Date:
20120607
Docket:
IMM-5365-11
Citation:
2012 FC 713
Ottawa, Ontario, June
7, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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AMRI, MUHAMMAD ASLAM
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Applicant
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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
Applicant, Muhammad Aslam Amri, contests the refusal of an Immigration Officer
(the Officer) at the Canadian High Commission in Islamabad, Pakistan to grant his application for permanent residence as a member of the Country of Asylum class
as described in section 147 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (Regulations). The Officer was
not satisfied that the Applicant
had provided credible information based on contradictions as to his residence
in Pakistan.
I. Background
[2]
The
Applicant and his family are originally from Afghanistan, but claimed to have
fled to Pakistan in 1998. While in Pakistan, he brought this application for
permanent residence seeking resettlement in Canada. An interview was held on
November 29, 2010 and the Officer subsequently refused his application on April
12, 2011.
[3]
During
the interview and in the refusal letter, the Officer questioned the credibility
of the information provided by the Applicant to be eligible as a member of any
of the relevant classes. Despite his claims to have left Afghanistan with this family in 1998, this directly contradicted information provided by his
daughter in her own immigration application to Canada in 2004 indicating she
had lived in Kabul her entire life.
[4]
The
Officer’s Computer Assisted Immigration Processing (CAIPS) notes refer to the
explanation provided by the Applicant in responding to this contradiction:
“APPLICANTS STATE THAT WHEN SHE GOT MARRIED, HER INLAW’S FAMI[L]Y TOOK HER TO
KABUL TO GET DOCUMENTS AND PASSPORTS ISSUED. STATE THAT ONLY DAUGHTER WENT TO KABUL, NOT REST OF FAMILY.”
[5]
The
Officer nonetheless concluded:
Having reviewed the
application, the interview, the supporting documentation, your responses to my
concerns, and taking into consideration the operational environment of elevated
fraud, I am unable to be reasonably satisfied of the credibility of your
application, and thus am unable to be satisfied that you are eligible for
resettlement under any of the above classes.
II. Issue
[6]
The
issues raised by the Applicant can be summarized as follows:
(a) Did the Officer commit a
breach of procedural fairness by relying on extrinsic evidence?
(b) Did the Officer make erroneous
findings of fact without regard to the evidence?
III. Standard
of Review
[7]
Questions
of procedural fairness, such as in relation to extrinsic evidence, demand the
correctness standard of review (see for example Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para 43; Suresh v Canada (Minister of Citizenship and Immigration),
2002 SCC 1, [2002] 1 S.C.R. 3).
[8]
The
Officer’s decision more generally as to whether the Applicant falls within the
Convention refugees abroad class or country of asylum class is, however,
evaluated based on reasonableness (see Nasir v Canada (Minister of
Citizenship and Immigration), 2008 FC 504, [2008] FCJ no 634 at para 9; Kamara
v Canada (Minister of Citizenship and Immigration), 2008 FC 785,
[2008] FCJ no 986 at para 19).
IV. Analysis
[9]
The
Applicant contends that the Officer relied on extrinsic evidence from his
daughter’s 2004 immigration application without providing him a meaningful
opportunity to respond. He did not receive prior notification that the Officer
would be relying on this information and it served as the sole negative finding
against him. The Officer was silent on why she rejected his explanation during
the interview and ignored documentation supporting the family’s residence in Pakistan beginning in 1998, such as a birth certificate and information related to the
children’s schooling. According to the Applicant, the Officer simply did not
turn her mind to his claim.
[10]
The
Respondent maintains that the Applicant was provided an opportunity to respond
to the Officer’s concerns based on information directly contradicted by his
daughter’s previous immigration file. The Applicant was required to meet the
two prongs of the test under section 147 of the Regulations. These include
that the Applicant is (a) outside of his country of nationality and habitual
residence; and (b) he has been and continues to be, seriously and personally
affected by civil war, armed conflict or massive violation of human rights. The
Applicant could not satisfy the first part of the test because the Officer
reasonably found the information relating to him being outside of his country
of nationality, Afghanistan, was not credible based on the contradiction.
[11]
Considering
the relevant jurisprudence, it is evident that relying on extrinsic evidence,
such as that from another family member’s immigration file, can constitute a
breach of procedural fairness where an opportunity to explain the apparent
contradictions is not provided by the Officer (see Mushimiyimana v Canada
(Minister of Citizenship and Immigration), 2010 FC 1124, [2010] FCJ no
1402; Toma v Canada (Minister of Citizenship and Immigration), 2006 FC
780, [2006] FCJ no 1001).
[12]
However,
I find that no breach occurred in this instance. Unlike in Mushimiyimana
and to some extent Toma, above, the Officer expressly provided an
opportunity for the Applicant to explain the contradictions in his daughter’s
immigration file.
[13]
The
explanation provided by the Applicant is identified in the Officer’s CAIPS notes.
The Officer still found, having considered this explanation along with the
other evidence before her, that she was not satisfied of the Applicant’s
credibility as to his eligibility for resettlement on any of the classes listed
(namely Convention refugee abroad class, Country of asylum class of Source
Country class). As her conclusion suggests, the Officer considered the
application, interview, supporting documents, his responses to concerns raised
and the operational environment of elevated fraud. Based on all of this
evidence, it was reasonable for the Officer to reject the explanation in the
face of clear contradictions and determine that the Applicant was not credible
in the circumstances.
V. Conclusion
[14]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is dismissed.
“
D. G. Near ”
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