Date:
20131206
Docket:
IMM-1446-12
Citation:
2013 FC 1229
Ottawa, Ontario,
December 6, 2013
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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ASHOR BAKHTIARI
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant in this case seeks judicial review of a decision dated November 5,
2011, rendered by a visa officer of the High Commission of Canada in Islamabad,
Pakistan, refusing the Applicant’s application for permanent residency as a
member of the Convention refugees abroad class or the Country of asylum class
pursuant to sections 145 and 147 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the “IRPR”).
[2]
For
the reasons that follow, I have come to the conclusion that this application
ought to be dismissed, as I have found that the officer properly applied the
relevant legal principles and did not misunderstand or misconstrue the
evidence.
FACTS
[3]
The
Applicant, his wife and two dependants are Afghan citizens of
Shia-Hazara-Ismaili ethnic and religious background, now living in Pakistan. They fled Kabul for Pakistan due to their fear of a man named Janagha and his
family, who were members of the Jamiat e Islami Political Party, a very
powerful political party that is currently active in Afghanistan. Janagha and
the Applicant were neighbours for a long time. In 1996, roughly 15 days after
the Taliban captured Kabul, the Taliban searched the Applicant’s shop and found
homemade alcohol. They told the Applicant he was not a real Muslim. The
Applicant and his son were taken into custody and severely beaten. The
Applicant’s son, fearing for the Applicant’s life, revealed to the Taliban that
Janagha’s son, Sheeragha, had provided the alcohol and that his father knew
nothing about it. The Taliban took Sheeragha into custody and beat him with a
cable until he fainted. They then began beating the Applicant’s son but the
Applicant threw himself over him and pled with the Taliban to stop beating him
or he would die. The Taliban then took the Applicant to another cell. Six
days later, while the Applicant was still in detention, he was informed by
other detainees that the Taliban had killed both his son and Sheeragha.
[4]
The
Applicant was detained for 10 days and was released as a result of his wife
selling the contents of their shop and giving the money to the Taliban in
exchange for his freedom. His wife told him that Sheeragha’s father and uncle
had threatened her, saying that their entire family would be killed if
Sheeragha were to die. The following morning, the Applicant and the remainder
of his family fled to Pakistan. They have not returned to Afghanistan since.
[5]
The
Applicant, along with his family, applied for permanent residence in Canada in 2008 as members of the Convention refugees abroad class or the Country of asylum
class, through a sponsorship by the Association Éducative Transculturelle in
Québec. The Applicant and his family were interviewed at the Canadian High
Commission in Islamabad on September 27, 2011, and their application was
rejected by letter dated November 5, 2011.
[6]
In
his application for permanent residency, the Applicant presented his problem
with the Taliban and Janagha’s family. He explained that Shia-Hazara-Ismaili
people were persecuted by the Taliban in Afghanistan and that there is no
security or protection of human life in that country. He also explained that
in Pakistan his family cannot get work permits or attend government schools and
that they suffer from police harassment for working illegally.
DECISION UNDER
REVIEW
[7]
The
visa officer determined that the Applicant did not meet the requirements for
immigration to Canada. Citing the relevant legislative provisions and after
carefully assessing all of the factors relative to the application, the officer
was not satisfied that the Applicant was a member of any of the classes
prescribed for reasons brought to his attention during the interview and set
out in the notes.
[8]
In
particular, the officer found that the Applicant did not meet the requirements
of a “person in the Country of asylum class (RA)” pursuant to section 147 of
the IRPR and was not satisfied on the balance of probabilities that he
was and continued to be seriously and personally affected by armed conflict,
civil war or massive violations of human rights. The officer notes that OP
manual 5 defines “seriously and personally affected” as a “sustained, effective
denial of basic human rights”.
[9]
With
regard to the Convention refugees abroad class, the officer was not satisfied
that there is a reasonable chance that the Applicant or his family member would
be persecuted should they return to their country of origin or that there are
good grounds for their fear of persecution if they were to return.
[10]
The
interview notes show that the officer questioned the Applicant regarding his
employment as a fruit seller in Pakistan and his housing situation there,
appearing to have concerns regarding the consistency of the housing details,
however there was no indication of the relevance of this concern.
[11]
The
officer asked if the family would return to Afghanistan to visit should their
application be approved, and they stated that they could not because they have
enemies there and fear that the Applicant or another family member would be
killed.
[12]
The
officer questioned the Applicant as to why he and his family decided to leave Afghanistan. He explained the circumstances surrounding his detention by the Taliban and
the threats received by Janagha’s family.
[13]
The
officer also asked whether the Applicant and his family could move “anywhere
else in Afghanistan”. The Applicant stated that they could not because they
feared Janagha’s family even in Pakistan and would not be safe in Afghanistan
due to the family’s political affiliation with the Jamiat party and related
power.
[14]
As
can be seen from the notes, the officer asked them whether their fear of
Janagha’s family was the only reason they could not return to Afghanistan and the Applicant responded affirmatively.
[15]
In
the assessment, the officer found the Applicant to be credible. In the
officer’s view, the Applicant fled from Kabul with his family “due to a
personal enmity with a family who may or may not be powerful/influential”,
explaining in parentheses that “this is a consistent description of persons of
enmity throughout such applicants” [sic]. The officer notes that the Applicant
“clearly stated that his fear is based on this persons [sic] threat to seek
revenge for having turned in his son”.
[16]
The
officer notes that the Applicant remained in Kabul even when his wife’s family
left as a result of civil disturbance before the Taliban took power and states
that “[u]pon repeated questioning the PA demonstrates that there is no other
reason for having fled, or fearing to return”. Although the officer sympathizes
with the Applicant and his family, their reasons for having sought refuge do
not correspond to the relevant categories.
[17]
The
officer examined the other members to establish their fear for returning to Afghanistan. The officer informed the family that personal enmities are not a reason for
granting refugee status and that the officer was not convinced that they would
not have an Internal Flight Alternative (IFA) or that state protection would
not be available. The Applicant’s wife explained that because they are
Shia-Hazara-Ismaili, they could only live in Kabul and not in other provinces.
ISSUES
[18]
The
Applicant asserts that the officer erred in law in dismissing his Convention
refugee claim on the basis that it arose from a personal enmity. He argues
that they are at risk because of their family relationship to their son and
that family relationship is a valid social group for seeking refugee status
when the family is itself, as a group, the subject of reprisal and vengeance.
[19]
The
Applicant further argues that the officer misapplied paragraph 147(b) of
the IRPR and wrongly found that the Applicant and his family would not
be seriously affected if returned to Afghanistan after accepting that the
Applicant was tortured and his son killed by the Taliban and that Janagha’s
family threatened to kill them.
[20]
Finally,
the Applicant argues that the officer erred in holding that the Applicant and
his family could go anywhere else in Afghanistan, and did not consider the
testimony of the Applicant’s wife that they belong to the minority Hazara group
and cannot go to the provinces where Pashtuns and Taliban reigned. The
Applicant also alleges that the officer failed to consider publicly available
documents on country conditions in Afghanistan to assess the accessibility and
reasonableness of an IFA in this particular case.
[21]
I
will turn to each of these arguments in the following remarks.
ANALYSIS
[22]
Before
addressing the Applicant’s arguments, the applicable standard of review must be
determined. A visa officer’s decision as to whether an applicant is a member
of the Convention refugees abroad class or the Country of asylum class has been
held to be a question of mixed fact and law reviewable on a standard of
reasonableness. See e.g. Azali v Canada (Minister of Citizenship and
Immigration), 2008 FC 517 at paras 11-12; Quarizada v Canada (Minister
of Citizenship and Immigration), 2008 FC 1310 at para 15; Kamara v
Canada (Minister of Citizenship and Immigration), 2008 FC 785 at para 19; Alakozai
v Canada (Minister of Citizenship and Immigration), 2009 FC 266 at paras
18-20; Ismailzada v Canada (Minister of Citizenship and Immigration),
2013 FC 67 at para 8.
[23]
Accordingly,
the analysis of the officer’s decision will be concerned with the “existence of
justification, transparency and intelligibility within the decision-making
process” and also with “whether the decision falls within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law”: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47.
[24]
The
two relevant classes are described in sections 145 and 147 of the IRPR:
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145.
A foreign national is a Convention refugee abroad and a member of the
Convention refugees abroad class if the foreign national has been determined,
outside Canada, by an officer to be a Convention refugee.
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145.
Est un réfugié au sens de la Convention outre-frontières et appartient à la
catégorie des réfugiés au sens de cette convention l’étranger à qui un agent
a reconnu la qualité de réfugié alors qu’il se trouvait hors du Canada.
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147.
A foreign national is a member of the country of asylum class if they have
been determined by an officer to be in need of resettlement because
(a)
they are outside all of their countries of nationality and habitual
residence; and
(b)
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.
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147.
Appartient à la catégorie de personnes de pays d’accueil l’étranger considéré
par un agent comme ayant besoin de se réinstaller en raison des circonstances
suivantes :
a)
il se trouve hors de tout pays dont il a la nationalité ou dans lequel il
avait sa résidence habituelle;
b)
une guerre civile, un conflit armé ou une violation massive des droits de la
personne dans chacun des pays en cause ont eu et continuent d’avoir des
conséquences graves et personnelles pour lui.
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[25]
In
both cases, applicants must also conform to section 139 of the IRPR. In
particular, paragraph 139(1)(d) provides:
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139.
(1) A permanent resident visa shall be issued to a foreign national in need
of refugee protection, and their accompanying family members, if following an
examination it is established that
…
(d)
the foreign national is a person in respect of whom there is no reasonable
prospect, within a reasonable period, of a durable solution in a country
other than Canada, namely
(i)
voluntary repatriation or resettlement in their country of nationality or
habitual residence, or
(ii)
resettlement or an offer of resettlement in another country;
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139.
(1) Un visa de résident permanent est délivré à l’étranger qui a besoin de
protection et aux membres de sa famille qui l’accompagnent si, à l’issue d’un
contrôle, les éléments suivants sont établis :
…
d)
aucune possibilité raisonnable de solution durable n’est, à son égard,
réalisable dans un délai raisonnable dans un pays autre que le Canada, à
savoir :
(i)
soit le rapatriement volontaire ou la réinstallation dans le pays dont il a
la nationalité ou dans lequel il avait sa résidence habituelle,
(ii)
soit la réinstallation ou une offre de réinstallation dans un autre pays;
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a)
Did the officer err in concluding that the Applicant’s fear is not based on a
Convention ground?
[26]
There
is no dispute that family relationship may constitute a “particular social
group” pursuant to section 96 of the Immigration and Refugee Protection Act,
SC 2001, c 27 (“IRPA”). However, it is equally well established
that the mere fact a claimant is targeted because of his family ties is not
sufficient to bring the persecutory treatment within that category. The
Respondent correctly states that the general underlying themes of the defence
of human rights and anti-discrimination that form the basis for the
international refugee protection regime must be taken into account when interpreting
the notion of a “particular social group” in the IRPA. It is in that
context that this Court has consistently held that the victims of crime are not
by virtue of that fact members of a particular social group. That being the
case, family relationship will not constitute a “particular social group” when
the primary victim is targeted for retribution or criminal purposes. In other
words, the fact that a person alleges to be persecuted because he or she is a
family member of another person who fears persecution is not sufficient, in and
of itself, to ground a refugee claim. The primary victim must be persecuted on
a valid Convention ground; the fact that a claimant is a member of a family, a
member of which has been threatened with death, does not make that claimant a
member of a particular social group where the threat is the result of
retribution or criminal revenge. As Justice Dawson stated in Gonzalez v Canada (Minister of Citizenship and Immigration), 2002 FCT 345 at para 16:
To find otherwise would be to conclude that
persecutory treatment directed to family members in no way related to
discrimination or fundamental human rights would attract the protection of the
Convention. For example, if children were the victims of persecutory conduct
as a result of a parent’s failure to forego a commercial opportunity or to
cheat in a sporting event, I do not believe that it is intended that the
Convention should be engaged to protect the children. That does not mean that
protection ought not to be afforded, or that it would not be afforded, but
simply that the source of the protection ought not to be the Convention.
See also: Forbes v Canada (Minister of
Citizenship and Immigration), 2012 FC 270 at paras 4-6; Alassouli v Canada (Minister of Citizenship and Immigration), 2011 FC 998 at para 24.
[27]
In
the case at bar, the Applicant’s fears are based on threats of violence in
retribution for actions taken by his son. Having been threatened with death,
the Applicant is a victim of crime. However the fact that the criminal
activity stems from actions taken by a family member and the threats are to the
family generally does not bring the persecutory treatment within the ground of
a “particular social group”. Reference was made in the Applicant’s application
for permanent residence to the persecution they suffered in Afghanistan as Hazaras. Even if the officer accepted his testimony regarding his son’s
death and his detention and torture at the hands of the Taliban who said that
they were “not real Muslims”, it was clear at the interview that family enmity
with Janagha’s family was the only reason the Applicant and his family feared
returning to Afghanistan. The officer made no error in determining that a fear
of violence resulting from family feud is not a valid Convention ground.
b) Did the officer err
in finding that the Applicant is not a member of the Country of asylum class?
[28]
The
Applicant’s position with regard to the officer’s determination of his
membership in the Country of asylum class is not entirely clear. The Applicant
argued that it was not open for the officer to find that he and his family will
not be seriously affected if they return to Afghanistan while accepting that Janagha’s
family had threatened to kill the Applicant’s entire family and that the
Taliban had killed the Applicant’s son and tortured the Applicant.
[29]
Members
of the Country of asylum class need not meet the definition of Convention
refugee, and consequently need not demonstrate a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion. Rather, they must demonstrate
that they are displaced outside of their country of nationality and habitual
residence, and have been and continue to be seriously affected by civil war,
armed conflict or massive violations of civil rights, and that there is no
reasonable prospect within a reasonable period of a durable solution elsewhere
for them.
[30]
It
is true that in his written application for permanent residence, the Applicant
had indicated that “…there is not any security of our life [in Afghanistan], still there is kidnapping, bomb blasts. There is no protection of human
life…” (Tribunal Record, p. 71). Yet during the interview, the Applicant
focused exclusively on the situation created by the personal enmity with Janagha’s
family, which the Applicant believed was a very powerful family due to
associations with the Jamiat political party. The Applicant’s wife and two
children each confirmed that this was the basis of their fear. Further, the
officer noted that the Applicant had not left Afghanistan when other family
members had, following the civil disturbances prior to the Taliban regime.
Finally, it was also noted that the Applicant stated he could live in Kabul, were it not for the personal enmity.
[31]
In
those circumstances, I believe the officer’s conclusion on the Applicant’s
eligibility to the Country of asylum class is reasonable even if he did not
conduct a thorough assessment of the Applicant’s situation in this regard. Contrary
to the situations in Saifee v Canada (Minister of Citizenship and
Immigration), 2010 FC 589 and in Ismailzada v Canada (Minister of
Citizenship and Immigration), 2013 FC 67, the officer did not fail to reach
a conclusion on the Country of asylum class, and did not confuse the criteria
for both tests. The officer was aware of the Applicant’s concerns based on his
status as a Shia-Hazara-Ismaili. However, these concerns only arose in the
context of their fear of Janagha’s family and in their response that they could
not move elsewhere in Afghanistan to avoid this family. The Applicant’s ethnic
and religious status was not presented as a separate ground of risk. In those
circumstances, it was therefore reasonably open to the officer to conclude that
the Applicant had not discharged his burden of establishing that he would be
seriously and personally affected by armed conflict or massive violations of
human rights in Afghanistan.
[32]
Much
like the officer, this Court is sympathetic to the family’s situation but is
unable to conclude that the officer erred in determining that the reasons for
having sought refuge do not correspond to the definition found in section 147
of the IRPA of a member of the Country of asylum class. Indeed, this
case is similar to the situation described in Qarizada v Canada (Citizenship and Immigration), 2008 FC 1310 at para 28:
The application before the officer was not based
upon the general conditions in Afghanistan after several decades of
insurrection and civil war but upon Commander Khan’s purported enmity towards
the principal male applicant stemming from his refusal to allow the Commander
to marry his sister. The officer was not obliged to search out and to
reference country condition evidence to address issues that were not raised and
were not grounded in the evidence.
[33]
In
light of the above, I am therefore of the view that this second argument of the
Applicant in support of his submission to quash the impugned decision ought to
be dismissed.
c) Did the officer err
in finding that the Applicant has a viable IFA?
[34]
The
Applicant asserts that the officer erred in holding that they could go anywhere
else in Afghanistan where their lives would not be threatened by Janagha’s
family. The Applicant goes on to submit that the officer erred by failing to
identify exactly where in Afghanistan an IFA might exist, and by ignoring his
wife’s testimony that they cannot safely live among Pashtuns. Finally, the
Applicant adds that the officer failed to consider any documents regarding the
current country conditions in Afghanistan.
[35]
While
I do not disagree with the general principles enunciated by the Applicant, they
are of no help in the particular circumstances of this case for the simple
reason that it is manifest on a reading of the entire decision and of the Computer
Assisted Immigration Processing System (CAIPS) notes that the officer did not
reject the application on the basis of an IFA. Indeed, there is no mention of
an IFA in the decision communicated on November 5, 2011.
[36]
The
notes reveal that the officer did inquire as to whether the Applicant could
relocate to another province in Afghanistan, to which the Applicant’s wife
responded that they could not live outside of Kabul as a result of their
religion and ethnicity. The officer therefore had this evidence before him
prior to making his decision. However, the officer’s decision was not based on
the possibility of relocating. Rather, as noted in the reasons, the officer
relied on the Applicant’s own statement that he could live in Kabul. It was
only the personal situation with Janagha’s family which prevented the Applicant
from returning to Kabul and, as the officer reasonably found, this was an insufficient
basis for a claim as a Convention refugee or a Country of asylum class.
CONCLUSION
[37]
For
all of the above reasons, the officer’s conclusions were reasonable and must be
given deference. There is accordingly no basis for review, and the application
is dismissed. No questions were proposed for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is dismissed. No
questions are certified.
"Yves de
Montigny"
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