Docket: IMM-7502-14
Citation:
2015 FC 673
Ottawa, Ontario, May 25, 2015
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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ALAM GUL WARDAK
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act] of the decision of a visa officer at the Canadian High
Commission in Islamabad, Pakistan, in which the officer refused the applicant’s
application for permanent residence for himself, his wife, and their seven
children as members of the Convention refugees abroad class and the country of
asylum class.
II.
Facts
[2]
The applicant, his wife and seven children are
citizens of Afghanistan. Their claim for refugee protection relates back to thirty
(30) years ago, when the applicant failed to report for military service in
Afghanistan at the end of his university studies. He returned instead to his
parents’ home in a village of Wardak, where his father was arrested by the
Mujahedeen for refusing the local warlord’s request that he send his son to
join the Mujahedeen as a jihadist.
[3]
Following the arrest of his father, the
applicant feared that the local warlord would have him arrested too, and so he
fled to Peshawar, Pakistan in 1984. He discovered ten (10) years later that the
Mujahedeen had killed his father. He believes he cannot return to Wardak, since
the threat of killing family members in Pashtun culture continues until all the
family members are dead, and that he cannot return to any other part of
Afghanistan either, as the jihadists are well connected all over the country.
The applicant claims that he has not returned to Afghanistan since he fled in
1984.
[4]
Before the officer was a copy of the applicant’s
tenancy agreement for January 2014 to December 2014, his renewed Pakistani
proof of registration card, which states that it allows him to stay in Pakistan
through to December 31, 2015, the prior proof of registration cards for the
rest of his family, and the birth certificates of his children, all born in
Peshawar. Documents attached to the applicant’s affidavit in support of this
application cannot be accepted by the Court as they were not before the officer
(Abbott Laboratories Ltd v Canada (Attorney General), 2008 FCA 354 at
paras 37-38; Puida v Canada (Minister of Citizenship and Immigration),
2014 FC 781 at paras 26, 40). I will therefore not consider them in my
determination of this application.
[5]
The officer interviewed the applicant, his wife
and one of their children on September 3, 2014.
III.
The Impugned Decision
[6]
In a decision letter dated September 5, 2014,
the officer advised the applicant that his application for permanent residence
was refused on the basis that he was not satisfied the applicant and his family
resided in Pakistan as stated, and that he found it more likely that they had
repatriated or otherwise resided in Afghanistan. The officer stated that he had
given the applicant and his family multiple chances to answer truthfully and
had considered all of their explanations and responses but did not find their
story credible.
[7]
The Global Case Management System [GCMS] notes
document the interviews and the decision given by the officer following the
interviews. These notes form part of the officer’s reasons. In giving his
decision, the officer noted that while the applicant had provided his proof of
registration card and current tenancy agreement, neither he nor his wife or
daughter were able to provide their address in Peshawar prior to 2014, other
than that it was located in Phase 2. He indicated that the applicant had
offered to provide tenancy agreements for his previous addresses.
[8]
The applicant claimed that he had not picked up
the new proof of registration cards for his wife or other children because they
were unable to travel outside together due to their fear of the person who had
killed his father. However, the officer found that the applicant had
exaggerated his claimed fear of the commander as an excuse for his inability to
show more concretely that he was living outside Afghanistan.
[9]
As such, the officer was not satisfied that the
applicant and his family were residing outside their country of nationality,
and consequently found that they did not meet the requirements of the Act for
either class.
IV.
Issues
[10]
This matter raises the following issues:
A. Did the officer breach his duty of procedural fairness by failing to
give the applicant an opportunity, subsequent to the interview, to present
evidence of prior residency in response to his concerns?
B. Was the officer’s decision reasonable?
V.
Standard of Review
[11]
The first issue is a question of procedural
fairness and is accordingly reviewable on a standard of correctness (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Mission
Institution v Khela, 2014 SCC 24 at para 79; Qarizada v Canada (Minister
of Citizenship and Immigration), 2008 FC 1310 at para 18, [Qarizada];
Nassima v Canada (Minister of Citizenship and Immigration), 2008 FC 688
at para 10, [Nassima]).
[12]
Whether or not an applicant falls within the
Convention refugees abroad class or country of asylum class is a question of
mixed fact and law and is reviewable on a standard of reasonableness (Qarizada
at para 15). Assessments of credibility and factual findings are also
reviewable on a reasonableness standard (Qarizada at para 17; Nassima
at paras 8-9).
VI.
Analysis
A.
Did the officer breach his duty of procedural
fairness by failing to give the applicant an opportunity to present evidence in
response to his concerns subsequent to the interview?
[13]
The Convention refugees abroad class is governed
by sections 144 and 145 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [the Regulations], and the country of asylum
class by sections 146 and 147 thereof. Section 145 states that foreign
nationals will be members of the Convention refugees abroad class if they have
been determined, outside Canada, by an officer to be a Convention refugee. The
definition of Convention refugee in section 96 of the Act requires, among other
things, that the person be outside each of their countries of nationality.
Section 147 states that foreign nationals will be members of the country of
asylum class if they have been determined by an officer to be in need of
resettlement because they are outside of all their countries of nationality and
habitual residence, and 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.
[14]
Therefore, in order to succeed in his
application under either class, the applicant had to establish, among other
things, that he was outside Afghanistan.
[15]
The applicant submits that the officer breached
his right to procedural fairness by rendering his decision without giving him
an opportunity after the interview to provide further evidence of his residence
in Pakistan. He could not have reasonably known in advance of the interview
that he would need to provide his past tenancy agreements, because proof of
prior residency is not a requirement under section 96 of the Act or section 147
of the Regulations. Thus, in the circumstances, the officer had a duty to
inform him of his preliminary findings and to give him an opportunity to disabuse
him thereof. Instead, despite the applicant’s offer to retrieve past tenancy
agreements, the officer rendered his negative decision immediately following
the interview.
[16]
The respondent submits that the officer was
under no obligation to seek out further information on behalf of the applicant,
since it is the applicant’s responsibility to include relevant information in
his application (Qarizada at para 28; Kamara v Canada (Citizenship
and Immigration), 2008 FC 785; Kisana v Canada (Minister of Citizenship
and Immigration), 2009 FCA 189 at paras 42-62). Where a visa officer’s
concerns arise directly from the requirements of the Act and Regulations, the
officer is not required to make these concerns known to the applicant in
advance of rendering his or her decision (Nassima at para 16).
[17]
I stated in my reasons in Nassima that
applicants bear the burden to demonstrate that they are outside their country
of nationality and are members of the class under which they are applying. Thus
officers are not required to make their concerns regarding current residency
known to an applicant as these concerns arise directly from the requirements of
the Act and Regulations.
[18]
The applicant in this case, however, provided
documentation establishing his current address in Pakistan, and the officer did
not identify any inconsistencies in the testimony provided by him, his wife and
his daughter. The officer’s concern related to the applicant’s previous
addresses, which is not a concern arising directly from the requirements of the
Act and Regulations. Section 96 of the Act requires an applicant to establish
that he or she “is outside each of their countries of
nationality” and section 147 of the Regulations requires applicants to
show that “they are outside all of their countries of
nationality and habitual residence.” This required the applicant to
prove his current, not his past, residence.
[19]
As the officer’s concern regarding the
applicant’s prior residency did not arise directly from the requirements of the
Act or Regulations, fairness required him to make this concern known to the
applicant and to give him an opportunity to respond thereto. The applicant
offered to provide the officer with his past tenancy agreements, but the
officer did not give him an opportunity to submit them prior to rendering his
decision. In the circumstances, by failing to give the applicant this
opportunity, the officer breached his duty of procedural fairness.
[20]
This is sufficient to quash the decision. For
these reasons, the application for judicial review is allowed. There is no
question for certification.
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