Date: 20030505
Docket: IMM-2352-02
Neutral citation: 2003 FCT 559
CALGARY, Alberta, Monday, the 5th day of May, 2003.
Present: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
SHAH MAHMOOD MANSOORI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant applied, under the former Immigration Act, for admission to Canada as a member of the country of asylum class. In a decision dated May 3, 2002, the visa officer refused the application. The applicant seeks judicial review of that decision.
[2] Despite the articulate and capable submissions of counsel for the applicant, I am not persuaded that the visa officer erred.
[3] The applicant alleged various errors by the visa officer, but at the hearing, counsel conceded that unless error was demonstrated with respect to the officer's finding that the applicant failed to meet the definition of "member of the country of asylum class", the application could not succeed.
[4] The definition in subsection 1(1) of the now defunct regulations requires that the immigrant, for this class, be one who has left the country of citizenship or of habitual residence, who has been and continues to be seriously and personally affected by civil war or armed conflict or a massive violation of human rights in the country of citizenship or habitual residence, who has no possibility within a reasonable period of a durable solution, and who is outside Canada and is seeking admission for the purpose of resettling in Canada. The test is conjunctive and an applicant must satisfy each of the conditions.
[5] The visa officer determined that the applicant did not come within the definition. Specifically, the visa officer, in the refusal letter, stated as follows:
Based on the information gathered at your interview I am not satisfied that you meet the requirements for resettlement to Canada as a member of the Country of Asylum Class. In my opinion you have no fear of persecution in Afghanistan given the fact that all the family members, on both sides, are still residing there and not facing any problem and that a durable solution exists for you and for your family in Afghanistan. I am not satisfied that you continue to be seriously and personally affected by a civil war, armed conflict or massive violation of human rights. Rather, it is my opinion that you left Afghanistan and are unwilling to return for primarily economic reasons.
[6] The applicant is correct that in stating that "all the family members, on both sides, are still residing there", the visa officer made an erroneous finding of fact because the applicant's sister resides in Canada. That error, however, was not material to the decision and nothing turns on it. The visa officer's CAIPS notes and affidavit disclose that the officer made the following findings:
- the applicant left Afghanistan because the hostel for orphans, where he was
director, was replaced by a madrassa (religious school) and the applicant didn't have a job;
- when asked why he could not return to Afghanistan, he gave the same reason - no
employment;
- when asked if his life was in danger, the applicant said, "yes, there are fights in our area";
- the applicant is from Badakashan province in the northwest of Afghanistan where there has been no fighting for a long time, especially since October, 2001 and where there was never a threat from the Taliban militia;
- when the officer explained the above observation to the applicant, there was no
satisfactory response;
- when asked precisely how his life was in danger in Afghanistan, the applicant could not specify;
- when the officer suggested that the applicant could return to Kabul, he responded that there was no job and the economic situation was not good;
- except for one sister in Canada, the applicant's family and his in-laws are in Afghanistan;
- the applicant brought only a tae-kwon-doe certificate to the interview; he did not submit his tazcara and did not bring his passport.
[7] There was ample evidence upon which the officer could determine that the applicant did not meet the definition of a "member of the country of asylum class" because he is not a person who has been and continues to be seriously and personally affected by civil war or armed conflict or a massive violation of human rights in the country of citizenship and because he has a durable solution. Failure on one was sufficient.
[8] Subsection 4(1) of the regulations sets out the admission requirements for persons seeking to come to Canada as a member of the country of asylum class. The visa officer here was not satisfied that the applicant fell within the definition (the first requirement) and thus had no option but to refuse the application.
[9] Since this finding is dispositive, I need not deal with the other arguments. Counsel did not suggest a question for certification. This matter raises no serious question of general importance.
ORDER
The application for judicial review is dismissed. No question is certified.
"Carolyn Layden-Stevenson"
JUDGE
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