Docket: IMM-2807-15
Citation:
2016 FC 313
Ottawa, Ontario, March 15, 2016
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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GUL AFZA
HOSSAIN
JAFAR HOSSAIN
RAHIM HOSSAIN
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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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JUDGMENT AND REASONS
I.
Overview
[1]
Ms Gul Afza Hossain and her two sons fled Afghanistan
nearly 20 years ago to escape persecution on the basis of their ethnicity
(Hazara) and their faith (Shia Muslim). They have been living in a refugee camp
in Pakistan ever since. Without government assistance and having no
right to work, they manage to support themselves by selling cans of soda or
soup on the street. The police harass them and demand bribes. Their future in
Pakistan is uncertain as the government has recently threatened to remove
Afghan refugees. The children cannot attend school.
[2]
Ms Hossain’s daughter, a Canadian citizen,
attempted to sponsor the applicants for permanent residence in Canada. A visa
officer in Islamabad interviewed the applicants to determine whether they had a
well-founded fear of persecution if they were to return to Afghanistan, or
could be considered to be seriously and personally affected by civil war, armed
conflict or massive violation of human rights there. If the former, they would
be considered refugees. If the latter, they would fall within the country of
asylum class (according to s 96 of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA], and s 147 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [IRPR] respectively – see Annex).
[3]
The officer concluded that the applicants did
not meet any of these tests. He found that their fear of returning to
Afghanistan arose from general conditions in that country faced by the entire
population. Further, according to the officer’s reading of the documentary
evidence, conditions have improved for Hazara Shia citizens of Afghanistan
since the applicants left. They can now participate in the political and social
life of the country, and are free to practice their faith. The government of
Afghanistan now recognizes Shia Islamic law. Accordingly, the officer rejected
their application.
[4]
The applicants contend that the officer’s
conclusions were unreasonable. They say that he relied on outdated information
and, even then, misinterpreted the evidence he purported to rely on. Further,
they argue that the officer unreasonably concluded that their concerns related
to general conditions in Afghanistan and they fear that they will be specifically
targeted as Hazaras. The applicants ask me to quash the officer’s decision and
order another officer to reconsider their application.
[5]
I agree with the applicants that the officer’s
conclusions were unreasonable. He failed to take account of significant
evidence favouring the applicants’ position. I must, therefore, allow this
application for judicial review.
[6]
The sole issue is whether the officer’s decision
was unreasonable.
II.
The Officer’s Decision
[7]
The officer relied heavily on a 2012 document –
the Annual Report of the United States Commission on International Religious
Freedom. That report notes that, after the fall of the Taliban, Hazara Shia
people have experienced improved circumstances in Afghanistan. For example,
they are represented in Parliament and hold positions in the public service. In
addition, their places of worship have been rebuilt, and the Constitution has
been amended to recognize Shia Islamic law.
[8]
In light of this evidence, the officer
interpreted the applicants’ fears of returning to Afghanistan as being concerns
about personal safety which all residents of that country currently experience.
Further, the evidence did not show that the applicants fell within the country
of asylum class which requires that they be “seriously
and personally affected by civil war, armed conflict or massive violation of
human rights”.
III.
Was the officer’s decision unreasonable?
[9]
The Minister maintains that the officer’s
decision was reasonable because the documentary evidence did not support the
applicants’ fears, and their testimony at the interview did not support a
finding that they fell within the country of asylum class. Further, the
applicants lacked credibility as they failed to produce Afghani identification
cards (called Tazkiras).
[10]
I disagree.
[11]
Any credibility concerns the officer may have had
did not figure in the decision. The officer noted that the applicants had
failed to produce Tazkiras. Some Tazkira numbers appeared on Ms Hossain’s son’s
marriage certificate, but the applicants gave inconsistent answers about the
source of those numbers. The officer found their story to be implausible.
However, there is no indication that the officer doubted the applicants’
identities or their country of origin. The officer appeared to give no weight
to these issues in his decision.
[12]
Regarding the documentary evidence on country
conditions, as mentioned, the officer relied primarily on a 2012 report to
conclude that the applicants’ fears of mistreatment in Afghanistan were no
longer well-founded. Even that report, however, noted that minority groups
continued to endure religious persecution and that the safety of Shia Muslims
would be uncertain if foreign troops were to leave Afghanistan, as they did in 2014.
[13]
In addition, later reports from reliable
sources, which pre-date the officer’s decision, show that Shia Muslims are
targeted for violence, intimidation, kidnappings, and execution and that they cannot
rely on the state to protect them. Further, they reveal that Hazaras have
endured various forms of abuse in recent years, including extortion, abduction,
detention, and murder. The officer did not refer to any of that evidence.
[14]
The recent evidence also supports the
applicants’ contention that their fear of returning to Afghanistan is not a
general concern about safety that all residents of that country may experience.
It points to specific threats to Shia Muslims and Hazaras. Again, the officer
did not take that evidence into account when he concluded that the applicants
had not demonstrated that they should be considered refugees or members of the
country of asylum class.
[15]
Given that there was substantial and widely
available evidence that contradicted the officer’s conclusions, which the
officer did not take into account, I find that his conclusions do not represent
a defensible outcome based on the facts and the law. They were unreasonable.
IV.
Conclusion and Disposition
[16]
The officer failed to take into account relevant
and important evidence supporting the applicants’ fear of returning to
Afghanistan. Accordingly, I find that his conclusion was unreasonable based on
the facts and the law, and will order another officer to reconsider the
applicants’ application. Neither party proposed a question of general
importance to be certified, and none is stated.
[17]
Ms Hossain asked that the style of cause be
amended to include her sons, who are also applicants on this judicial review. I
will grant her request.
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