Date: 20070830
Docket: IMM-3691-06
Citation: 2007 FC 872
Ottawa, Ontario, August 30th,
2007
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
WAHIDULLAH SALIMI
AHMADULLAH SALIMI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Wahidullah Salimi and his brother Mr. Ahmadullah Salimi are both
citizens of Afghanistan. Currently, they are living with their parents and
siblings in a refugee camp in Peshawar, Pakistan. They left Kabul in 1992. A
group of friends and family members wish to sponsor them for permanent
residence in Canada.
[2]
In 2006, an immigration officer at the Canadian High Commission in
Islamabad determined that the applicants were not eligible for resettlement in Canada
because they had failed to show that they continue to be seriously and
personally affected by civil war, armed conflict or a massive violation of
human rights in their country of nationality. The officer noted that the
applicants could return to Afghanistan under a repatriation program supported
by the United Nations High Commissioner for Refugees (UNHCR).
[3]
The applicants argue that the officer failed to treat them fairly by not
giving them a chance to respond to the documentary evidence on which he relied.
Further, they argue that the officer failed to consider the actual
circumstances that would await them if they returned to Afghanistan.
[4]
I can find no basis for overturning the officer’s decision and must,
therefore, dismiss this application for judicial review.
I.
Issue
[5]
Did the officer fail to treat the applicants fairly or to consider the
actual circumstances in Afghanistan?
II. Analysis
[6]
I can overturn the officer’s decision only if I find that he treated the
applicants unfairly, or if his decision was out of keeping with the evidence.
(a) Legislative
framework
[7]
To succeed in their application, the applicants had to establish that
they had “no reasonable prospect, within a reasonable period, of a durable
solution in a country other than Canada” (Immigration and Refugee Protection
Regulations, SOR/2002-227, s. 139(1)(d) – relevant provisions are
set out in an Annex). They also had to show that they were members of the
“country of asylum class”, which comprises persons who 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” (s. 146(1)(a), s. 147).
(b) The
Officer’s Decision
[8]
The officer concluded that the applicants had failed to show that they
met the requirements of the Regulations. In particular, he found that their
concerns about returning to Kabul were economic and social, not based on any
concerns about civil war, armed conflict or human rights violations. They
mentioned the lack of health care, family support, education, jobs, water and
electricity in Kabul. The officer concluded that the applicants’ circumstances were
no different than those of the millions of others who had left Afghanistan
during the civil war. Further, they had available to them a “durable solution”
in the form of repatriation to Kabul under the UNHCR program. The officer
stated in an affidavit that he informed the applicants of this program and
invited them to make submissions on the issue of repatriation. The UNHCR
program involved repatriation of almost 3 million Afghans from Pakistan since
2002, including about 70,000 who returned to Kabul.
(c) Have the
applicants shown that the officer treated them unfairly or ignored important
evidence?
[9]
I am not satisfied that the officer treated the
applicants unfairly. They had an opportunity to present their case and answer
the officer’s concerns.
[10]
Nor am I satisfied that the officer failed to
consider important evidence relating to the UNHCR repatriation program. The
documentary evidence on which the officer relied showed that millions of
persons in circumstances similar to the applicants’ had returned to Afghanistan under the UNHCR program. It is
true that there continues to be a reverse flow of Afghans back to Pakistan for economic reasons. Indeed, the
UNHCR program, supported by the European Commission’s Humanitarian Aid Office,
only provides a minimum amount of financial assistance. However, the vast
majority of repatriated persons stay in Afghanistan.
[11]
I agree with the applicants that the officer
must consider the basis of their claim and the actual circumstances in the
country where they are alleged to have a durable alternative solution: Velautham
v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1113,
[2005] F.C.J. No. 1385 (F.C.) (QL). However, I am satisfied that the officer
considered the applicants’ submissions and responded to them. Further, his conclusion
that a durable solution was available to the applicants in Afghanistan was supported by the documentary
evidence before him.
[12]
Therefore,
I must dismiss this application for judicial review. Neither party proposed a
question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S
JUDGMENT IS THAT:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Regulations,
SOR/2002-227
General requirements
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;
Humanitarian-protected persons abroad
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;
Member of country of asylum class
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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Règlements
sur l’immigration et la protection des réfugiés, DORS/2002-227
Exigences générales
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;
Personnes protégées
à titre humanitaire outre-frontières
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 :
b)
la catégorie de personnes de pays d’accueil;
Catégorie de
personnes de pays d’accueil
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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