Ottawa, Ontario, March 16, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and FARTUN GULED ALI
and
AND IMMIGRATION
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.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2655-06
STYLE OF CAUSE: RAHIMA JIBRIL ALI and
FARTUN GULED ALI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 13, 2007
APPEARANCES:
SOLICITORS OF RECORD:
Matthey Jeffery FOR APPLICANT
Toronto, Ontario
John Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario