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The Applicant was born in Somalia and fled to Kenya when he was 10 or 11 years old after his father was killed by clan militia in civil war fighting in Kismayo. He had been registered as a refugee with the UNHCR since at least August 2000.
The Applicant was initially deemed credible on risk; that there was no durable solution available to him in Kenya; and that he had no prospect of resettlement to a third country. He was found to meet the definition of a Convention refugee under s. 96 of the IRPA and showed sufficient general adaptability to establish himself in Canada, making him eligible for permanent residence under the Government Assisted Refugee (“GAR”) Program.
However, the Applicant was not issued an exit visa from Kenya, which caused IRCC to re-open his file.
The Applicant was issued a Procedural Fairness Letter (“PFL”) in December 2022, which stated that IRCC had received information from the International Organization for Migration (“IOM”) that the Applicant was a Kenyan citizen, raising concerns that he did in fact have a durable solution in Kenya and no longer qualified for resettlement to Canada. The Officer was also doubtful that the Applicant was born in Somalia and of his ability to obtain an exit permit from Kenya.
The Applicant responded to the PFL, explaining that:
- He truthfully answered all of the questions in his application;
- He met the definition of a Convention refugee because he fled Somalia due to civil war; the instability and insecurity that he fled from still exists; and he does not feel safe or secure in Somalia due to the absence of a functional government and ongoing civil war;
- He only registered as a refugee with the UNHCR and did not apply for Kenyan citizenship;
- He received the same information from the IOM, which was shocking to him as he never registered as a Kenyan citizen and never traveled out of the refugee camp; and
- He did not have a durable solution in Kenya because he did not have the right to work or travel freely.
The Applicant’s permanent residence application was refused in May 2023 because the Officer was not satisfied by the Applicant’s responses to the PFL, writing in the Global Case Management System (“GCMS”) notes that the Applicant: “stated in an email that he is shocked to find out he was in the Kenyan citizen database although he did not indicate how he got on it. Although he has provided the refugee documents this does not prove that he has been removed from the Kenyan database and therefore he is still double registered and has not addressed the concerns about his refugee status.”
Madam Justice Blackhawk relied on jurisprudence that sets out the purpose of the UNHCR refugee designation and the principles officers should consider with respect to this designation when deciding an application on its merits.
Madam Justice Blackhawk found that the Officer failed to consider contradictory evidence, writing at paras 18-19:
[18] In my view, the Officer’s Decision is unreasonable, particularly in light of the IRCC’s initial determination that the Applicant met the definition of a Convention refugee (IRPA, s 96.1) and had displayed sufficient general adaptability to successfully establish in Canada. All the evidence in the record supports the Applicant’s assertion that he is a registered refugee and not a Kenyan citizen. Specifically, the Applicant’s COVID-19 Vaccination Certificate dated June 29, 2022, that states he is “from Somalia with Alien Id [identification number omitted];” his most recent Republic of Kenya Refugee Identification Card has a date of issuance of August 18, 2022; and the letter dated January 24, 2023, from the Government of Kenya State Department for Immigration and Citizen Services that verified the Applicant’s refugee status by tracing his fingerprint in the Kenyan refugee database.
[19] The Officer did not question the Applicant’s credibility, yet the Officer rejected the Applicant’s response—that he was surprised to learn of the double registration. In light of the country conditions and documented widespread issues of double registration, it was not reasonable that the Officer relied on the double registration to justify the denial of the Applicant’s application, particularly given his vulnerability and inability to request the Kenyan authorities ensure their records are correct or to demand that the records be corrected.
Additionally, Madam Justice Blackhawk stated that it is unclear what else the Applicant would have to provide the Officer to show that he is indeed a refugee and not a Kenyan citizen to satisfy the Officer’s concerns.
See: Roble v. Canada (Citizenship and Immigration), 2024 FC 2007,<https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/527066/index.do>.
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