Docket: IMM-4439-16
Citation:
2017 FC 511
Ottawa, Ontario, May 18, 2017
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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DEBORAH OLI
DIANDRA MUGISHA
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant, Ms. Deborah Oli Diandra Mugisha,
seeks judicial review of a decision issued by the Canada Border Services Agency
[CBSA] on October 14, 2016 that she is not exempt from the Safe Third Country
Agreement [STCA], and is therefore ineligible under paragraph 101(1)(e)
of the Immigration and Refugee Protection Act, SC 2001, c 27 to claim
Convention Refugee status in Canada.
[2]
The Applicant is a citizen of Burundi. She
arrived in Canada from the United States on October 14, 2016 with the intent of
claiming refugee status. She was met at the port of entry by her aunt [JSN] who
is also a citizen of Burundi and a permanent resident of Canada since 2013.
[3]
The Applicant presented not only her own
identity documents, but also those of her father. The Applicant and JSN were
both interviewed by a CBSA Officer.
[4]
The Applicant and JSN claimed that JSN learned
for the first time in late 2014 that JSN’s mother had another son, who would be
JSN’s half-brother. JSN established contact with her half-brother in January
2015. He is the father of the Applicant.
[5]
The CBSA Officer who interviewed the Applicant
and JSN determined that the Applicant had not established that she had a
relative in Canada and thus, found her to be ineligible to claim refugee status
in Canada under the STCA. In reaching this conclusion, the CBSA Officer noted
that when JSN came to Canada, she declared a sister named GN who was already in
Canada and that neither sister declared the existence of the Applicant’s father
as their half-brother. He also noted that the Applicant knew nothing about her
aunt, JSN.
[6]
The CBSA Officer also commented on the
Applicant’s supporting identity documents, stating that they contained no
security features and had been produced in the Applicant’s absence and mailed
to her while she was in the United States.
[7]
The Minister’s Delegate confirmed the CBSA
Officer’s decision for the same reasons, essentially copying most of the CBSA’s
Officer’s notes with the exception of a reference to the Applicant’s passport.
[8]
In this application for judicial review, the
Applicant advances a number of arguments, including that the CBSA Officer and
the Minister’s Delegate [Officers] ignored evidence corroborating that JSN is
the Applicant’s aunt.
[9]
The Respondent submits that the Officers’
decision is reasonable as the Applicant has the burden to establish that she has
a family member in Canada in order to make a claim for refugee protection in
Canada. The Respondent also contends that the Applicant’s documents were
considered by the Officers. However, they reasonably concluded that the
documents were not reliable, for a number of reasons, including the absence of
security features and the fact that they were issued in her absence.
[10]
It is not necessary for me to summarize in more
detail the submissions of the parties because I am of the view that the
decision should be set aside for the following reasons.
[11]
By noting that both JSN and her sister GN did
not declare the existence of the Applicant’s father in their immigration forms,
the Officers mistakenly referred to GN as JSN’s sister. It is clear from the
Certified Tribunal Record [CTR] that GN was not JSN’s sister but her half-sister.
They share the same father (CTR, pp 37, 44, 55), unlike JSN and the Applicant’s
father who share the same mother (CTR, pp 37, 78, 80). Given that GN did not
have any link with the Applicant’s father, she had no reason to include him as
a member of her family when she completed her refugee forms in 2007. Moreover,
it appears from the CTR that JSN applied for refugee protection in 2010. When
she completed her forms, she was not aware of the existence of the Applicant’s
father as her half-brother. Since the Officers’ clearly relied upon the alleged
omission to report the existence of the half-brother to support their decision,
the error is clearly determinative.
[12]
I am also of the view that the Officers’
decision is unreasonable as it does not satisfy the criteria of “justification, transparency and intelligibility” set
out by the Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC
9 at para 47 [Dunsmuir].
[13]
Both Officers state that the documents adduced
by the Applicant have no security features and were issued in the Applicant’s
absence. They provide no further comment or explanation and don’t directly
conclude that the adduced documents are not authentic or that they afford them
little weight. It is also unclear from the decision what “security features” the Officers are referring to as
all of the documents have what appear to be numbers, stamps and officials
signatures. This Court has held that official stamps and signatures on identity
documents are security features (Adesida v Canada (Citizenship and
Immigration), 2016 FC 256 at paras 19-22; Elhassan v Canada (Citizenship
and Immigration), 2013 FC 1247 at para 22; Zheng v Canada (Citizenship
and Immigration), 2008 FC 877 at paras 18-19).
[14]
Additionally, the Officers refer to the
documents in the plural with the exception of a National Identity Card to which
they refer in the singular. I have reviewed the CTR and it contains the
National Identity Cards of both the Applicant and her father. It is unclear
from the decision which identity card the Officers are referring to. The
rationale behind their statement that the Applicant’s documents were produced
in her absence and were sent to her by mail is also unclear from the Officers’
reasons.
[15]
The Applicant adduced a number of documents that
appear to establish her relationship with her father and her father’s
relationship with JSN in Canada. If the Officers believed that the documents of
the Applicant were not authentic, they should have addressed the issue more
fully.
[16]
While I recognize that the decision of the
Minister’s Delegate attracts a significant degree of deference, I find that this
decision is unreasonable as it lacks “justification,
transparency and intelligibility” and that it must be set aside as it
does not fall “within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir
at para 47).
[17]
Accordingly, the application for judicial review
is allowed, the decision is set aside and the matter shall be remitted back to
a different CBSA Officer and a different Minister’s Delegate for
redetermination. No questions were proposed for certification and I agree that
none arise.
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