Docket: IMM-1904-20
Citation: 2022 FC 662
Ottawa, Ontario, May 5, 2022
PRESENT: The Honourable Justice Fuhrer
| BETWEEN:
|
| RAIHAN HALIMI
POORAN HALIMI
|
| Applicants
|
| and
|
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1] The Applicants are sisters and citizens of Afghanistan. They fear gender-based persecution and seek permanent residence in Canada on the basis of humanitarian and compassionate [H&C] considerations. A Migration Officer [Officer] rejected their claims. They now seek judicial review of the Officer’s decisions.
[2] There is no dispute that the overarching issue for determination in this matter is whether the Officer’s decisions were reasonable. The presumptive standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 10. I find that none of the situations rebutting such presumption is present here.
[3] To avoid judicial intervention, the decision must bear the hallmarks of reasonableness – justification, transparency and intelligibility: Vavilov, at para 99. A decision may be unreasonable if the decision maker misapprehended the evidence before it or did not meaningfully account for or grapple with central or key issues and arguments raised by the parties: Vavilov, at paras 125-127. The party challenging a decision has the onus of demonstrating that the decision is unreasonable: Vavilov, at para 100.
[4] I find that the Applicants have satisfied their onus in the circumstances. For the reasons that follow, I therefore grant this application for judicial review.
II.
Background
[5] The Applicants studied medicine in Russia but they now reside in Afghanistan.
[6] The Applicants’ father is the founder and operator of a non-governmental organization [NGO] and a construction company that worked with several international organisations on various foreign-funded projects. The projects were all conceived by NATO, its affiliates, foreign aid organisations or the Afghan government.
[7] In March 2014, the Applicants’ father began to receive threats from the Taliban. Starting June 2015, the Taliban demanded significant monetary payments as a fine. The Applicants’ father also received several other threat letters in which he was accused of assisting foreigners and working against Islam principles. Unable to secure any long-term support from the police, the Applicants’ father left the country in December 2015.
[8] In January 2016, the Applicants’ father learned that armed men forced their way into the family home in Afghanistan. They were looking for him, and threatened to kill his family should he not be apprehended. Following this event, the Applicants’ father asked his family to relocate to another city.
[9] The Applicants’ father eventually arrived in Toronto in February 2016. He subsequently filed for refugee protection and was granted refugee status in January 2017. He also submitted an application for permanent resident [PR] status for him and his dependents outside Canada, namely his spouse and seven children including the Applicants.
[10] At the time of their father’s application, the Applicants were in their mid-twenties and still studying in Russia. They graduated in June 2018 and attended classes to prepare for entrance examinations in Afghanistan. Their parents covered all educational and other expenses. The Applicants also actively volunteered in support of the rights of women and children in Afghanistan through a local organization called Voice of Women Organization.
[11] In February 2019, the Officer issued a procedural fairness letter [PFL] alerting the Applicants’ father that the Applicants were not eligible as dependent children because they were above the dependency age of 19 years in effect when the PR application was filed (i.e. between August 1, 2014 and October 24, 2017).
[12] In April 2019, the Applicants’ counsel responded to the PFL with written submissions and documents supporting a request for H&C relief in their case pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. (See Annex “A”
below for relevant provisions.) The Officer’s nearly identical decisions issued on January 15, 2020 [Decisions] and concluded that H&C considerations do not justify granting them an exemption from any applicable criteria or obligation of the IRPA.
III.
Analysis
[13] I find the determinative issue in this matter is the unreasonableness of the Officer’s decision to reject the Applicants’ H&C application based on a failure to analyze the risk these Applicants would face in Afghanistan as a result of separation from their family.
[14] The Applicants recognize in their submissions that they are not eligible as dependent children pursuant to section 116 and paragraph 117(1)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227, and subsection 12(1) of the IRPA. They filed an H&C application to be exempted from the requirements of these sections.
[15] I find that the Applicants’ attempt at the hearing of this matter to revisit the issue of whether they are “dependent children”
(as defined in the IRPA s 2) by relying on the Court’s decision in Mukilankoy v Canada (Citizenship and Immigration), 2017 FC 161 [Mukilankoy] is misplaced. The Court’s comment (at para 43) that “[a]ny evidence proving that the applicant for a permanent residence visa is not independent even though he or she is over 19 years of age thus deserves special attention,”
must be viewed in context.
[16] In the previous sentence of that same paragraph 43 of the Mukilankoy decision, the Court specifically draws attention to the exemption to the age exclusion of the definition, namely, that the person, even though older than 19, is not independent because of a financial dependency related to a physical or mental condition. In the very next paragraph, the Court finds the decision maker failed to consider the reason why the applicants in that case were not entirely autonomous, that is the socioemotional scars of their unstable childhood.
[17] Although the Applicants’ evidence points to continued financial dependence on their parents, I find there is no evidence here that the Applicants themselves suffer from a physical or mental condition (as opposed to societal norms or constraints) that prevents them from being financially autonomous. More to the point, I am not persuaded the Officer’s conclusion that the Applicants did not establish dependency on their family, apart from potential financial dependency, in itself, was unreasonable in the circumstances.
[18] That said, I am of the view that the Officer failed to analyze the risk to the sisters of remaining in Afghanistan alone, if the rest of the family immigrates to Canada. The Applicants explained in their submissions in response to the PFL that, pursuant to the evidence submitted, the “life, liberty and security of the two sisters would be at serious risk, should they be left behind as unprotected young unmarried women in Afghanistan.”
The Officer failed to analyse or even mention this in the Decisions.
[19] I am mindful that while country conditions in Afghanistan have changed with the overthrow of the Afghan government in August 2021 by the Taliban who have resumed control of the country, the Court must review the reasonableness of the Decisions through the lens of the conditions in evidence at the time the Decisions issued on January 15, 2020.
[20] As of the date of the Decisions, the Officer recognizes at the outset “that Afghanistan is a country with systemic violations of human rights and a lack of gender equality.”
In addition, the objective documentation submitted by the Applicants emphasizes the risk faced by women in Afghanistan without male support. Women who are perceived as transgressing social norms experience social stigma, general discrimination and threats to safety. Although the Applicants studied in medicine and continue to pursue qualifications in their chosen field, the objective evidence indicates that working could pose a danger if the Applicants were living alone. The Decisions do not address this.
[21] Instead, notwithstanding the Officer’s recognition of human rights violations and lack of gender equality in Afghanistan, the Officer refers to the fact that the Applicants were able to live abroad apart of their family for extended periods, that is without the direct protection of their father. The fact that they did so successfully outside Afghanistan, is not indicative in my view of whether they could do so inside the country. I find the Officer unduly focusses and relies on the Applicants’ past lived experiences abroad, rather than taking into account the objective documentation, to analyze their future, potentially vulnerable situation should they be separated from their family. In short, comparing their future situation as women alone without support in Afghanistan to their situation while studying in Russia is unreasonable and warrants the Court’s intervention.
IV.
Conclusion
[22] For the above reasons, I therefore grant the Applicants’ judicial review application. The Decisions are set aside and the matter will be remitted for redetermination by a different officer or decision maker.
[23] Neither the Applicants nor the Respondent proposed a question for certification, and I find that none arises in the circumstances.
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