Docket: IMM-14755-23
Citation: 2024 FC 1877
Ottawa, Ontario, November 22, 2024
PRESENT: The Honourable Mr. Justice Manson
BETWEEN: |
DANIEL OKUBAGEBRIEL TESFAY |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Introduction
[1] This is an application for judicial review of a decision (the “Decision”
) by a resettlement officer (the “Officer”
) refusing an application for resettlement through the Convention Refugee Abroad class or as a Humanitarian-Protected Person Abroad designated class pursuant to sections 11(1) and 16(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”
) and the Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR”
) made thereunder.
II. Background
[2] The Respondent’s Further Memorandum at paragraphs 1 to 4 sets out the relevant facts which I substantially adopt below.
[3] The Applicant, Daniel Okubagebriel Tesfay, is a 41-year-old Eritrean man, currently living in Ethiopia.
[4] The Applicant’s written application stated that he began farming with his father until 2002 when he was called to serve in the military for a short duration. He was then in the National Service in the Halay Local Administration for a period of 10 years. He stated that he delivered post but as it was not overly demanding he was able to open a small grocery shop.
[5] In 2019, the Applicant and his spouse exited Eritrea to Ethiopia and sought refugee protection there. In October 2020, he sought to enter Canada by way of an application under the refugee abroad class.
[6] On October 11, 2023, the Applicant underwent an interview with the Officer in Ethiopia. At the interview, the Applicant stated after his short stint in the military in 2002, he did agricultural work and had a shop that eventually closed. When asked if he was ever assigned in the National Service, military or civilian, he stated no. When asked who filled out his application forms, he said someone else. When it was pointed out to him that his form said he was assigned to the Halay Local Administration in the National Service, the Applicant then said that was true but didn’t know if it was considered the National Service. The Officer noted that his oral statement of being a farmer for 20 years at home was different from his written narrative of working in the Halay Local Administration of the National Service. The Applicant then claimed that he did both and worked in the National Service. When asked to describe his role in the National Service, the Applicant was having trouble with answering the question. He at first stated that he had messenger duties and then claimed that he did the duties of the administrator when then administrator was not there. When asked to provide more details on what he did there, the Applicant then reverted to stating that he was only a messenger.
III. The Decision
[7] On November 3, 2023, the Officer rejected the Applicant’s application. The Officer found that because of the inconsistencies and lack of details regarding what the Applicant did in Eritrea, the Officer was left with insufficient information to use in their assessment of whether the Applicant met the requirements of sections 11(1) and 16(1) of the IRPA.
[8] The Officer noted that they explained to the Applicant what their concerns were with his application and provided an opportunity for him to disabuse the Officer of the concerns, and the Applicant failed to do so. Consequently, the Officer found that they were left with insufficient clear information to assess whether the Applicant met the requirements of the IRPA and whether or not he was inadmissible (IRPA, s. 11(1)).
IV. Issues
[9] The only issue is whether the Decision is reasonable.
V. Analysis
[10] The standard of review with respect to the Officer’s substantive findings is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 25).
[11] The Applicant asserts that the Officer’s inconsistency finding is illusory and the Officer disregarded the Applicant’s nuanced explanation and the Applicant’s background. The Applicant repeats his final statement to the Officer in the interview that he was in the National Service and simultaneously a farmer.
[12] The Applicant also argues that the Officer did not explicitly reject the Applicant’s spouse’s application, and was required to assess the Applicant’s eligibility based on his spouse’s admissibility (citing to OP 5: Overseas Selection and Processing of Convention Refugees Abroad Class and Members of the Humanitarian-protected Persons Abroad Classes).
[13] Section 13.3 of the OP 5 Guideline states the following:
If the principal applicant does not qualify as a member of the Convention refugee abroad class, the officer must assess the eligibility and admissibility of the spouse, common-law partner and of any family members. It cannot be assumed that a spouse, common-law partner or a child, particularly an older one, does not have their own story to tell. Each family member must be given the opportunity to tell their story; officers must explore all possibilities. Where any one family member qualifies, that status applies to all other family members. If none of the family members qualify, proceed to Section 27, Refusing applications.
[14] The Respondent submits the Applicant ignores the inconsistencies in the interview and the written application, as described above, and highlights the fact that the Applicant was wavering on what he actually did in the National Service and was unable to provide details. The Respondent asserts that section 139(1)(i) of the IRPR, under which the Applicant sought status, requires that the Applicant and their family members be admissible.
[15] Section 139(1)(i) of the IRPR states the following:
139 (1) A permanent resident visa shall be issued to a foreign national in need of refugee protection, and their accompanying family members, if following an examination it is established that
(i) subject to subsections (3) and (4), the foreign national and their family members included in the application for protection are not inadmissible
[16] The Officer’s conclusion that the Applicant provided insufficient information to determine whether or not the Applicant was inadmissible was reasonable. It is the Applicant’s onus to satisfy an Officer that they are not inadmissible. Where an Officer is not given a complete background of the Applicant, through inconsistencies in the Applicant’s evidence and insufficient information, the Officer can reject the application (Puigdemont Casamajo v Canada (Immigration, Refugees and Citizenship), 2021 FC 975 at paras 40-41 [Puigdemont]).
[17] Contrary to the Applicant’s assertions, an immigration officer can reject an application without a specific finding of inadmissibility, on the basis that he or she cannot actually determine that the applicant is not inadmissible (see Ramalingam v Canada (Citizenship and Immigration), 2011 FC 278 at para 37). It was not an error of law for the Officer to do so. On this note, it does not automatically follow that applicants recognized as refugees by the United Nations High Commissioner for Refugees (“UNHCR”
) are not inadmissible (Pushparasa v Canada (Citizenship and Immigration), 2015 FC 828 at paras 26-29). The Officer was aware of the Applicant’s UNHCR designation, however, they found it was not determinative.
[18] With respect to the Applicant’s argument that the Officer was required to assess the Applicant’s eligibility based on his spouse’s admissibility, I disagree that this guideline, which is not binding in any event, is applicable here (Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at para 32). In this case, the issue is not that the Applicant was found not to “qualify as a member of the Convention Refugee Abroad class”
, but that the Officer was unable to assess the Applicant’s eligibility. As this Court has held, “having an application rejected because it is incomplete is not the same thing as having an application rejected because the person is inadmissible. A person who does not answer legitimate questions under section 16 does not meet the requirements of the IRPA”
(Puigdemont at para 40).
[19] The Applicant has not established that the Decision was unreasonable. The Applicant failed to address the concerns raised by the Officer. The Officer was therefore justified in refusing the application on the basis that they could not assess whether the Applicant met the requirements of sections 11(1) and 16(1) of the IRPA.
VI. Conclusion
[20] The Decision was reasonable and this application for judicial review is dismissed.
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