Docket: IMM-4303-11
Citation: 2012 FC 365
Ottawa, Ontario, March 28, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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HABIBOLLAH NABIZADEH;
FARSHAD NABIZADEH
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Second Secretary, Immigration at the Canadian Embassy in Moscow, Russia
(Officer), dated 3 June 2011 (Decision), which refused the Applicants’
application for permanent residence as members of the Country of Asylum Class
or Convention Refugee Abroad Class.
BACKGROUND
[2]
The
Applicants, Habibollah Nabizadeh (Habibollah), who is 51, and his son, Farshad
Nabizadeh (Farshad), who is 24, are both citizens of Afghanistan. They are
ethnic Tajiks, currently living in Tajikistan. Before they lived in Tajikistan, the
Applicants and the rest of their family lived in Kazakhstan for
approximately eighteen months. Their status in Tajikistan is unclear
on the record.
[3]
The
Applicants’ family consists of Habibollah, his wife, Farshad, another son, and
three daughters (Family). In August 2010, the Family applied for permanent
residence under the Convention Refugee Abroad and Humanitarian Protected
Persons Abroad class. Farshad completed his Schedule 1 – Background/Declaration
(Schedule 1) and Schedule 2 – Refugees Outside of Canada (Schedule 2) forms on
1 December 2010. The rest of the Family’s forms are not in the Certified
Tribunal Record (CTR) before the Court.
[4]
The
Applicants and the rest of their Family were sponsored to Canada by the Yousufi
Group (Sponsor), under a “Group of Five” sponsorship, which allows groups of
five or more Canadian citizens or permanent residents to sponsor refugees to Canada. The Sponsor
was represented by Shekiba Yousufi, Habibollah’s sister-in-law. In form IMM
5373 – Undertaking/Application to Sponsor – Groups of Five, the Sponsor said
the Family had a well-founded fear of persecution, noting that they were robbed
on one occasion. The Sponsor also noted that the Family could not live in peace
in Afghanistan because they
have young children, young girls are frequently kidnapped, and young men are
forced to join the Taliban.
[5]
In
Schedule 2, Farshad said that he was always afraid he would be forced to join
the Taliban. He noted that the Family had been supported by their other family
in Canada and that, in
Tajikistan, they could
not work or study. He also said that, since leaving Afghanistan, he had not
had the opportunity to work.
[6]
On
8 February 2011, the Immigration Section at the Canadian Embassy in Moscow, Russia
(Immigration Section) scheduled the Applicants for an interview on 15 March
2011. On 3 March 2011, the Sponsor confirmed that they would attend.
[7]
On
15 March 2011, the Officer interviewed the Applicants separately with the
assistance of an interpreter. Although the CAIPS notes from Habibollah’s
interview do not appear in the CTR, excerpts of those notes appear in the CAIPS
notes of Farshad’s interview.
[8]
The
Officer began Farshad’s interview by reviewing the purpose of the interview and
his obligation to answer her questions truthfully. She also informed him that
his answers were confidential. Farshad confirmed that he understood the
instructions and the interpreter. The Officer then asked about his travel
history, and he said the Family arrived in Tajikistan on 1
November 2010. In Habibollah’s interview, he said that the family had gone to Kazakhstan from Afghanistan in March
2009. He also said they arrived in Tajikistan four months before the
interview (approximately December 2010), but he forgot the exact month.
[9]
Farshad
said at his interview that neither he nor any of his family members had ever
been affiliated with the People’s Democratic Party of Afghanistan – the
communist party which overthrew the Afghan government in 1978. He also said
that he had never been recruited or provided material support to any armed
groups and that no one in his family had ever worked for KHAD – the Afghan
intelligence agency.
[10]
The
Officer then asked Farshad to explain everything that led to his departure from
Afghanistan. He said
that the economic situation there was weak; although three members of his
family worked in one shop, they did not have enough money to feed themselves.
He described one occasion when, after picnicking in a park outside of Herat,
the city in Afghanistan where they
lived, the Family was set upon by burglars (Burglars) as they were leaving to
go home. The Burglars forced the family out of their car and stole their
possessions, including phone bills, a driver’s licence, cash, and gold
ornaments. They then tied up and beat Habibollah and warned the Family not to
go to the police. The Burglars said that if the Family went to the police,
things would go badly for them.
[11]
The
Family was released by the Burglars but had to return home on foot. During
their journey, police stopped them at a checkpoint. The Family told the police
what happened to them, so the police sent two cars after the Burglars. The
police went to the location of the robbery, but did not find the Burglars. They
told Habibollah to report to the police station the next day to make a
statement and said that the Family would be informed if anything was found.
[12]
Eight
months after contacting the police, the Family received a letter from the
Burglars. This letter said that the police had caught some of them and told
them to go to the police and recant; if they did not, the letter said the
Burglars would kidnap the daughters and kill the sons. The Family received a
second letter from the Burglars some time after this.
[13]
After
Farshad told his story, the Officer asked him to explain why he was afraid or
unwilling to return to Afghanistan. Farshad said the
economic situation there was weak and that, after the Family received the
threatening letters, they realized they could not return. When asked if there
was anywhere in Afghanistan he could be safe, he said the situation was
terrible and that they had no choice because they had nothing.
[14]
After
hearing the Applicants’ stories, the Officer had several concerns. She thought
that the Applicants could have applied for refugee status in Tajikistan or Kazakhstan. The Officer
presented this concern to the Applicants and asked for their comments.
Habibollah said they did not need to claim protection in Kazakhstan because it
was easy to get a visa. However, the Family left Kazakhstan when the authorities
changed their policy and stopped giving visas to Afghans. Habibollah also said
they did not apply for refugee status in Tajikistan because they
thought they did not need it. Farshad said that people in Kazakhstan were racist
and did not like them, so they left.
[15]
In
each of their interviews, the Officer asked the Applicants why they could not
move to another region in Afghanistan to get away from the
Burglars. Habibollah said in his interview that Afghanistan was not safe
anywhere. Farshad said they had nothing in Afghanistan and would be
killed; he also said they had no home or education there. The Officer also
confronted the Applicants with her concern that their reasons for leaving Afghanistan seemed to be
more economic than related to persecution. She said that they did not seem to
be facing persecution related to any of the Convention grounds and their reason
for leaving was related to the general instability and economic situation in Afghanistan. Habibollah
said that none of the family worked in Tajikistan, that they
were moving from one home to another, and that they had no money. He also said
that his daughter could be in second grade. Farshad did not address this
concern in his interview.
[16]
After
concluding the interviews, the Officer considered the applications and made her
Decision. She advised the Applicants of the Decision, each in separate letters,
dated 3 June 2011 (June Letter).
DECISION
UNDER REVIEW
[17]
The
Decision in this case consists of both the June Letter, and the CAIPS notes on
Farshad’s file.
[18]
In
the June Letter, the Officer informed the Applicants that she determined they
did not meet the requirements of either the Convention Refugee Abroad or
Humanitarian Protected Persons Abroad classes. She noted that they had been
interviewed with the assistance of an interpreter on 15 March 2011.
[19]
In
the CAIPS notes, the Officer found that Farshad was a victim of crime, not
persecution. She also found that his explanation of events subsequent to the
robbery lacked credibility. Although he was afraid the Burglars would find him,
he said the Family received two letters from them. The Officer found that, if
the Burglars truly wanted to threaten Farshad or the rest of the Family, they
would have gone to their home. She also found that it was unclear why the
Burglars would send letters rather than threatening the Applicants at home and
that this reduced the credibility of their story.
[20]
The
Officer also noted that Farshad had lived in Kazakhstan for eighteen months and
Tajikistan for four
months, but had not claimed refugee status in either country. She found that
the reasons he had given for not claiming in those countries lacked
credibility. Had he and his Family considered themselves refugees, the Officer
found that they would have claimed in either Kazakhstan or Tajikistan. This would
have allowed them to work or attend school. The Officer concluded that she was
not satisfied Farshad met the definition of a Convention refugee, that he met
the criteria for the Country of Asylum Class, or that he met the requirements
of the Act, so she refused his application.
[21]
In
the June Letter, the Officer reviewed the requirements of section 96 of the Act
and sections 145 and 147 of the Immigration and Refugee Protection
Regulations SOR 2002-227 (Regulations). She noted that Afghanistan is not
one of the source countries currently recognized by Canada for the
Source Country class. The Officer said that, after assessing all the factors in
their applications, she was not satisfied that Farshad was a member of any of
the classes prescribed. She based this conclusion on her finding that the
Applicants did not seem to be facing persecution in Afghanistan, but that
they were unwilling to return because of the general instability and poor
economic situation there. The Officer noted that section 11 of the Act
prohibits an officer from issuing a visa unless she is satisfied that an
applicant meets the requirements of the act; because Farshad did not meet these
requirements, she could not issue him a permanent resident visa.
ISSUES
[22]
The
Applicants raise the following issues in this application:
a.
Whether
the Officer failed to consider a ground they advanced;
b.
Whether
the Officer’s reasons are adequate;
c.
Whether
the Officer’s credibility findings are reasonable;
d.
Whether
the Officer erred in her interpretation of section 147 of the Regulations;
e.
Whether
the Officer’s findings of fact are reasonable.
STANDARD OF
REVIEW
[23]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that a standard of
review analysis need not be conducted in every instance. Instead, where the
standard of review applicable to a particular question before the court is
well-settled by past jurisprudence, the reviewing court may adopt that standard
of review. Only where this search proves fruitless must the reviewing court
undertake a consideration of the four factors comprising the standard of review
analysis.
[24]
In Vilmond v Canada
(Minister of Citizenship and Immigration) 2008 FC
926, Justice Michel Beaudry held at paragraph 13 that the RPD’s “failure to
consider the claim as it is put forward by the applicant constitutes a
misapprehension of the facts and the evidence” which is reviewable on the
standard of reasonableness. The standard of review on the first issue is
reasonableness.
[25]
Recently,
in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board) 2011 SCC 62, the Supreme Court of Canada held at paragraph
14 that the adequacy of reasons is not a stand-alone basis for quashing a
decision. Rather, “the reasons must be read together with the outcome and serve
the purpose of showing whether the result falls within a range of possible
outcomes.” With respect to the second issue, the adequacy of the reasons will
be analysed along with the reasonableness of the Decision as a whole.
[26]
In
Mugesera v Canada (Minister of
Citizenship and Immigration) 2005 SCC 40, the Supreme Court of Canada
held at paragraph 38 that the standard of review with respect to findings of
credibility and the assessment of evidence is reasonableness. The standard of
review on the third issue is reasonableness. See also Hou v Canada (Minister of
Citizenship and Immigration) 2005 FC 1586 at paragraph 23 and Mugu v
Canada (Minister of
Citizenship and Immigration) 2009 FC 384 at paragraph 33.
[27]
The
Supreme Court of Canada held at paragraph 54 of Dunsmuir,
above, that a tribunal’s interpretation
of its enabling statute will generally be accorded deference. The Supreme Court
of Canada upheld this approach in Smith v Alliance Pipeline
Ltd. 2011 SCC 7 at
paragraph 26. More recently, in Alberta (Information and
Privacy Commissioner) v Alberta Teachers' Association 2011 SCC 61, the
Supreme Court of Canada held at paragraph 30 that the standard of review on a tribunal’s interpretation of its
home statute is reasonableness,
unless the interpretation
falls into the enumerated categories for which the correctness standard
applies: constitutional questions, questions of central importance to the legal
system as a whole, questions on the jurisdictional lines between specialized tribunals,
and true questions of vires. The standard of review
on the fourth issue is reasonableness.
[28]
In Qurbani v Canada (Minister of Citizenship and Immigration) 2009
FC 127, Justice Orville Frenette held at paragraph 8 that the standard of
review applicable to a determination of whether a claimant is a member of
either the Convention Refugee Abroad class or the Humanitarian Protected
Persons Abroad class is a factual determination to be evaluated on the standard
of reasonableness. (See also Kamara v Canada (Minister of Citizenship and
Immigration) 2008 FC 785 at paragraph 19 and Nasir v Canada (Minister
of Citizenship and Immigration) 2008 FC 504 at paragraph 9). The
standard of review with respect to the fifth issue is reasonableness.
[29]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
STATUTORY PROVISIONS
[30]
The
following provisions of the Act are applicable in these proceedings:
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11. (1) A foreign national must, before
entering
Canada, apply to an officer for a visa or for any other
document required by the regulations. The visa or document may be issued if, following
an examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
12. (3) A foreign national, inside or
outside Canada, may be selected as a person who under this Act is a
Convention refugee or as a person in similar circumstances, taking into
account Canada’s humanitarian tradition with respect to the displaced and the
persecuted.
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11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
12 (3) La
sélection de l’étranger, qu’il soit au Canada ou non, s’effectue, conformément
à la tradition humanitaire du Canada à l’égard des personnes déplacées ou
persécutées, selon qu’il a la qualité, au titre de la présente loi, de
réfugié ou de personne en situation semblable.
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[31]
The
following provisions of the Regulations are also applicable in these
proceedings:
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139. (1) A permanent resident visa shall be issued
to a foreign national in need of refugee protection, and their accompanying
family members, if following an examination it is established that
…
(d) the foreign national is a person in respect of
whom there is no reasonable prospect, within a reasonable period, of a
durable solution in a country other than Canada, namely
(i) voluntary repatriation or resettlement in their
country of nationality or habitual residence, or
(ii) resettlement or an offer of resettlement in another
country;
…
(e) the foreign national is a member of one of the
classes prescribed by this Division;
140. Family members of an applicant who is determined to be a member of a
class under this Division are members of the applicant's class.
…
146. (1) For the purposes of subsection
12(3) of the Act, a person in similar circumstances to those of a Convention
refugee is a member of one of the following humanitarian-protected persons
abroad classes:
(a) the country of asylum class; or
(b) the source country class.
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.
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139. (1) Un visa
de résident permanent est délivré à l’étranger qui a besoin de protection et
aux membres de sa famille qui
l’accompagnent si, à
l’issue d’un contrôle, les éléments suivants sont établis:
…
d) aucune
possibilité raisonnable de solution durable n’est, à son égard, réalisable
dans un délai raisonnable dans un pays autre que le Canada, à savoir:
(i) soit le
rapatriement volontaire ou la réinstallation dans le pays dont il a la
nationalité ou dans lequel il avait sa résidence habituelle,
(ii) soit la
réinstallation ou une offre de réinstallation dans un autre pays;
…
e) il fait
partie d’une catégorie établie dans la présente section;
140. Les membres de la famille du demandeur considéré comme
appartenant à une catégorie établie par la présente section font partie de
cette catégorie.
…
146. (1) Pour
l’application du paragraphe 12(3) de la Loi, la personne dans une situation
semblable à celle d’un réfugié
au sens de la
Convention appartient à l’une des catégories de personnes protégées à titre
humanitaire outre-frontières
suivantes:
a) la
catégorie de personnes de pays d’accueil;
b) la catégorie de personnes de pays source.
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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ARGUMENTS
The Applicants
The Officer Erred
in Finding Alternative Protection
[32]
The
Applicants say that there was no evidence before the Officer of a refugee
protection system in place in either Tajikistan
or Kazakhstan. They refer to Tung v Canada (Minister of Employment and
Immigration),
[1991] FCJ No 292 (FCA), where Justice Stone held that
[…] the tribunal found that the appellant’s failure to “claim
asylum” in any of the countries he visited enroute to Canada to be inconsistent with that
of a person who fears for his life. There is no evidence that any of these
countries in question had ratified the 1951 U.N. Convention and the 1967
Protocol or that they had adopted laws implementing those instruments. Be that
as it may, while the Board is authorized by subsection 68(2) of the Act “to
take notice of any facts that may be judicially noticed”, I think it was wrong
for it to have speculated that refugee protection was available in these
countries. That apart, the appellant was at all times in transit to Canada and had already decided to
claim Convention refugee status after he arrived here.
[33]
It was an
error for the Officer to impugn the Applicant’s claims on the basis that
refugee protection was available in either Tajikistan or Kazakhstan, so the Decision must be
returned for reconsideration.
The Officer’s Interpretation
of Section 147 of the Regulations was Unreasonable
[34]
The
Applicants say that the Officer denied their application under the Country of
Asylum class because they failed to make a refugee claim in Kazakhstan or Tajikistan. This was an error, because the failure
to make a refugee claim is irrelevant to a determination under section 147 of
the Regulations.
The Officer’s Reasons are
Inadequate
[35]
In the
Decision, the Officer said that the reasons the Applicants did not want to
return to Afghanistan “seem to be more related to
the general instability and poor economic situation there.” The Applicants say
she failed to make a finding as to whether they have been and continue to be
seriously and personally affected by civil war, armed conflict, or massive
violation of human rights, as she was required to do. They say that general
instability, which the Officer found their application was related to, includes
all the factors enumerated under subsection 147(b) of the Regulations.
Habibollah testified that Afghanistan is not stable and the police
cannot help; on this basis, the Applicants say that the Officer’s reasons are
inadequate.
The Officer Failed to Consider
a Ground the Applicants Raised
[36]
The
Applicants also say that one of the grounds they advanced to support their
application was the lack of access to education for Habibollah’s daughters.
They say that Habibollah raised this ground in his interview, when he said that
“My daughter is 8 and she hasn’t been to school yet […] In Afghanistan there
are no conditions for her to go to school.” They also say that the narrative
parts of their applications are short and they did not provide any documentary
evidence beyond their applications.
[37]
The
Applicants point to Ali v Canada (Minister of Citizenship and Immigration),
[1996] FCJ No 1392, where Justice William McKeown held that it was an error
for the RPD not to find that the applicant was a refugee after she was denied
access to education in Afghanistan. The Applicants say that the
Officer should be held to a proper characterization of the law; since she did
not, the Decision must be returned for reconsideration.
The Officer’s Credibility
Findings are Unreasonable
[38]
The
Officer found that Farshad’s allegation that the Burglars who threatened them
did so by letter reduced the credibility of his story. The Applicants say that
she gives no reason for rejecting his allegation of receiving threatening
letters and note that a threat alone can amount to persecution. There was no
evidence before the Officer that sending threatening letters is not the general
practice of burglars in Afghanistan. The Applicants say that the
Officer believed that a credible agent of persecution would have gone to their
house in person.
[39]
The Applicants
also say that the Officer’s credibility finding was unclear. If she did not
find that they were not credible, she was obligated to accept the truth of
their allegation of threats by letter. By not accepting this allegation, the
Officer ignored evidence. The Applicants rely on Shahiraj v Canada (Minister of Citizenship and
Immigration) 2001
FCT 453 for the proposition that, where it is unclear if evidence was rejected,
the Court must treat that evidence as if it were accepted as credible.
[40]
The
Applicants further say it was unreasonable for the Officer to find that they
were not credible because they did not claim protection in Kazakhstan or Tajikistan. In Kazakhstan, they were subject to racism and had to
pay bribes, but they had tried to stay there. In Tajikistan, the Applicants had visitors’ visas,
which is an acceptable reason not to claim protection. They point to El
Balazi v Canada (Minister of Citizenship and
Immigration) 2006
FC 38, where Justice Yvon Pinard had this to say at paragraphs 9 and 10:
In Houssainatou Diallo v. Minister of
Citizenship and Immigration, 2002 FCT 2004, I stated as well:
[9] Finally, the explanations given by the
plaintiff about the delay in making the claim were solidly based on evidence
and seem quite reasonable to me: she was entitled to be in Canada on her
student visa and, as appears from her physician's letter, she was suffering
from severe depression. ...
In the case at bar, the IRB, in my opinion,
erred in ruling that the delay in claiming undermined the credibility of the
applicant, the holder of a student visa.
[41]
The Court can assess the
legitimacy of the Decision with reference to subsection 3(2) of the Act, which
sets out the objectives of the Act with respect to refugees.
The Officer’s Finding of Fact
was Unreasonable
[42]
The
Applicants further say that it was unreasonable for the Officer to find that
they had not made a refugee claim when she was processing their application for
permanent residence. They say their application for permanent residence
qualifies as a refugee claim.
The Respondent
[43]
The
Officer found that the Applicants did not face persecution in Afghanistan and were unwilling to return
there because of the instability and the economic situation. This finding,
which was based on the Officer’s consideration of their applications and
answers at their interviews, was reasonable. It was not unreasonable for the
Officer to question why the Burglars would send a letter, when they had the
Applicants’ address and could have threatened them personally. The Officer
reasonably found that they were victims of crime, not persecution.
[44]
Habibollah
said in the interview that Afghanistan was difficult to live in
because it was unsafe and had a poor economy. This was a reasonable basis for
the Officer’s conclusion that the Applicants’ motivation for their application
was economic. Though she may not have explicitly mentioned all the evidence,
the Court must presume that the Officer considered all the evidence before her,
so the Decision should stand.
The
Applicants’ Reply
[45]
The
Applicants say that the Respondent has not addressed the arguments they have
raised in their memorandum. In particular, they note that he has not addressed
their argument that the Officer did not consider the persecution Habibollah’s
daughters face by being denied access to education in Afghanistan. The Applicants say that the Court has
recognized that a lack of access to education is a ground on which to find
persecution.
ANALYSIS
[46]
The
Applicants have raised a wide range of issues and, while I do not agree with
all of them, I think there is a fundamental problem with the Decision that
requires it to be sent back for reconsideration.
[47]
The
Officer’s focus throughout is upon persecution and the Applicants’ fear of the
Burglars. In fact, Habibollah says that what he fears in Afghanistan is the Burglars and Farshad
confirms this. However, both Applicants – in written submissions and at their
interviews – also raise other problems besides the Burglars that could be
grounds for protection in this case. In particular, we are repeatedly told that
education for girls is a problem in Afghanistan and Farshad makes it clear that
one of the reasons the Family does not wish to return to Afghanistan is the education situation.
[48]
Likewise,
the Applicants provided information about the general situation in Afghanistan that suggests a possible
claim under subsection 147(b) and that the Applicants may be people who are
“seriously and personally affected by civil war, armed conflict or massive
violation of human rights…” The Officer, by focusing exclusively upon the
Burglars and “persecution” does not adequately consider these other grounds.
[49]
This
matter takes on a particular importance in the context of applicants who apply
under the Convention refugee abroad and country of asylum classes. The
Applicants in this case were not legally represented and may well not have
understood they could claim protection based upon more than just a fear of
Burglars. People in this kind of situation cannot be expected to characterize
in legal terms the whole basis for their claim or to know what is important
when seeking protection in Canada under these classes. They
certainly have the evidentiary burden, but the Officer had an obligation to
characterize their claim based upon the evidence before her. See Ward v Canada (Attorney General), [1993] 2 S.C.R. 689 at
paragraph 60.
[50]
As the
Applicants have noted, in Ali, above, Justice McKeown dealt with the
issue of Afghan girls being denied education:
[1] The applicants, citizens of Afghanistan, seek judicial review of a
decision of the Convention Refugee Determination Division of the Immigration
and Refugee Board (the Board) dated November 1, 1995, wherein the Board
determined that the applicants were not Convention refugees.
[2] The primary issues are: 1)
whether one of the applicants, Hossay Ali, a nine-year-old female at the time
of the Board hearing, is entitled to refugee status on the same basis as her
mother, Bilqis Ali, who was granted refugee status as part of a group of
educated woman; and 2) whether the Board properly applied the case of Salibian
v. Canada (Minister of Employment & Immigration), [1990] 3 F.C. 250
(C.A.) with respect to differentiated risk.
[3] Hossay Ali, a daughter of the
applicant, Shaysta-Ameer Ali, and his wife, Bilqis Ali, was denied refugee
status by the Board. It stated at pages 10-11 of its reasons that:
... One of the minor claimants is female,
but as she was born in 1986, and is therefore an uneducated Afghani child as
opposed to an educated Afghani woman…
[4] I do not agree with this
reasoning, since it means if Hossay Ali is returned to Afghanistan, the only way she can avoid being
persecuted is to refuse to go to school. Education is a basic human right, and
I direct the Board to find that she should be found to be a Convention refugee.
[…]
[12] For these reasons, the
application for judicial review with respect to the applicant, Hossay Ali, is
allowed. The matter is to be returned to the Board with the direction that she
be declared to be a Convention refugee. The remainder of the application is
dismissed.
[51]
There are
other cases where the decision-maker has been held in error for failing to
consider grounds that, although not formulated and characterized by an
applicant, are nevertheless apparent on the evidence adduced (see Viafara v
Canada (Minister of Citizenship and Immigration) 2006 FC 1526 at paragraph
6 and Vilmond, above).
[52]
In the
present case, I agree with the Applicants that there was a sufficient
evidentiary basis to alert the Officer to the fact that they could qualify for
protection on grounds other than their immediate fear of the Burglars. This
evidence raised education issues for their daughter which could ground a claim
for protection under section 96 of the Act, so section 146 of the Regulations
could apply. The evidence also showed the general situation in Afghanistan could lead to a positive
finding under subsection 147(b). It was unreasonable for the Officer not to
address these additional grounds, so the Decision must be returned for
reconsideration.
[53]
Counsel
agree that there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application is allowed. The decisions for both Applicants are quashed and the
matter is returned for reconsideration by a different officer.
2.
There
is no question for certification.
“James
Russell”
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