Date: 20090122
Docket: IMM-2052-08
Citation: 2009
FC 63
Toronto, Ontario, January 22, 2009
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
MARYAM ALI LATIF and NADIMA
ALI,
SHAHIR AHMAD ALI and BAHIR ALI
by their litigation guardian MARYAM ALI
LATIF,
and AFGHAN WOMEN’S ORGANIZATION
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
I find
that the present Application is special because, in rendering a decision under
s.139 of the Immigration Regulations, the Visa Officer concerned failed
to determine the critical legal and policy issues presented; the failure is complete.
The Application is also special because, in the face of this failure, the
Minister chose to defend the indefensible. There is a responsibility that flows
from that decision.
I. The Evidence
[2]
The principal
Applicant (Applicant) presented a privately sponsored refugee claim, in
conjunction with an application for permanent residence, pursuant to the
Convention Refugee Abroad Class and the Humanitarian-protected Persons Abroad
Class, to a Visa Officer at the Canadian High Commission in Islamabad, Pakistan. The undisputed evidence
presented by the Applicant grounds her claim of gender-related persecution and
also risk to life and cruel and unusual treatment at the hands of her in-laws.
This evidence is concisely stated by Counsel for the Applicant as follows:
Maryam Ali Latif and her children are
citizenship of Afghanistan. She was born March 15, 1978,
and is currently 30 years old. She has a daughter, Nadima Ali, born September
27, 1998, and two sons: Shahir Ahmad Ali, born March 29, 2000, and Bahir Ali,
born May 28, 2002. Her husband was killed in Afghanistan on May 8, 2002 during the election
campaign. His father (i.e. Maryam Ali Latif’s father-in-law) was campaigning as
a candidate for the Loya Jirga in Mazar e Sharif, Afghanistan. During the campaign, her
husband was killed by his father’s political opponents.
At the time of her husband’s
murder, Maryam Ali Latif was pregnant with her third child, who was born a few
weeks after her husband’s death. After that, following cultural traditions, her
husband’s family required her to remain with them in Mazar e Sharif, Afghanistan. She remained there for
approximately 9 months. During this time, she was badly mistreated. She was
severely beaten on a number of occasions, sometimes in the presence of her
young children. They too were severely traumatized by the events. Part of the
reason for her mistreatment was the grief that the family was experiencing due
to the loss of their son. However, she was also beaten and mistreated because
she did not wish to comply with the family’s demands. In particular, they
wanted to force her to marry her husband’s younger brother, who was only 16
years old at that time. She refused.
Maryam Ali Latif was able to
contact her father in Kabul, who tried to make
arrangements for her to leave Mazar e Sharif. Her father-in-law was persuaded
by elders in the community to allow Maryam Ali Latif to leave for Kabul to get medical treatment. After she
escaped to Kabul, her father helped her get to Pakistan, where she has continued to live.
Maryam Ali Latif is afraid to
return to Afghanistan because of the danger she
would face from her father-in-law and others in the family. The fact that she
has escaped and fled from the country makes her situation even worse. At this
point, her life would be in danger because she disobeyed their demands and
refused their cultural requirements to marry their younger son. Meanwhile, the
AWO has provided financial assistance to her in Pakistan.
(Applicants’ Application
Record, pp. 176 – 177)
II. Legal Determinations Required on
the Evidence
[3]
It is not
contested that, in considering the Applicant’s overseas claim, pursuant to s.
139, and ss. 144-148 of the Immigration Regulations, the Visa Officer
was required to make a determination on all relevant classes being the Convention
Refugees Abroad Class, as well as the Humanitarian-protected Persons Abroad
Class which includes the Country of Asylum Class.
III. Policy Determinations Required on
the Evidence
[4]
It is not
contested that, pursuant to the Immigration Manual OP5, “Overseas
Selection and Processing of Convention Refugees Abroad Class and Members of the
Humanitarian – protected Persons Abroad Class”, visa officers are required
to make two determinations where there are “signs of gender-related persecution”:
whether a person is “vulnerable” under s. 6.58; and whether a person is a
Woman-at-risk (AWR) under s. 6.59. These provisions read as follows:
6.58 Vulnerable
“Vulnerable” means, in respect
of a Convention refugee or a person in similar circumstances, that the person
has a greater need of protection than other applicants for protection abroad
because of the person’s particular circumstances that give rise to a heightened
risk to their physical safety or well-being.
The vulnerability may result
from circumstances such as:
a.
The lack
of protection normally provided by a family unit (e.g. women who are at risk of
abduction, rape, sexual abuse, etc. due to the absence of the normal protection
of a family unit; the elderly who have no family or support network to assist
them and are at greater risk as a result, etc.); or
b.
Medical
conditions (e.g., medically-at-risk/disabled persons, victims of torture or
other trauma) give an example, as a medical condition in and of itself does not
make a person vulnerable.
Cases identified as vulnerable
are eligible for expeditious processing.
6.59 Women-at-risk (AWR)
The acronym AWR was taken from
the UNHCR’s program “assistance for women at risk”. The Women-at-risk Program
(AWR) was introduced in 1988 to provide women applicants with more equitable
access to resettlement opportunities than was available in the past, by
ensuring that the assessment of their ability to establish themselves
successfully takes full account of their circumstances. A special program is
necessary both to enhance awareness of the special problems facing refugee
women and to ensure that women at risk receive appropriate settlement
assistance once in Canada. Woman [sic] at risk usually
receive priority processing and may, if circumstances allow, be eligible for
JAS.
Women at risk are women
without the normal protection of a family unit who can find themselves in
precarious situations where the local authorities cannot ensure their safety.
This includes women who are experiencing significant difficulties, such as
harassment by local authorities or by members of their own communities.
Some women may need immediate
protection while others are in permanently unstable circumstances that allow
for no other remedy. The persecution of harassment they are experiencing may
be solely gender-based. In addition, they may not fully meet the requirement
to demonstrate an ability to establish themselves in Canada in the short or medium term.
(Applicants’ Application Record p.
158-159)
[5]
With
respect to the proficiency of visa officers to make determinations under s.
6.58 and s. 6.59, Appendix B of OP5 “CIC Declaration on refugee protection
for women” sets the following standard:
Refugee selection abroad
Citizenship and Immigration
Canada is committed to the inclusive interpretation of the definition and the
gender-sensitive approach contained in the Immigration and Refugee Board
Guidelines in assessing applications for resettlement from abroad by refugee
women. Citizenship and Immigration Canada recognizes the need to overcome
traditional, male–oriented views of the potential of refugees for “successful
establishment” in Canada. Although many refugee women
have had limited access to formal education and wage employment and are often
responsible for young children, many of them demonstrate great resourcefulness,
life skills, and adaptability, which are useful in coping with a new life in
Canada.
Gender sensitivity in Canada
The ability to question with
sensitivity, awareness of the signs of gender-related persecution, and
knowledge of conditions affecting women in source countries, are required of
those who deal with refugee women. Citizenship and Immigration Canada is
committed to the development of training and direction for all officers in Canada and abroad, for other staff,
and for interpreters, to promote this sensitivity, awareness and knowledge.
Citizenship and Immigration Canada is also committed to achieving an equitable
gender balance in the selection of staff throughout the organization.
Citizenship and Immigration Canada recognizes that refugee claims by women may
be jeopardized because they do not tell of experiences of sexual violence, they
may be unwilling to speak of such experiences in front of their husbands, or
they may be intimidated by the presence of male officials or interpreters.
Wherever operationally feasible, Citizenship and Immigration Canada will ensure
that women making refugee claims have the option of being interviewed by female
officers, with the assistance of trained female interpreters.
(Applicants’ Case Authorities,
January 21, 2009, Tab 1)
IV. The Visa Officer’s Decision
[6]
It is not
contested that the Visa Officer failed to meet the legal requirements because
she gave only a negative determination on the Applicant’s claim under the
Country of Asylum Class and failed to meet the requirement of making a
determination under the Convention Refugees Abroad Class. Counsel for the
Applicant argues that, apart from being an error in law, this failure resulted
in a profoundly unfair rejection of the Applicant’s gender-based claim of
persecution; this is so because gender-related issues are directly in play in
determinations under the Convention Refugees Abroad Class. In response, Counsel
for the Minister argues that, nevertheless, the reasons for decision show that the
Visa Officer was alive to the nature of the Applicant’s gender-related claim:
I have carefully assessed all information
in your application and the information you provided at [sic] interview. I am
not satisfied that you continue to be, seriously and personally affected by
civil war, armed conflict or massive violation of human rights in Afghanistan.
Your reason for not wishing to return to
live in Afghanistan appears to be motivated
primarily related to a conflict between your in-laws traditional arrangements
for widowed woman in the family and your own wish to remain unmarried. I am
not satisfied that it is credible that you would not be able to return to live
in Kabul where your parents, siblings and extended family live or that your
father would not be able to provide protection against your in-laws apparent
wish to marry off you [sic] to your late spouse’s brother.
With the passage of time, and the
solution of returning to live with your family, as well as your father’s
considerable position in the government, I am not satisfied your claim to being
in danger from your in-laws is credible. While I sympathize with your sincere
wish to begin a new life in Canada, I am not satisfied that you
meet the definition of the requirements to be resettled to Canada as a member of the Country of
Asylum Class.
Given the internationally supported
voluntary repatriation movement, a lack of specific circumstances indicating a
condition of continuing to be seriously and personally affected, and I am not
satisfied that you meet the definition of the Country of Asylum Class.
(Decision pp. 1 - 2)
[7]
In my
opinion, the Visa Officer’s reasons do not display any credible understanding
of the reality of the persecution and risk that the Applicant faces. The Visa
Officer’s failure to make the correct legal determination, the failure to meet
the OP5 policy requirements, and failure to provide substantiation for the far-reaching
personal opinions expressed in the decision have not only resulted in a
decision made in manifest reviewable error, but has resulted in an insensitive
and very unfair disposition of the Applicant’s claim.
[8]
It is
important to note that after the decision was released, the Visa Officer was
given an opportunity to reconsider on the basis of a clear opinion of the
reality of the Applicant life. The Visa Officer’s CAIPS notes include the
following passage with respect to the opinion sent to the Visa Officer’s
manager, and which was ultimately considered by the Visa Officer:
Request for reconsideration received from
Afghan Women’s Organisation, Executive Director, Adeena Niazi. This was
received after interview. Author attests to having been in correspondence with
applicant for several years and confirms that to her knowledge applicant has
been living in Pakistan as stated. Full copy of
request for consideration copied below:
Dear […] Immigration Program
Manager.
I am writing on concerning
Mary Ali. Maryam was privately sponsored by our organization, and called me
after her recent interview. The description she gave of the interview concerns
me greatly, and I have chosen to write on her behalf because she is both known
to me personally, and has a very compelling case.
Due to the fact that she does
not have a Pakistani POR, she has experienced several obstacles during her
interview, and I am hoping to clarify the misunderstandings that have
occurred. She reports that the Visa Officer she met in Islamabad, Pakistan, did not believe
her reasons for not being able to register for the document. She also reports
that the visa officer encouraged her to return to Afghanistan and live with a relative and “hide from
her in-laws.” This is obviously not a safe or long-term solution for her or
her children and she is seeking to resettle to Canada to finally find protection.
Ms. Ali has lived in Pakistan since before her sponsorship
was submitted. Her husband was killed in Afghanistan in order to prevent his father from
campaigning for the emergency Loya jirga (grant assembly) in Afghanistan. I was a delegate elected by
the Afghan Canadian community at the same Loya jirga, and I heard the news
there. Following her husband’s assassination, Ms. Ali was forced to live with
her in-laws under their restricted control. She was confined at home and
barred from going out and contacting her family and friends. Based on her
in-laws family tradition she was pressured to marry her brother-in-law. She
refused and her own family helped her to get her to their home and then she
fled to Pakistan, where she has been living
since then.
While in Pakistan, she has been unable to
obtain POR card as the process has not been well-organized or systematic, and
therefore very difficult, especially for women. She is waiting for another
opportunity to apply for the ID card but has not been able to secure one to
date. I know a large number of other Afghan refugees who were not able to obtain
the document even they attempted to register and were qualified.
Needless to say, these last
few years have been extremely difficult and distressing for Ms. Ali. She has
been living without any rights or dignity during this time and has not had any
options of her own. Her human and women’s rights have been violated on all
sides. She should not be forced to marry or live with others. She should not
be forced to live in hiding. The cultural complexities of her situation should
warrant fair consideration and full understanding from the visa officer.
Please let this letter
validate that Ms. Maryam Ali has been residing in Pakistan for a number of years. We have been in
contact with her during this time and therefore can confirm this to be true.
We are strongly urging you to consider her case on the basis of her
vulnerability and protection need, as a single refugee woman and not on the
basis of the availability of documents. I acknowledge that she has been living
in Pakistan with her children, our organization
includes her children in our orphan support program and we have been providing
them with financial support as well.
Please take these details of
Ms. Ali’s case into account while reviewing her file.
Thank you for your
understanding with this very sensitive and urgent matter.
Sincerely,
Adeena Niazi
Executive Director
Afghan Women’s Organization
789 Don Mills Road Suite 312
Toronto, Ont. M3C 1T5
Tel: 416 588 3585 Ext. 222
Fax: 416 588 4552
(Tribunal Record pp. 6-7)
In the CAIPS notes the Officer wrote the following response
to Ms. Niazi’s letter:
I have carefully reviewed this
application as well as the request for reconsideration as per above.
Having taken all of the
information into account, I am not satisfied that the applicant meets the
definition of RA in that has not been personally and seriously affected by
civil war, armed conflict or massive violation of human rights. Applicant’s
reasons for leaving AF are related to a family dispute involving applicant’s
former in-laws. I am satisfied that applicant’s father who is an extremely
high-ranking government official residing in Kabul and who has successfully
extricated applicant from the family home of in-laws in Mazar E Sharif would be
able to provide a secure home and protection, if required, to applicant and her
family. Applicant has parents, siblings and extended family members living in
Kabul and given father’s position in current government as well as previous
success in extricating applicant from family of applicant’s former spouse, am
satisfied applicant has an alternative option to living in Pakistan. Given the
passage of time, and applicant’s sustained absence from residence of former in
laws, as well as protection of applicant’s father, I am satisfied applicant has
option of return to Afghanistan. Despite applicant’s claimed fears of
reprisals or forced marriage by former in-laws, applicant has lived without
interference or incident in Peshawar in a strong Afghan community, where to my
knowledge, whereabout [sic] of applicant and family could easily be ascertained
by in-laws if they wished to continue their coercion. I have also considered
the size and relative population of Kabul
city/province as well as the influence and relative power of her father in the
city and ability to prevent the alleged forced marriage of his dtr, the
applicant. In making my decision, I also considered whether applicant might
meet definition of CR but was not satisfied applicant as to the
well-foundedness of applicant’s fear, based on a convention ground, of being
unable or unwilling to return to AF.
Refusal decision is
maintained.
As there is no signed
authorization on file to permit direct correspondence between author of request
for reconsideration letter and this mission, no direct response can be sent to
Sponsorship Agreement Holder.
(Tribunal Record pp. 7-8)
[9]
I agree
with Counsel for the Applicant that the plea for reconsideration achieved nothing.
It is clear to me that Ms. Niazi’s attempt to inform and convince the Visa
Officer was met with a mind unwilling to learn.
V. Appropriate Relief
[10]
Counsel
for the Applicant argues that the Visa Officer’s decision should be set aside
and the matter be redetermined by a different visa officer, but on specific
directions which will facilitate a prompt and proper decision. Given the unfair
decision-making experienced by the Applicant, I agree with this submission and,
therefore, include Counsel for the Applicant’s suggested directions in the
order below.
[11]
Counsel
for the Applicant also argues for costs. Given the special nature of the
present Application as expressed at the outset, I have no hesitation in
awarding costs. This is not a case of usual decision-making reviewable error
defended on the basis of a hope of success. This is case of reviewable error which
would be obvious to a gender-sensitive eye possessed by a decision-maker who
has accomplished the understanding and skill expected by the professional
standard set in Appendix B to OP5 as quoted above. Since the Minister has set
this expectation, I find that the Minister must understand it and must meet it
as well. I find that the Minister’s decision to contest the present Application
all the way to a hearing, despite the obvious reviewable errors in the decision
rendered, requires the Minister to assume responsibility to pay the costs of making
the Applicant suffer the arduous and expensive judicial review process for no
good reason.
[12]
In the
order which follows, I award costs on the basis of the maximum amount of legal costs
estimated to be wasted.
ORDER
For the reasons provided, I
set aside the Visa Officer’s decision and refer the matter back to a different visa
officer for redetermination on the following directions:
The visa officer’s fresh review of the
application and any interviews with the applicants shall be completed and a
decision shall be rendered on the applicants’ eligibility within 60 days of
receipt of the applicants’ updated application;
The
visa officer shall specifically consider the provisions for Vulnerable refugees
and Women at Risk when considering the Applicants’ application, as well as the
IRB’s Gender Guidelines for Women Refugee Claimant’s Fearing Gender-Related
Persecution;
And,
if the applicants are determined to be eligible, the Minister shall render a
final decision and issue the visas as soon as is reasonably practicable
thereafter.
I award costs to the Applicants
in the sum of $7,000, payable forthwith.
“Douglas
R. Campbell”
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