Docket: IMM-6200-11
Citation: 2012 FC 753
Ottawa, Ontario, June 14,
2012
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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SHAH JAN ATAHI, OMAID ATAHI, JALALUDDIN
ATAHI, SHUKEIA ATAHI, HAROON ATAHI, SHAISTA ATAHI
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the
decision of an Immigration Officer (Officer) of the High Commission of Canada
in Islamabad, Pakistan, dated June 28, 2011, whereby the Officer refused the
applicants’ application for a permanent resident visa in either a member of the
Convention Refugee Abroad class or a member of the Country of Asylum class
under sections 145 or 147 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [Regulations].
Factual
Background
[2]
Mrs.
Shah Jan Atahi (the principal applicant) is a widow and a citizen of Afghanistan. The other
applicants include: the principal applicant’s sons – Jalaluddin Atahi, Haroon
Atahi, and Omaid Atahi; the wives of Jalaluddin and Haroon – Shukria and
Shaista; and their dependents. The applicants are of Hazara ethnicity and are
Shia Muslims.
[3]
The
applicants allege that they were subject to persecution in Afghanistan due to their
ethnicity and their religious beliefs. The applicants assert that the
persecution began between the Soviet invasion and the Taliban’s era and then
worsened in later years.
[4]
The
principal applicant’s husband passed away in 1988. The family left Afghanistan in 1993
after the Mujahedeen came and the principal applicant’s son was injured in a
rocket attack. The family fled to Pakistan where they have lived
in a refugee camp until this day.
[5]
The
applicants applied for permanent residence in Canada as members
of the Country of Asylum class. The applicants were interviewed in Islamabad on June 21,
2011 by the Officer, with the assistance of an interpreter, in order to analyze
their refugee claim.
Impugned Decision
[6]
The
Officer’s interview notes of June 21, 2011, state the following:
I HAVE THE FOLLOWING CONCERNS
WITH YOUR APPLICATIONS:
REASONS FOR WANTING TO
IMMIGRATE TO CANADA ARE LINKED TO THE FACT THAT
THE APPLICANTS DO NOT HAVE ANY FAMILY MEMBERS IN AFGHANISTAN AS WELL AS THE
LACK OF GENERAL SECURITY. THEY ARE NOT LINKED TO A STATE OF CONTINUING TO BE
SERIOUSLY AND PERSONALLY AFFECTED BY ARMED CONFLICT, CIVIL WAR OR MASSIVE
VIOLATIONS OF HUMAN RIGHTS.
THE APPLICANTS HAVE STATED
INSECURITY AS A REASON FOR NOT WANTING TO RETURN. HOWEVER, I NOTE THAT PA’S ARE
FROM KABUL, A CITY WHICH BENEFITS FROM
GOVERNMENT CONTROL AND RELATIVE STABILITY. THE UNITED NATIONS DEPARTMENT OF
SAFETY AND SECURITY (UNDSS) HAS ASSESSED IT AS A LOW RISK/PERMISSIVE
ENVIRONMENT.
THOUGH I SYMPATHISE WITH THE
PA’S DESIRE TO IMPROVE THE FAMILY’S SITUATION, I AM NOT SATISFIED THAT PA AND
FAMILY CONTINUE TO BE SERIOUSLY AND PERSONNALLY AFFECTED BY ARMED CONFLICT,
CIVIL WAR OR MASSIVE VIOLATIONS OF HUMAN RIGHTS. THEREFORE, I AM NOT SATISFIED
THAT PA AND FAMILY MEET THE RA DEFINITION.
I HAVE ALSO CONSIDERED THE
CONVENTION REFUGEE ABROAD DEFINITION. HOWEVER, BASED ON INFORMATION ON FILE AND
THE PA’S STATED REASONS FOR NOT WANTING TO RETURN, I CANNOT BE SATISFIED THAT
PA AND FAMILY HAVE A WELL FOUNDED FEAR OF PERSECUTION IF THEY WERE TO RETURN.
THEREFORE, I AM NOT SATISFIED THAT THEY MEET THE CR DEFINITION.
THESE CONCERNS ARE ALL
EXPLAINED TO THE APPLICANTS AND THEY ARE PROVIDED WITH AN OPPORTUNITY TO RESPOND.
[Capitals
in original]
[7]
A
letter was sent to the applicants dated June 28, 2011, wherein the Officer
communicated his decision. The Officer noted that he strongly sympathized with
the principal applicant’s desire to improve her family’s economic situation and
to ensure a brighter future for the family. The Officer
set out the relevant statutory provisions and then stated that
the applicants’ application was refused as he concluded that they would not
continue to be seriously and personally affected by armed conflict or massive
violations of human rights in Afghanistan. The applicants were
not eligible for the Country of Asylum class or the Convention Refugee Abroad class.
[8]
The
Officer noted he was not satisfied that the applicants met the Country of
Asylum Class definition as the reasons that they had provided for not wanting
to return to Afghanistan had been economic in nature. As well, the Officer
stated that the applicants had not demonstrated that they remained seriously
and personally affected by the conflict in Afghanistan.
[9]
The
Officer also noted that he considered the Convention Refugee Abroad definition
but that he was not satisfied that the applicants would face a well-founded
fear of persecution. Although the applicants were given the opportunity to
respond to the Officer’s concerns, the Officer affirmed that they were unable
to allay them.
Issues
[10]
The
relevant issues raised by the applicants are as follows:
a.
Did the
Officer incorrectly assess the criteria of a person in the Convention Refugee
Abroad Class in his decision?
b.
Did the
Officer err in considering that the applicants could return to Afghanistan and that there was a durable
solution?
c.
Did the
Officer breach procedural fairness rules by not noticing that the interpreter
was not permitting the applicant and her family to finish answering the
questions completely?
d.
Did the
Officer err in concluding that the applicant’s motives for wanting to settle in
Canada were purely economic?
e.
Did the
Officer fail to follow the assessment criteria 13.9 – 13.13 of the OP5 Manual
for the ability to establish and settlement criteria factors?
Statutory Provisions
[11]
Several
provisions of the Act and the Regulations are applicable in the present case.
They are included in the Annex.
Standard of Review
[12]
In the case of Kamara v Canada (Minister of Citizenship
and Immigration), 2008 FC 785, [2008] FCJ No 986 [Kamara],
Justice Layden-Stevenson affirmed that the question of whether an applicant
falls within the Convention Refugee Abroad Class or Country of Asylum Class is
a question of mixed fact and law and is reviewable according to the standard of
reasonableness (see Kamara at para 19; Sivakumaran v Canada (Minister of Citizenship and Immigration),
2011 FC 590 at para 19, [2011] FCJ No 788 [Sivakumaran]; Qurbani v Canada (Minister of
Citizenship and Immigration), 2009 FC 127 at para 8,
[2009] FCJ No 152 [Qurbani]; Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]).
[13]
Moreover,
the case law has established that the standard of correctness is applicable to
the issue of the alleged lack of opportunity to adequately respond to the
Officer’s questions as it is a question of procedural fairness (Karimzada v
Canada (Minister of Citizenship and Immigration), 2012 FC 152 at para 10,
[2012] FCJ No 204; Azali v Canada (Minister of
Citizenship and Immigration), 2008 FC 517 at para 12, [2008] FCJ No 674).
Analysis
a.
Did
the Officer incorrectly assess the criteria of a person in the Convention
Refugee Abroad Class in his decision?
[14]
The
applicants submit that the Officer incorrectly assessed the criteria of a
person in the Convention Refugee Abroad Class in his decision. The applicants
affirm that they meet all of the criteria of the definition of a refugee within
the Convention Refugees Abroad Class as they are outside their home country and
they cannot return to that country because of a well-founded fear of
persecution based on a Convention ground.
[15]
The
Court recalls that an applicant claiming to be under the Convention Refugee
Abroad Class must demonstrate that he or she meets the definition of a
Convention Refugee provided in section 96 of the Act (Qurbani, above,
at paras 10-12; Marogy v Canada (Minister of
Citizenship and Immigration), 2006 FC
258 at para 9, [2006] FCJ No 333).
[16]
The
applicants stated the following in their application regarding the situation in
Afghanistan (Tribunal
Record, p 227):
What made us leave the country
was the horrible and unbearable situation of Afghanistan. Our life was totally in danger. Bomb
blasts and rocketing was all over. That situation led us to escape rather than
proceed to our normal life. We had lost our father due to a stomach ache and on
the other hand, our older brother was a little injured while rocket was hit the
city. There was a huge fighting of the groups that turned our life more
miserable. To survive ourselves and safety our lives, we had to flee to Pakistan.
The shocking situation that we
experienced there is quite terrifying. We are quite scared. The current
situation is too bad over there. The rate of kidnapping, bomb explosion and
robbery has been increasing in Afghanistan day by day. We do not want
put our lives in danger once again.
[17]
The
Court observes that the applicants did not raise the issue of persecution in
Afghanistan due to their Hazara ethnicity or their religious beliefs in their
application or during their interview with the Officer in Islamabad (Tribunal
Record, pp 406-408) or provide any evidence to that effect. Consequently, the
Court is in agreement with the respondent that the applicants did not
demonstrate that they satisfied the definition of a Convention Refugee Abroad
as they did not refer to dangers or fears that would set them apart from other
Afghans or other Afghans of Hazara ethnicity. The objective country condition
evidence alone cannot be an adequate basis for a positive determination of a
refugee claim.
[18]
Based
on the evidence before him, it was thus reasonable for the Officer to conclude
that the applicants failed to establish a well-founded fear of persecution of
one of the enumerated grounds at s 96 of the Act.
2) Did the Officer
err in considering that the applicants could return to Afghanistan and that there was a durable
solution?
[19]
The
applicants also submit that the Officer erred in concluding that they could
return to Afghanistan and that
there was a durable solution. The applicants state that the Officer had the
duty to consider the findings of the country condition reports on Afghanistan, namely the
“2009 Human Rights Report: Afghanistan” (the report), which outlines that the
danger in Afghanistan is far from
over. While the Officer found that Kabul benefited from
government protection and relative stability, the report stated that “Kabul became a key
terrorist target during the year”. Consequently, the applicants argue that the
Officer did not assess all of the elements that were before him.
[20]
As
well, the applicants state that they have been living in Pakistan for eighteen
(18) years and have absolutely nothing left in Afghanistan – no family,
no home or possessions. The applicants maintain that the Officer also neglected
a key factor which distinguished them from other ordinary Afghan citizens: the
fact that they are of Hazara ethnicity and thus not “similarly situated
individual” as alleged by many returnees.
[21]
For
its part, the respondent reminds that pursuant to paragraph 147(b) of
the Regulations, an applicant must convince the Officer that he has been and
continues to be seriously and personally affected by a civil war, armed
conflict or a massive violation of human rights in his country of nationality
or habitual residence if his application is to be accepted in the Country of
Asylum class. The respondent states that the source of country class is not an
issue in this case; an applicant is a member of the “Source country class” if
he or she resides in his country of nationality or habitual residence at the
time of the application and at the time the visa is issued. As well, the
respondent affirms that the burden of proof rests on the applicant (Salimi v
Canada (Minister of Citizenship and Immigration), 2007 FC 872, [2007] FCJ
No 1126; Alakozai v Canada (Minister of Citizenship and Immigration),
2009 FC 266, [2009] FCJ No 374) and that the test under section 147 of the Regulations
is conjunctive – meaning that the applicant must satisfy each one of the
conditions (Nassima v Canada (Minister of Citizenship and Immigration),
2008 FC 688, [2008] FCJ No 881; Sivakumaran, above,
at para 31).
[22]
With
respect to the issue of the durable solution in Pakistan, the
respondent alleges that the applicants did not establish that they continued to
be seriously and personally affected by armed conflict, civil war or mass
violations of human rights in Pakistan. Consequently, the
respondent submits that the Officer was not required to assess whether there
was a durable solution as provided in paragraph 139(1)(d) of the
Regulations.
[23]
The
Court notes that the Officer found that the applicants had not demonstrated
that they met the requirements of the Convention Refugee Abroad class pursuant
to section 145 of the Regulations. While the applicants have framed the issue
as whether the “officer erred in finding that the applicants could return to
Afghanistan”, the Court notes that this was not the issue before the Officer;
rather, the Officer considered whether the applicants had satisfied the
requirements of a member of the Country of Asylum class outlined in section 147
of the Regulations: that the foreign national must “have been,
and continue to be, seriously and personally affected by civil war, armed
conflict or massive violation of human rights” in their home country. In
addition, the
applicants’ situation in Pakistan might be difficult, however, the applicants
have lived and worked in Pakistan for a period of eighteen (18) years and there
is no evidence before the Court that their visa, which has been renewed in the
past, will not be renewed upon expiry at the end of the year 2012 (Sivakumaran, above, at para 28).
[24]
After
a review of the file, the Court is of the opinion that the Officer did not err
in concluding that the applicants did not meet the requirements of section 147
of the Regulations as their motives for seeking refugee status were economic in
nature. Each case turns on its own set of facts and the record does not
indicate that the Officer misunderstood or misconstrued
the evidence or made his decision based on erroneous findings of fact or in a
perverse or capricious manner. Rather, he came to his decision on the basis of
all of the evidence presented by the applicants, the information provided at
the interview, his knowledge of the situation in Afghanistan and the assessment of the United Nations Department of Safety and
Security. It
was thus reasonable to conclude that the applicants had not discharged their
burden of establishing that they would be seriously and personally affected by
armed conflict or massive violations of human rights in Afghanistan.
[25]
Finally,
with regard to the issue of the “durable solution”, the Court cannot accept the
arguments of the applicants. As Justice Frenette stated in the case of Qurbani,
above, an officer need only consider the issue of the “durable solution” if the
applicants in question have successfully established that they are members of
the Convention Refugee Abroad class or the Country of Asylum class:
[12]
Therefore, in order to succeed in their applications, the applicants had to
establish that they are members of the Convention refugees abroad class or the
country of asylum class and that they have no durable solution in a country
other than Canada. The
"durable solutions" contemplated by the Regulations are (i) voluntary
repatriation or resettlement in their country of nationality, or (ii)
resettlement in another country (paragraph 139(1)(d)).
3) Did the Officer
breach procedural fairness rules by not noticing that the interpreter was not
permitting the applicant and her family to finish answering the questions
completely?
[26]
The
applicants assert that the Officer committed a breach of procedural fairness in
not noticing that their interpreter did not permit them to finish answering the
questions completely. The applicants contend that the interpreter was constantly
interrupting them and consequently, they were not given the opportunity to
adequately explain that they would face real danger if returned to Afghanistan in light of
their ethnic background and religious beliefs. As well, the applicants allege
that Omaid Atahi was not interviewed, which amounted to a breach of procedural
fairness as he was not given the right to be heard.
[27]
The
respondent disagrees and argues that there was no breach of procedural fairness
in the present case.
[28]
With
respect to the allegation that the applicants were interrupted by their
interpreter and thus prevented from giving complete answers to the Officer’s
questions, the respondent relies on the affidavit prepared by the Officer,
which explains the procedure that was followed during the interview. The
Officer stated the following in his affidavit at paragraph 6 (Respondent’s
record, p. 81):
[…] During the interview, the
interpreter will often hold up their hand to the Applicants as a signal to
pause and allow for the translation into English. After the interpreter
completes the translation into English, I then ask the applicants to continue
with their statement.
[29]
Also,
concerning the allegation that Omaid Atahi was not interviewed by the Officer,
the Officer provided the following explanation in his affidavit at paragraph 8
(Respondent’s record, p. 82):
I did not interview Omaid ATAHI,
the dependant son of Shah Jan ATAHI in the application number B05141686. I
reviewed the information contained in the file and information provided by his
mother and other family members at the interview. Based on this I determined
that a decision could be made on that file without interviewing him.
[30]
In
addition, the Officer gave the applicants the opportunity to respond to all of
his questions as he stated the following in his affidavit at paragraph 9
(Respondent’s record, p. 82):
At the end of the interview,
all of the principal Applicants and their spouses were in the interview room. I
addressed them as a group when I expressed my concerns with their applications
and provided an opportunity for any member of the group to respond. I also
followed up with another question to solicit responses from any other family
members. Their responses are recorded in the CAIPS notes.
[31]
In
light of the foregoing, the applicants have not convinced the Court that there was
a breach of procedural fairness. Given the evidence before the Court, including
the Officer’s affidavit and the interview notes, the Court is of the view that
the applicants were given every opportunity to fully present their case and
answer the Officer’s concerns (see also Karimzada v Canada (Minister of
Citizenship and Immigration), 2012 FC 152, [2012] FCJ No 204).
4) Did the Officer
err in concluding that the applicant’s motives for wanting to settle in Canada were purely economic?
[32]
The
applicants also advance that the Officer erred in concluding that their motives
for wanting to settle in Canada were purely economic. The applicants
maintain that they were never asked about their occupations or their financial
situation during the interview with the Officer, or whether this was a motive
for applying for permanent residency in Canada. The
applicants argue that the Officer had the duty to confront the applicants with
his preoccupations. The applicants also affirm that they can work in Canada and will not
be a burden to Canadian society.
[33]
The
respondent submits that the Officer was fully entitled to conclude that the
applicants’ motives for wanting to settle in Canada were purely economic as
they did not provide testimony or submit any evidence to demonstrate the
dangers or fears of being persecuted due to their Hazara ethnicity in Afghanistan.
[34]
The
Court finds that the Officer’s conclusion about the applicants’ motives for
wanting to settle in Canada was reasonable under the present
circumstances. Indeed, the applicants did not mention that they feared
returning to Afghanistan due to the
risk of being persecuted based on their ethnicity and religious beliefs.
Rather, the principal applicant stated the following during her interview with
the Officer (Tribunal Record, p 407):
IS THERE ANY RISK TO YOUR
FAMILY IF YOU RETURNED TO AFG? I don’t want to return and see the rocket
bombardment and there are suiciders and I am under treatment. I am a widow. At
that time there was no one to support my family and provide food. I don’t have
any family members and also I have high blood pressure. It was a fighting
period and there was no one to provide food for my family and I have 8
children. Now I’m working as a cook one day a week.
[35]
The
Court recalls that it is not a requirement in Canadian law that the Officer
make specific inquiries that the applicant suggests he was under a duty to ask
(Hakimi v Canada (Minister of Citizenship and Immigration), 2011 FC 51
at para 12, [2011] FCJ No 69). Moreover, while the applicants suggest that the
Officer erred in failing to assess the applicants’ ability to establish
themselves, pursuant to the case of Sivakumaran, above, there was no requirement for this assessment given
the Officer’s conclusion that the applicants were neither
members of the Convention Refugee Abroad class nor the Country of Asylum class
and this finding is determinative. The Officer’s assessment, on the basis of
the evidence, is a reasonable one.
5) Did the Officer
fail to follow the assessment criteria 13.9-13.13 of the OP5 Manual for the
ability to establish and settlement criteria factors?
[36]
Finally,
the applicants also submit that the Officer failed to follow the assessment
criteria 13.9 – 13.13 of the Citizenship and Immigration Canada OP5 Manual
entitled “Overseas Selection and
Processing of Convention
Refugees Abroad Class and Members of the Humanitarian-protected Persons Abroad Classes” (the OP5 Manual) for the ability to establish and the settlement
criteria factors. Specifically, the applicants maintain that the Officer erred
in neglecting to assess the fact that the applicants have family members in Canada who are
willing to support them.
[37]
The
Court agrees with the respondent that this manual is neither mandatory nor
exhaustive and it serves to provide some rationality and consistency in the
application of the provisions of the Act and Regulations (Cha v Canada
(Minister of Citizenship and Immigration), 2006 FCA 126, [2006] FCJ No 491;
Legault
v Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4
FC 358; Canada
(Information Commissioner) v Canada (Minister of Citizenship and Immigration), 2002 FCA
270, [2002] FCJ No 950).
[38]
But more importantly, the
Court also agrees with the arguments of the respondent as there was no
requirement for the Officer to conduct further analysis once he determined that the applicants did not satisfy the
requirements of the Convention Refugee Abroad class and the Country of Asylum class.
[39]
By
way of summary, the Court finds that there was no error committed by the
Officer in the present case and no duty of fairness was breached. The
Officer’s decision falls within “the range of possible, acceptable outcomes
which are defensible in respect of the facts and the law” (Dunsmuir,
above, at para 47). For these reasons, the Court finds that this application
for judicial review will be dismissed.
[40]
The
parties
have not proposed a question for certification and none arises in the case at
bar.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application is dismissed;
2.
There
is no question for certification.
“Richard
Boivin”
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