Docket: IMM-3595-15
Citation:
2016 FC 263
Ottawa, Ontario, March 1, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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NIZAMUDDIN HAIDARI
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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
[1]
This is a judicial review of a decision of a
Visa Officer at the Canadian High Commission in Islamabad [Officer] dated May
26, 2015, in which the Officer determined that the Applicant and his family
were not Convention refugees pursuant to section 96 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] or members of the Country of Asylum
class pursuant to section 147 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [the Regulations] made under IRPA.
[2]
For the reasons that follow, this application is
allowed.
I.
Background
[3]
The Applicant, Nizamuddin Haidari, is married
with five children. His eldest son, now 22 years old, was born in Afghanistan
before the family fled for Pakistan in 1993. The four younger children were all
born in Pakistan. They are citizens of Afghanistan and are of Hazara ethnicity,
adhering to the Shia Ismaili branch of Islam.
[4]
The family fled to Pakistan after Panjshiri
warlords took their house for military purposes, beat the Applicant and
threatened his family. They have not returned to Afghanistan for fear of being
killed by the Taliban or other extremist groups.
II.
Impugned Decision
[5]
The impugned decision states that, on the basis
of the totality of the information provided, the Officer was not satisfied that
the Applicant and his family were Convention refugees, finding that they did
not face a well-founded fear of persecution on a ground enumerated in the
Convention, or members of the Country of Asylum class, as they did not continue
to be seriously and personally affected by civil war, armed conflict or massive
violation of human rights in Afghanistan.
[6]
The Officer considered documentary evidence
including reports from the United Nations High Commission for Refugees [UNHCR] and
contained in the Immigration and Refugee Board’s National Documentation Package
for Afghanistan, noting that UNHCR reports indicate that more than 4.7 million
Afghans have returned to Afghanistan voluntarily, with returnees forming a
quarter of the current population of Afghanistan, while as many as 1.6 million
registered Afghans remain in Pakistan. The Officer notes that Hazaras
constitute about one fifth of the population in Afghanistan, a number
coinciding with the number of Shia, and that Ismailis are a much smaller group,
constituting only 2% of the population.
[7]
With respect to ethnic and religious
discrimination, the decision refers to the UNHCR’s Guidelines on the Assessment
of the International Protection Needs of Asylum Seekers from Afghanistan [the
UNHCR Guidelines] as indicating the following:
A.
Afghanistan is the third most dangerous country
in the world for ethnic minorities including Hazaras, although all ethnic
groups face risks of ethnic violence in Afghanistan, supporting a finding that
some groups that might be in a majority in one region may find themselves in a
minority in another; and
B.
Shia representation in government has increased,
and overt discrimination against them has decreased, although violent attacks
against the Shia population continue to occur.
[8]
The Officer referred to the documentary evidence
revealing that the situation of Hazaras in Afghanistan has improved markedly since
the end of the Taliban regime, but that discrimination continues to be
reported. The Officer noted that the UK Border Agency’s Country of Origin
Information Report [the UK COI Report] called the highlands of the Hazara
homeland, Hazarajat, one of the safest in the country. Referencing the United
States Department of State 2013 Human Rights Report [the US DOS Report], the
Officer concluded that there was insufficient evidence Hazaras are excluded
from participating in political life and noted that there were few reports of
targeted discrimination against Ismailis but no elaboration on the nature of
the discrimination nor a suggestion of systemic discrimination amounting to
persecution.
[9]
With respect to access to education, the Officer
again referred to the US DOS Report and UK COI Report, noting both impediments
to education and the prioritization of education in Hazarajat. The Officer
found that, while the Applicant’s children may face some initial difficulty in
understanding the written script in which they would be studying in Afghanistan,
it was highly likely that they would learn the Dari alphabet in a short time
given their knowledge of Urdu.
[10]
In relation to the difficulties facing women in
Afghanistan, the Officer referred to the US DOS Report and the UNHCR Guidelines
and noted danger, discrimination and barriers, particularly when women were
lacking male support. However, the Officer found that, as the Applicants would be
returning to Afghanistan as a family, there was insufficient evidence to
conclude that the female members of the Applicant’s family would be denied the
protection of their male family members such that they would be in a position
where the discrimination could be found to be tantamount to persecution. The conclusion
was that, while the female members would face restrictions, these were
discriminatory, not persecutory.
III.
Issues and Standard of Review
[11]
The Applicant’s written representations submit
the following issues for the Court’s consideration:
A.
By selective reading of the evidence the Officer
erred in finding that the Applicant and his family would not be at risk due to
their ethnicity as Hazara pursuant to section 96 of IRPA if they returned to
their country of nationality;
B.
The Officer relied on outdated documents on
country conditions in coming to the negative decision and failed to consider
the most recent documents available at the time of interview and at the time
the decision was rendered; and
C.
The Officer ignored the Applicant’s particular
situation in light of the pleading and the critical age of the children under
section 147 of the Regulations and the possibility of a safe relocation.
[12]
At the hearing of this application, the
Applicant also raised the issue whether the Officer erred in applying the wrong
test in analyzing whether the Applicant was a member of the Convention Refugee
class under section 96 of IRPA. The Applicant’s argument is that the language
of the decision indicates that the Officer thought it was necessary for the Applicant
to have been persecuted personally, rather than being a member of a persecuted
group, in order to be a member of this class. The Respondent took the position
that the Applicant had not raised this as an issue prior to the hearing and
that the Court should therefore not consider this argument. As explained in my
Analysis below, I am allowing this application for reasons unrelated to the
test applied by the Officer. It is therefore not necessary for me to decide
whether the issue raised by the Applicant surrounding the test applicable to
the section 96 analysis was properly before the Court.
[13]
Other than in relation to that issue related to
the section 96 test, to which the Applicant argued a standard of correctness
applied, the parties agree that the standard of reasonableness applies to the
issues in this application. I concur that reasonableness is the appropriate
standard of review (see New Brunswick (Board of Management) v. Dunsmuir, 2008
SCC 9 at para 47).
IV.
Submissions of the Parties
A.
Applicant’s Position
[14]
The Applicant argues that, contrary to the
Officer’s finding that millions of Afghans returned voluntarily, the UNHCR
Refworld in its 2006 survey noted many Afghans felt coerced to leave despite
lack of security in Afghanistan. Further, the Officer did not refer to any
evidence to indicate what percentage of those who returned were Hazaras. The
Applicant points to contrary recent evidence from Human Rights Watch 2014 and
2015 that the increase of Afghans repatriating from Pakistan appears to relate
to coercive pressures from local governments and that the insecurity has led to
a decrease in the number of returnees.
[15]
The Applicant submits that the Officer failed to
properly analyze the Applicant’s claim under section 96 of the IRPA on the
ground of the Applicant’s ethnicity by misapprehending the evidence, by
selective reading of the evidence, and by relying on outdated evidence. He notes
specifically that the Officer did not acknowledge his evidence that he and his
family cannot cross the Jalalabad city because there is still a group of
Taliban and Tayesh there.
[16]
Referring to the documents relied on by the
Officer, the Applicant argues that this evidence does not support the finding
in the decision that the Applicant’s family as Hazaras will not be at risk if
they returned to their country. The Applicant repeatedly stated that, due to
their ethnicity, Hazaras are being killed by Taliban and Daish, and the
Applicant’s family are afraid of ending with the same fate.
[17]
The Applicant also submits that, in finding that
Hazarajat is safe, the Officer relied on an outdated document that was
published in the UK COI Report but which related to 2007 or 2008. The Officer
quoted the sections of this report that supported this finding but ignored
sections of the same report that were in stark contrast to the finding,
particularly in relation to access to the Hazarajat provinces. The Applicant also
refers to sections of the UNHCR Guidelines that were not referenced by the
Officer but which contradict this finding. He relies on Cepeda-Gutierrez v
Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35 for
the principle that the more important the documentary evidence that is not
mentioned and analyzed in the reasons, the more willing the Court may be to
infer from the silence that there was an erroneous finding made without regard
to that evidence.
[18]
The Applicant further argues that the Officer
did not consider the latest documents and news on country conditions, which
predated the Applicant’s interview and reflect the increasing and systemic
persecution of Hazaras at the hands of the Taliban and other extremist groups
since the withdrawal of foreign forces in 2014. He states that the documents
quoted by the Officer were from 2013. The Applicant instead references numerous
documents from 2014 and 2015 describing persecution against his ethnic group.
[19]
Finally, the Applicant argues that the Officer
failed to analyze under section 147 of the Regulations his family’s particular
situation including the possibility of safe relocation. Specifically, this
included the critical age of his children and the fear expressed by the Applicant
and his son for the younger family members at the hands of the Taliban. His position
is that the Officer assumed that violence against women and children is only
committed by family members and that they would be safe if they returned as a
family unit. Moreover, there is nothing in the Officer’s notes to indicate assessment
of the possibility of safe relocation for the family particularly in light of
their claim that the Taliban have increasingly singled out those of their
ethnicity. The Applicant notes that the UNHCR Guidelines refer to the government
of Afghanistan being unable to protect its citizens and to internally displaced
people being in particular danger.
B.
Respondent’s Position
[20]
The Respondent argues that the Officer’s
decision was reasonable as the country documentation from the usual sources
associated with refugee claims was examined. The Respondent’s position is that
the Applicant simply disagrees with how the evidence was weighed and that his
argument that the Officer failed to undertake a consideration of his family’s
ethnicity and persecution of similarly situated persons is dispelled by a plain
reading of the reasons. The Officer considered documentation specifically
related to Hazaras and referenced documentation addressing the post-2014
transition following withdrawal of international forces. The Respondent notes
that the Officer is deemed to have considered all of the evidence in making the
decision and there is no obligation on the Officer to list every single piece
of evidence (Gutierrez v Canada (Minister of Citizenship and
Immigration), 2009 FC 610 at para 27).
[21]
The Respondent also relies on decisions of this
Court that it is reasonable for an officer to consider evidence of large
numbers of people who had fled in times of conflict returning to their home
country, particularly when the UNHCR played a role in that resettlement effort.
[22]
The Respondent argues that the Applicant had the
burden of providing the Officer with specific evidence he wished the Officer to
consider and points out that some of the evidence now referred to by the
Applicant in this application for judicial review was identified though his
counsel’s research for inclusion in this Application Record and had not been
provided to the Officer. Particular emphasis is placed on Sribalaganeshamoorthy
v Canada (Minister of Citizenship and Immigration), 2010 FC 11, which
held at paragraph 37 that the fact some country condition documentation may
support the applicant’s case does not impose a duty upon and officer to search
for and produce that evidence on the applicant’s behalf.
[23]
The Respondent also submits that the Officer
considered the claimed risk of forcible recruitment, educational concerns and
risk of persecution of Hazaras, Shia, and Ismailis. The Officer devotes a large
portion of the reasons to the educational situation in Afghanistan generally
and in relation to Hazaras and females in particular.
V.
Analysis
[24]
The Respondent’s position focuses significantly
on principles of administrative law and the Court’s role in judicial review.
When considering the analysis of country conditions, particularly by a visa
officer based in the relevant country, the Respondent emphasizes the deference
that the Court must afford the officer. It will always be possible for an
applicant to point to particular documents favouring the applicant’s position
that were not referenced by an officer, and the Respondent cautions against the
Court being drawn into a role of re-weighing evidence that the visa officer is
better able to assess. The Respondent argues that the Court’s role should
instead assess whether the Officer has kept abreast of country conditions in
Afghanistan and has made a reasonable decision demonstrating knowledge of those
conditions.
[25]
I am conscious of the points raised by the
Respondent, particularly in a case such as this one where the Applicant seeks
to rely on documentary evidence of country conditions that includes material
that does not form part of the Immigration and Refugee Board’s National
Documentation Package [NDP] and had not been raised by the Applicant for the
Officer’s consideration. However, my decision to allow this application turns
not on an analysis of this material that the Respondent would characterize as
new evidence not before the decision-maker, but rather on consideration of the
reasonableness of the decision as demonstrated by the reasons given by the
Officer. My conclusion is that the Officer’s decision does not demonstrate
sufficient support by the documentary evidence in order for the decision to be
transparent, intelligible and therefore reasonable.
[26]
Perhaps the most significant of the reasons the
Applicant raised for being unable to return to Afghanistan was his family’s minority
ethnicity as Hazaras. The Officer’s decision begins with references to
repatriation figures and then the existing human rights problems in Afghanistan
surrounding discrimination and abuse against ethnic minorities. This component
of the decision is general in nature and does not focus on the circumstances
facing Hazaras in particular. However, the decision then identifies the
minority position of Hazaras in Afghanistan and notes the UNHCR Guidelines’
reference to Afghanistan being the third most dangerous country in the world
for ethnic minorities including Hazaras, finding that all ethnic groups face
risks of violence in Afghanistan as some groups who are in a majority in one
region may be in a minority in another.
[27]
The Officer then states that the documentary
evidence reveals that the situation of Hazaras in Afghanistan has improved
markedly since the end of the Taliban regime but that discrimination continues
to be reported. The evidence the Officer cites is the US DOS Report and the UK
COI Report. The former refers to societal discrimination against Shia Hazaras
in the form of extortion of money through illegal taxation, forced recruitment,
forced labour, physical abuse and detention. This evidence supports the
Officer’s statement that discrimination continues to be reported but not the
conclusion that the situation of Hazaras in Afghanistan has improved markedly
since the end of the Taliban regime. However, the information referenced from
the UK COI Report could be considered supportive of that conclusion, as it
calls the Hazara homeland one of the safest in Afghanistan. It also refers to Hazaras
making up 40% of the population in Kabul as both a growing middle class and an
underclass of labourers.
[28]
The difficulty is that, as emphasized by the
Applicant, the reference in the UK COI Report is to an article from the
National Geographic magazine that appears to be significantly outdated. The UK
COI Report, while itself dating to February 2013, refers to this National
Geographic article as being an undated article that was accessed on October 1,
2012. However, the Applicant points out that the paragraphs quoted from the
article indicate it to date to a period six years after the Taliban fell, which
the parties agree was in 2001. As such, the Applicant correctly characterizes
this as an article appearing to date back to 2007. After the Officer’s
reference to the UK COI Report, the only other documentary evidence referred to,
before moving to consideration of discrimination on religious grounds, is a
section from the US DOS Report from which the Officer finds there is
insufficient evidence that Hazaras are excluded from political life.
[29]
Read in its entirety, the Officer’s decision to
refuse the Applicant’s application, in so far as it relates to the Applicant’s
Hazara ethnicity, is intelligible only if it based on the Officer’s finding
that the situation of Hazaras in Afghanistan has improved markedly since the
end of the Taliban regime. That finding in turn appears unsupported by any
evidence cited by the Officer other than the dated National Geographic article.
[30]
The Applicant points to a number of more recent
publications and media reports containing what he considers to be contradictory
evidence. This includes information that appears to be external to the NDP but
also information that is contained in the UK COI Report and the UNHCR
Guidelines, the sources that were relied on by the Officer. The UK COI Report,
referencing a UNHCR publication from 2010, describes a worsening security
situation on access routes to and from districts where Hazaras form a majority,
with regular reports of ambushes, robberies, kidnappings and killings by the
Taliban. In that context, the Applicant notes that travel through areas
occupied by the Taliban was one of the concerns he expressly raised with the Officer.
The UNHCR Guidelines, referencing sources from 2012 and 2013, note reports of
Hazaras continuing to be subject to harassment, intimidation and killings at
the hands of the Taliban.
[31]
As explained earlier in this decision, I am
conscious that the Court’s role is not to re-weigh the country condition
evidence, even that which is contained in the same documents that were cited by
the Officer. However, in this case, the evidence that was cited by the Officer
does not appear to support the decision, with the exception of a magazine
article dating to some eight years prior to the decision. It could be that, if
the Officer were to consider the more recent evidence, the decision would be
unchanged. However, the situation with which the Court is presented is a
decision that on its face appears to be based solely on information that is not
sufficiently current to make the decision a reasonable one.
[32]
Given the significance of the Applicant’s
ethnicity to the application considered by the Officer, the analysis above is
sufficient to set aside the decision. However, I note that the portion of the
decision related to access to education suffers from the same deficiency. The
Officer quotes at length largely negative information from the US DOS Report,
including its description of the status of girls and women in education as
remaining a grave concern. The Officer then refers to more specific information
about access to education for Hazara children who reside within the traditional
Hazara homeland of Hazarjat. This describes education as a priority and refers
to initiatives to provide access to education and the number of girls pursuing
higher education as rising. However, this information specific to Hazarjat is
again taken from the National Geographic article apparently dating to 2007.
[33]
The Officer makes no express finding with
respect to access to education, other than in relation to the ability of the
children to adapt to a new language. However, given the rejection of the
application, the Officer must have discounted the Applicant’s concerns about
access to education including that of his daughter. As with the portion of the
decision related to ethnicity, I find the decision also to be unreasonable in its
assessment of access to education, as apparently relying solely on the eight
year old magazine article.
[34]
The decision must therefore be set aside and referred
to another visa officer for re-determination.
[35]
Neither party proposed a question of general
importance for certification for appeal.
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