Docket: IMM-4664-16
Citation:
2017 FC 648
Ottawa, Ontario, July 5, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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PALWASHA BARAK;
ABDUL SHAKOOR BARAK; FARISHTA BARAK; AHMAD FAHIM BARAK; EHSANULLAH BARAK
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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.
Background
[1]
This is an application for leave and for
judicial review, pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001 c 27 [the IRPA], of a September 2, 2016 decision of
a visa officer [the Officer], in Islamabad, Pakistan [the Decision] wherein the
Officer determined that the Applicants do not meet the requirements for permanent
residence immigration to Canada, under either of the Convention Refugee Abroad
and Country of Asylum classes. For the reasons explained below, the judicial
review will be granted. A brief summary of the facts follows.
[2]
The Applicants claim to be nationals of
Afghanistan who fled as a family to Pakistan in 1996. The Applicants claim to
be targeted in Afghanistan and to have been displaced in Pakistan after first
fleeing from Kabul to Kandahar, because of their way of life which was deemed
to be too liberal and because they are Pashtun. Three of the Applicants claim
to have received, through bribes, Pakistani national ID cards given to
Pakistani citizens.
[3]
The Applicants were interviewed by the Officer
on August 29, 2016. Another of the Applicants was in the United States at the
time and did not participate in the interview. During the interview, the Officer
questioned the Applicants on their Pakistani ID cards and on their lack of
Afghani documentation.
[4]
The Officer was not satisfied that the
Applicants were not nationals of Afghanistan, thus failing to meet the Convention
Refugee definition. The Officer also decided that they did not qualify for the
Country of Asylum Class as they found life peaceful in Pakistan.
[5]
However, the Officer found that even in the
event the Applicants were nationals of Afghanistan, they did not describe
anything that would show that they were, or would be, seriously and personally
affected by the situation in Afghanistan, such that they might qualify under
the Convention Refugee Abroad definition.
II.
Issues and Analysis
[6]
The Applicants contend that the Officer erred by
failing to: (a) respect procedural fairness requirements; (b) exercise jurisdiction
in assessing the classes incorrectly; and (c) properly considering evidence,
including objective country condition documentary evidence.
A.
Standard of Review
[7]
Starting with the first issue raised, the
standard of review of correctness is applicable to an alleged breach of
procedural fairness (Sahar v Canada (Citizenship and Immigration), 2015
FC 1400 at para 14). The remaining two issues raised are all subject to a
reasonableness review: an officer’s decision about whether an applicant falls
within the Convention Refugee Abroad or Country of Asylum classes is a question
of fact and mixed fact and law to be determined on a standard of
reasonableness: Adan v Canada (Citizenship and Immigration), 2011 FC 655
at para 23.
[8]
After considering the arguments raised and
applying the appropriate standard of review, I find the Decision to be flawed
in at least two crucial areas, and as a result, will return it to the visa office
for reconsideration by a different Officer.
B.
Procedural Fairness
[9]
Turning then, to the substantive analysis, the Officer
fell short in two related respects of the brief analysis that was done
following the short interviews of the various claimants. The first involved the
analysis of refugee claims, and the failure to fairly examine the Applicants
during their interviews. The Officer did not adequately engage with the
Applicants in the central aspects of their claims (ethnicity and gender).
[10]
As a departure point, this Court has noted the
significance of the responsibility for visa officers abroad when it comes to
making refugee decisions. While the process differs from that before the
Immigration and Refugee Board, the effect of the decision is the same. The
assessment of these decisions differs from economic and family-based categories
of immigration, whereby the applicants are expected to provide all evidence to
substantiate eligibility criteria. Not so with refugee determinations, where
the applicants must raise Convention grounds (or even just the reasons) for which
they are claiming status. As stated by Justice Mosley in Krishnapillai v
Canada (Minister of Citizenship and Immigration), 2005 FC 244 at para 7, a
case also involving a Convention refugee abroad determination:
The authorities cited by the Respondent all
involve visa Officers making decisions about permanent residence and visitor
applications without the added element of statutory interpretation in this
case. While the decision-maker remains the same, the nature of the decision is
significantly different, being more law-intensive. The experience of visa Officers
in making refugee determinations is not as extensive as that, for example, of
the members of the Refugee Protection Division (RPD).
[11]
Other cases have similarly found what amounts to
a heightened duty of scrutiny – and therefore fairness – when it comes to refugee
determinations as opposed to other types of determinations abroad. The duty on
the officers abroad to consider all legal grounds of a refugee claim inferred
from the evidence stems from the early leading Canadian case on refugee law, Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689 at 745: the Supreme Court noted
that, arising out of paragraph 66 of the United Nations High Commissioner for Refugees
Handbook, “it is not the duty of a claimant to identify
the reasons for the persecution. It is for the examiner to decide whether the
Convention definition is met; usually there will be more than one ground.”
(See also: Elyasi v Canada (Citizenship and Immigration), 2010 FC 419 at
para 25).
[12]
There was some discussion of the onus of
Convention refugee grounds raised during the hearing. Clearly, the onus does
not fall on the Officer to make out the claim for the Applicant. As stated by
this Court recently in Mariyadas v Canada (Citizenship and Immigration),
2015 FC 741 at para 25 “the Officer cannot invent fears
and must rely upon what the Applicants say they fear”.
[13]
However, once a refugee ground is raised, the officer
has a duty to examine it, and engage with the evidence in analysing whether
there is a well-founded fear of persecution. In failing to consider all grounds
of persecution raised, the Officer errs, and the matter requires
reconsideration (Ghirmatsion v Canada (Citizenship and Immigration), 2011
FC 519 at para 108).
[14]
Here, the Applicants clearly raised the fear of
persecution in Afghanistan on the basis of their ethnicity. In addition, the
female Applicants – given that they studied in university (in the case of the
daughter) and taught in school (in the case of the mother) – also asserted a
fear of persecution based on their ability to conduct these activities in Afghanistan.
In sum, the Officer should have, at minimum, explained why the Applicants had
no well-founded fear of persecution on the grounds of ethnicity and gender.
C.
Assessing the Classes Abroad
[15]
I find that the Officer confounded the refugee
definition with the Country of Asylum class, in finding that “[i]f you are nationals of Afghanistan, you did not describe
anything that would show you were seriously and personally affected by civil
war, armed conflict or massive violation of human rights”. That is the
test for the Country of Asylum (Humanitarian-Protected Persons Abroad
Designated), and not the Convention Refugee Abroad class. It is an error of law
to conflate the Country of Asylum test with the refugee determination test.
[16]
This error is somewhat related to the first, in
that the Officer did not address the fear of persecution based on ethnicity or
gender in the parts of the Decision which purported to address the Convention Refugee
Abroad class. In this way, the Decision suffered from the same flaws as did the
Islamabad visa office decision under review for Afghanis in Ismailzada v
Canada (Citizenship and Immigration), 2013 FC 67.
[17]
In short, I find that the Officer failed to
address either of the main Convention refugee grounds sufficiently (namely (i) ethnicity
and (ii) gender). These grounds were readily identifiable on the record, both
in the application forms, as well as in discussion raised during the interview.
However, to the extent that the Officer addressed the situation in Afghanistan
– and the Decision was focused more on the belief that the Applicants had a
durable solution in Pakistan – the Officer failed to engage in any meaningful analysis
of these two grounds.
D.
Overlooking Evidence
[18]
Finally, the Applicants argue that the Officer
erred in failing to properly consider evidence, by overlooking certain country
condition evidence. Given the two errors explained above - which are
determinative of this judicial review - there is no need to rule on this third
issue raised.
III.
Conclusion
[19]
For the reasons above, this application for
judicial review is granted, and will be returned to the visa office for
reconsideration by a different officer. The parties agreed that there are no
questions for certification, and I agree that none arise.
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