Date: 20090507
Docket: IMM-4362-08
Citation: 2009 FC 461
Ottawa, Ontario, May 7, 2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
YOUSUF ALI GILLANI,
NOOR JEHAN GILLANI YOUSUF HAJIM
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
Due
to the specific fact pattern, particular to this case, it is probable and even
likely that the Applicants will face undue hardship in Pakistan due to their
religious background, as duly recognized Ismailis, a minority of a
minority. The lessons of the past, and even more recently, due to the tragedies
perpetrated in regard to the Tutsis in Rwanda and the Isaac tribe in Somalia,
as well as the continued unfolding situation in Darfur, Sudan, are indicators
that action is all too-often taken after the fact when it is too late for so
many. As a general principle, are cases in the Courts, as they unfold early on,
not to serve as indicators as to protective action which can be taken before it
is too late?
II. Introduction
[2]
The Applicants,
citizens of Pakistan, have filed an application for judicial review challenging
a decision rendered, on July 30, 2008, by Citizenship and Immigration Canada,
denying the Applicants’ to file an application for permanent residence from
within Canada on humanitarian and compassionate considerations (H&C), pursuant to
section 25 of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
III. Preliminary remarks
[3]
The
Applicants request that the style of cause be amended to remove the name of Pervaiz
Ali Yousuf as one of the Applicants. In fact, the Immigration Officer refused
Mr. Pervaiz Ali Yousuf’s application for permanent residence from within Canada based on
H&C grounds because he was otherwise accepted, independently of his
parents.
[4]
Consequently
references to the “Applicants” relate to Yousuf Ali Gillani and his wife Noor
Jehan Gillani Yousuf Hajim.
IV. Role of the Immigration Officer
[5]
As
noted by the Immigration Officer, at page 7 of the Applicant’s Record, in an
application filed pursuant to section 25 of the IPRA, the Immigration Officer
must assess if the Applicant would face unusual, undeserved or disproportionate
hardship if he were to file his application for permanent residence from
outside Canada in the usual manner provided at section 11 of the IRPA (Kharrat
v. Canada (Minister of
Citizenship and Immigration, 2007 FC 842, 160 A.C.W.S. (3d) 536).
V. Standard of Review
[6]
At
paragraph 7 of their Memorandum of Argument, the Applicants cite Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, and indicate the
applicable standard of review is that of reasonableness simpliciter.
[7]
In
March 2008, the Supreme Court of Canada held, in Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 180, at paragraph 45, that there should now be two standards of
review, namely correctness and reasonableness.
VI. Issue
[8]
Did
the deciding officer breach the principles of fairness and draw erroneous
conclusions without regard to the evidence provided in support of the
Applicants’ application for permanent residence from within Canada based on
H&C grounds?
VII. Background
[9]
In
their H&C application, the Applicants submit that they will face risks to
their lives and safety due to religious persecution as a minority group if
required to return to Pakistan. They also fear
reprisal for having lived outside of the country since 1989 given that they
would be perceived as being wealthy and thus targeted. They will be unable to
obtain protection from the authorities in Pakistan for these
risks.
VIII. Analysis
[10]
At
page 7 of the tribunal’s record, the Immigration Officer recognizes the fears
and allegations of risk put forward by the Applicants and discounts them;
however, in the analysis of the situation in Pakistan that follows,
on page 8 of the tribunal’s record, the Immigration Officer makes the following
statements confirming the risks to the Applicants:
… I acknowledge that problems exist in
Pakistan, killings occur, and acts of violence happen; although difficult to achieve,
documentary evidence indicates that the government has taken the initiative to
recognize the concerns and rights of its citizens…
… The Constitution states, subject to
law, public order and morality, every citizen shall have the right to profess, practice,
and propagate his religion; however, in practice the Government imposes limits
on freedom of religion.
The Government took some steps to improve
its treatment of religion minorities during the period covered by this report,
but serious problems remained…
…
While the political situation in Pakistan continues to materialize, and
incidents of violence continue to occur, the circumstances, particularly as
they apply to these applicants, have not fundamentally changed…
[11]
In
these statements, the Immigration Officer confirms that there are serious
problems in Pakistan in regard to
the treatment of minority religious groups and the officer concludes that this
does not constitute hardship for the Applicants, members of the Shia Muslim
minority. It must be recalled, however, that the record clearly shows that the
Applicants are Ismaili, who are separate and distinct even from the
Shia Muslim minority. They are followers of the Agha Khan and are
active in the Ismaili Community in Canada. This
Community’s work is documented for its humanitarian outreach activities. The
objective documentary evidence, in addition to the personal documents of the
Applicants specify their volunteer Ismaili Community work in Canada, which is
included in the tribunal record. In addition, the index on page 107,
clearly points out items 91 to 101, specifying threats to, and the treatment
of Ismailis in Pakistan.
[12]
The
Immigration Officer then concludes that state protection is available to the
Applicants in the event that they are targeted; however, this statement
suggests that the Immigration Officer is applying the threshold used in the
case of a refugee claim, and not the unusual, undeserved or disproportionate
hardship threshold. If the Applicants require protection from the state, it is
because they will have been targeted and thus will have suffered a significant
level of hardship.
[13]
The
Immigration Officer fails to recognize that state protection must be effective
and not simply lie in the legislation and efforts of a government to protect
its citizens (Lopez v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1341, 168 A.C.W.S. (3d) 370 at
paras. 18-20).
[14]
At
page 9 of the tribunal’s record, in the section entitled “Spousal, Family or
Personal Ties that would Create Hardship if Severed”, the Immigration Officer
discussed family relations in Canada and concludes that there is no evidence
that the Applicants’ children are in Canada and of any ties to the
other family members in this country.
[15]
The
forms submitted by the Applicants, relied upon by the Immigration Officer,
declare that both the Applicants’ son and daughter are living in Canada with or near
the Applicants’ family. In addition, the Immigration Officer recognizes that
both children are now permanent residents of Canada. In fact,
the Applicants’ son, Pervaiz Ali Yousuf, was initially included in the H&C
application, and was refused by the Immigration Officer since he recently
became a resident through another program. Thus, it is unreasonable for the Immigration
Officer to assume that the Applicants’ children are not living in Canada.
[16]
Mrs.
Gillani refers to her husband’s form about the answer in the same section,
confirming that neither have any ties to Pakistan and nobody
to return to in their country.
[17]
The
Immigration Officer concludes that there is insufficient evidence indicating
the level of establishment of the Applicants and focuses primarily on the
Applicants’ employment when evaluating the degree of establishment in Canada.
[18]
The
Immigration Officer draws a negative inference because the principal Applicant
allegedly did not indicate in what capacity he was self-employed and that he
provided no details of this business. This factual finding is erroneous.
[19]
On
page 17 of the tribunal’s record, at section 3.H of the principal Applicant’s
supplementary information form regarding current and future financial support,
the Applicant declares the following:
My son & wife are working, and I am
trying to establish myself by starting my own business. I have already imported
artificial flowers from Hong
Kong, in
partnership under business name Dollar Warehouse.
[20]
At
pages 29 and 30 of the record, the Applicant provides a certificate confirming
the imports from China as well as a receipt for the imports under the
name Dollar Warehouse. The principal Applicant also indicates, “own business”
as his intended occupation.
[21]
The
Immigration Officer makes similar erroneous findings about Mrs. Gillani,
stating that she is employed as a cashier at Café on the Go and that she is
self-employed. Mrs. Gillani indicates that her intended occupation is to be
“self-employed” and, consequently, she provides no information about this
future, intended employment.
[22]
The
Immigration Officer erred in drawing a negative inference from an alleged lack
of information regarding the Applicants’ employment since the information was
provided and demonstrates the Applicants’ establishment.
[23]
Finally,
the Immigration Officer draws a completely speculative conclusion regarding the
feasibility of the Applicant’s return to Pakistan.
[24]
The
Immigration Officer states that the Applicants have gained transferable
employment skills that will help them resettle in Pakistan; however, the Immigration
Officer had previously alleged that the Applicants provided little information
about their employment in Canada thus making it difficult to determine what
skills the Applicants did acquire.
IX. Conclusion
[25]
For
the all of the above reasons, the application for judicial review is allowed
and the matter is returned for a de novo examination by a different Immigration
Officer.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be allowed and the matter be returned for a
de novo examination by a different Immigration Officer.
.
“Michel M.J. Shore”
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