Date: 20090210
Docket: IMM-2621-08
Citation: 2009 FC 127
Ottawa, Ontario, this 10th day of February
2009
Present: The Honourable Orville
Frenette
BETWEEN:
ABDUL
SATTAR QURBANI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) of the decision of
a visa officer, dated April 8, 2008, denying the applicant’s application for
permanent residence made from outside Canada as a Convention refugee pursuant
to humanitarian classes.
The Facts
[2]
The
applicant, Abdul Sattar Qurbani, his wife and three children, Afghan citizens,
fled to Pakistan in March
1998 after the principal applicant’s brother was kidnapped and his home was
looted by the Talibans. Since, they have lived in Rawalpindi in Pakistan. They are of
Hazara Shia Ismaili religion-ethnicity.
[3]
In
2006, they applied for permanent resident visas pursuant to the humanitarian-protected
persons abroad class and the Convention refugees abroad class at the High
Commission of Canada in Islamabad, Pakistan. As
required, their application was submitted in conjunction with an undertaking to
sponsor by a sponsorship agreement holder.
[4]
The
visa officer interviewed the applicant and his wife through a Dari/English
interpreter on February 26, 2008. On April 8, 2008, the visa officer wrote
to the principal applicant advising him that the family’s application for
Canadian permanent resident visas as members of the above noted classes was
refused.
[5]
The
visa officer was not satisfied that the applicant continued to be seriously and
personally affected by the situation in Afghanistan, his home country, as his
reasons for not returning were primarily economic and he had not put forward
any particular dangers or fears that prevented him from returning.
[6]
Furthermore,
the officer noted that there were risks in Pakistan where they
were living. He also noted that Kabul is now (2008) under government control
and is relatively stable and that their situation was not different from that
of other similarly situated Hazaras, and they did not continue to be personally
and seriously affected by the situation in Afghanistan, consequently denying
their application.
[7]
The
issue which arises in this application for judicial review is: Did the visa officer
err in determining that the applicants did not qualify for Canadian permanent
resident visas as members of the country
of asylum class?
The Standard of Review
[8]
The
standard of review for whether or not applicants meet the general requirements
for permanent resident visas as members of the humanitarian-protected persons abroad class and the
Convention refugees abroad class requires an assessment of the factual
situation against the preconditions required to obtain a visa as set out under
subsection 139(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the “Regulations”). This engages a standard of review of
reasonableness (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190; Kamara
v. Canada (M.C.I.), 2008 FC
785, [2008] F.C.J. No. 986 (QL); Nasir v. Canada (M.C.I.), 2008 FC
504, [2008] F.C.J. No. 634 (QL)).
[9]
The
relevant provisions of the Regulations read as follows:
|
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;
|
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;
|
|
144. The Convention
refugees abroad class is prescribed as a class of persons who may be issued a
permanent resident visa on the basis of the requirements of this Division.
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.
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.
(2)
The country of asylum class and the source country class are prescribed as
classes of persons who may be issued permanent resident visas on the basis of
the requirements of this Division.
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.
|
144. La
catégorie des réfugiés au sens de la Convention outre-frontières est une
catégorie réglementaire de personnes qui peuvent obtenir un visa de résident
permanent sur le fondement des exigences prévues à la présente section.
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.
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.
(2) Les catégories de personnes
de pays d'accueil et de personnes de pays source sont des catégories
réglementaires de personnes qui peuvent obtenir un visa de résident permanent
sur le fondement des exigences prévues à la présente section.
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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[10]
The
“Convention refugees abroad” class is governed by sections 144 and 145 of the Regulations
and the “humanitarian-protected persons abroad” class by section 146 of the
Regulations.
[11]
By
virtue of paragraph 146(1)(a), the “country of asylum class” is a humanitarian-protected
persons abroad designated class. Section 147 states that foreign nationals will
be members of the country of
asylum class if they are in need of resettlement because they are outside their
country of nationality and “have been, and continue to be, seriously and
personally affected by civil war, armed conflict or massive violation of human
rights”.
[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)).
[13]
The
applicant argues that the officer erred by taking into account irrelevant
facts. He notes that the officer further erred by inferring that the applicant
is not now affected because the situation is relatively stable in Afghanistan.
[14]
Given
however that the applicant has indicated that he could not return to Kabul
because of its instability, I find it was only reasonable for the officer to
consider that the applicant is currently residing amidst recent bombings and
unrest in Rawalpindi.
[15]
In
reading the evidence, I find, as was argued by the respondent and highlighted
by the officer, that the primary reason the applicant did not want to return
was based on the fact that the applicants were “from Taimani, a sector of Kabul City”. Yet, as
determined by the officer, “Kabul is back under government control and the
Taliban have been gone for some time” and despite previous instability, “Kabul is
relatively stable now …”.
[16]
While
the applicant indicates that relative stability does not suggest that he would
be able to return without difficulties, that was not the issue before the officer.
The officer clearly found, in accordance with the Regulations, that the
situation in Kabul had changed
sufficiently that the applicant was no longer seriously and personally affected
by the state of affairs such that he would qualify in the country of asylum
class. The officer personally verified the situation in Kabul, while the
applicant emitted opinions on this point.
[17]
The
country of asylum class is one of the refugee classes under which foreign
nationals may apply to enter Canada. It is one of two
“humanitarian-protected persons abroad classes”. The Operational Manual OP 5
of Citizenship and Immigration Canada, section 6.9, defines section 147 of the
Regulations, stating that “seriously and personally affected” means “sustained,
effective denial of basic human rights”. Simply being of poor economic means
does not qualify an individual for Canada’s international
protection as a refugee class immigrant (Mansoori v. Canada (M.C.I.),
2003 FCT 559, [2003] F.C.J. No. 709 (QL); Salimi v. Canada (M.C.I.),
2007 FC 872, [2007] F.C.J. No. 1126 (QL)).
[18]
Moreover,
in light of the statutory framework, the burden of proof rests on the applicant.
The applicant had to establish that he had “no reasonable prospect, within a
reasonable period, of a durable solution in a country other than Canada”. Having not
cited any particular dangers or fears which prevented him from returning, the applicant
simply did not adequately support his claim.
[19]
The
applicant suggests that the officer should not have considered the situation of
other Hazaras in Afghanistan. While generalized fear does not form part
of the definition set out as section 147 of the Regulations, it is relevant to
a determination with respect to the Convention refugee abroad class. On this
issue, I agree again with the respondent. The situation of those similarly
situated to the applicant is relevant to the assessment of whether he could
return to Afghanistan and establish himself, particularly given that he did not
cite dangers or fears that might set him apart from others who had been able to
return and re-establish themselves in Kabul.
[20]
In
a recent decision rendered by Justice Richard G. Mosley, Qarizada et al. v. The
Minister of Citizenship and Immigration, 2008 FC 1310, [2008] F.C.J. No.
1662 (QL), the facts bore some resemblance to those of the present case. The
applicants were citizens of Afghanistan but resided in Peshawar,
Pakistan
and feared returning to their country. Their application for permanent
residence in Canada as
Convention refugees was denied. Justice Mosley dismissed the application for
judicial review stating, at paragraph 28:
. . . This is not a case where the
applicants were claiming that conditions in Afghanistan were such that they could find no
durable solution in any region of the country if they were to repatriate.
[21]
I
consider that such reasoning applies to the facts found in the present case.
[22]
The
applicants relied upon another recent decision by Justice Leonard S. Mandamin
in Nasir, supra, in which the applicants had fled from Afghanistan to Pakistan in 1997 to
avoid the civil war. This case has no bearing on the present case because the
application was granted on very different grounds than the present one i.e. the
ineligibility to become citizens of Canada based on their low levels
of education and poor English ability.
[23]
Based
on the foregoing, this application for judicial review will be dismissed.
JUDGMENT
This Court
orders that the application for judicial review of the decision of a visa
officer, dated April 8, 2008, denying the applicant’s application for permanent
residence made from outside Canada as a Convention refugee pursuant to
humanitarian classes be, and it is hereby dismissed.
No
question is to be certified.
“Orville
Frenette”
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