME KARAMBAMUCHERO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is a judicial review of the decision of a
visa officer in Pretoria, South Africa, on July 3, 2013, denying Naome
Karambamuchero a Temporary Resident Visa [TRV].
[2]
Ms. Karambamuchero is a citizen of Zimbabwe.
She sought the TRV in order to visit her daughter, son-in-law, grandchildren,
and son in Canada. She had visited her children in Canada in 2002, 2004, and
2007. However, since 2007, she has been refused a TRV four times. As a result
of these refusals, she decided to engage counsel to assist her in the most
recent application, presumably hoping for a different result.
[3]
In the form letter rejecting her application,
the visa officer checked boxes indicating that in reaching that decision
several factors were considered including “your family
ties in Canada and in your country of residence” and “purpose of visit.” More detail is provided in the
notes of the officer which read as follows:
Reviewed application. Pa is still in same
employment in Zim as school principal since 1994. Pa has son in UK and 2
children in Cda who were previous refugee claimants – pa travelled to UK in
2010 and 2012 on holiday – pa indicates her previous travel to China in 2012
was for business purposes. Pa has submitted a letter from Cdn lawyer
indicating that pa as strong ties to Zim – pa lives with mother, son and a
nephew. Fosscheck dghter who made cr claim in 2002 and landed in 2004 and pa’s
son made cr claim in 2008 and landed in 2011. Based on the information
provided I am not satisfied that pa’s situation has significantly changed since
her previous refusals in 2012 – pa remains in same employment etc with same
family ties to Cda who both have history of refugee claims in Cda. I
have also considered aspects which might influence pa to remain in Cda such as
the current unstable situation in Zimbabwe and I am not satisfied that she
wld leave Cda after her authorised stay. TRV refused. [sic emphasis
added]
[4]
Ms. Karambamuchero submits there are three
issues to be considered: Whether the visa officer failed to consider the
totality of the evidence, whether the visa officer breached the duty of
fairness by relying on extrinsic evidence and his knowledge of local
conditions, and whether the visa officer breached the duty of fairness in failing
to provide sufficient reasons to allow the applicant to know why her
application had been refused.
[5]
I agree with the Minister that no one is
entitled to a TRV, that considerable deference is to be given to visa officers
in making such decisions, that the duty of fairness lies at the lower end of
the scale, and that a court should not parse the wording of decisions too
minutely given the nature of the decision and the demands placed upon visa
officers. Nonetheless, this application must be allowed and the decision set aside
because the decision-making process and accordingly its result does not meet
the required standard of justification, transparency and intelligibility.
[6]
Ms. Karambamuchero provided evidence of several
factors that would suggest that she would not overstay a visit to Canada. As
the visa officer noted, she is a school principal in Harare. But that is only
part of the story. She is the director and principal of Greatstride College,
which she founded in 1994. Accordingly, she is not a mere employee; she is a
successful business woman. She has two business bank accounts with balances
totaling more than $35,000 USD, and she owns her home and three vehicles. She has
family ties to Zimbabwe. She lives with her mother and a son. She has other family
in Zimbabwe.
[7]
The visa officer observes that there is a “current unstable situation in Zimbabwe” but it is
unclear how or whether that impacts Ms. Karambamuchero. There is nothing in
the record that suggests that the stability of the country has had any impact
on her. On the contrary, she appears to be prospering in the country and one
must wonder why she would voluntarily leave. The country has in fact been
unstable for some time, but she had left Zimbabwe and returned a number of
times, including two then recent trips to China on business, and a trip to the
United Kingdom to visit her son living there.
[8]
There can be no objection to the visa officer
accessing the Field Operations Support System [FOSS] to confirm the status of
Ms. Ms. Karambamuchero’s two children in Canada. However, it is troubling that
the visa officer does more than note that both are landed residents. Rather,
he notes that “both have history of refugee claims.”
The inference surly is that Ms. Karambamuchero will therefore make a refugee
claim when she is in Canada. But such an inference is unreasonable on the
facts here.
[9]
The reality is that Ms. Karambamuchero had previously
visited Canada when the refugee claims were pending, or had been granted, and
then returned to Zimbabwe. Her daughter entered Canada in 2002 and was granted
refugee protection in 2004. Her son entered Canada in 2008 and was granted
refugee status in 2011. Ms. Karambamuchero visited Canada in 2002, 2004, and
2007. Therefore, she visited Canada and returned to Zimbabwe at least once and
quite possibly twice after her daughter was granted status. To suggest that
she might make a claim for status now, when she did not previously, requires
some explanation from the visa officer. There is none.
[10]
In summary, the decision rests on two
observations by the visa officer: The unstable country conditions in Zimbabwe
and previous refugee claims by her children. Absent some explanation how those
country conditions might prompt this business woman to flee her country and
leave behind a successful business, a mother, a son, a home, and other family,
the conditions alone cannot reasonably support the decision. Absent some
explanation why her children claiming and being granted refugee status in
Canada, might prompt her to do likewise when she did not do so in the past, the
visa officer’s decision cannot reasonably be supported.
[11]
For these reasons, the result is set aside.
[12]
Neither party proposed a question for
certification.
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