Date: 20041008
Docket: IMM-4522-03
Citation: 2004 FC 1392
BETWEEN:
SIMON MUHAZI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] This proceeding raises as a central issue the content of the duty of fairness during the interview of Simon Muhazi (the "applicant"), conducted by a visa officer in the context of his application for recognition as a Convention refugee abroad seeking resettlement.
[2] The applicant is a citizen of Rwanda and a Tutsi. He and his wife, whom he married in 1992, lived until 1994 in the Democratic Republic of Congo (the "Congo"), where he was born, when the couple moved to Rwanda, despite the ongoing conflict in that country. They stayed there until 1999, then fled to Kenya allegedly because two of his brothers were killed in Rwanda in 1997 and 1998.
[3] This judicial review application challenges the March 26, 2003 decision made by the Second Secretary of the Canadian High Commission in Nairobi, Kenya ("CHC") denying Simon Muhazi's application for permanent residence in Canada for he and his family in the special prescribed category of Convention refugee abroad.
[4] Mr. Muhazi's application for permanent residence was made pursuant to Part 8 of the Immigration and Refugee Protection Regulations (the "Regulations") headed "Refugee Classes" and specifically pursuant to Division 1 of that Part headed "Convention Refugees Abroad and Humanitarian Protected Persons Abroad".
[5] Section 145 of the Regulations provides that a foreign national is a Convention refugee abroad and a member of the Convention Refugees Abroad Class if the foreign national has been determined, outside Canada, by an immigration officer to be a Convention refugee.
THE VISA OFFICER'S DECISION
[6] The visa officer's decision letter reveals the applicant was interviewed on December 11, 2002 at CHC in Nairobi. Her decision first refers to the definition of Convention refugee in section 96 of the Immigration and Refugee Protection Act (the "Act") and then how section 145 and subsection 139(1) of the Regulations operate. Subsection 139(1) of the Regulations spells out the general requirements for the issuance of a permanent resident's visa to a foreign national in need of refugee protection.
[7] The material part of the visa officer's decision is contained in the first paragraph on page 2 of her March 26, 2003, decision letter. That paragraph reads:
After carefully assessing all factors relative to your application, I have determined that you are not a member of any of the classes prescribed because of the following reasons; I am not satisfied that you have a well-founded fear of persecution in Rwanda should you return. You lived in Rwanda between 1994 and 1999. It was several months after the death of your brothers, in 1997 and 1998, that you decided to depart Rwanda for Kenya. By that time, the inter-ethnic conflict in Rwanda had diminished and repatriation of refugees was taking place. At present, the political/economic situation in Rwanda has stabilized and it is considered safe to return. Moreover, you and your family members have valid Rwandan passports and you stated at interview that you are not a refugee. Therefore, you do not meet the above definition of convention Refugee. [emphasis mine]
[8] As can be seen, the visa officer's decision did not hinge on her assessment of the applicant's credibility.
FACTS
(1) The applicant's affidavit
[9] Simon Muhazi filed an affidavit in support of his judicial review application. He was not cross-examined. I set out paragraphs 4 and 5 of that affidavit:
4. At the interview I understood that we were asked if we have refugee status in Kenya. I replied no. I am very surprised to read in the decision that "You stated at the interview that you are not a refugee". My family and I were applying to be accepted as convention refugees. We are afraid for our very lives to return to Rwanda because of the Hutu militias who have threatened us. The government is not capable of protecting us. Some of our family members have been killed by the militias in 1997. Others have since disappeared and we do not know what happened to them. I am afraid that if we go back the same thing will happen to us. We never said that we are not refugees. It is clear to me that either the visa officer completely misunderstood our answer, or we misunderstood her question.
5. At the interview we were never given an opportunity to present information about the conditions for returning to Rwanda. I am very surprised that the visa officer says that the present situation has stabilised and "it is considered safe to return". I do not know what information the visa officer is using because all my information is that it would be very dangerous for my family and I to return to Rwanda. The Hutu militias continue to attack and kill the minority Tutsi population. In 1994 over 600,000 Tutsis were killed in the Genocide. The country has never completely recovered and the relations between Hutus and Tutsis remain very tense and violent. That is why we left Rwanda and that is why we cannot go back. [emphasis mine]
(2) The visa officer's affidavit
[10] The visa officer filed a response affidavit. She was not cross-examined. First, she set out her qualifications. She states she has processed refugees from Rwanda, Burundi, and the Democratic Republic of Congo for resettlement to Canada out of refugee camps and cities in Kenya, Tanzania and Uganda.
[11] She sets out her expertise in the assessment of refugees from Rwanda; it is based on two years as an official in the Immigration Section at CHC. She advances she specialized in refugee processing since her arrival at CHC and since December 2002 she has been the Refugee Resettlement Coordinator at the specialized refugee unit there. She is in regular contact with "our working partners UNHCR, IOM, and several refugee NGOs that provide me with regular updates on refugee movements in East Africa, the Horn, and the Great Lakes states. I am aware of the current progress of repatriation and reintegration of Rwandan refugees back into Rwanda".
[12] She certified the Computer-Assisted Immigration Program System notes ("CAIPS") which are found in the tribunal's certified record were hers and were typed during the selection process. She confirms she interviewed Mr. Muhazi and his family on December 11, 2002, and told the applicant and his family she would ask them questions to determine whether they qualified for resettlement to Canada as refugees.
[13] She deposes the following at paragraph 14 of her affidavit:
14. The Applicant expressed surprise that he was being processed as a refugee, since he is not a refugee, and showed me his family's Rwandan passports. He further told me his family in Canada had organized the sponsorship for him, but he was not aware that it was a refugee sponsorship. [emphasis mine]
[14] She confirmed the applicant and his wife are Tutsis, had lived in the Congo until 1994, and left for Rwanda where they stayed from 1994 to 1999.
[15] At paragraph 16 of her affidavit, she writes Mr. Muhazi alleged he had two brothers killed in Rwanda in 1997 and 1998. She adds "however, he did not leave Rwanda with his family until February 1999". She indicates the applicant's two sisters and his wife's mother, sister and brothers are still living in Rwanda.
[16] At paragraph 18, she tells us during the interview she gave the applicant the opportunity to explain the reasons as to why he left Rwanda for which he provided his story. She explained to him her concerns she was not satisfied his fear of return to Rwanda was well-founded because the conditions in Rwanda had improved. She adds "I specifically said that the repatriation of refugees was ongoing and the country was politically stable".
[17] At paragraph 19 of her affidavit, she advises that at the end of the interview she asked the applicant whether he had anything to add and he responded in the negative.
[18] She writes at paragraph 20 she was not satisfied the applicant and his family have a well-founded fear of persecution should they return to Rwanda. She reiterates the fact the family lived in Rwanda between 1994 and 1999 and it was several months after the death of his brothers they decided to leave the country for Kenya. She says by that time, the inter-ethnic conflict in Rwanda had diminished and repatriation of refugees was taking place. She concludes her affidavit:
20. . . . At this time, the political and economic situation in Rwanda has stabilized and it is considered safe to return. Moreover, the principal Applicant and his family have valid Rwandan passports and they said they were not refugees. Consequently, I refused the application.
3) The affidavit of Glynis Williams
[19] We know from the June 20, 2003, affidavit of Glynis Williams, Director of Action Réfugiés Montréal since 1994, a NGO which supports refugees who represents the Anglican diocese of Montreal on the Canadian Council for Refugees, that Rwanda is on the list of countries to which Canada does not conduct any removals even for refugee claimants who have been refused, the only exception being those who have been convicted of committing serious crimes.
[20] She confirms it is the policy of the Government of Canada not to remove foreign nationals to Rwanda.
THE APPLICANT'S CHALLENGE
[21] Counsel for the applicant raised the following points during the hearing of this application, all of which were opposed by counsel for the respondent on various legal and factual grounds.
(a) the visa officer erred in law by acting without regard to the documentary evidence when she found it was considered safe to return to Rwanda particularly in the face of Canada's moratorium which prevents removals to unsafe countries including the Congo;
(b) the visa officer took into account an irrelevant consideration when she used the fact the applicant had a valid passport to discount his claim for refugee status. He argued such a consideration would mean only persons with false passports could qualify as refugees. In addition, he argued having a valid passport says nothing about his fear from the Hutus. Moreover, the visa officer failed to consider the passport had been issued in 1999, the year he fled;
(c) he identified the following breaches of duty of fairness during the interview.
First, before accepting at face value his statement why he was not in the refugee stream and using that statement as an element of her finding he was not a refugee, the visa officer, in the circumstances of this case, had a duty to clarify or further question the applicant on the point. The special circumstances were the fact he was assisted by no one during the interview, the fact the visa officer knew the interview was for the purpose of determining whether he was a Convention refugee, the fact his application had been sponsored by Action Réfugiés in Montreal and the fact her CAIPS notes contain a refugee narrative, the factual foundation for his fear of persecution.
Second, the visa officer failed to confront the applicant with the extrinsic evidence upon which she had formed the view inter-ethnic conflict in Rwanda in 1999 had stabilized to such a degree it was safe for him to return to Rwanda.
(d) the tribunal failed to assess the significance of the applicants leaving Rwanda. She had a duty to probe the factors behind the delay;
(e) the tribunal did not provide the applicant an opportunity to disabuse her of her concerns regarding their individualized risk of return to Rwanda.
ANALYSIS
[22] Before my analysis, I make the following observations on the certified tribunal record.
[23] First, the record shows the visa officer did not, as is the practice, make contemporaneous CAIPS notes recording the questions and answers exchanged sequentially during the interview. Rather, the visa officer's CAIPS notes were made on December 16, 2002, while the interview took place on December 11, 2002.
[24] Second, the visa officer's CAIPS notes are not an attempt to reconstruct detailed questions and answers during the interview; they are simply the visa officer's summary of what she thought transpired during the interview.
[25] Third, the CAIPS notes show an internal inconsistency. After studying the file on December 16, 2002, the visa officer states there was no refugee narrative on file which is incorrect as page 8 of the certified record shows the visa officer had recorded the applicant's refugee narrative.
[26] Fourth, the formal refusal letter was issued some three and a half months after the interview had taken place and after the visa officer had decided to deny the application.
[27] Fifth, it is not clear from her CAIPS notes whether she put to the applicant for comment the fact of current repatriation into Rwanda.
[28] In the circumstances the cumulative effect of what the certified tribunal record shows, I consider the recording of the interview as substantially defective notwithstanding the visa officer's affidavit.
[29] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Justice l'Heureux-Dubé summarized the jurisprudence as to the content of the duty of procedural fairness which she said was "eminently variable and its content is to be decided in the specific context of each case" taking into account all of the circumstances.
[30] Emphasizing the point the content of procedural fairness depends on the context of the particular statute and the rights affected, Justice l'Heureux-Dubé stressed the purpose of the participatory rights contained within the duty of fairness "is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and to have them considered by the decision-maker".
[31] She identified five factors as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances. They are:
(1) the nature of the decision being made and the process followed in making that decision;
(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
(3) the importance of the decision to the individual affected (the more important the decision is to the lives of those affected and the greater its impact on that person or persons, the more stringent the procedural protections that will be mandated);
(4) the legitimate expectation of the person challenging the decision;
(5) the choice of procedure made by the decision-maker itself when the statute leaves to the decision-maker the ability to choose its own procedures.
[32] Justice l'Heureux-Dubé noted the list of factors she identified was not exhaustive and stressed the value underlying the duty of procedural fairness relates to the principle the individual or individuals affected should have the opportunity to present their case fully and fairly and "have decisions affecting their rights, interests, or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decision".
[33] Counsel for the respondent identified several decisions of this Court all of which recognize a visa officer deciding an application for permanent residence in Canada as a Convention refugee seeking resettlement has a duty to act fairly (see for example Jallow v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 40; Smajic et al. v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1904; Oraha et al. v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 788).
[34] The common thread in all of these cases which counsel for the respondent stressed distinguish the situation of an applicant for refugee resettlement from that of a refugee claimant in Canada where the Supreme Court of Canada in its landmark decision of Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, held whether it be under the Charter or under the Bill of Rights, fundamental justice required a refugee claim be determined after the holding of an oral hearing.
[35] As Justice Gibson pointed out in Oraha, supra, an applicant for refugee resettlement does not face the possibility of deportation by Canadian authorities to the country where they claim to fear persecution if their claims are disallowed.
[36] In the case before him, Justice Gibson noted Mr. Oraha had been interviewed by a visa officer. He equated that interview as equivalent to a hearing and found on the evidence before him, there was no basis to conclude the hearing was other than "full and fair".
[37] Applying that test on the evidence before me, I conclude the applicant did not receive a full and fair hearing of his application for refugee resettlement for the following reasons.
[38] First, the visa officer should not have taken into account the applicant's purported statement he was not a refugee to determine, in effect, he had no subjective fear of returning to Rwanda without attempting to clarify the point because, in my view, his answer obviously did not make sense in all of the circumstances. The visa officer knew he and his family were being sponsored as refugees by Action Réfugiés. CHC's letter of November 7, 2002, inviting him to the interview, stated its purpose was to determine "if you may meet the requirements for admission to Canada as a refugee" (certified tribunal record, page 23). Moreover, the visa officer had subsequently drawn up a refugee narrative.
[39] Had the visa officer sought to clarify the answer, as I see it, from the applicant's affidavit, it would have become clear to the visa officer either she misunderstood his answer or the applicant misunderstood her question.
[40] Second, in the circumstances of this case, fairness dictated the visa officer provide the applicant an opportunity to comment on the view she held but did not disclose to him (on the contradictory record before me) that conditions in Rwanda had improved, the country was politically stable and repatriation of refugees was ongoing.
[41] The case before me is not one like Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461, where the Federal Court of Appeal decided an immigration officer conducting a review under the Post Determination Refugee Claimants in Canada Class Regulations (the "PDRCC Regulations") did not violate the principle of fairness when he did not disclose, in advance of determining the matter, documents he relied upon from public sources in relation to general country conditions.
[42] Clearly here the visa officer relied upon her own experience and also extrinsic evidence not publicly available being that of "our working partners UNHCR, IOM and several refugee NGOs to provide me with regular updates on refugee movements... I am aware of the current progress of repatriation and reintegration of Rwanda refugees back to Rwanda". Moreover, the certified record does not indicate the visa officer considered any publicly available documentation on current country conditions in Rwanda.
[43] As I see it, the situation before me is that which Justice Décary identified in Mancia, supra, when an immigration officer intends to rely on evidence which is not normally found and was not available fairness "dictates that the applicant be informed of any novel and significant information which evidences a change in the general country conditions that may affect the disposition of the case".
[44] Third, the way in which the interview was recorded does not convince me the interview was full and fair.
[45] Fourth, from my reading of the CAIPS notes I am not satisfied the timing of his brothers' killing and when he fled Rwanda in early 1999 were sufficiently explored. For example, the applicant and his family may have been in hiding. Furthermore, there is no hard evidence as to the length of the delay.
[46] In the circumstances of this case, I conclude the visa officer breached the requirements of procedural fairness.
[47] While the foregoing is sufficient to set aside the decision, I would add I agree with counsel for the applicant the visa officer took into account an irrelevant consideration in reaching her negative decision by taking into account the fact the applicant had a Rwandan passport.
[48] For all of these reasons, this judicial review application is allowed, the visa officer's decision is set aside and the applicant's application for refugee resettlement is remitted for reconsideration by a different visa officer. No certified question was proposed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
OCTOBER 8, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4522-03
STYLE OF CAUSE: SIMON MUHAZI
v.
MCI
PLACE OF HEARING: Montreal
DATE OF HEARING: July 20, 2004
REASONS FOR Order : Lemieux J.
APPEARANCES:
Me Mitchell Goldberg FOR APPLICANT
Me Martine Valois FOR RESPONDENT
SOLICITORS OF RECORD:
507 Place D'Armes FOR APPLICANT
Montreal, Quebec
Dept. of Justice FOR RESPONDENT
Montreal, Quebec