Docket: IMM-4343-11
Citation: 2012 FC 239
Toronto, Ontario, February 21,
2012
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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RAHIM HUSSAINI, NOOR
HUSSAINI, REENA HUSSAINI, RAHIMA HUSSAINI, KHALID HUSSAINI, JAVAID HUSSAINI
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicants have applied for judicial review of the April 12, 2011 Immigration
Officer’s decision refusing the Applicants’ application for permanent
residence under the Convention Refugees Abroad and Humanitarian Protected
Persons Abroad category.
[2]
The
Officer decided the Applicants were resident in Afghanistan and not
refugees residing in Pakistan and further found the
Applicants did not have a well founded fear of persecution.
[3]
For
reasons that follow, I am granting this application for judicial review.
Facts
[4]
Mr
Rahim Hussaini, the Principal Applicant, and Mrs. Noor Hussaini, his wife, and
their children are citizens of Afghanistan who claimed to be resident in Pakistan.
[5]
The
Applicants say they fled Afghanistan for Pakistan sometime
around 1982 as a result of the Soviet invasion of Afghanistan. The
Applicants travelled to Peshawar, Pakistan, and then on
to Karachi. The Applicants
remained there for 15 years before they moved to Rawalpindi where they
now live as refugees. The Applicants say they were not legally in Pakistan and face
many difficulties.
[6]
The
Applicants were sponsored by a group of Canadian citizens including the
Principal Applicant’s sister-in-law who is a police officer in Calgary.
[7]
The
Immigration Officer interviewed the Principal Applicant in Pakistan on January
13, 2011. Following the interview, the Officer sent the Principal Applicant a
letter dated April 12, 2011 providing the reasons for the refusal of their
application.
Decision
Under Review
[8]
The
Officer’s reasons for refusing the Applicants’ application are found in both
the refusal letter dated April 12, 2011 as well as the CAIPS notes. In the refusal
letter, the Officer observes that the Principal Applicant was interviewed with
the assistance of an interpreter fluent in English and Dari and that the
Principal Applicant did not indicate that he had any difficulty in
understanding the translator or in having the translator understand him.
[9]
The
Officer set out the relevant statutory provisions, then stated that he was not
satisfied that the Applicants were members of the Convention Refugee Abroad
class or the Country of Asylum class because the Officer was not satisfied as
to the credibility of the information provided by the Principal Applicant. The
Officer noted that the Principal Applicant stated he travelled to Jalalabad to
obtain their tazkiras (identity cards) and passports. The Officer stated they
could have acquired these from one of the Afghan Consulates in Pakistan. The Officer
was not satisfied that they would have returned to Afghanistan solely to
obtain these documents and was not satisfied that they had been residing in
Pakistan rather than Afghanistan.
[10]
The
Officer was not satisfied that they met the Country of Asylum class definition.
The Officer found that the reasons provided for not wanting to return were
linked to the fact that they had no family in Afghanistan as well as
general insecurity. The Officer found the Applicants had not demonstrated that
they were and remain seriously and personally affected by the conflict in Afghanistan. The Officer
also stated the Principal Applicant had indicated a fear of persecution due to
their religion as Ismailis. Taking this into consideration as well as the
present circumstances in Afghanistan, the Officer held that he was not
satisfied that they had a well founded fear of persecution if they were
returned to Afghanistan and was therefore not satisfied that they met the
Convention Refugee Abroad definition.
Standard of Review
[11]
The
Supreme Court of Canada has held in Dunsmuir v New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190 [Dunsmuir] that there are only two standards of
review: correctness for questions of law and reasonableness involving questions
of mixed fact and law and fact. The Supreme Court has also held that where the
standard of review has been previously determined, a standard of review
analysis need not be repeated: Dunsmuir at para 62.
[12]
Credibility
findings are fact based. They are to be reviewed on a reasonableness standard
and are entitled to a high degree of deference: Aguebor v Canada (Minister of
Employment and Immigration) (1993), 160 NR 315 (FCA) at para 4.
[13]
Recently
the Supreme Court of Canada has affirmed that a review of the adequacy of
reasons must be done in the analysis of whether the decision as a whole, both
the reasons and the result, is reasonable: Newfoundland & Labrador
Nurses Union v Newfoundland & Labrador
(Treasury Board), 2011 SCC 62, 208 ACWS (3d) 435 at para 22.
[14]
Accordingly,
the appropriate standard of review of whether the Officer’s reasons with
respect to credibility were adequate is reasonableness. Similarly, the
appropriate standard of review of the Officer’s reasons with respect to the
question of Convention refugee status is also reasonableness.
Relevant Legislation
[15]
The
Immigration and Refugee Protection Act, SC 2001, c 27 provides:
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96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that
fear,
unwilling to avail themself of the protection
of
each of those countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette
crainte,
ne veut se réclamer de la protection de chacun de ces pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa
résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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[16]
Immigration
and Refugee Protection Regulations, SOR/2002-227 [Regulations]
provides:
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145.
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 officer to be a
Convention refugee.
…
147.
A foreign national is a member of the country of asylum class if they
have been determined by an officer to be in need of resettlement because
(a)
they are outside all of their countries of nationality and habitual
residence; and
(b)
they have been, and continue to be, seriously and personally affected by
civil war, armed conflict or massive violation of human rights in each of
those countries.
[Emphasis
added]
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145.
Est un réfugié au sens de la Convention outre-frontières et appartient à la
catégorie des réfugiés au sens de cette convention l’étranger à qui un agent
a reconnu la qualité de réfugié alors qu’il se trouvait hors du Canada.
…
147.
Appartient à la catégorie de personnes de pays d’accueil l’étranger considéré
par un agent comme ayant besoin de se réinstaller en raison des circonstances
suivantes :
a)
il se trouve hors de tout pays dont il a la nationalité ou dans lequel il
avait sa résidence habituelle;
b)
une guerre civile, un conflit armé ou une violation massive des droits de la
personne dans chacun des pays en cause ont eu et continuent d’avoir des
conséquences graves et personnelles pour lui.
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Issues
[17]
Two
issues are determinative of this judicial review:
1. Was
the Officer’s credibility finding unreasonable?
2. Was
the Officer’s negative finding with respect to a well founded fear of
persecution reasonable?
Analysis
[18]
The
Applicants submit that the Officer’s decision was primarily based on the negative
credibility finding that the Applicants were residents of Afghanistan and not Pakistan.
[19]
The
Applicants argue the Principal Applicant provided his reason for returning to
Afghanistan: they needed the tazkiras in order to obtain the passports from an
Afghan consulate in Pakistan. Since they did not have them, the Principal
Applicant returned to Afghanistan to obtain both the
tazkiras and the passports.
[20]
The
Applicants submit the Officer rejected this explanation but provided no reason
why the explanation was rejected, other than to say that the passports could
have been obtained from an Afghan consulate in Pakistan.
[21]
The
Applicants also submitted an affidavit by the sister in-law, a Calgary police
officer, who was a sponsor. She declared that she had both telephoned and
visited her sister in Pakistan. This evidence,
however, was not before the Officer and I do not consider it as relevant
evidence in this judicial review.
[22]
The
Respondent argues that the Officer provided clear and cogent reasons for his
belief that the Applicants were not Convention refugees under the Country of
Asylum class or any other prescribed class.
[23]
The
Respondent submits the Officer clearly and unequivocally stated why he did not
believe the Principal Applicant’s account that he had been to Afghanistan only once
since 1982 and that was to apply for these documents. The Respondent submits
the Officer refrained from any generalities or vague language in making its
credibility finding and that the Officer provided clear and specific rationale
for why it found the Principal Applicant’s account not credible.
[24]
In
my view, the Officer’s credibility finding disbelieving the Principal
Applicant’s account of traveling to Kabul in Afghanistan to obtain
tazkiras and passports was a crucial determination given the CAIPS notes’ focus
on that question.
[25]
The
Officer’s CAIPS notes record:
HOW DID YOU OBTAIN YOUR TAZKIRAS? I went
there and obtained the tazkiras and then the passports.
SO HOW LONG WERE YOU IN AFG? 3 days.
I HAVE THE FOLLOWING CONCERNS WITH THE
APPLICATION:
CREDIBILITY: THE APPLICANT STATES THAT HE
IS RESIDING IN RAWALPINDI AND TRAVELLED TO JALALABAD TO
OBTAIN TAZKIRAS AND PASSPORTS FOR THIS INTERVIEW. IT DOES NOT SEEM REASONABLE
THAT THE APPLICANT WOULD TRAVEL ALL THAT DISTANCE TO OBTAIN THESE DOCUMENTS
WHEN HE CAN OBTAIN A PASSPORT FROM ONE OF THE AFGHAN CONSULATES IN PAKISTAN WHO REGULARLY ISSUE PASSPORTS
EVEN WITHOUT TAZKIRAS. WHILE IS [sic] AM REASONABLY SATISFIED THAT THE
APPLICANT DID RESIDE IN PAKISTAN FOR A LONG PERIOD OF TIME, THE MORE PROBABLE
EXPLANATION IS THAT THE APPLICANT NOW RESIDES IN AFGHANISTAN.
[Capitals in original]
[26]
The
Officer gave the Principal Applicant an opportunity to answer his concerns and
recorded the answer:
Applicant: they do not issue passports without
Tazkiras. I went to Jalalabad to obtain the tazkiras and the passport...
[27]
The
Officer disbelieved the Principal Applicant would travel to Afghanistan to
obtain a passport that could be obtained from an Afghan consulate in Pakistan.
[28]
What
the Officer fails to have regard for is the December 28, 2010 Immigration
Section letter to the Principal Applicant scheduling the interview and
instructing him as follows:
For the interview you should bring
documents that you may have for yourself and, if applicable, for your family...
Former residents of Afghanistan should bring original and
photocopies of their Tazkira, Shanakhati Pass and any other identification
document for them at the time of the interview, if it has not already been
submitted. They should bring photocopies of all documents and English
translation of all Dari/Persian documents.
[Emphasis in original]
[29]
The
Officer makes no reference to whether tazkiras are available from Afghan
consulates in Pakistan and
disregards the Immigration Section’s emphasized instruction to the Principal
Applicant to bring original tazkiras to the interview. The Officer would be
aware of this instruction but makes no reference to it in coming to a negative
credibility finding.
[30]
I
conclude the Officer’s negative credibility finding is unreasonable given that
the Principal Applicant had a valid explanation why he went to Afghanistan to obtain
the tazkiras. Simply stated, he was instructed by the Immigration Section to
bring them to the interview with the Officer.
[31]
The
Officer also asked the Principal Applicant why they could not return to Afghanistan and whether
there was any specific danger for the Principal Applicant or his family. The
Principal Applicant responded that they were Ismaili and without land in their
village. In their application for permanent residence, they had stated they had
lost everything and they had to leave for their safety.
[32]
Generally,
the onus is on an applicant to describe what kind of fear or danger he faced.
The Officer did provide the Principal Applicant with an opportunity to explain
to which the Applicant explained they were Ismaili. The Officer is presumed to
have specialized knowledge of the circumstances in countries such as Afghanistan. The Officer
does demonstrate that he understands that the Principal Applicant’s claim of
fear is because of religious persecution against Ismailis in Afghanistan.
[33]
However,
the Officer’s analysis of the Applicants’ fear of religious persecution is
limited to twelve words in his refusal letter:
You have indicated fear of persecution
due to your religion as an Ismaili. Taking this into consideration as well
as the present circumstances in Afghanistan I am not satisfied that you have a well
founded fear of persecution if you returned to Afghanistan ....
[Emphasis added]
The Officer’s notes in the CAIPS record do
not set out any analysis or reasons. His only analysis is the above response.
[34]
In
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62, the Supreme Court of Canada stated:
Reasons may not include all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either the
reasons or the result under a reasonableness analysis. A decision-maker is not
required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion (Service Employees’ International
Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R.
382, at p. 391). In other words, if the reasons allow the reviewing court
to understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met.
[Emphasis added]
[35]
The
Applicants’ factual information is mixed but it clearly shows they lost their
possessions in Afghanistan and they feared for their safety there. To
this, the Officer merely makes a general and vague statement, “Taking this into
consideration as well as the present circumstances in Afghanistan”, without
analysis.
[36]
I
find the Officer made no finding of fact nor provided any analysis for his
conclusion for finding the Principal Applicant did not have a well founded fear
of persecution in Afghanistan due to his Ismaili religion. I am unable to
understand why the Officer decided the Principal Applicant did not have a well
founded fear of religious persecution because he was Ismaili.
[37]
Neither
party submitted a serious question of general importance for certification.
Conclusion
[38]
The
Officer erred in his credibility finding and failed to provide reasons to find
why the Applicants would not face persecution in Afghanistan. I am
satisfied the Officer’s finding that the Applicants are not members of either
the Convention Refugee Abroad class or the Country of Asylum class is
unreasonable.
[39]
I
conclude that the application for judicial review should be granted.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. The
application for judicial review is allowed.
2. The
April 12, 2011 decision is set aside; and the matter is remitted for
re-determination by a different Immigration Officer.
3. No
serious question of general importance is certified.
“Leonard
S. Mandamin”
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