Date:
20130320
Docket: IMM-8801-11
Citation: 2013 FC 289
Toronto, Ontario, March 20, 2013
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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MIRAFGHAN
HUSSAINI AND KUBRA HUSSAINI
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Applicants
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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]
This an application for judicial review of the April 26, 2011
decision of the First Secretary (Immigration) at the Canadian Embassy in
Bishkek, Kyrgyzstan [the visa officer], refusing the applicants’ application
for permanent residence in Canada as members of the Convention refugee abroad
class or the Humanitarian-protected persons abroad class. The visa officer
found the applicants’ claims for protection lacked credibility due to contradictions
between their statements and those of Mr. Hussaini’s sister, Shikiba
Rizayee, who had immigrated to Canada in 2006.
[2]
In this application for judicial review,
the applicants argue that the visa officer violated their rights to procedural
fairness by not providing them sufficient opportunity to explain the
inconsistencies. I agree and am therefore allowing this application for the
reasons set out below.
Background
[3]
The applicants are a husband and wife from Afghanistan. Mr. Hussaini claims that his father and sister were killed by armed men in
2005 when his family refused to allow one of the village men to marry his
sister. Following the murders, Mr. Hussaini and his family continued to receive
threats and tried to escape the perpetrators by moving to Kabul. However, he
says the threats continued and that the family therefore fled Afghanistan for Kyrgyzstan in 2007. The United Nations High Commissioner for Refugees recognized the
applicants as refugees in 2010, and they sought settlement in Canada as members of the Convention refugee abroad class or the Humanitarian-protected persons
abroad class.
[4]
During an interview with
immigration authorities in 2009 as part of their application for permanent
residence, Mr. Hussaini revealed that another sister, Ms. Rizayee, had
successfully immigrated to Canada. The visa officer made a note to review the
sister’s immigration file for references to their parents and sisters. This
investigation was done, and the visa officer surmised that Ms. Rizayee had
indicated in her 2006 immigration application that her father and sister – who
according to the applicants had been murdered in 2005 – were present at her
2006 wedding and had met her spouse at about that time.
[5]
Upon discovering these inconsistencies, the visa
officer wrote a so-called “fairness letter” to the applicants, in which she
stated:
It has come to my
attention that part of the information provided by you in support of your
application is not credible. You stated as part of your refugee claim that your
father and your sister Diljan were killed in Afghanistan in June 2005. However,
our verifications indicate that your father was present in Afghanistan for your sister Rizayee’s wedding on 27 January 2006, and, moreover, that he was alive
in June 2006 and living with your family in Kabul.
The visa officer,
however, did not indicate the source of her concerns nor did she provide a copy
of Ms. Rizayee’s permanent residence application. The applicants were given
sixty days to respond to the concerns outlined in the visa officer’s letter.
[6]
The applicants responded with two letters: one
from Mr. Hussaini, the other from Ms. Rizayee. She explained in her letter that
she had two wedding ceremonies to her husband because the Canadian Embassy in Islamabad had not accepted the first marriage, which was done by proxy. Both Mr. Hussaini
and Ms. Rizayee indicated that their father and sister were present at the
first wedding, in 2004, but not at the 2006 wedding, that their father had
never lived in Kabul and had been murdered in 2005.
[7]
The visa officer accepted that the applicant’s
father did not attend Ms. Rizayee’s second wedding, but determined that there
were other inconsistencies between her 2006 application and the applicants’
claims. The visa officer wrote in her Computer Assisted Immigration Processing
System [CAIPS] notes as follows:
I accept that Shikiba
Rizayee had two marriage ceremonies and that the principal applicant’s parents
attended the first marriage, however neither the principal applicant nor his
sister have explained why on Shikiba’s application for permanent residence,
received 01 June, 2006 both of the principal applicant’s parents, Zarghoon and
Guljan were listed as alive and living in Kabul, and that her application also
states that both parents met Shikiba’s sponsor on 27 January, 2006. It is
impossible for all of these facts, the applicant’s father’s death and his
father’s subsequent meeting of Shikiba’s sponsor, to be true. Neither the
principal applicant nor Shikiba state that Shikiba provided erroneous or
misleading information on her application for permanent residence.
Therefore, I am not satisfied that the applicant has provided credible or
truthful information about details that are central to his family’s claim for
refugee protection.
[Emphasis added.]
[8]
In the present application for judicial review,
the applicants argue that they would have been able to provide more information
had they known the source of the visa officer’s concerns. More specifically,
Ms. Rizayee claims to not recall having submitted a 2006 application but that
an interpreter would have had to fill it out for her if she had. The applicants
additionally point to a number of other errors contained in the application as
further demonstrating that it was inaccurate and thus claim that they should
have been afforded an opportunity to explain why it should not impugn their credibility.
Finally, Ms. Rizayee explained that in 2006 she was not yet aware that her
father and sister had been murdered as her family had shielded her from this
news while she was living alone in Pakistan, awaiting the outcome of her
husband’s application to sponsor her to settle in Canada.
Issues and
Standard of Review
[9]
The only issue that arises in this application
is whether the applicants were denied procedural fairness. This claim is a
matter for me to determine as administrative tribunals are accorded no deference
in respect of procedural fairness claims (Canada (Minister of Citizenship
and Immigration) v Khosa, 2009 SCC 12 at para 43; CUPE v Ontario (Minister
of Labour), 2003 SCC 29 at para 100, [2003] 1 S.C.R. 539; Amri v Canada
(Minister of Citizenship and Immigration), 2012 FC 713 at para 7).
Analysis
[10]
As counsel for both parties agree, it is
well-settled that procedural fairness requires that applicants for permanent
residence be provided a meaningful opportunity to respond to perceived material
inconsistencies or credibility concerns with respect to their files (Qin v
Canada (Minister of Citizenship and Immigration), 2013 FC 147 at para 38 [Qin];
Abdi v Canada (Attorney General), 2012 FC 642 at para 21 [Abdi]; Zaib
v Canada (Minister of Citizenship and Immigration), 2010 FC 769 at para 17
[Zaib]; Baybazarov v Canada (Minister of Citizenship and Immigration),
2010 FC 665 at para 17 [Baybazarov]). This requires that the applicant
be told of the concern of the decision-maker and be provided with disclosure of
the substance of any extrinsic evidence that is the source of concerns that the
decision-maker intends to rely on (see e.g. Qin at para 38; Abdi
at para 21; Baybazarov at para 12). Such extrinsic evidence may well
include evidence from an applicant’s family member, except, perhaps, in a
spousal sponsorship application, where the contradictory evidence might not be
considered extrinsic (see e.g. Ahmed v Canada (Minister of Citizenship and
Immigration), 2013 FC 204 at para 27 [Ahmed 1] and Ahmed v
Canada (Minister of Citizenship and Immigration), 2013 FC 205 at
paras 30-31 [Ahmed 2]).
[11]
In this case, I find that the applicants were
denied a meaningful opportunity to respond to material information contained in
Ms. Rizayee’s 2006 permanent residence application and that such information
constitutes extrinsic evidence that ought to have been disclosed to them. The
key issues troubling the visa officer arose from statements in Ms. Rizayee’s
2006 application concerning the presence of the applicant’s father at her
wedding, which the visa officer assumed was held in 2006, i.e. after the date
of the alleged murder, the listing by Ms. Rizayee in her 2006 application of
her father and deceased sister as then being living relatives and her mention
of her spouse’s having met her father in 2006. The fairness letter sent to the
applicants squarely raised the issue of the father’s presence at the wedding,
and the applicants provided evidence to address this concern. However, the
applicants were not put on sufficient notice of the other two concerns to be in
a position to adequately address them.
[12]
Insofar as concerns the statements made by Ms.
Rizayee regarding who her living relatives were in 2006, to be in a position to
address this concern, it was necessary for the applicants to know where the
concern came from – the issue was not so much whether Ms. Rizayee’s father and
sister were alive in 2006 as opposed to why she said they were. Had the
applicants known that this concern stemmed from statements made in Ms.
Rizayee’s application and what the concern was, they could have provided the
explanation that is now before the Court via Ms. Rizayee affidavit, namely,
that Ms. Rizayee did not learn of the deaths until after she had moved to
Canada in 2007. Because adequate disclosure was not made, they were not in a
position to provide the explanation.
[13]
Likewise, they were not able to provide any
explanation for the inconsistency the visa officer found to arise from the
statements in the application regarding the date of the meeting between Ms.
Rizayee’s spouse and her father, because this concern was not disclosed to the
applicants. Contrary to what the respondent asserts, the mere inquiry to
determine the date of Ms. Rizayee’s permanent residence application and
request for a copy of her permanent resident card were not sufficient to put
the applicants on notice as to the source of and details of the visa officer’s
concerns. It was equally possible that the information the officer was relying
on might have come from elsewhere. Moreover, as counsel for the applicants
convincingly argues, since the applicants were unrepresented and there is
nothing to indicate they had any knowledge of the immigration process, there is
no reason to conclude that they ought to have asked for disclosure of Ms.
Rizayee’s permanent residence application. Such request was only made by
counsel in connection with this application.
[14]
This case is similar to Ahmed 1, Ahmed
2, Baybazarov; Zaib, Amin v Canada (Minister of Citizenship and
Immigration), 2013 FC 206, Mekonen v Canada (Citizenship and
Immigration), 2007 FC 1133, and Wong v Canada (Minister of Citizenship
and Immigration), [1998] FCJ No 24, 141 FTR 62, relied on by the
applicants, where similar failures to disclose details from extrinsic evidence
were found to give rise to violations of procedural fairness. On the other
hand, Kunkel v Canada (Minister of Citizenship and Immigration),
2009 FCA 347 and Toma v Canada (Minister of Citizenship and Immigration),
2006 FC 779, relied on by the respondent, are distinguishable as there, unlike
here, the officers provided notice of their concerns to the applicants.
[15]
Accordingly, because the visa officer did not
provide adequate disclosure to the applicants, her decision must be set aside
in order to afford the applicants an opportunity to provide their explanations
in respect of the concerns that flow from Ms. Rizayee’s 2006 immigration
application. It may well be that these explanation will be insufficient, but
that is a matter for the visa officer to whom the file is remitted to decide as
it is up to visa officers – and not this Court in an application such as this –
to evaluate applicants’ credibility.
[16]
For these reasons, this application for judicial
review is granted. No question for certification was proposed and none is
appropriate as the legal principles governing this decision are clear and the
outcome specific to the facts of this case.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
This application for judicial review of the April
26, 2011 decision of the First Secretary (Immigration) is allowed;
2.
The decision is set aside;
3.
The applicants’ application for permanent
residence as members of the Convention refugee abroad class or of the
Humanitarian-protected persons abroad class is remitted to the
respondent for re-determination by a different officer;
4.
In connection with that re-determination, the applicants shall be
afforded an opportunity to file additional evidence and make additional
submissions with regard to the immigration application of Shikiba
Rizayee;
5.
No question of general importance is certified under section 74
of the Immigration and Refugee Protection Act, SC 2001, c 27; and
6.
There is no order as to costs.
"Mary J.L. Gleason"
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