Federal Court Decisions

    

     IMM-2658-96

B E T W E E N:

     EDMONS YOUSSEF ZIA

     KLADIS ZIA, AEVLEN ZIA and

     ALMAS ZIA

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     SECRETARY OF STATE

     Respondents

     REASONS FOR ORDER

GIBSON, J.:

     These reasons arise out of an application for judicial review of three decisions of an officer at the Canadian embassy in the Hashemite Kingdom of Jordan rejecting Kladis Zia's, Aevlen Zia's and Almas Zia's (the "principal applicants") applications for immigration to Canada as a member of the "Convention refugees seeking resettlement" designated class. The decisions are each dated the 9th of April, 1996.¹

     The principal applicants are nationals of Iraq. Edmons Youssef Zia is a brother of the principal applicants and a sponsor of the principal applicants' applications for immigration to Canada.

     The officer, in each of the letters conveying her decision under review, wrote:

From the information provided on your information form, and at your interview, it has been determined that you do not meet this definition [the definition "Convention refugee" in subsection 2(1) of the Immigration Act2]. Consequently your application in this category [Convention refugee seeking resettlement designated class] must be refused. A second visa officer has reviewed and concurred with this decision.

     In effect, the officer, having determined each of the principal applicants not to be a Convention refugee, inevitably concluded that each of the principal applicants could not be a member of the "Convention refugees seeking resettlement" designated class.

     In an annex to her statutory declaration filed with respect to the application of Kladis Zia, that annex declared to be the officer's case notes of her interview with Kladis Zia, she wrote:

Applicant is 31 yrs old not married she has 12 yrs education. Speaks some English and worked has [sic] a secretary typist for 10 yrs she quit her job and cmae [sic] to Jordan with her eldrely [sic] parents because the brother in CDA Edmon Youssif told them he had sponsored them in the CR CAT. Priblems [sic] were economics not persecution has not seen persecution in her life. Brother could have sponsored her in FC CAT. Would recommend to him that he goes thorugh [sic] FC CAT. Instead. Case refused.

The equivalent statement in respect of Aevlen Zia reads as follows:

Applicant speaks fluently English and French she is a translter [sic] by trade has 5 yrs experience. She has 16 yrs education. She also studied to become a teacher has a B.A. of arts. She is articulate and well spoken her brother Edmon Youssif lives in Weston Ont and supports the family in Jordan she came here with her sisters and her elderly parents in AUG 95. No claim to persecution. Could probably be evaluated in another cat. Case refused no persecution.

Finally, the equivalent statement in respect of Almas Zia reads as follows:

Applicant is an accountatn [sic] by trade speaks some English has 14 yrs education. Got her diploma from a commercial school. But neveer [sic] wrokded [sic] in her trade because family left Iraq shortly after she graduated. She accompanied her sisters and her parents to Jordan. Brother in CDA has sponsored them. No persecution. She was not persecuted. The family just want a better life. Out of Iraq. She told us that she also has other relatives in CDA beside [sic] her brother. Some of the relatives have been in CDA for more than 15 yrs. Case refused.

The officer was not cross-examined on her statutory declarations.

     Counsel for the applicants raised three issues; first, whether the process and procedure by which refugee claims are determined abroad contravene section 7 of the Canadian Charter of Rights and Freedoms³ and the decision of the Supreme Court of Canada in Singh v. The Minister of Employment and Immigration⁴; second, whether the process is ultra vires the statutory scheme of the Immigration Act; and third whether, on the facts before her, the officer made perverse findings of fact and conclusions and drew inferences without evidence and in total disregard to the evidence. No notice of constitutional question was served on the Attorney General of Canada and the attorneys general of each province in accordance with section 57 of the Federal Court Act⁵.

     In Jallow v. The Minister of Citizenship and Immigration⁶, Mr. Justice Rouleau had before him an application for judicial review of a similar decision of a Canadian visa officer at Rome, Italy. The issues advanced on behalf of the Applicant in that matter, also a national of Iraq, were essentially the same as the issues here. I am satisfied that the disposition of this matter should be the same as in Jallow, that is to say, that this application for judicial review should be dismissed.

     In light of the lack of notice under section 57 of the Federal Court Act, the argument based upon a contravention of section 7 of the Charter was, before me, converted to an argument that the process and procedure followed in this matter constituted a breach of natural justice and of the duty to act fairly. In his reasons in Jallow, Mr. Justice Rouleau wrote:

A potential immigrant must answer truthfully to a Visa Officer. The officer's decision is purely administrative; he is afforded considerable latitude in exercising his authority and he enjoys extensive discretion. Though not unlimited, he has the duty to follow the Immigration Act and a duty to act fairly. He must provide the applicant with an opportunity to be heard when possible and to provide material in support.

Without necessarily adopting Mr. Justice Rouleau's characterization of the decision under review, I am in agreement that a visa officer, in matters such as this, has a duty to follow the Immigration Act and to act fairly. That duty of fairness is, I think, somewhat limited by comparison with that owed Convention refugee claimants applying from within Canada by reason of the fact that persons such as the principal applicants are not in Canada and do not face the possibility of deportation by Canadian authorities to the country where they claim to fear persecution, if their claims are disallowed. Here, as in Jallow, the principal applicants were afforded a hearing or hearings. On the evidence before me, I find no basis to conclude that the hearing or hearings was or were other than full and fair. While the affidavit of Edmon Sargon Youssif Zia, presumably the fourth applicant in this matter, filed in support of this application, provides that:

I am advised, and verily believe, by my sisters, that the interview at the Canadian Embassy took no longer than 10 minutes.

I place no weight on that statement and, indeed, very little weight on the affidavit as a whole. For whatever reason, affidavits of the principal applicants were not filed. The affidavit filed is vague and, to a large extent, irrelevant.

     The fact that the officer whose decisions are under review sought the concurrence of a Senior Immigration Officer before transmitting her decisions, as she was in fact required to do, in no sense detracted from the fairness of the process. The Senior Immigration Officer who was not a party to the hearing or hearings afforded to the principal applicants⁷, did not make the decisions under review or, according to the material before me, in any sense influence them. He or she merely concurred in the decisions of the officer who heard the principal applicants, and reached her own conclusions.

     On the issue of the impact of the decision in Singh, I can do no better than quote from the reasons of Mr. Justice Rouleau in Jallow:

In reviewing Singh, ... it is clear to me that the process which was eventually put in place in Canada is not applicable to claimants outside the country. Wilson J. makes numerous references in her reasons wherein she emphasizes the duty of fairness on decision makers but it is very clear to me that other consequences which flowed from the decision are only applicable to Refugee claimants within Canada. In her opening paragraph at p. 442, she wrote:

The issue raised by these appeals is whether the procedures set out in the Immigration Act, 1976,-77 (Can.), c. 52, as amended, for the adjudication of the claims of persons claiming refugee status in Canada deny such claimants rights they are entitled to assert under s. 7 of the Canadian Charter of Rights and Freedoms.

(emphasis added)

And she continues:

First, the Court should decide whether refugee claimants physically present in Canada are entitled to the protection of s. 7 of the Charter.

... The Act envisages the assertion of a refugee claim under s. 45 in the context of an inquiry, which presupposes that the refugee claimant is physically present in Canada and within the jurisdiction of the Canadian authorities. The Act and the Immigration Regulations, 1978, SOR/78-172, do envisage the resettlement in Canada of refugees who are outside the country but the following observations are not made with reference to these individuals.

...I am prepared to accept that the term includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.

(emphasis added)

Resultant changes to Canadian immigration law did not impact on the process for determination of Convention refugee claims for persons outside of Canada and the Singh decision in no sense commented adversely on that process.

     Counsel argued that, where a Convention refugee claimant attends at a Canadian embassy abroad for an interview with respect to her claim, she effectively becomes a person claiming refugee status in Canada and therefor the principles enunciated in Singh apply. I reject that argument. Persons such as the principal applicants file their applications outside Canada or, at the time of filing, are outside Canada. The fact that they may briefly attend at a Canadian embassy for an interview or other related purpose can in no sense be said to make them persons claiming refugee status from within Canada.

     Finally, I find no basis on which to conclude that the officer's decisions here under review, on the material and interviews before her, were perverse or capricious or made without regard to the material and the substance of the interviews. The officer found the principal applicants not to have a subjective fear of persecution if returned to Iraq. I am satisfied that her conclusions were reasonably open to her.

     In the result, this application for judicial review of three decisions will be dismissed in respect of each of those decisions.

     At the end of the hearing in connection with this matter, it was agreed that I would distribute draft reasons and provide counsel an opportunity to make written submissions on certification of a question or questions. Draft reasons were provided to counsel. Counsel for the applicants submitted that two questions should be certified in the following terms:

1.      Does the Immigration Act apply to determinations made by visa officers at Canadian Embassies, with respect to foreign nationals, in being assessed as Convention refugees, more specifically, do the duties of visa (immigration) officers apply and does the CRDD retain "sole and exclusive" jurisdiction to determine Convention Refugee status at the Canadian Embassies?

2.      If the answer to 1 above is "no", is the procedure employed by visa officers at Canadian Embassies:

(a)      Subject to the Singh decision of the SCC?; and

(b)      If "yes" to (b)[sic], does the procedure comply with Singh?

Counsel for the applicants urged that both questions are appropriate for certification and address important issues of general interest.

     In Liyanagamage v. Canada (Minister of Citizenship and Immigration).⁸ Mr. Justice Hugessen wrote:

In order to be certified pursuant to s. 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significances general application... but it must also be one that is determinative of the appeal.

     Counsel for the respondent submits that no serious issue of law was raised at the hearing before me challenging the "...overseas determination process for persons in the designated class "Convention Refugee Seeking Resettlement" and none is identifiable for appeal." With respect to the second question, counsel for the respondent takes the position that, at the hearing of this application, the applicants abandoned the argument that the procedure in question did not comply with section 7 of the Charter or the Singh decision and instead, as indicated in these reasons, based their argument "...on the requirements of the duty of procedural fairness in the context of the decision-making process in question."

     While I am in general agreement with the position of counsel for the respondent on both questions, I am of the view that this matter does raise questions for certification against the test from Liyanagamage, although not in the terms proposed by counsel for the applicants. Accordingly, the following questions will be certified:

1.      Where an individual applies to a Canadian embassy for a determination that he or she is a Convention refugee, within the meaning of the Immigration Act, seeking resettlement in Canada, does the Immigration Act, and more specifically sections 44, 46.02 and 67 of the Act confer sole and exclusive jurisdiction on the Convention Refugee Determination Division of the Immigration and Refugee Board to hear and determine the individual's claim?

2.      If the answer to question 1 is "no", were the applicants in this matter accorded the requisite degree of natural justice and procedural fairness in the determination of their claims to Convention refugee status?

    

     Judge

Ottawa, Ontario

June 6, 1997

__________________

¹      That this application seeks judicial review of three separate decisions with respect to three different individuals would appear to contravene Federal Court Immigration Rule 5(1)(b) which reads as follows:
             5.(1) An application shall be in accordance with Form IR-1 as set out in the schedule and shall set out              ...              (b) the date and details of the decision, order or other matter in respect of which relief is sought;              ...
     Here, the three decisions are essentially identical and relate to related individuals in similar circumstances. Nonetheless, I am satisfied on the basis of the argument before me, of the importance that the implication of the rule be adhered to. In circumstances where greater differences among the decisions in question or the individuals in question existed, the possibility of real prejudice to the applicants is evident.

²      R.S.C. 1995, c. I-2

³      Constitution Act, 1982 (R.S.C.) 1985, Appendix II, No. 44, (being Scheduled B to the Canada Act 1982 (U.K.), c. 11.

⁴      [1985] S.C.R. 177.

⁵      R.S.C. 1985, c. F-7.

⁶      Court File No. IMM-2679-95, November 6, 1996 (unreported) (F.C.T.D.).

⁷      Notwithstanding the affidavit of Edmon Sargon Youssef Zia, I prefer to infer from the statutory declarations of the officer that each of the principal applicants was afforded a separate interview.

⁸      (1994), 176 N.R. 4 (F.C.A.)