Date: 20070419
Docket: IMM-2018-06
Citation: 2007 FC 419
Toronto, Ontario, April 19,
2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
LINA OSMANI
PAIANDA OSMANI
SURHAB OSMAIN
SEAIR OSMANI
SORIA OSMANI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicants are a family, all citizens of Afghanistan, presently
situated in Pakistan. The
principal applicant is the wife, and her husband is the co-applicant. There was
at the time the initial application was made, three children in the family.
Since that time, a fourth child was born in Pakistan but that child is said to
be a citizen of Afghanistan.
[2]
The
applicants applied in Pakistan for a visa, to enter Canada as convention
refugees, being sponsored by the principal applicant’s sister who is a Canadian
citizen and resident. The applicants were interviewed by a Canadian visa
officer in Pakistan and an
assessment was made. A second interview was conducted by another visa officer
and by letter dated February 3, 2006, the applicants were advised that the second
visa officer was not satisfied that they met the requirements for immigration
to Canada. The stated
reason was set out in that letter as follows:
After carefully assessing all factors
relative to your application, I am not satisfied that you are a member of any
of the classes prescribed because in my opinion you do not meet the
requirements to be resettled to Canada as a member of the country of asylum
class. I am not satisfied that your husband has provided credible information
with respect to her personal history in Afghanistan and provided inconsistent
information without an acceptable explanation. This overall lack of
credibility directly affects the information you provided with respect to your
stated claim. As such, you have not satisfied me that you meet the definition
of the country of asylum class.
[3]
The
applicants seek to set aside this decision and have the matter re-determined by
a different Officer. For the reasons that follow, I will grant this
application.
[4]
A
brief outline of the history of the matter is necessary. On December 11, 2003,
each of the principal applicants filed an application for permanent residence
in Canada on a
standard form. In the area provided respecting details of military service,
there appeared N/A in the male applicant’s form. The male applicant is
illiterate, thus the form is signed only with a thumbprint. However, an
interpreter has also signed stating that he/she believes the applicant
understood what was being asked and provided the answers as indicated. The male
applicant’s wife in an affidavit provided to
the Court swears that she was the one who
competed this form with the assistance of a translator and that she was unaware
as to any military service done by her husband as it would have occurred prior
to their marriage.
[5]
The
adult applicants were interviewed by a first visa officer together in Pakistan on March 22,
2005. In respect of military service the officer’s notes state that the
following was disclosed.
MILITARY SERVICE; PA’S HUSBAND WAS 36
YEARS OLD WHEN HE LEFT AFGHANISTAN. PA’S SPOUSE DID HIS MILITARY
SERVICE FROM 1988 UNTIL 1991. HE WAS IN THE ARMOUR UNIT 15. HE WAS RAISED IN KANDAHAR, HE WAS THE TANK DIVISION.
HE WAS A COOK THERE. HE WOULD REPORT TO SENIOR CAPTAIN (JEGTOORAN) GUL KIL
KHAN WHO WAS COMMANDER OF SERVICE BATTALION WITHIN THE TANK DIVISION.. GUL DIL
KHAN WOULD REPORT TO THE MAJOR OMAR, THE COMMANDER OF THE TANK DIVISION. MAJOR
OMAR WOULD REPORT TO GENERAL (BRID GENERAL) MUNIR MANGAL COMMANDER OF ARMOURED
UNIT 15,. MUNIR MANGAL WOULD REPORT TO THE COMMANDER IN CHIEF OF ARMY WING
NUMBER 7 OF KANDAHAR, ABDUL HUQ ULUMI. ABDUL HUQ
ULUMI WOULD REPORT TO THE MINISTER OF DEFENCE.
PA HAS NEVER WITNESSES FACE TO FACE WAR.
PA’S SPOUSE RECEIVED BASIC MILITARY
TRAINING FOR 2 MONTHS AND 21 DAYS.
[6]
The
first visa officer’s notes of the interview contain the following conclusion:
GIVEN THAT THERE IS STILL ONGOING CIVIL
UNREST IN AFGHANISTAN WITH NO RECOURSE TO RELIABLE OFFICIALS, WILL ACCEPT THAT
APPLICANT IS STILL PERSONALLY AND SERIOUSLY AFFECTED BY THE SITUATION AND
THEREFORE MEETS THE DEF’N OF COUNTRY OF ASYLUM CLASS
NO B CONCERNS: BDEC ENTERED
IMM500 C067897 HAS BEEN SIGNED AND IS ON
FILE.
[7]
The
affidavit of the wife explains her version of the interview this way:
32. They asked why he did not give proper
information about them in the forms. Again my husband answered that he was
just a soldier that during the three year service those people were his commanders
but he did not fight in a war. He was cooking in the kitchen with five other
cooks, sometimes peeling onions, cooking potatoes and sometimes cooking rice.
33. They again asked what was written in
the forms such as names and dates of birth.
34. With that the interview ended. The
visa officer did not ask us for any documents or any further clarification.
The visa officer stood up, shook hour (sic) hands and said congratulations and
then gave us medical forms. They said they would be in contact with us.
35. We understood then that our case had
been accepted as we understand it that is the practise of the Canadian Visa
office only to issue immigration medicals when applications have been
approved. We did the immigration medicals and advised the visa office of that.
[8]
The
applicants were summoned for a second interview which took place before a
different visa officer in Pakistan on January 23, 2006.
Immediately prior to interview, a form had been completed as to the male
applicant’s military service indicating that he was a cook during his period of
service.
[9]
The
second interview was conducted with notes being made by the interviewing
officer. They are too long to repeat in their entirety but conclude:
At this time, I will have to refuse this
applicant for lack of credibility. I am unable to overcome the discrepancy
between what the prior interviewer has recorded, with multiple incidents
mentioning ‘armoured’ and ‘tank’. I am not satisfied that the applicant has
been as forthcoming with me as possible at this interview. This is not an
incident of a single discrepancy, but that the applicant’s story today
contradicts something that was mentioned several times in the prior interview notes,
and in such a fashion that would make a translation error extremely unlikely.
This is in addition to the fact that no military service was mentioned at all
on the original IMM8 Sched 1.
As I am unsatisfied of credibility, and
unable to assure myself that the applicant would not be outside of the
definition for this Class (R139 (1) (i)).
MSS: Please prepare refusal letter.
BO43734563 JR 23-JAN-2006.
[10]
Three
things are to be noted in respect of this entry. First, the refusal is
expressed as tentative: “At this time”. Second, the refusal is stated to be on
the basis that the (male) applicant, in a double negative way of expressing it,
has been unable to assure the officer that he would not be outside the
definition of the class provided for by sections 139 (1) (i) of the Immigration
and Refugee Protection Regulations. Third, a person identified as MSS is
instructed to prepare a refusal letter.
[11]
As
to the first point, the expression of the decision as being “at this time”, it
is clear that the applicant’s sponsor in Canada apparently on receipt of some
information as to the interview, immediately instructed her Canadian solicitor
to communicate with the officer in order to attempt to resolve some concerns
expressed. This was done by a letter from Mr. Loebach, a Canadian lawyer, dated
January 25, 2006 and received by the Canadian Immigration Office in Pakistan on February
3, 2006. That letter indicated that the lawyer was acting for the applicants
and their Canadian sponsor. It requested time before a decision was made in
order to permit his clients to endeavour to secure further documents that may
be of assistance. Strangely, no acknowledgement of this letter was made
although the Canadian High Commission sent a letter directly to the female
applicant on February 27, 2006 referring to her “recent letter” which, if it is
a different letter than the lawyer’s letter, cannot be found anywhere on the
Record.
[12]
At
this point, the third matter requires consideration. The following entries
appear in the Officer’s recorded notes:
JR: REFUSAL LTR TO YR REVIEW AND SIGNATURE
PLEASE. BO43734563 MSS 01-FEB-2006.
REFUSAL LTR. SIGNED BY JR. SENT TO FN BY
REDG MAIL. CC SENT TO CIC. COPY PLACED ON FILE.
BO43734563 MSS 06-FEB-2006.
[13]
These
entries appear immediately following that of January 23, 2006 previously
quoted. What the notes appear to mean is that a refusal letter was prepared
for the officer’s signature on February 1, 2006 but not signed or sent until
February 6, 2006. The letter itself is the decision letter at issue and is
dated February 3, 2006.
[14]
It
appears, therefore, that the Canadian lawyer’s letter was received in the visa officer’s
office on February 3, 2006, the same date that the decision letter bears and
that the Canadian lawyer’s letter was in the hands of that office for some two
or three days before the February 3, letter was in fact signed and delivered on
February 6, 2006. There is no affidavit or any other evidence from the visa
officer or anyone else as to what went on. It is reasonable to infer that the
visa officer simply chose to ignore the Canadian lawyer’s letter for reasons
not disclosed.
[15]
The
second point, the fact that the officer relied on section 139 (1) (i) of the
IRPA Regulations in most telling. That section simply provides that a visa
shall not issue if an applicant or family member applying, is inadmissible.
The officer does not state upon what ground it has been found that the
applicant or family member is inadmissible. For instance, if the grounds are
those of health or national security or human or international rights violations
or serious criminality that has not been stated. One is left to guess.
[16]
Nothing
on the record shows or even suggests that the male applicant has committed
human or international rights violations, as has been convicted of any criminal
offence. He was in the Afghan army as a conscript performing duties as a cook
during the Marxist regime but that is
nowhere stated to be a ground for
exclusion.
[17]
It
is clear that the second visa officer, but not the first, was uncomfortable
with some of the answers given by the male applicant as to prior military
service. But in itself, that leads nowhere. If that forms the basis for
exclusion it should be clearly stated.
[18]
Given
that the visa officer failed to deal with the lawyer’s letter in hand and has
failed to state clearly what basis, if any, has been found for refusal, it is
clear that this matter must be reconsidered by another officer who is clearly
and fully advised as to all pertinent facts and will, thereby, be able to make
a reasoned decision.
[19]
Counsel
for the respondent suggested a question for certification, however, this matter
is fact driven and will have no broad general application. No question will be
certified.
JUDGMENT
For the Reasons given;
THE COURT
ADJUDGES that:
1.
The
application is allowed.
2.
The
matter is sent back for re-determination by a different visa officer.
3.
There
is no question for certification.
4.
No
Order as to costs.
“Roger
T. Hughes”
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