In a Refugee Durable Solution ruling, the Federal Court set aside the refusal of Ghebriel Yosief’s permanent resident visa application under the Convention Refugee Abroad or Humanitarian-Protected Persons Abroad Class. The Court found the officer did not meaningfully address evidence that refugees’ formal right to work in South Africa was not accessible to the family in practice.
Refusal centred on a durable solution in South Africa
Ms. Yosief, an Eritrean citizen and Pentecostal Christian, applied in May 2021 after being sponsored by a group in Ottawa. Her husband and four children were included in the application. Ms. Yosief, her husband and their two younger children were formally recognized as refugees in South Africa after fleeing Eritrea.
Following interviews in Durban in February 2024, a migration officer refused the application. The officer concluded that the family had a durable solution in South Africa and that a visa could not be issued under paragraph 139(1)(d)(ii) of the Immigration and Refugee Protection Regulations. The officer also considered the best interests of the children.
The officer relied on the family’s refugee identification documents and stated rights to formal employment, education, mobility and public health care. The decision acknowledged the family’s reports of crime, xenophobia and difficulties obtaining permanent residence, but concluded those concerns did not negate access to a durable solution.
Applicant raised barriers to work and family separation
Ms. Yosief and her husband said that, although refugees had a constitutional right to work in South Africa, jobs in the formal sector were in practice restricted to citizens. Ms. Yosief stated that she could work only as a self-employed person. In an affidavit filed for the judicial review, she said the couple had advised the officer of their inability to obtain formal employment.
The family also described xenophobia and gang crime, including robberies, a looted shop, discrimination and incidents affecting their children. Their two oldest children were living in Ethiopia. The officer accepted that it was in those children’s best interests to reunite with their parents and siblings, and acknowledged they did not have a reasonable solution to reunite with the family in South Africa.
Court found the employment analysis unreasonable
Madam Justice Conroy reviewed the refusal on the reasonableness standard. The Court noted that whether a durable solution exists is a forward-looking legal and factual assessment that depends on an applicant’s legal status, personal circumstances and conditions in the country of residence.
The Court was not persuaded that the officer had ignored the evidence concerning crime and xenophobia, even though the reasons on those issues were very brief. However, the Court reached a different conclusion on formal employment.
The officer’s reasons addressed the legal right to employment but did not grapple with the family’s personal evidence of a de facto bar to formal-sector work. The Court held that this evidence was an important part of assessing local integration. Given the high stakes of an asylum claim, responsive justification required the officer to address it. The omission was a reviewable error.
Because the refusal was unreasonable on this ground, the Court did not consider Ms. Yosief’s procedural fairness arguments.
Application returned to a different decision-maker
The Federal Court granted the application for judicial review, set aside the visa refusal and returned the matter for redetermination by a different decision-maker. Ms. Yosief must be given an opportunity to provide further submissions and evidence before the new decision is made.
The judgment does not direct that a permanent resident visa be issued. No question was certified and no costs were awarded.
Source: Federal Court Decisions