Date: 19990806
Docket: IMM-2003-98
BETWEEN:
MOHAMED ISMAIL MOHAMED
AUGUSTINE UNITED CHURCH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.
[1] The applicant Mohamed Ismail Mohamed is an ethnic Somali, born in Ethiopia. He fled Ethiopia in 1989 for Germany. In 1994 he applied for admission to Canada as a permanent resident on the basis that he is a Convention refugee seeking resettlement. His application was sponsored by the Augustine United Church.
[2] Mr. Mohamed was interviewed by a visa officer in Bonn on July 19, 1994 and his application was refused. His application for judicial review of that decision was allowed with the consent of the Minister on December 17, 1996. In January of 1998, a different visa officer interviewed him in Bonn for the redetermination of his application, which was again refused. Mr. Mohamed now seeks judicial review of that decision.
Sufficiency of reasons
[3] Counsel for Mr. Mohamed argued that the reasons for the decision are not explained in the refusal letter and have not been clarified by his notes, his affidavit, or the cross-examination on his affidavit. I agree that the visa officer's reasons could be more clear. They are discernible, however.
Issues the visa officer was required to determine
[4] The issues the visa officer was required to determine are derived from paragraph 19(2)(d) of the Immigration Act, which prohibits the admission of any person who cannot or does not fulfil or comply with any of the conditions or requirements of the Act or Regulations. That would include the admission requirements applicable to Mr. Mohamed's application.
[5] The admission requirements for Mr. Mohamed are those set out in section 7 of the Regulations. The decision of the visa officer was focussed on two of those requirements. The first was whether Mr. Mohamed met the definition of "Convention refugee seeking resettlement."1 The second is whether Mr. Mohamed and his accompanying dependents would be able to become successfully established in Canada, taking into consideration their education, work experience, skills and other listed factors.2
First requirement: "Convention refugee seeking resettlement"3
[6] In order to determine whether Mr. Mohamed met the definition of "Convention refugee seeking resettlement," the visa officer was required to consider whether Mr. Mohamed met the definition of "Convention refugee" in subsection 2(1) of the Immigration Act, and if so, whether there was a possibility, within a reasonable period of time, of a "durable solution." A durable solution is defined in subsection 2(1) of the Regulations as:
| (a) the voluntary repatriation of the Convention refugee to the Convention refugee's country of citizenship or of habitual residence, |
| (b) the resettlement of the Convention refugee in the Convention refugee's country of citizenship or of habitual residence, in a neighbouring country or in the country of asylum, or |
| (c) an offer of resettlement in a country other than Canada. |
[7] The visa officer concluded that Mr. Mohamed is not a Convention refugee because, although he has a well founded fear of persecution with respect to Ethiopia, he has no such fear with respect to Somalia, which is his country of nationality, and he is willing and able to avail himself of the protection of that country. He also concluded that there was a possibility of a "durable solution."
[8] Counsel for the applicant raised several arguments with respect to this aspect of the visa officer's decision. It is necessary to consider only one.
[9] The visa officer reached the preliminary conclusion that Mr. Mohamed is a citizen of Somalia. The only evidence that supports that conclusion is that Mr. Mohamed had a Somalian passport issued to him in 1994 in Germany, and renewed in 1998.
[10] It is undisputed that there is no functioning government in Somalia, and there was none when the visa officer interviewed Mr. Mohamed. The visa officer admitted in cross-examination that Mr. Mohamed said in the interview that Somalia has no functioning government. He also admitted that he does not recall exploring in the interview whether Mr. Mohamed's passport was in fact an indication of his citizenship. I conclude that the visa officer simply assumed that the existence of the passport was determinative.
[11] Counsel for the Minister argued that under the Handbook on Procedures and Criteria for Determining Refugee Status, the existence of that passport raised a rebuttable presumption that Somalia is his country of nationality, and therefore the visa officer was entitled to assume that was so. I do not agree. Even if I were to assume that the visa officer is entitled to rely on that Handbook, he erred when he failed to put his mind to the question of whether the lack of a functioning government in Somalia is capable of rebutting the presumption of nationality that arises from the existence of the Somali passport. For that reason, the visa officer's conclusion that Mr. Mohamed does not meet the definition of Convention refugee cannot stand.
[12] Before dealing with the visa officer's decision with respect to the second requirement, the likelihood of successful establishment in Canada, I will comment on a new argument relating to the Somali passport that was raised for the first time at the hearing of this application.
[13] Counsel for Mr. Mohamed referred to subsection 46.04(8) of the Immigration Act, the definition in subsection 2(1) of the Regulations of "member of the undocumented Convention refugee in Canada class," section 11.402 of the Regulations and Schedule XX of the Regulations. At the risk of oversimplifying, it appears that the effect of these provisions is that a Convention refugee in Canada who is a citizen of Somalia is not required to provide a Somalian passport or other official Somalian document as proof of identity. Counsel for Mr. Mohamed argued that the visa officer should have taken these provisions into account as evidence that Mr. Mohamed's Somali passport was invalid.
[14] In submissions filed after the hearing, counsel for the Minister argued that there is nothing in these provisions that supports the conclusion that Somali passports are not valid. I agree with her that the question of validity is not dealt with in any of these provisions.
[15] However, counsel for the Minister replied with references to the Regulatory Impact Analysis Statement published in Part II of the Canada Gazette on January 22, 1997, at the time of the creation of the "undocumented Convention refugee in Canada class." Some of the statements in that document suggest that as of the time of Mr. Mohamed's interview, no one was recognized as having the authority to grant a Somali passport.
[16] The submissions filed with respect to this additional argument do not permit me to reach any general conclusion as to the validity of Somali passports, or the validity of the Somali passport issued to Mr. Mohamed in 1994, or the 1998 renewal. However, it is not necessary for me to decide that question. It is sufficient to say that these provisions and their legislative history confirm my conclusion that the visa officer erred in not considering whether this was an appropriate case to rely solely on a rebuttable presumption relating to passports as proof of Mr. Mohamed's nationality.
Second requirement: Likelihood of successful establishment in Canada
[17] The visa officer was not satisfied that Mr. Mohamed had the skills or experience necessary to establish himself in Canada. The record indicates that in reaching his conclusion on this point, the visa officer considered the listed factors.
[18] It is argued for Mr. Mohamed that this part of the visa officer's decision is inextricably linked to his conclusion that Mr. Mohamed does not meet the definition of "Convention refugee seeking resettlement," and that his incorrect conclusion on the one point led inevitably to an incorrect conclusion on the other.
[19] Specifically, it is argued that once the visa officer decided that Mr. Mohamed did not meet that definition, he did not consider the availability of support under the joint assistance program. If that had been taken into account, it would have favourably affected the visa officer's assessment of Mr. Mohamed's likelihood of success in Canada.
[20] The visa officer says in his affidavit that he specifically considered the likelihood of successful establishment in Canada after the period of assistance was over, referring apparently to the assistance of Mr. Mohamed's sponsors. Counsel for the Minister argues that the likelihood of successful establishment is a requirement that is independent of the requirement to meet the definition of "Convention refugee seeking resettlement." She also points out that assistance through sponsorship would have provided support for Mr. Mohamed for only a limited period of time and that joint assistance, if available, covers the same period.
[21] I cannot conclude from the record that the visa officer's unfavourable decision on the question of Mr. Mohamed's refugee status led him into error on the question of Mr. Mohamed's prospects for self-sufficiency in Canada.
[22] Conclusion
[23] Under the regulations that set out the requirements for admission to Canada for a Convention refugee seeking resettlement, the visa officer's negative assessment of Mr. Mohamed's prospects in Canada is enough, standing alone, to justify the visa officer's denial of Mr. Mohamed's application for admission to Canada. As I have found no error with respect to the visa officer's conclusion on that point, I have no basis for quashing his decision to deny Mr. Mohamed's application for admission to Canada. The application for judicial review will be dismissed.
[24] Normally in an application of this kind costs would follow the event. However, because the applicant is unemployed and living on welfare, I will make no order as to costs.
[25] I will defer the issuance of a formal order pending the receipt of written submissions on a certified question. Any submission by counsel for Mr. Mohamed is to be served and filed on or before August 16, 1999. Any reply by counsel for the Minister is to be served and filed or on before August 23, 1999.
Karen R. Sharlow
Judge
Ottawa, Ontario
August 6, 1999
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