Docket: IMM-2938-16
Citation:
2017 FC 493
[ENGLISH TRANSLATION]
Ottawa, Ontario, May 12, 2017
PRESENT: The Honourable Mr. Justice Mosley
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BETWEEN:
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JOAO BAYEKULA
NZUNGU
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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
I.
Nature of the case
[1]
The applicant is seeking a
judicial review of three decisions: (1) a decision on
the inadmissibility of his refugee claim under subsection 101(1) of the Immigration
and Refugee Protection Act, SC 2001, c. 27 [IRPA]; (2) the inadmissibility
report written under subsection 44(1) of the IRPA; and (3) the removal order
against him under section 228 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [IRPR].
[2]
This application for
judicial review is under section 72 of the IRPA. Leave to commence a judicial
review is only granted for the decision on the inadmissibility of the refugee
claim.
II.
Facts
[3]
The applicant did not submit an affidavit on his
behalf to support his application, claiming a lack of funds and the fact that
he was turned back at the United States. The only affidavit in support of the application
is that of the applicant’s alleged nephew. This affidavit repeats the legal
arguments put forward by the applicant in his factum and is largely devoid of
facts.
[4]
The applicant, Joao
Bayekula Nzungu, is from the Republic of Angola.
[5]
Mr. Nzungu arrived in the United States on a
visa to attend a work conference. Following his arrival, he stayed in the State
of New York for several months.
[6]
On June 24, 2016, the applicant went to the Fort
Erie border crossing from the United States to claim refugee status. He stated
that he was meeting his alleged nephew there, Nsimba Afonso, a Canadian
citizen, and would therefore receive a family member exception for the inadmissibility
of his claim.
[7]
After questioning the applicant and, by
telephone, Mr. Afonso, the officer concluded that the applicant did not prove a
relationship with Mr. Afonso. Consequently, given that he did not have any
family in Canada, his claim was deemed inadmissible by the Minister’s delegate
based on the officer’s report.
[8]
On the same day, the officer wrote a report
under subsection 44(1) of the IRPA, in which he was of the view that the
applicant was inadmissible for breaching the Act pursuant to section 41 of the
IRPA. The Minister’s delegate then issued a removal order under section 228 of
the IRPR. The applicant was subsequently returned to the United States.
III.
Impugned decision
[9]
The Minister’s delegate found, based on the
officer’s recommendations, that the applicant did not have any family in Canada
and that his refugee claim could not be referred to the Immigration and Refugee
Board’s Refugee Protection Division. Given that he does not have any family in
Canada within the meaning of section 159.5 of the IRPR and that he entered by
land via the United States, a safe third country under paragraph 101(1)(e)
of the IRPA and section 159.3 of the IRPR, his claim was determined to be
ineligible.
IV.
Issues
[10]
The issues are as follows:
1.
Did the officer violate the principles of
procedural fairness?
2.
Was the decision by the Minister’s delegate
unreasonable?
V.
Analysis
A.
Standard of review
[11]
Issues involving procedural fairness are
reviewed under the correctness standard (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43).
[12]
The legality of the decision, in the absence of
a question of general importance for the system outside the expertise of the
decision-makers, as is the case in this matter, is reviewable on the
reasonableness standard (Dunsmuir v New Brunswick, 2008 CSC 9 at para 60
[Dunsmuir]). According to this standard, the Court will only intervene
if the decision is not justifiable, transparent, or intelligible, and if it
does not fall within a range of possible outcomes in respect of the facts and
law (Dunsmuir at para 47).
(1)
Did the officer violate the principles of
procedural fairness?
[13]
First, the applicant submits that the officer “erred in law and fact” by failing to notify the
applicant of his right to seek leave and judicial review either at the time of
making his decisions or afterwards. The applicant submits that these errors
constitute violations of procedural fairness since he was allegedly [translation] “deprived
of the remedies available under the Act.”
[14]
The applicant does not make any legal arguments
to establish his claims or cite any authority. He only referred to Citizenship
and Immigration Canada’s Operational bulletins and manual ENF 6 “Par. 5.4 Notification to persons of their right to appeal or
file an application for judicial view.” Strangely, it appears that
this operational guide is no longer published by the Department because it was
removed from its website. Furthermore, the guide deals with the administrative
procedure regarding reports under subsection 44(1) of the IRPA and ineligibility
of refugee claims. Moreover, the notification in question, namely the right to
apply for judicial review, does not appear in the procedural fairness section
in this guide. Accordingly, the fact that the applicant is currently in
judicial review of decisions rendered in his case necessarily makes the issue
moot (Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342, [Borowski]).
The applicant was notified of his rights in one way or another. He did not lose
any recourse. Under the circumstances, the Court does not see any reason to
consider the issue.
[15]
Second, the applicant claims that he did not
truly benefit from his right to an interpreter. He argued that the officer who
questioned him asked him questions in French before his Portuguese interpreter
arrived. The officer then reportedly used the applicant’s answers to identify
inconsistencies during the official interview. The applicant also submits that
the certified record is incomplete because the questions allegedly posed by the
agent prior to the interview do not appear anywhere in the officer’s notes. The
applicant does not advance any legal argument or precedent to support his claim.
[16]
It should be noted that the Court did not
receive an affidavit from the applicant and that this claim only comes from his
counsel’s written and oral submissions.
[17]
The applicant was objectively entitled to an
interpreter, and he also signed a statement to that end. He also explicitly
stated on two occasions, in response to the officer’s questions, that he
understood the interpreter.
[18]
The only evidence that could support the
applicant’s claim that the officer allegedly questioned him before the
interpreter arrived and used the question against him is a question regarding
the applicant’s marital status in the officer’s notes. On its face, the
question suggests that the officer asked the applicant a question about his
spouse before the interview for which the applicant had an interpreter.
[19]
In the absence of a statement by the applicant
himself or by the officer, there is no evidence, other than the questions and
answers of which we have the transcript, to establish that a question was
supposedly asked beforehand. The burden of proof is therefore on the
application.
[20]
Although this question is problematic, the
answer is not determinative, nor mentioned by the Minister’s delegate in his
decision on the ineligibility of the refugee claim. The question on his marital
status was not prejudicial. Unrelated to his relationship to Mr. Afonso, this
question alone did not lead to his claim being rejected. The officer’s notes
contained a number of inconsistencies in the applicant’s testimony. These notes
were based on interview questions and were the basis of his recommendation to
the Minister’s delegate.
[21]
In the end, the applicant was objectively able
to exercise his right to an interpreter and, in the absence of any evidence on
his part, the Court cannot properly find that procedural fairness was breached
in the case at hand.
[22]
Finally, the applicant submits that the officer
breached the principles of procedural fairness by questioning the alleged
nephew of the applicant in English instead of French, as he supposedly
requested. Once again, he did not provide any legal arguments or precedent to
support his assertion.
[23]
The affidavit of the applicant’s alleged nephew
merely states that he was denied his choice of official language. There is
nothing in the evidence to support this argument. Furthermore, the officer’s
notes, including the excerpts concerning the alleged nephew, are in French.
Therefore, the applicant’s procedural rights were not breached.
(2)
Was the decision by the Minister’s delegate
unreasonable?
[24]
All the applicant’s submissions are based on
alleged breaches of procedural fairness. He submits that the errors identified
above render the ineligibility decision unreasonable. However, he does not
provide any legal arguments or authority to support his claim.
[25]
In the case at hand, the officer asked the
applicant over 70 questions about him and his family, as well as about the
reason for and place of his travels in the United States. Based on the questions
that he asked, the officer noted 14 issues with the applicant’s testimony, with
some points contradicting Mr. Afonso’s testimony.
[26]
The essential element of the officer’s
recommendation was that the applicant failed to establish that Mr. Afonso was
actually his nephew and, consequently, that the applicant could not benefit
from the family exception outlined in section 159.5 of the IRPR to the ineligibility
of his claim under paragraph 101(1)(e) of the IRPA.
[27]
In particular, the officer could not confirm the
authenticity of the documentation provided by Mr. Afonso to prove his
relationship to the applicant. The applicant also mistook the name of his
alleged nephew more than once. Furthermore, their versions of the frequency of
their communication differed, not to mention that Mr. Afonso did not know the purpose
of the applicant’s visit to Canada.
[28]
The Minister’s delegate noted that the applicant
claimed to have a nephew in Canada, Mr. Afonso. The applicant attempted to
submit a birth certificate for his nephew; however, it could not be
authenticated, mainly due to its lack of security marks. The applicant could
not provide specific information on his family members, including Mr. Afonso.
The delegate noted several inconsistencies in the interviews of both men. The
Minister’s concluded that the applicant failed to establish that he had family
in Canada. He therefore found that the applicant’s refugee claim was
ineligible. This finding fell within the range of possible outcomes under the
circumstances.
[29]
In short, the applicant did not allege or establish
any reviewable error in the decision on the ineligibility of his refugee claim.
In the absence of a reviewable error, it is not the role of this Court to substitute
itself for the administrative decision-maker (Khosa at para 59; Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 15).
VI.
Conclusion
[30]
For these reasons, the application for judicial
review is dismissed.
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