Docket: IMM-6528-13
Citation:
2015 FC 326
Ottawa, Ontario, March 16, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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ABDUL WALI KHEDRI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Defendant
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JUDGMENT AND REASONS
[1]
Mr. Khedri challenges a decision of an
immigration officer refusing his application for permanent residence in Canada
as a member of the Convention refugee abroad class or the country of asylum
class. He has a spouse and five dependent children who would be accompanying
him to Canada.
Background
[2]
In 1992, Mr. Khedri and his parents left Kabul,
Afghanistan, for the northern province of Parwan to escape civil unrest.
Meanwhile, Ms. Zeba Khedri fled to Pakistan with her family in 1993. In 1995,
while Mr. Khedri was still in Parwan, his home in Kabul was taken by a warlord
named Commander Sher [Sher]. Sher was a member of the Ittihad-i-Islami
political party.
[3]
A report was made to the police and the house was
returned. Two months after this incident, Sher was arrested for other crimes.
He was released from prison after six months allegedly due to the influence of
his uncle, Mullah Izattulah, a powerful commander of the leader of the
Ittihad-i-Islami, which, at that point, had “taken full
power in the government of Afghanistan” and Sher’s uncle “controlled the north districts of Kabul.” Mr. Khedri
says that Sher blamed Mr. Khedri for turning him in to the police and in act of
retribution he looted his house and then destroyed it. As a consequence, Mr.
Khedri fled Afghanistan with his parents in January 1996. Sher has since
become a high ranking officer working for the Ministry of the Interior and he
has “taken many houses” and his uncle is
commander of the north districts of Kabul.
[4]
Mr. Khedri married Ms. Khedri in Pakistan in
1997 and their children were born in Pakistan. He says that while they were in
Pakistan, relatives frequently advised him that Sher was still looking for him
and for this reason, he did not return.
[5]
Mr. Khedri and his family did not have refugee
status in Pakistan, though they were registered as refugees with Focus
Humanitarian Assistance, an affiliate of the Aga Khan Foundation, and had Focus
cards. Mr. Khedri missed the opportunity to apply when the UNHCR in Islamabad
was issuing refugee cards in 2007 because he had taken his father for medical
treatment in Karachi. The family tried again in 2010 to register but was
unable to do so. He stated in the application interview that they did not know
the citizenship legislation in Pakistan, so they did not apply to live there
legally.
[6]
Starting in 2010, the police in Pakistan started
to check documentation and Mr. Khedri was stopped and asked for identification
by police many times. Since he did not have a UNHCR refugee card, he showed
police his Focus card and sometimes had to take the officers to the Ismaili
Refugee Commission where the family was registered. The police released him on
that basis.
[7]
In 2012, Mr. Khedri’s nephew, a Canadian
citizen, agreed to sponsor him and his family for permanent residency in Canada
through Tajikistan. On August 24, 2012, the family traveled back to Parwan
province in order to get passports. While in Afghanistan, they lived in hiding
because they feared being recognized by Sher and his contacts. They traveled
to Tajikistan on September 3, 2012 and applied for refugee protection in that
country upon arrival. No decision has been made on that application.
[8]
Mr. Khedri told the officer during the interview
that the warlords in Afghanistan have connections in all the cities and towns,
making it unsafe for them anywhere in Afghanistan. His wife testified that she
cannot return to Afghanistan due to the risk to her husband’s life and that she
is not sure whether the children would be able to attend school in Afghanistan.
[9]
The officer determined that Mr. Khedri did not
meet the statutory requirements for immigration to Canada, citing section 11(1)
and 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 and
section 145 and paragraph 139(1)(e) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [the Regulations].
[10]
The officer was not satisfied that Mr. Khedri had
a well-founded fear of persecution based on a Convention ground, noting that he
had “provided only one reason for fear based on the
activities of the warlord Sher” and that the “police
did intervene on your behalf.”
[11]
The officer was also not satisfied that Mr.
Khedri would be “identified, targeted and threatened in
every region of the country nor that [he had] explored any other solutions to
the situation” while residing in Pakistan or Tajikistan. The officer
was also not satisfied that he did not have a “durable
solution” and therefore, found that he did not meet the requirements of
section 96 of the Act.
[12]
Finally, the officer stated that he or she had
also “considered the Country of Asylum Class but found that [Mr. Khedri] did not meet the requirements of [147 of the
Regulations].”
Issues
[13]
Mr. Khedri raises the following issues:
- Did the officer
err in law in failing to consider whether he met the criteria of
Convention refugee pursuant to section 96 of the Act, namely his perceived
political opinion?
2. Did the officer fail to consider whether he met the criteria of
country of asylum class under section 147 of the Regulations?
3. Did the Officer base his or her decision on erroneous finding of
fact that was made in a perverse or capricious manner without regard for
material?
- Did the Officer
fail to observe principles of natural justice, procedural fairness or
other procedure that was required by law to observe?
Analysis
Convention Refugee Claim
[14]
Mr. Khedri submits that the officer erred by
failing to consider whether he had a well-founded fear based on “being perceived as denouncing the illegal activities of [a]
member of a political party which is affiliated with the government.”
[15]
I agree with the respondent that there was
little if any evidence offered to support the claim of his perceived political
opinion. While the opposition of corruption may be an expression of political
opinion (Klinko v Canada (Minister of Citizenship and Immigration), [2000]
3 FC 327 (FC) [Klinko]), the existence of a political opinion and nexus
to a Convention ground must be determined on a case-by-case basis (Neri v
Canada (Minister of Citizenship and Immigration), 2013 FC 1087).
[16]
Mr. Khedri, relying on Klinko, submits that
his perceived denunciation of Sher amounts to an expression of political
opinion. However, the circumstances of the present case are distinguishable
from those in Klinko, where six Ukrainian businessmen made an organized
protest against widespread government corruption and Mr. Klinko suffered
retaliation as a result. Klinko was a clear case where the “machinery of the state” was engaged – the event that
triggered the applicant’s persecution was political in nature and he was
persecuted due to the actions of state actors.
[17]
There is little evidence, other than Mr. Khedri’s testimony that Sher has political influence, upon which
to suggest that Mr. Khedri fled Afghanistan due to any political motivation.
Making a police report and resisting criminality does not necessarily impute a
political opinion: See Lozano Navarro v Canada (Minister of Citizenship and
Immigration), 2011 FC 768. Further, Sher was not affiliated with the
Afghan government when this all took place. Mr. Khedri’s situation is reasonably
characterized as a fear of criminality, which falls outside section 96 of the
Act.
[18]
Mr. Khedri also raised concerns in the decision
regarding state protection and internal flight alternatives and procedural
fairness issues relating to these aspects of the decision; however, given that
the finding that he was not a Convention refugee is reasonable, they need not
be addressed.
Country of Asylum Class
[19]
In contrast to the analysis of the Convention
refugee claim, the officer did not refer to any evidence related to the claim
under the country of asylum class. The officer simply stated that he or she
had “further considered the
Asylum Country Class, but found that you did not meet the requirements of this
class either.” The officer did not refer to
section 147 of the Regulations or assess the individual requirements for
eligibility in the country of asylum class. The Computer Assisted Immigration
Processing System notes, which form part of the decision, consist of the text
of the decision letter and the officer’s notes of what Mr. Khedri and his wife
said during the interview and do not provide any assessment of that evidence.
One cannot discern from the decision letter or the CAIPS notes how the officer
arrived at the conclusion that there was no claim in the country of asylum
class.
[20]
While a decision-maker is not required to make
explicit findings on each constituent element that led to the final
determination, the reasons must be sufficient to allow the reviewing court to
understand why the decision was made and permit it to determine whether the
conclusion is within the range of acceptable outcomes. In the present case,
neither the decision nor the CAIPS notes contain any reference to or assessment
of Mr. Khedri’s personal circumstances, statutory requirements, or country
conditions in relation to the country of asylum class. The considerations for
the Convention refugee abroad and country of asylum class situations are very
different, so the reasons the officer gave with regard to the claim under
section 145 of the Regulations (Convention refugee abroad class) cannot be used
to supplement the decision under section 147 of the Regulations (country of asylum
class).
[21]
For these reasons the officer’s reasons are not
justifiable, transparent or intelligible and do not conform to the standard set
by the Supreme Court of Canada. The officer’s section 147 decision is
unreasonable and must be set aside.
[22]
No question was proposed for certification.
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