Docket: IMM-4740-11
Citation: 2012 FC 152
Ottawa, Ontario, February 8,
2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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NIZAMUDDIN KARIMZADA
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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]
This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the
IRPA) for judicial review of the decision of a visa officer at the Embassy of
Canada in Islamabad, Pakistan (the Officer), dated April 26, 2011, whereby the
Officer refused the applicant’s application for a permanent resident visa in
either the Convention Refugee Abroad Class or in the Member of Country of
Asylum Class under sections 145 or 147 of the Immigration
and Refugee Protection Regulations SOR/2002-227 (the Regulations).
BACKGROUND
[2]
The
applicant, a 38 year-old citizen of Afghanistan, his wife and their
three minor children are members of the Shia Hazara religious-ethnic minority
and are originally from Kabul. The applicant claims that his family and
himself have experienced persecution in their country due to their religious
beliefs and ethnic origin. He states that this persecution worsened during the
war when the Taliban engaged in mass killings of Hazaras.
[3]
The
applicant and his wife allege that they were forced to move to the city of Mazar Sharif and later fled their
country during the Afghan civil war. In 1998, the applicant’s home in Mazar Sharif was hit by a
rocket. The next day, some Taliban members came to the applicant’s place and
started beating him thinking that he was the son of a Qomandan (commander). The
applicant’s wife begged them to stop, screaming that they had the wrong man.
The applicant claims that as he got seriously injured and rendered unconscious,
one of the Taliban put a gun to his head to kill him. The Taliban members
finally left the applicant’s house when the applicant’s wife showed them where
to find the Qomandan’s house. The applicant claims that the next night, her
wife was beaten and threatened by the Qomandan’s mother that if anything
happened to her son she would send people to kill her and her family.
[4]
Although
the applicant made no mention of this incident in his refugee application form,
he testified before the Officer that he cannot move back to Afghanistan because he
still fears that the Qomandan that his wife denounced to the Taliban would come
after his family to seek revenge. The applicant mentioned that, in fact, the
son of the Qomandan has found their previous address in Mazar Sharif and has
already approached the owner of the house where the applicant’s family lived in
that city to inquire about the applicant’s whereabouts.
[5]
After
the 1998 incident, the applicant and his family moved to Pakistan where they
have been living until this date without a legal status. In January of 2008,
the applicant filed an application for permanent residence in Canada as a refugee
under the refugee abroad category. Following an interview with the applicant
and his wife on November 22, 2011, with the assistance of a Dari speaking
interpreter, the Officer whose decision is currently under review rejected the
application.
THE DECISION
UNDER REVIEW
[6]
In
view of the Officer’s Computer Assisted Immigration Processing System
notes (CAIPS notes) and her response letter dated April 26, 2011, the decision
under review is based on two sets of findings.
[7]
First,
the Officer found the applicant’s story not credible and concluded that since
twelve years had passed since the 1998 incident, she was not satisfied that the
applicant still had a well-founded fear of persecution if he returned to
Afghanistan. The Officer further mentioned that she was not satisfied that the
applicant complied with section 16(1) of the IRPA which requires any person who
makes an application to “answer truthfully all questions put to them for
the purpose of the examination and must produce a visa and all relevant
evidence and documents that the officer reasonably requires”. The Officer
also found that the applicant’s stated reasons for not wanting to return to Afghanistan were
economic in nature and linked to wanting a better life for his family and
himself rather than seeking protection from genuine fear of persecution. Thus,
the applicant did not meet the definition convention refugee within the meaning
of section 96 of the IRPA and was excluded from the Convention Refugee Abroad
Class as defined in section 145 of the Regulations.
[8]
Second,
the Officer also concluded that based on the information provided in the
application and at the interview, she was not satisfied that the applicant is
“seriously and personally affected by civil war, armed conflict or massive
violations of human rights” or that he would otherwise meet the eligibility
criteria of the Country of Asylum Class as defined in section 147 of the
Regulations. Despite the fact that insecurity was one of the applicant’s
reasons for not being able to return to Afghanistan, the Officer noted that the
applicant’s city of origin, Kabul, now benefits from reasonable government
control and relative stability. The Officer also noted that in his view, there
was very little to set the applicant and his family apart from the vast
majority of the 3.5 million Afghan refugees who returned to Afghanistan, the
majority to the city of Kabul, under the UNHCR’s voluntary repartition
exercise.
ISSUES
[9]
The
applicant has raised several issues in this application for judicial review
which can be summarized in the following manner:
(a) Did the
Officer breach procedural fairness rules by not allowing the applicant to
answer her questions completely?
(b) Did the
Officer err in her assessment of the applicant and his spouse’s credibility and
their risk of persecution?
(c) Did the
Officer err in her assessment of the No Durable Solution?
(d) Did the
Officer err in concluding that the applicant’s motives for wanting to settle in
Canada are purely
economic?
(e) Did the
Officer err by not assessing the applicant’s ability to successfully establish
in Canada and other
resettlement factors?
ANALYSIS
[10]
The
proper standard of review to be applied in fact-driven cases such as the
present is the deferential standard of reasonableness which requires the Court
to consider “the existence of justification, transparency and intelligibility
with the
decision making process” and “whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47; Sivakumaran v Canada (Minister of Citizenship and Immigration),
2011 FC 590 at para 19 [Sivakumaran]; Qurbani v Canada (Minister of
Citizenship and Immigration), 2009 FC 127 at para 8 [Qurbani]). As regards the alleged lack of
opportunity to respond, it is settled law that questions of procedural fairness
are to be reviewed against the standard of correctness (Azali
v Canada (Minister of Citizenship and Immigration), 2008 FC 517 at para 12).
[11]
For
the reasons hereunder, the applicant has not convinced me that the Officer has
committed a reviewable error as to warrant this Court’s intervention. For
purposes of convenience, I have chosen to treat the applicant’s arguments not
necessarily in the order that they have been made in the parties’ memorandums
or at the hearing before the Court. The preliminary objections taken under
reserve at the hearing will be dealt with, if necessary, in relation to their
subject matter below.
No breach of
procedural fairness
[12]
The
applicant submits that he and his wife were not given the opportunity to
adequately answer the Officer’s questions, that their interview with the
Officer started over two hours later than scheduled and that the Officer
continuously interrupted them when they tried to elaborate on their answers,
asking them to be brief. The applicant also submits that the Officer and the
interpreter laughed at him when he related his story of being beaten with a gun
to his head by the Taliban. He submits that the Officer did not approach his
application with an open mind, in addition to breaching procedural fairness
rules.
[13]
Furthermore,
both the applicant and his wife have provided the Court with two exhibits
containing the personal notes that they took after the interview which
summarize the questions they were asked by the Officer and their answers. The
respondent relies on a longstanding jurisprudence of this Court and takes issue
with the introduction of these documents as being new evidence that was not
available before the Officer. I have, however, considered the documents in
question because contrary to what the respondent suggests, the applicant’s
personal notes are not an extra piece of evidence that could have been made
available to the Officer. As part of the applicant’s affidavit, they are meant
to give an account of the procedure followed by the Officer and as such they
constitute admissible evidence in this judicial review, at least with respect
to natural justice issues.
[14]
I
have also considered the Officer’s affidavit, corroborated with her CAIPS notes,
explaining
what took place during the interview. The Officer attests that she took all the
necessary time to explain her concerns to the applicant and provided him and
his spouse with the opportunity to respond. In view of both parties’ affidavits
and the two attached exhibits as well as the Officer’s CAIPS notes
and final decision, I am satisfied that this has in fact been the case. The
questions and answers as reflected in the CAIPS notes are clear and complete,
sometimes even repetitive. The answers given by the applicant and his wife are
enough detailed not to raise any doubts as to whether they could have been further
elaborated on. In fact, the CAIPS notes reveal that at times the Officer
even asked her question again or reformulated it.
[15]
Moreover,
there is no indication that the Officer failed to approach the applicant’s case
with the objectiveness and the open mind called for by section
13.1 of the Citizenship and Immigration Canada OP-5 Manual entitled “Overseas
Selection and Processing of Convention Refugees Abroad
Class and
Members of the Humanitarian-protected Persons
Abroad Classes” (OP-5 Manual). The Officer mentioned
in her affidavit that at any point during the interview the applicant did not
say that the Taliban had beaten him with a gun, but rather said that he had
been beaten and slapped by the Taliban so that two of his teeth were broken and
he still had scares on his forehead.
[16]
In my view, had the applicant talked at any point about
having been beaten by a gun, this would have appeared somewhere in the CAIPS
notes which were taken by the Officer at the interview and entered in the
system on November 24, 2010. In this respect, I concur with Justice Rouleau’s ruling
in the oft-cited case of Oei v Canada
(Minister of Citizenship and Immigration), [2002]
FCJ 600 at para 42, where he states:
In
my view, the Court should attach greater weight to the visa officer’s testimony
about what took place during the interview, for the following reasons. First,
it is corroborated by the notes she recopied into the CAIPS system, which make
absolutely no mention of problems communicating with the plaintiff, whereas
there is nothing to support or confirm the plaintiff’s allegations. Further,
the officer’s notes were re-transcribed into the CAIPS the day after the
interview with the plaintiff, namely March 21, 2001, when the events were still
fresh in her memory, and the plaintiff’s affidavit, on the other hand, dates
from August 31, 2001, over five months after the interview. In my opinion the
fact that the CAIPS notes, which corroborate the officer’s testimony, were contemporaneous
is a sufficient reason to prefer her testimony to that of the plaintiff.
Finally, it should be noted that it was only when the decision was made on
March 20, 2001 that the plaintiff made any objection regarding the substance
and form of the interview. This objection to procedure should in my opinion
have been made in limine litis and could not be raised once the decision
was rendered, when the individual had fully accepted the procedure leading up
to the decision. In these circumstances, therefore, the plaintiff has only
himself to blame.
[17]
Accordingly,
I find that there has been no breach to the rules of natural justice by the
Officer.
The Officer’s adverse credibility
finding is reasonable
[18]
The determinative issue in the impugned decision is the Officer’s
negative credibility finding that the applicant and his family could not still
be sought after, after twelve years, if they were at all. The
applicant challenges this finding as being arbitrary and capricious. This conclusion,
however, was reasonably open to the Officer to make on the evidence before it
and as such, it does not call for this Court’s intervention.
[19]
The applicant pretends that no negative credibility determination
should have been made because, according to the Officer’s notes, the answers
given by the applicant and his wife at the interview corresponded to each other
and they should have corroborated the facts alleged in their application forms.
This allegation is clearly unfounded given that the Officer’s credibility
determination is based on the applicant and his wife’s lack of credibility and
not on any contradictions or discrepancies in their answers.
[20]
Moreover, it is worth noting that in their application for
permanent residence the applicant and his wife had made no mention of the 1998
incident and the threats they had received by the Qomandan’s family. This
incident was only brought to the Officer’s attention during the interview. When
asked why his application form did not contain the whole story, the applicant
mentioned to the Officer that there was not enough space in the application
form and that his neighbour, who helped him complete his application, did not
tell him that he could add an extra page to the form. It was not, in my view,
unreasonable for the Officer to reject this explanation.
[21]
The
applicant also submits that the Officer erred in stating in her notes that the
applicant did not know which group the Qomandan belonged to. The applicant
takes issue with this finding, submitting that both he and his wife told the
Officer that the Qomandan the Taliban were looking for was Uzbek, which does
identify what group he belongs to. This argument is, however, irrelevant to the
overall lack of credibility and the implausibility determination that were
fatal to the claim and, unfortunately for the applicant, the conclusion falls
well within the range
of possible and acceptable outcomes which are defensible in fact and law and
supported by the available evidence (Dunsmuir, above, at para 47).
The
Officer’s assessment of the No Durable Solution is reasonable
[22]
The
applicant submits that the Officer erred in deciding that voluntary repartition
would be a durable solution in his case because in concluding so, she failed to
consider that as members of a religious and ethnic minority, the applicant and
his family are still in danger of persecution. The applicant submits that the
Officer also erred in failing to take proper account of the harassment and
mistreatment that he is subjected to by the local police in his country of
asylum, Pakistan. Part of
these latter allegations, however, do not appear in the CAIPS notes and are
contested by the respondent who pretends that they have not been made before
the Officer.
[23]
There
was much debate at the hearing whether the Court should intervene
notwithstanding confirmation of the credibility findings, in view of the fact
that, objectively speaking, Shia Hazaras are at risk of persecution as they
were particularly targeted by the Taliban government who considered them as
“infidels”. I have considered the jurisprudence cited on both sides of this
issue, particularly the Court’s decisions in Elyasi v Canada
(Minister of Citizenship and Immigration), 2010
FC 419; Saifee v Canada (Minister of Citizenship and Immigration), 2010
FC 589 [Saifee]; and Qarizada v Canada
(Minister of Citizenship and Immigration), 2008 FC
1310.
[24]
I
have come to the conclusion that in the particular circumstances of this case,
whatever expectations flow from the OP-5 Manual, a non-legally binding
document, the determinations made by the Officer has not been made without a
reasonable knowledge of country conditions (see Cha v
Canada (Minister of Citizenship and
Immigration), 2006 FCA 126 at para 15; Tshidind v Canada
(Minister of Citizenship and
Immigration), 2006 FC 561at para 9; Saifee, above, at para 31). Each case
must be decided on its own set of facts, and it is not sufficient in judicial
review to render a decision unreasonable to refer the Court to passages in the
case law dealing with a particular group, here the Hazaras. Such case law is
useful to bring the Court’s attention to the particular context, and sometime
to the very difficult situation of a group, but this does not dispense an
applicant to show that the decision-maker has based its decision on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it. This is not the case of the decision
under review, even if I accept to consider evidence of the objectionable new
allegations of fact made by the applicant with respect to police harassment in Pakistan.
[25]
The
jurisprudence is clear that in light of the statutory framework of paragraph
139(1) of the Regulations, the burden of proof rests solely on the applicant to
establish that he had “no reasonable prospect, within a reasonable period, of a
durable solution in a country other that Canada” (Salimi v Canada
(Minister of Citizenship and Immigration), 2007 FC 872 at para 7; Qurbani,
above, at para 18).
[26]
In this case, the applicant’s alleged fear of persecution
in the hands of the Qomandan was not found plausible by the Officer and he
failed to convince the Officer of any other basis for a well-founded risk of
persecution in view of the actual situation in Afghanistan. The Officer
thus reasonably relied on the current actual security situation in the city of Kabul and the
large scale voluntary repartition exercise led by the UNHCR to reach the
conclusion she reached. This conclusion was moreover made in absence of any
specific evidence supporting the applicant’s claim of persecution as Hazaras.
[27]
The
jurisprudence has also established that the Officer’s appropriate finding on
general credibility can justify her not proceeding to address all of the issues
(Alakozai v Canada
(Minister of Citizenship and Immigration), 2009 FC 266). Having
determined that the applicant did not fit in the convention refugee abroad
category and that the first durable solution was reasonably open to him and his
family, the Officer did not have to assess the second durable solution to
determine whether integration in the country of asylum is possible for them.
The
conclusion about the applicant’s motives for wanting to settle in Canada is
reasonable
[28]
The
applicant takes issue with the finding that his reasons for not wanting to return
to Afghanistan are
essentially economic in nature and linked to his desire for a better life for
his family, rather than a genuine risk of persecution. Again, the application’s
position amounts to no more than a disagreement with the Officer’s conclusion
as this finding could be reasonably drawn from the evidence.
[29]
The
applicant submits that during their interview, neither he nor his wife
mentioned any such reasons for not considering returning to Afghanistan. However,
the applicant did mention to the Officer that he did not wish to force his
children to return to Afghanistan while they have access
to education in Pakistan. He also confirmed that he wished to go to a
country where his family could have a better life. Again, at the risk of
repeating myself, the Officer’s conclusion about the applicant’s motives for
wanting to settle in Canada is supported by her general negative
credibility determination and is thus objectively reasonable.
The
credibility finding is determinative
[30]
The
applicant submits that the Officer erred by not assessing his and his wife’s
professional skills and their ability to successfully establish in Canada, and
by neglecting to assess the fact that they have family members in Canada who
have signed a group sponsorship with the Association Éducative Transculturelle
in Sherbrooke, Quebec.
[31]
The
Officer’s failure to make this assessment, however, does not render her
decision unreasonable. I agree with the defendant that the Officer was not
required to assess whether the requirements under paragraphs 139(1)(f) and (g)
of the Regulations were satisfied as she had already determined that the
applicant did not fit in any of the classes prescribed in paragraph 139(1)(e)
of the Regulations. In fact, as Justice Tremblay Lamer stated in Sivakumaran,
above, at para 31:
It is unnecessary to consider whether the officer's determination
in this regard was reasonable. It has already been established that the officer
had reasonably concluded, based on credibility concerns and the absence of an
articulated basis for fear, that the applicant was neither a member of the
Convention refugee abroad class, nor the country of asylum class. That finding
is determinative. The requirement that the applicant be a “a member of one of
the classes prescribed by this Division”, as set out in paragraph 139(1)(e) of the Regulations, has not
been met and so, regardless of whether the requirement under paragraph 139(1)(g) is satisfied or not, the officer's ultimate decision to
reject the applicant's request for a permanent resident visa is not reviewable.
[32]
The
present application for judicial review is therefore dismissed. No question of
general importance has been submitted by counsel and none is certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that the present application for
judicial review is dismissed. No question is certified.
“Luc
Martineau”
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