Date: 20110118
Docket: IMM-4434-09
Citation: 2011 FC 51
Ottawa,
Ontario, January 18,
2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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LAILA HAKIMI
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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 is a citizen of Afghanistan. Her sister and four
of her sister’s friends sponsored her, her husband, and their six children to
come to Canada as members
of the Convention refugees abroad class or country of asylum class.
[2]
The
applicant and her family fled from Afghanistan to Pakistan in 2001,
shortly before the end of the Taliban regime. They have been living in Pakistan as refugee
claimants without legal status.
[3]
The
private sponsorship undertaking was approved on January 8, 2007, and forwarded
to the Canadian High Commission in Islamabad for processing. On
June 24, 2009, an immigration officer interviewed the applicant and her
family. Upon the conclusion of the interview they were informed that they did
not meet the requirements of the applicable classes and that the application
was denied.
[4]
The
applicant asks the Court to set aside that decision. For the reasons that
follow, I find that the officer made no error of law and that the decision was
not unreasonable. Therefore, this application must be dismissed.
[5]
Section
147 of the Immigration and Refugee Protection Regulations, SOR/2002-227 defines
the country of asylum class as follows:
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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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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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[6]
In
this case, the officer was not satisfied that “you and your family remain
seriously and personally affected by the conflict in Afghanistan.”
Specifically, he found that:
Your reasons for wanting to
immigrate to Canada are linked to the lack of
education and employment opportunities. They are not linked to a state of
continuing to be seriously and personally affected by armed conflict, civil war
or massive violation set of human rights.
[7]
The
applicant submits that she was denied natural justice because the officer
failed to consider all of the evidence before him. The applicant asserts that
the officer had formed the view that she did not meet the country of asylum class
requirements prior to interviewing the applicant and her family, and then failed
to properly consider all of the evidence or ask proper questions, which, it is
submitted, would have led him to a contrary conclusion.
[8]
The
CAIPS notes of the officer indicate that following his review of the
application he formed the view that: “REASONS FOR FLEEING WERE LINKED TO THE
FACT THAT PA [Principal Applicant] AND SPOUSE WERE UNABLE TO FIND DECENT
EMPLOYMENT AND THE LIMITED EDUCATIONAL OPPORTUNITIES FOR THEIR CHILDREN. REASONS
FOR NOT WANTING TO RETURN APPEAR LINKED ONLY TO LIMITED EMPLOYMENT PROSPECTS
AND EDUCATIONAL OPPORTUNITIES.”
[9]
I
have reviewed the applicant's written application and must conclude that the
officer’s initial assessment of the information provided by the applicant was
correct. In fact, at the hearing applicant's counsel conceded as much.
Nonetheless, the applicant submits that there was evidence apart from the
applicant's formal application and her statements made at the interview which
supported her application. Specifically, the applicant relies upon a document
issued by the United Nations High Commissioner for Refugees in December 2007, Eligibility
Guidelines for Assessing the International Protection of Needs of Afghan
Asylum-Seekers and the UK Border Agency’s Country of Origin Information
Report: Afghanistan.
[10]
The
applicant submits that these documents provide guidance regarding the correct
approach to analyzing asylum applications. The documents say that it is
necessary to include a full picture of the asylum-seeker’s background and
personal circumstances, and that in 2008 and 2009 Afghanistan continued to
be confronted by serious human rights challenges, in particular against women
and girls.
[11]
Contrary
to the vigorous submissions of applicant’s counsel, 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 applicant and his decision was reasonable.
[12]
The
applicant says that she assumed that the officer would be familiar with present
conditions in Afghanistan and that there was no need for her to describe the
human rights abuses, the war, and the discrimination against women and girls in
Afghanistan. She
submits that if this was the gravamen of the decision, then he had a duty to
specifically question her as to whether these were her concerns. I am unable
to accept that submission. It is not a requirement in Canadian law that the
officer make the specific inquiries that the applicant suggests he was under a
duty to ask. As Justice Rothstein explained in Paramanantham v Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1237 (T.D.), at para.
3:
The onus is on the applicants to
establish their claim to Convention refugee status. It is not on the visa
officer to canvass possible bases for such a claim in the absence of any
indication by the applicants of any ground for seeking Convention refugee
status in Canada. Applicants' counsel says that the visa
officer should have known that Tamils from the north of Sri Lanka have been subjected to persecution there. However, if the
applicants were subjected to persecution in the north of Sri Lanka because they were Tamils, or if they were of the view that
they would experience such persecution for that reason, they would have said so
in their application. There is no presumption of persecution.
[13]
It
would only be if the country conditions in Afghanistan were such
that every person, or every female, was “seriously and personally affected by
civil war, armed conflict or massive violations of human rights” that the
applicant’s submission might be persuasive. Unfortunately for the applicant the
documents she relies on do not establish that pervasive level of
discrimination.
[14]
The
duty is upon an applicant to establish that he or she meets the conditions set
out in the relevant legislation. An applicant cannot assume, as this applicant
says she did, that the interview is pro forma and that the application
will be approved. An applicant must present all of the evidence upon which he
or she relies, and cannot complain when, as in this case, the decision is made
based on the evidence presented.
[15]
Neither
party proposed a question for certification, and I find that there is no
question to be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is dismissed and no question is
certified.
“Russel W. Zinn”
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