Date: 20030410
Docket: IMM-2340-02
Neutral citation: 2003 FCT 421
BETWEEN:
ANIL KUMAR KAKKAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LAYDEN-STEVENSON J.
[1] In a decision dated May 1, 2002, an immigration officer determined that the applicant's application for an exemption under subsection 114(2) of the former Immigration Act, R.S.C., 1985, c. I-2 (the Act), from the requirement to obtain an immigrant visa prior to coming to Canada, would not be granted on humanitarian and compassionate (H & C) grounds. The applicant seeks judicial review of that decision.
[2] Mr. Kakkar was born in 1974 and is a Hindu citizen of Afghanistan. On January 10, 1996, he came to Canada and claimed Convention refugee status. His claim was denied and he did not seek leave to apply for judicial review of that decision. He submitted an application for determination as a member of the post-determination refugee in Canada class (PDRCC) on November 13, 1998. His application was denied. He applied, on June 30, 2000, for landing from within Canada on humanitarian and compassionate grounds.
[3] The H & C review was conducted pursuant to subsection 114(2)of the Act. Before making a decision, the H & C officer obtained a risk opinion from a risk assessment officer (PCDO). The result of the risk assessment was sent to the applicant on March 14, 2002. The applicant was invited to comment on errors or omissions. He responded by correspondence dated March 27, 2002. The PCDO, in a memo to the H & C officer dated April 16, 2002, considered the applicant's submissions and concluded that there existed insufficient objective documentary evidence to conclude that the applicant would face an objectively identifiable personalized risk in Afghanistan. The H & C officer, after reviewing all of the information, was not satisfied that there was sufficient evidence to demonstrate humanitarian and compassionate grounds to warrant a decision waiving the requirements of subsection 9(1) of the Act and refused the application.
[4] The applicant's written submissions contain various alleged errors regarding the impugned decision, but at the hearing only one ground of review was relied upon and argued. The applicant submits that the H & C officer erred in law in determining that there was no objectively identifiable risk to the applicant if he were to return to Afghanistan. Specifically, the applicant alleges that relevant evidence was ignored. Referring to documentary evidence, the applicant notes the decree of the Taliban whereby Hindus in Afghanistan were required to wear an identity label on their clothing to distinguish them from Muslims, and Hindu women were forced to wear veils. He alleges that the finding that the decree was discriminatory, rather than persecutory, is perverse and capricious and is a reviewable error of law. Additionally, the applicant submits that he presented documentary evidence that speaks to the situation in Afghanistan in the early 1990's prior to the Taliban regime. Both the H & C and the PDCO officers erred, argues the applicant, by failing to consider whether the change in country conditions is permanent.
[5] The H & C officer's decision, relative to the risk factor, contains the following statement:
Subject submitted that as a Hindu, he would be at risk throughout Afghanistan. A PCDO conducted a risk assessment upon my request and rendered a negative risk opinion on 14 March 2002. I reviewed the PCDO's opinion that the subject would not face an objectively identifiable personalized risk if he returned to Afghanistan and found it reasonable. I also considered the documentary submissions on file regarding the treatment of Hindus in Afghanistan and the change in government rule from the defeated Taliban government to an interim government. Although the subject may face some difficulty as a Hindu inAfghanistan, I am not satisfied that it is to the extent of dis-proportionate hardship.
After considering the totality of all the applicant's circumstances, I am satisfied that disproportionate or unusual and undeserved hardship would not occur if he were to return to Afghanistan and apply for an immigrant visa in the normal manner. Therefore, An A(1) waiver is refused.
[6] Regarding the "identification" decree, the PCDO relied upon documentary evidence provided in the IRB Response to Information Request and noted that the decree was allegedly imposed to spare non-Muslims from the enforcement of rules that are mandatory for Muslims. The documentary evidence further indicated that the Taliban were quite tolerant of the religious practices of non-Muslims, including participation in activities that were banned for the Muslim population. Since non-Muslims in Afghanistan constituted only one percent of the population, they did not pose a threat to the Taliban. A second IRB Response to Information Request included a report from the director of the Centre for Afghanistan Studies at the University of Nebraska, Omaha. The director stated that he was unaware of any case of Hindus being mistreated by the Taliban and added that they were not targeted because the community is small and does not pose a threat to the Taliban. The PCDO ultimately concluded that the decree, while discriminatory, was not persecutory.
[7] Next, the officer referred to the documentary evidence as a whole and stated as follows:
Documentary evidence as a whole indicates that the government of the United States of America, along with its allies launched an operation post September 11, 2001 that was supported by the United Nations. The primary intention of U.S. led operations is the defeat of the Taleban government and its supporter, the terrorist organization Al-Qaida that is believed to be operating from within Afghanistan. The government of the United States of America and its allies were successful in defeating the Taleban government late 2001. The interim government, led by Hamid Karzai has brought peace to the capital city of Kabul, however rehabilitation and security from criminal elements continues to be problematic. The interim government however is actively seeking remedies to the country's problems, primarily being [sic] ensuring public safety by addressing the deep-rooted tribal conflicts of Afghan society and recovery of a land that has been ravaged by war for the past 23 years.
[8] In reporting to the H & C officer, the PDCO stated her conclusion that while the country conditions are far from favourable in Afghanistan, there was insufficient evidence to establish that the applicant would face a risk that would not be encountered by the general population of Afghanistan.
[9] The parties agree that the applicable standard of review is reasonableness simpliciter. It is common ground that an H & C determination is a discretionary one. It is also common ground that H & C officers are entitled to rely on the findings of a PDCO provided that the former do not consider themselves bound by the findings of the latter. Here, there is no allegation that the H & C officer fettered her discretion or felt bound by the decision of the PDCO.
[10] Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 and Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) explicitly provide that the weighing of relevant factors is the responsibility of the Minister or his delegate and not the function of the Court. I am bound by those decisions.
[11] The applicant was afforded a full opportunity to comment on the risk assessment and did so by written submissions. The H & C officer considered the risk assessment of the PCDO, the submissions of the applicant regarding his fear of returning to Afghanistan as well as the documentary evidence. There was no evidence that the interim government in Afghanistan poses a risk to Hindus. The documentary evidence, to the contrary, indicated that the government was actively seeking solutions to the country's problems. The onus on an H & C application lies with the applicant: Prasad v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm. L.R. (2d) 91 (F.C.T.D.); Patel v. Canada (Minister of Citizenship and Immigration) (1997), 36 Imm. L.R. (2d) 175 (F.C.T.D.).
[12] A review of the H & C officer's notes demonstrates that consideration was given to all of the evidence that she had before her. I cannot conclude that the officer ignored or misinterpreted the evidence or that she took into account irrelevant matters. That another officer, or the court, might have weighed the evidence differently is not a basis upon which an application for judicial review can be granted. The officer's decision was reasonably open to her and the application for judicial review must be dismissed. An order will so provide.
[13] Counsel did not suggest a question for certification. There is no serious question of general importance arising from this matter. No question is certified.
"Carolyn Layden-Stevenson"
J.F.C.C.
Toronto, Ontario
April 10, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-2340-02
STYLE OF CAUSE: ANIL KUMAR KAKKAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, APRIL 9, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: LAYDEN-STEVENSON J.
DATED: THURSDAY, APRIL 10, 2003
APPEARANCES BY: Ms. Constance Nakatsu
For the Applicant
Ms. Rhonda Marquis
For the Respondent
SOLICITORS OF RECORD: Constance Nakatsu
Barrister & Solicitor
45 St. Nicolas Street
Toronto, Ontario
M4Y 1W6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030410
Docket: IMM-2340-02
BETWEEN:
ANIL KUMAR KAKKAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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