Date:
20120802
Docket:
IMM-8270-11
Citation:
2012 FC 961
Ottawa, Ontario,
August 2, 2012
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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ABDULLAH FAIZY AND
SALIMA FAIZY
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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
I. Overview
[1]
Mr
Abdullah Faizy and his wife, Salima, and their son, Olia, applied for permanent
residence in Canada from Pakistan. They are of Hazara ethnicity, originally
from Afghanistan.
[2]
In
1985, Abdullah had a dispute with his cousins who were occupying his land in
Bamiyam. He fled with his then wife and children to Ghazni. In 1995, his entire
family, his wife and five daughters, were killed in a rocket attack. He went to
live with a neighbour and eventually married the neighbour’s niece, Salima.
[3]
When
the situation in Ghazni became unstable, the couple fled to Pakistan, where Olia was born. They settled in Peshawar, where Abdullah worked selling fruit.
However, the family faced discrimination and extortion so they relocated to Rawalpindi, but the extortion continued.
[4]
In
2011, after they applied for permanent residence in Canada, an immigration
officer at the High Commission in Islamabad interviewed them. The officer
refused their application on the basis that they did not qualify as members of
the country of asylum class. The officer felt that the applicants merely had
economic reasons for not returning to Afghanistan, and that they had failed to
show that they remain seriously and personally affected by the conflict in Afghanistan.
[5]
The
applicants argue that the officer’s conclusion was unreasonable because it did
not take account of the circumstances that caused them to leave Afghanistan. They also contend that the officer failed to consider the persecution they
would encounter as Hazara. Finally, they maintain that the officer failed to
consider the ongoing blood feud between Abdullah and his cousins. They ask me
to quash the officer’s decision and order a different officer to reconsider
their application.
[6]
I
agree with the applicants that the officer’s conclusion was unreasonable. I
must, therefore, allow this application for judicial review on that basis.
II. The Officer’s
Decision
[7]
The
officer stated that he sympathized with the applicants’ desire to improve their
economic situation and secure a brighter future. He found that the applicants’
reasons for not returning to Afghanistan were really economic. Therefore, they
failed to establish that they remain seriously and personally affected by the
conflict in Afghanistan. According to the officer’s notes, when Abdullah was
asked why they could not return to Afghanistan, he said: “My land is occupied
by my cousins. There is no security, there is no stability.” Salima stated: “My
husband he was a very wealthy man. His cousins tried to occupy his lands. He
reject[ed] that, but he left Ghazny.” Abdullah also mentioned that he has no
family members in Afghanistan, and that the applicants were having difficulty
meeting their needs in Pakistan. It was this evidence that led the officer to
conclude that the applicants were motivated mainly by economic considerations.
[8]
When
the officer expressed his concern that the application was economically
motivated, Abdullah replied: “In the place I am living I have cousins and they
are very dangerous people and I can’t live with them for even a single day.” The
officer felt that this explanation did not address his concern. Therefore,
their application was refused.
[9]
The
officer also considered whether the applicants fell within the Convention
refugee abroad class, but found insufficient evidence that the applicants had a
well-founded fear of persecution in Afghanistan.
III. Was the Officer’s
Conclusion Unreasonable?
[10]
The
applicants contend that the officer’s concern about an economic motivation for
their application was not supported by the evidence They also submit that the
officer failed to consider the lasting emotional impact of the rocket attack
that killed Abdullah’s family.
[11]
Members
of the country of asylum class must show that they are in need of resettlement
because they are outside their country of nationality, and are seriously and
personally affected by a civil war, armed conflict or massive violation of
human rights in that country (Immigration and Refugee Protection Regulations,
SOR/2002-227, s 147; see Annex).
[12]
In
my view, the officer did not appreciate the reasons why the applicants could
not return to Afghanistan. When the officer suggested that the family was
motivated mainly by economics, Abdullah cited his ongoing dispute with cousins
as being the reason he could not return to Afghanistan. The officer seemed to
think that the cousins were in Pakistan because Abdullah used the present tense
when he said “in the place I am living I have cousins and they are very
dangerous people.” In context, however, it is clear that Abdullah was talking
about his cousins in Afghanistan with whom he had violent disputes over his
land. Accordingly, Abdullah did attempt to address the officer’s concern that
his motives were economic by explaining why the family could not return to Afghanistan.
[13]
In
addition, the officer did not consider the possibility that the effects of
Abdullah’s loss of his family are ongoing and provide a further explanation for
not returning to Afghanistan. Abdullah told the officer that he had rebuilt his
life and was recovering from the loss of his family. The Minister maintains
that this evidence shows that Abdullah is no longer “seriously and personally
affected” by the emotional effects of losing his family in a tragic bombing. In
my view, however, at a minimum, the evidence warranted consideration of the
possibility that the loss of his family explained, at least in part, Abdullah’s
inability to return to Afghanistan. The fact that Abdullah had taken steps to
build a new life in Pakistan did not necessarily mean that he was fully able to
reconstitute his life in Afghanistan.
[14]
In
my view, therefore, the officer’s decision was unreasonable because it was
based on a misinterpretation of the applicants’ evidence about why they could
not return to Afghanistan, and failed to consider that Abdullah’s loss of his
family might present a further valid reason for not returning there.
IV. Conclusion and
Disposition
[15]
The
officer’s decision failed to recognize the basis for the applicants’ claim not
to be able to return to Afghanistan and, instead, presumed that their motives
were economic. Accordingly, I find that the officer’s conclusion did not fall
within the range of defensible outcomes based on the facts and the law; it was
unreasonable. Therefore, I must allow this application for judicial review. No
question of general importance arises.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed. The matter is referred back to
another officer for reconsideration;
2.
No
question of general importance is stated.
“James W. O’Reilly”
Annex
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Immigration
and Refugee Protection Regulations, SOR/2002-227
Member
of country of asylum class
147. A foreign national is a member of the country of asylum class if
they have been determined by an officer to be in need of resettlement because
(a) they are outside all
of their countries of nationality and habitual residence; and
(b) they have been, and
continue to be, seriously and personally affected by civil war, armed
conflict or massive violation of human rights in each of those countries.
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Règlement
sur l’immigration et la protection des réfugiés, DORS/2002-227
Catégorie
de personnes de pays d’accueil
147.
Appartient à la catégorie de personnes de pays d’accueil l’étranger considéré
par un agent comme ayant besoin de se réinstaller en raison des circonstances
suivantes :
a) il se trouve hors de tout
pays dont il a la nationalité ou dans lequel il avait sa résidence
habituelle;
b) une guerre civile, un conflit
armé ou une violation massive des droits de la personne dans chacun des pays
en cause ont eu et continuent d’avoir des conséquences graves et personnelles
pour lui.
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