Date: 20070316
Docket: IMM-2655-06
Citation: 2007 FC 283
Ottawa, Ontario, March 16, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
RAHIMA JIBRIL ALI
and FARTUN GULED ALI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
application is for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of a
Visa Officer (the respondent) dated March 20, 2007, which determined that it
was not possible to add the applicant Fartun Guled Ali (applicant Fartun) as a
bona fide dependent of Rahima Jibril Ali (principal applicant), a refugee
claimant in Canada.
ISSUE
[2]
The
applicant raises three issues:
a) Did the
respondent err by failing to consider relevant evidence?
b) Did the
respondent err by providing inadequate reasons for its negative findings?
c) Did the
respondent demonstrate a reasonable apprehension of bias?
[3]
The
Court finds that the response to each of these questions is negative.
Therefore, this application for judicial review shall be dismissed.
BACKGROUND
[4]
The
applicants are citizens of Somalia. After the principal
applicant’s refugee claim was accepted on June 14, 2002, she applied for
permanent residence status and added her three young children and a
step-daughter (the applicant Fartun), to her application to join her in Canada. However,
during the processing of the children’s application, the respondent was faced
with the unusual problem with applicant Fartun’s identity, in that there were
two different teenagers, claiming to be Fartun Guled Ali. Of the two, the
respondent chose to reject the person who the principal applicant alleges is
actually her dependent step-daughter and not the other, who happened to be her late
husband’s sister.
[5]
To
resolve this dilemma, the respondent requested that the applicant Fartun
undergo a DNA test with the oldest of her three half siblings to determine
blood relation. While the DNA kits were made available by January 16, 2005, the
principal applicant changed her mind because of her concern for the lengthy
process and exorbitant cost to conduct the DNA testing. The principal applicant
asked that the respondent remove applicant Fartun from the application for
permanent residence status. The DNA tests were thus never carried out;
applicant Fartun was removed from the application in February 2005 and her
three half siblings alone joined the principal applicant in Canada in April
2006.
[6]
The
principal applicant became remorseful however, when she learned in January 2006
that the applicant Fartun, then age nineteen, was pregnant. The principal
applicant took immediate steps, including pleading in person with the visa
officer at the Canadian Embassy in Cairo, to put back the
applicant Fartun on her application for permanent residence. Without the DNA
tests, even an adoption paper provided by the principal applicant on January
31, 2006, could not lift the cloud of uncertainty that continues to hover over
applicant Fartun’s identity. Under such circumstances, the respondent refused
to revoke its decision to remove her from the application and it is this
decision that forms the basis of the present application for judicial review.
DECISION UNDER REVIEW
[7]
The
decision is brief and bears reproducing in its entirety:
Dear Ms. Ali,
This refers to the application for
permanent resident visa in Canada of your children as
dependents of a refugee claimant in Canada
and in particular to your interview on 31 January 2006.
After reviewing all information, I have
determined that the addition of Fartun Guled Ali as a dependent on your
application is not possible. I am not satisfied that Fartum is a bona fide
applicant. Therefore, Ms. Fartun Ali remains removed from the file.
I regret my reply could not be more
favourable.
Yours sincerely,
E. Audet
Second Secretary
(Immigration)
ANALYSIS
Standard of review
[8]
It
is settled law that the standard of review applicable to decisions by visa
officers is that of reasonableness simpliciter (Baker v. Canada (Minister
of Citizenship and Immigration), [1999] S.C.R. No. 817; Yaghoubian v.
Canada (Minister of Citizenship and Immigration), 2003 FCT 615, [2003]
F.C.J. No. 806 (F.C.T.D.) (QL)).
[9]
To
succeed, the applicants must satisfy the Court that the respondent’s decision was
not reasonably open to it. The applicants must show that the respondent erred
by failing to consider relevant information before it or took into
consideration extrinsic evidence that was not available to the applicants.
Did the respondent err
by failing to consider relevant evidence?
[10]
Counsel
for the applicants argues that the CAIPS notes indicate that the respondent
failed to consider the evidence of the adoption paper, which the principal
applicant had provided directly to the Canadian Embassy on January 31, 2006, which
indicated that she had adopted the applicant Fartun. In addition, both
applicants appeared in person and stated that the one was the step-relation of
the other, yet the respondent made no reference to this personal testimony and
documentary evidence in its reasons. It is argued by counsel for the applicants
that it was incumbent on the respondent to at least address this evidence
before coming to the conclusion that the applicant could not demonstrate she
was a bona fide dependent.
[11]
The
applicants draw the Court’s attention to the decision of this Court in Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.) (QL) in
which Justice John M. Evans (as he then was) held at paragraph 17:
17 […] (T)he more important the
evidence that is not mentioned specifically and analyzed in the agency's
reasons, the more willing a court may be to infer from the silence that the
agency made an erroneous finding of fact "without regard to the
evidence": Bains v. Canada (Minister of Employment and Immigration)
(1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of
explanation increases with the relevance of the evidence in question to the
disputed facts. Thus, a blanket statement that the agency has considered all
the evidence will not suffice when the evidence omitted from any discussion in
the reasons appears squarely to contradict the agency's finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its finding,
but is silent on evidence pointing to the opposite conclusion, it may be easier
to infer that the agency overlooked the contradictory evidence when making its
finding of fact.
[12]
The
respondent submits that the applicant’s position is contrary to the general
presumption that decision makers consider all the relevant evidence before
them. The failure of the visa officer to make specific reference to certain
evidence is not enough to conclude that the visa officer overlooked that
evidence. Moreover, since the adoption paper and the applicants’ attestation in
person were the only new evidence before the visa officer on January 31, 2007,
there is a greater likelihood that these two new pieces of evidence were not
overlooked. Furthermore, the CAIPS notes do not support the applicants’
argument, since counsel for the principal applicant had informed the respondent
that Fartun was not adopted. This CAIPS note dated October 13, 2003, states as
follows:
Fax received
from neighbourhood legal services stating that Fartun is not an adopted child
but is the biological child of the deceased father.
[13]
Finally,
the respondent argues that the evidence submitted by the applicants was
unsatisfactory and after meeting with both applicants on January 31, 2006, the
visa officer was not satisfied that applicant Fartun is a bona fide
applicant.
[14]
I
am inclined to agree with the respondent in light of the correspondence between
the applicants and the respondent regarding their grave concerns about the
teenager’s identity. I find persuasive the visa officer’s affidavit in which he
states as follows:
7. In my decision to keep Fartun
removed from the application, I would have certainly reviewed the adoption
letter submitted by Mrs. Ali. However, two people were claiming to be the
“real” Fartun–that is, the child of Mrs. Ali’s deceased husband. Because of
these contradictory claims, the main issue was the blood relationship between
Mrs. Ali’s daughters and their alleged half-sister. An adoption letter would
not address the problem of determining who was the “real” Fartun.
8. A DNA test would have proven
which Fartun was the half-sister of Mrs. Ali’s children, but Mrs. Ali was
unwilling to go ahead with that test for Fartun. As far as I remember, there
was no information on the file from Mrs. Ali to the effect that the cost, the
delay of processing the application or the unavailability of Fartun were her
reasons for not going ahead with this DNA testing. The CAIPS notes of 16 March
2005 indicate that Mrs. Ali was still willing to do the DNA test for any of the
other 3 children.
[15]
The
applicants do not demonstrate that the decision was not reasonably open to the
visa officer or that he failed to consider the relevant evidence and in
particular, the adoption paper and the words of the applicants. The impugned
letter dated March 20, 2006 states:
“After reviewing all information …”
[16]
I
am satisfied that the respondent did not ignore the evidence in question. Like
the applicants, I rely on Justice Evans’ at paragraph 16 in Cepeda-Gutierrez,
where he states:
[. . .] (T)he reasons given by
administrative agencies are not to be read hypercritically by a court (Medina
v. Canada (Minister of Employment and
Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required
to refer to every piece of evidence that they received that is contrary to
their finding, and to explain how they dealt with it (see, for example, Hassan
v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317
(F.C.A.). That would be far too onerous a burden to impose upon administrative
decision-makers who may be struggling with a heavy case-load and inadequate
resources. A statement by the agency in its reasons for decision that, in
making its findings, it considered all the evidence before it, will often
suffice to assure the parties, and a reviewing court, that the agency directed
itself to the totality of the evidence when making its findings of fact.
Issues of procedural
fairness
[17]
The
applicants raise two issues of procedural fairness: inadequacy of reasons and
apprehension of bias.
Standard of review
[18]
It
is settled law that where questions of procedural fairness are at issue, as in
this case, it is not necessary to undertake a pragmatic and functional analysis
to determine the standard of review. The Court will intervene only if the
applicant demonstrates that there has been a breach of procedural fairness (Ha
v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195 (F.C.A.);
Housen v. Nikolaisen, [2002] 2 S.C.R. 235).
Did the respondent err
by providing inadequate reasons for its negative findings?
[19]
The
applicants allege that the respondent did not provide reasons but was content
rather to merely state the visa officer’s conclusions. The visa officer was
required to provide adequate reasons because of the serious ramifications for
the applicants. This failure to provide adequate reasons is a breach of
fairness and on this ground alone, the applicants argue, the decision should be
overturned.
[20]
For
its part, the respondent denies all of these allegations and submits that the
visa officer provided adequate reasons. First, the letter clearly states the
reasons for the refusal:
I am not satisfied that Fartun is a bona
fide applicant. Therefore, Ms. Fartun Ali remains removed from the file.
[21]
Second,
the respondent argues that the letter was given in the context of bona fide
concerns that had previously been communicated to the applicant and her
counsel. It was therefore unnecessary to repeat these concerns in the letter of
refusal. Third, the applicants were also aware that UNHCR shared the visa officer’s
concern as to which of the two young women was the principal applicant’s
step-daughter. Finally, in light of this uncertainty regarding the identity of
the principal applicant’s step-child, she was asked to undergo DNA testing as
early as October 2003 and reminded again by letter to the applicants, dated January 9, 2005. The letter
states as follows:
After reviewing the
information provided in support of your application for permanent residence in Canada, we have serious concerns
about the relationship between you (Fartun Ali) and your step mother (Mrs.
Rahima Ali). The Canadian Visa Section in Cairo has received serious conflicting
information about the identity of Fartun Ali, and we thus require DNA tests be
conducted to determine your biological relationship to other family members.
You have stated that your
biological mother is missing and biological father is deceased, and that you
live with your paternal half-siblings, who are the children of Rahima Ali. To
establish that you are indeed related to these half-siblings (which would thus establish
that Mrs. Rahima Ali is your step-mother), you and one of your half-siblings
will each need to undergo a DNA test. For the purpose of this test, the visa
office requests that the eldest of the half- siblings, Ilhan Guled Ali, undergo
a DNA test, as well as you.
Thus, in order to proceed with
your application, you and Ilhan are required to undergo DNA testing. Should
these tests, properly conducted, produce a positive determination that you are
indeed related to your half-sibling (i.e. that you have the same father), the
tests results will be accepted as evidence of the relationship. [...]
[22]
It
would appear that counsel for the applicants confuses brevity of reasons with
inadequacy of reasons. The reasons go straight to the point of the serious
concerns of the bona fide status of the applicant Fartun as a dependent
of the principal applicant. The conclusion for the decision is based on the
ongoing concern that the relationship between the applicants has not been
established to the respondent’s satisfaction.
[23]
Furthermore,
the applicants rely on this Court’s decision in Saha v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1325, [2003] F.C.J. No. 1673 (F.C.T.D.)
(QL), in which Justice Konrad von Finckenstein allowed an application for
judicial review on the basis that the decision failed to cite the proper
reasons for the negative findings. However, the facts of the Saha decision
can be distinguished from the present reasons. In Saha, the visa officer
cited reasons that were contradictory to the CAIPS notes. This is not the case
here. The reasons given by Mr. Eric Audet, Second Secretary, and the visa
officer in this case do not contradict the reasons provided. Indeed, a careful
review of both the CAIPS notes and his Affidavit indicates that his reasons
albeit brief were based on all the information before him. That is why, I do
not agree that the reasons provided are inadequate particularly since the
circumstances and details were also before the applicants. The process was
transparent and the brevity of the reasons does not contradict the totality of
the evidence.
Did the respondent
demonstrate a reasonable apprehension of bias?
[24]
Counsel
for the applicants argues that the respondent depicted a reasonable
apprehension of bias toward the applicants and relied on extrinsic evidence
provided to and by the UNHCR, which coloured its consideration of the
application.
[25]
However,
I am satisfied that the Affidavit provided by the visa officer establishes that
the reliance on the opinions and reports produced by the UNHCR is done in the
normal course of business when dealing with asylum seekers in Egypt, which the
applicant Fartun and her half-siblings were. Moreover, a closer reading of the
certified documents before the visa officer indicates that the unusual problem
of the two Fartuns arose precisely as a result of the exchange of information
between the Canadian Embassy and the UNHCR in Cairo.
[26]
The
visa officer’s affidavit states as follows:
9. In my decision that Fartun
should remain removed from the application, I took the UNHCR’s opinion about
who is the “real” Fartun into consideration. It was common for asylum seekers
and refugees in Egypt to register with UNHCR upon
arrival, as there were a number of benefits to registering, such as
non-refoulement and possible financial and medical assistance. UNHCR staff
members are experts in interviewing refugee applicants and have specialized and
particular knowledge about refugee family relationships. Only a small portion
of asylum seekers are recognized as Convention Refugees and referred to foreign
embassies for resettlement. I found it unlikely that the Fartun who registered
with the UNHCR had planned a scheme to substitute herself for the real step-daughter
in order to immigrate to Canada.
[27]
The
CAIPS notes reveal the dilemma:
There are 2 teen aged girls claiming to
be Fartun: Fartun “A” (bigger, fairer, registered with UNHCR in 2001; and
Fartun “B” (smaller, darker, younger looking) who is on our IMM8 submitted
9.3.03. Per UNHCR, Fartun “A” is in all likelihood the real Fartun. RNB advised
me that Fartun “A” approached the embassy on 15.2.05 (per UNHCR photo)
In response to our request for DNA testing
to prove relationship of Fartun “B” to the alleged half-siblings on file, HOF
in Canada asked for us to remove Fartun
from the file. This raises my concern that Fartun “B” is in fact NOT the
correct Fartun, and is an impostor.
[28]
The
applicants also allege that the conduct of the immigration authorities was
reprehensible and further demonstrates a reasonable apprehension of bias.
[29]
The
respondent denies that the Canadian officials held an adverse opinion of the
applicants, which would demonstrate a reasonable apprehension of bias. The
respondent refers the Court to the test for reasonable apprehension of bias as
set out by the Supreme Court of Canada in Committee for Justice and Liberty
v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at page 394:
The proper test to be applied in a matter
of this type was correctly expressed by the Court of Appeal. As already seen by
the quotation above, the apprehension of bias must be a reasonable one held by
reasonable and right minded persons, applying themselves to the question and
obtaining thereon the required information. In the words of the Court of
Appeal, that test is "what would a (sic) informed person, viewing the
matter realistically and practically--and having thought the matter
through--conclude. […]
[30]
I
am convinced that an informed person, viewing the matter realistically and
practically, and having thought the matter through, would not conclude that the
visa officer demonstrated an apprehension of bias. He decided fairly with the
evidence he was confronted with. Where relevant documentation (DNA test in
this case) is sought by a visa officer and is not provided, he may refuse an
application for permanent residence (Kaur v. Canada (Minister of
Employment and Immigration), [1995] F.C.J. No. 756 (F.C.T.D.) (QL), paragraph
5).
[31]
Neither
party has submitted questions for certification.
JUDGMENT
THIS COURT
ORDERS that:
- The application for
judicial review is dismissed.
- No question is
certified.
“Michel
Beaudry”
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