Date:
20130124
Docket:
IMM-3505-12
Citation:
2013 FC 67
Ottawa, Ontario,
January 24, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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NADIR ALI ISMAILZADA AND SHAH
WALI AZRATI
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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
is an application for judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of two decisions by an
Immigration Officer [the Officer] of the Canadian High Commission in Islamabad,
dated January 12, 2012, wherein the Officer refused the applicants’ permanent
resident applications made under the “Convention refugee abroad class” and the
“country of asylum class”.
I. Background
[2]
The
applicants are citizens of Afghanistan. Mr. Nadir Ali Ismailzada [the principal
applicant or PA] is the father of nine adult children. Mr. Shah Wali Azrati [the
second applicant] is the father of three minor children. The second applicant’s
sister is one of the PA’s daughters-in-law. Both applicants and their families
moved to Pakistan in 1996 after several years of civil war in Afghanistan.
[3]
In
2000, one of the PA’s sons and the son’s wife, who is the sister of the second
applicant, moved to Canada with their children. In 2008, they applied with
three friends to sponsor the applicants and their respective dependants as
members of the country of asylum class. They stated in their applications that
they had left Afghanistan because of the war. They said many people had lost
their family members, property, and there was no peace or safety in the country
at all. They stated that for their safety, they had no choice but to leave Afghanistan.
[4]
By
regular mail and e-mail, the applicants were convoked to an interview on July
14, 2011 at the visa office in Islamabad. At the interview, the PA stated he
had been jailed, beaten, tortured and extorted by the Taliban and that the
Taliban had killed his son. The Officer proceeded to interview the PA’s
daughter Seleha Ismailzada. He pointed out that the PA had not mentioned
anything on his application form about being beaten or jailed or about the
death of a son in Afghanistan. She responded that her father had signed a blank
form and that the form was completed over the telephone by her brother’s
Pakistani friends in Canada who were co-sponsoring her family. The Computer
Assisted Immigration Processing System [CAIPS] notes also indicate that the
second applicant’s wife was present at the interview and that she confirmed
what the PA had told the Officer.
[5]
A
major contested fact is whether the second applicant and the other dependents
came to the interview on July 14, 2011. The respondent asserts they did not.
The applicants, however, claim that as there is no evidence to show that only
the three individuals whose responses are recorded in the CAIPS notes are the
only individuals who were present, it would appear the second applicant and the
other dependents did attend the interview as required but that the visa Officer
simply chose to only interview three of the individuals.
II. Issues
[6]
The
applicants raises several issues in the present application:
A.
Did
the Officer deny the applicants procedural fairness by failing to separately
interview the other applicant and dependents?
B.
Did
the Officer deny the applicants procedural fairness by failing to give the
applicants an opportunity to respond to his specific concerns?
C.
Did
the Officer deny the applicants procedural fairness by failing to provide the
applicants with an opportunity to verify the truth of their story?
D.
Did
the Officer make unreasonable credibility findings?
E.
Did
the Officer err in law by failing to apply the facts as found to the legal
definitions?
F.
Should
costs be awarded?
[7]
I
have rephrased the issues slightly in the analysis that follows.
III. Standard
of review
[8]
An
Officer's decision about whether an applicant falls within the Convention
refugee abroad or country of asylum classes is a question of fact and mixed
fact and law and is reviewable on a standard of reasonableness: Qarizada v
Canada (Citizenship and Immigration), 2008 FC 1310 at para 15; Adan v
Canada (Minister of Citizenship and Immigration), 2011 FC 655 at para 23; Karimzada
v Canada (Minister of Citizenship and Immigration), 2012 FC 152 at para 10
[Karimzada].
[9]
It
is also settled law that questions of procedural fairness are to be reviewed
against the standard of correctness (Dunsmuir v New Brunswick, 2008 SCC
9 at para 55; Karimzada, above, at para 10).
IV. Analysis
A.
Did the Officer breach the duty of procedural fairness by failing to
interview the second applicant?
[10]
The
applicants submit the Officer breached the duty of procedural fairness by
failing to interview all the applicants. They maintain it is trite law that in
light of the Supreme Court decision in Singh v Canada (Minister of
Employment and Immigration), [1985] 1 S.C.R. 177, [1985] SCJ No 11 [Singh],
a refugee claimant must be interviewed or granted a hearing in order to address
any credibility concerns and that case law related to in-Canada refugee cases
applies to refugee applications made outside of Canada.
[11]
Moreover,
the applicants assert that it was unfair for the Officer to rely on the
evidence of three individuals to refuse both the applications. The applicants
also maintain that it would have only made sense for the Officer to interview
the second applicant and other dependents as well, in order to verify the truth
of the statements of the three people the Officer interviewed that he deemed
not credible.
[12]
The
respondent submits that none of the applicants’ case law states that applicants
in the refugee abroad or country of asylum cases, let alone their dependents,
must be interviewed prior to a final decision. The respondent asserts that the
Federal Court has explicitly rejected the notion that Singh, above,
gives applicants in the refugee abroad class a right to an interview (Oraha
v Canada (Minister of Citizenship and Immigration), [1997] FCJ 788 at paras
8 to 11 [Oraha]). The respondent maintains other case law shows that the
Court has sanctioned applicants in the refugee abroad and country of asylum
classes not being interviewed (Sutharsan v Canada (Minister of Citizenship
and Immigration), 2007 FC 226 at para 18; Atahi v Canada (Minister of
Citizenship and Immigration), 2012 FC 753 at paras 29-31 [Atahi]).
As applicants do not get an automatic interview, the respondent submits their
listed dependents should not get one either.
[13]
The
respondent admits the applicants deserved a chance to respond to the Officer’s
credibility concerns, but as the PA took advantage of the opportunity to
respond at the interview, he has no cause for complaint. As for the second
applicant, the respondent submits he was invited to the interview but did not
attend, so he lost his chance to respond to the Officer’s concerns. However,
while his wife Rahela was present, I do not see anywhere in the file that she
was sent by the second applicant to take his place. Regarding the applicants’
assertion that the second applicant "appears" to not have attended
the interview, the respondent submits the onus is on the applicants to prove
this argument and not on the respondent to disprove it, especially when the
argument is based on speculation (Wang v Canada (Minister of Citizenship and
Immigration), [1999] FCJ 248 at paras 31-33 [Wang]). The respondent
says the affidavit sworn by the second applicant’s sister living in Canada does
not support the claim that the second applicant was present at the interview
and that, without any evidence in the record to support the allegation the
second applicant was present at the interview, applicants’ counsel’s argument
is based on mere speculation.
[14]
The
respondent states the Officer was not required to provide another opportunity
to the second applicant to respond. The respondent notes that in any event, the
second applicant nor any of the other dependents ever asked the Officer for
their own interviews or informed the Officer that their absence was
unavoidable, and that parties are “not normally able to complain of a breach of
the duty of procedural fairness by an administrative tribunal of they did not
raise it at the earliest reasonable moment” (Geza v Canada (Minister of
Citizenship and Immigration), 2006 FCA 124 at para 66 [Geza]). The
respondent asserts the applicants effectively waived their right to complain by
not doing so at the interview or immediately after (Shimokawa v Canada (Minister of Citizenship and Immigration), 2006 FC 445 at para 32 [Shimokawa]).
[15]
With
respect to the applicants’ argument that it was unfair for the Officer to rely
on the evidence of three individuals to refuse both the applications, the
respondent submits the applicants miscast Justice John A. O’Keefe’s words in Mushimiyimana
v Canada (Minister of Citizenship and Immigration), 2010 FC 1124 [Mushimiyimana],
which were made in an extrinsic evidence context. The respondent submits the Officer’s
actions in the present case followed Justice O’Keefe’s propositions in Mushimiyimana,
above. Moreover, the respondent asserts the Officer did nothing wrong by relying
on the statements from the three interviewees to decide the fate of those
absent at the interview, as dependants cannot insulate their version of events
from each other.
[16]
The
applicants submit the second applicant was present at the Canadian High Commission
on July 14, 2011, but that the Officer did not interview him. The respondent
submits there is no proof the second applicant was present that day and alleges
that he did not show up to the interview. Although the onus is on the applicant
to demonstrate a basis for the Court’s intervention (Wang, above, at
paras 31-33), it is surprising that the respondent did not file an affidavit
from the Officer who conducted the interview to support this claim. For
example, the Officer’s affidavit helped persuade this Court in the recent case
of Atahi, above, at paras 29-31, that the Officer had not breached the
duty of procedural fairness despite the applicants’ allegations that they had
not been given the opportunity to answer questions completely regarding their refugee
abroad application.
[17]
Nevertheless,
this Court held in Wang at para 31 that “[t]he visa officer had no
obligation to file and serve any affidavit, it is up to him to decide. By
not filing an affidavit, the respondent had not conceded anything. The certified
tribunal record is evidence in support of the visa officer's decision.”
[Emphasis added]
[18]
As
the respondent observes, the affidavit evidence filed by the applicants does
not clearly establish that the second applicant was present at the interview. The
applicants have only filed one affidavit and it is by the second applicant’s
sister living in Canada. In it, she states that only three of the individuals
who had applied were interviewed, but she makes no statement as to whether the
second applicant was present at the interview (see p. 23 of the applicants’
record).
[19]
On
the other hand, the refusal letter the Officer sent to the second applicant
states that “[y]ou were interviewed on July 14, 2011 in Islamabad”. The
respondent provides no explanation for why the letter makes a statement that is
contradictory to the respondent’s allegation that the second applicant was
absent at the interview.
[20]
Therefore,
on the balance of the evidence before the Court on the issue of whether the
second applicant showed up to the interview, of which the only relevant
document is the refusal letter mailed to the second applicant, it appears that the
second applicant was present at the interview. Justice Mosley’s decision in Hassani
v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at para
24, is instructive of how the Court should approach the right or duty to
provide an interview when credibility is clearly an issue:
Having reviewed the factual context of the cases
cited above, it is clear that where a concern arises directly from the
requirements of the legislation or related regulations, a visa officer will not
be under a duty to provide an opportunity for the applicant to address his or
her concerns. Where however the issue is not one that arises in this context,
such a duty may arise. This is often the case where the credibility,
accuracy or genuine nature of information submitted by the applicant in support
of their application is the basis of the visa officer's concern […]
[Emphasis added]
[21]
The
duty of fairness owed to refugee claimants applying from within Canada is different than the duty owed to applicants outside of Canada. The Supreme Court in Singh
did not comment adversely on the process used for the determination of refugee
claims by persons outside of Canada (Oraha, above, at paras 8-11). The
respondent admits the applicants deserved a chance to respond to the Officer’s
credibility concerns, but that the second applicant lost the chance to do so
when he did not show up to the interview. Given that on the evidence before me
I have accepted that the second applicant was present at the interview, he
should have also been given the opportunity to respond to the Officer’s
credibility concerns. The Officer therefore breached the duty of procedural
fairness by not giving him this chance. On this issue alone, the Court’s
intervention is warranted.
[22]
As
for the respondent’s submission that in any event, the applicants should have
raised the procedural fairness concern at the earliest possible moment, the
case law cited by the respondent on the issue is in the context of refugee
claims made in Canada (Geza and Shimokawa, above), so are
distinguishable. I also note that the applicants did not have a lawyer present
with them at their interview (in fact, the letter inviting them to the
interview specifically advised them to only bring their adult dependents to the
interview, and no one else).
B. Did the Officer
breach the duty of procedural fairness by failing to inform the applicants of
his specific concerns and give them an opportunity to respond?
[23]
The
applicants submit the Officer breached the duty of procedural fairness by
failing to put directly to the applicants his concern that the applicants had
fabricated the incident of the PA’s son being killed because he concluded they
had recently learned a general risk was a less compelling ground for a refugee
claim.
[24]
The
respondent submits it is trite law that visa officers have no duty to apprise
applicants of concerns arising directly from the Act, so the Officer had no
duty to apprise the applicants of his doubts about the explanations for the new
information about a personalized risk.
[25]
The
applicants only cite one case to support this argument, and it is
distinguishable because it was in the context of a refugee claim made in Canada
and not a refugee claim made abroad (Akhtar v Canada (Minister of
Citizenship and Immigration), [2002] FCJ 730). I am therefore not persuaded
of the applicants’ argument on this issue.
C. Did the Officer err in
his credibility determination?
[26]
The
applicants further submit the decision is unreasonable, as the Officer failed
to explain why he rejected plausible, consistent evidence that the PA’s son had
been killed by the Taliban and that he himself had been taken prisoner, as well
as the explanation for why this information was not on their forms. The
applicants state that apart from the fact the evidence regarding the PA’s son
was not in the application forms, there is no apparent reason to disbelieve the
allegation since each of the interviewees verified it was truly what had
occurred and it was not inconsistent with the other evidence produced.
[27]
The
respondent maintains the Officer’s clear statement in the refusal letters that
he did not find the alleged death of the PA’s son credible demonstrates the
adequacy of the Officer’s reasons. Moreover, the respondent submits the
applicants’ explanations for not including this information on their forms were
not reasonable, and that it was the applicants’ credibility that was the issue
and not the plausibility of the allegations. As for the Officer’s own
conclusion about why the new information about personalized risk came out at
the interview, the respondent submits this was “simply the coating to a bitter
pill” and that, furthermore, the Officer’s finding is supported by his
non-credibility finding.
[28]
The
Officer’s negative credibility finding is, at first blush, reasonable, given
the fact that the PA first raised the allegations of having been jailed,
beaten, tortured and extorted by the Taliban and that the Taliban had killed
his son at the interview and had not mentioned these serious claims on his
application form for permanent residence. While it seemed reasonable for the Officer
to reject the PA’s and dependents’ explanation that the PA had signed a blank
form and that the form was completed over the telephone by friends in Canada who were co-sponsoring the family. Justice Luc Martineau found that a similar
negative credibility inference was reasonable in Karimzada, above, at
para 20. However, and most importantly, given the fact that the Officer did not
mention the interviewees’ explanation that the PA is illiterate, and that the
PA’s son in Canada is illiterate, it was unreasonable for the Officer to ignore
that part of the explanation. The Officer erred in this regard.
D.
Did the Officer err in assessing whether the applicants met the
definitions for the Convention refugee abroad class and the country of asylum
class?
[29]
The
applicants argue that regardless of the fact the Officer found some of the
applicants’ information not credible, the Officer erred by failing to apply the
evidence he did accept to the legal definitions of the refugee abroad and
country of asylum classes and that he erred by not doing so. The applicants
submit the experience they had in Afghanistan that the Officer did find
credible demonstrates that they meet the legal definition for the country of
asylum class.
[30]
The
respondent submits the Officer did assess the applicants’ credible evidence
against the two class requirements and made no reviewable error in finding that
the applicants do not meet the definitions.
[31]
In
Adan v Canada (Minister of Citizenship and Immigration), 2011 FC 655 at
para 33 [Adan], this Court found the following:
The Court finds that the Officer committed no error
of law in this regard. He stated the correct criteria for membership in that
class:
Secondly, I have assessed if you are eligible for
country of asylum class processing, if you have demonstrated that you would be
personally and seriously affected by ongoing violence and insecurity in your
country of nationality…
[32]
The
Officer in the present case articulated the definition for the country of
asylum class in a very similar way: as whether the applicants would be
personally and seriously affected by civil war, armed conflict or massive
violation of human rights in their country of nationality. Based on Adan,
above, I find that the Officer made no error in applying the law for the
country of asylum class, as the Officer correctly states the criteria for the
definition, and the applicants could not meet that definition with respect to the
information the Officer found was credible.
[33]
However,
the Officer’s assessment of whether the applicants met the definition for being
members of the Convention refugee abroad class requires a different
consideration. On this question, this Court found in Adan at para 39
that it was incumbent on an Officer assessing an application for permanent
residence in Canada as a member of the Convention refugee abroad class or as a
member of the Humanitarian-protected persons abroad class to exercise his legal
duty to consider whether the applicant's claim supported a finding of
persecution based on his membership in a minority clan, even though the
applicant did not explicitly raise that ground himself, and the Officer had
failed by not doing so. The Court stated the Officer had a duty to explore the
applicants' responses with a view to discovering whether the evidence could
support that ground.
[34]
Similarly,
in the present case the Officer failed to assess the applicants’ claim to
protection as Convention refugees. The Officer merely states the following at
the end of the decision, after finding the applicants were not members of the
country of asylum class:
Nor, on the basis of this information, am I
satisfied that you, or your family members have a well-founded fear of
persecution on a ground enumerated in the 1951 Refugee Convention.
[35]
For
these reasons, the application shall be allowed.
E. Should costs be
awarded to the applicants?
[36]
The
applicants argue that an award of costs to them is justified in this case
because the Officer made egregious errors and they endured a prolonged delay of
six years for an interview.
[37]
The
respondent asserts that no errors were made and that the delay of six years for
an interview does not justify an award of costs, even if the Officer’s decision
contained a reviewable error.
[38]
The
Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 state
the following regarding costs:
22. No costs shall be awarded to or payable by any
party in respect of an application for leave, an application for judicial
review or an appeal under these Rules unless the Court, for special reasons, so
orders.
[39]
In
Ndererehe v Canada (Minister of Citizenship and Immigration), 2007 FC
880 [Ndererehe] at paras 28-29, a case cited by the applicants, this
Court endorsed the following statement by Justice Eleanor R. Dawson in Johnson
v Canada (Minister of Citizenship and Immigration), 2005 FC 1262 at para
26:
[s]pecial reasons may
be found if one party has unnecessarily or unreasonably prolonged proceedings,
or where one party has acted in a manner that may be characterized as unfair,
oppressive, improper or actuated by bad faith.
[40]
This
Court in Ndererehe, above, also stated that “special reasons” in the
Federal Courts Immigration and Refugee Protection Rules mean “[s]omething
considerably out of the ordinary administrative failings or delays that may be
encountered in processing refugee and visa claims.”
[41]
I
do not find the circumstances of this case warrant any order as to costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.)
The
application is allowed, the decisions set aside, and the applicants’
applications for permanent residence be remitted to another Officer for reconsideration;
2.)
There
will be no order as to costs.
3.)
No
question is certified.
"Michael D.
Manson"
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