Date: 20080215
Docket: IMM-626-07
Citation: 2008 FC 195
Ottawa, Ontario, February 15,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
NADEEM IMTIAZ AHMED
HINA NADEEM
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
principal Applicant, Mr Ahmed, and his wife, claimed protection on the basis of
a fear of persecution for political affiliation. The central issue in the RPD’s
decision was exclusion pursuant to Article 1(E) of the Refugee Convention,
as incorporated into s. 98 of the Immigration and Refugee Protection Act.
The relevant
provisions read:
Refugee Convention, Article 1
E. This Convention shall not
apply to a person who is recognized by the competent authorities of the country
in which he has taken residence as having the rights and obligations which are
attached to the possession of the nationality of that country.
Immigration
and Refugee Protection Act
|
98.
A person referred to in section E or F of Article 1 of the Refugee
Convention is not a Convention refugee or a person in need of protection.
|
98. La
personne visée aux sections E ou F de l’article premier de la Convention sur
les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
|
II. BACKGROUND
[2]
The
Applicant claimed that his father was jailed because of his military position
and support of the leader of the Pakistan Muslim League – who was also the
prime minister toppled by the Pakistani military. The Applicant was also
convicted in absentia and his name placed on the Exit Control List because of
his father’s political affiliation.
[3]
In
2000 the Applicant, through an immigration lawyer in Dubai, secured the
“sponsorship” of a U.A.E. citizen for payment of an annual fee. The “sponsorship”
resulted in the Applicant securing a residency permit valid from September 17,
2000 to September 16, 2003. The permit becomes invalid if the holder of it
resides outside the U.A.E. for more than six months.
[4]
The
Applicant and his wife then lived in Saudi Arabia for 3½ months before
coming to Canada.
[5]
Arriving
in Canada in November
2000 as visitors, they obtained student visas. The Applicant’s wife returned to
Pakistan in 2003 at
which time she was detained and questioned about her husband’s whereabouts.
Upon her return to Canada, they both filed a refugee claim.
III. ANALYSIS
[6]
The
Applicant explained that the reason for leaving the U.A.E. was because it was
close to Pakistan. The Refugee
Protection Division (RPD) rejected, quite reasonably, this explanation as being
sufficient for a refugee claim.
[7]
However,
in my view, the RPD did not focus on the issue of whether the Applicant had the
rights and responsibilities of a national in the U.A.E. The right to work and
the right to a health card are attributes of the rights of a national but they
are not the sole rights to consider (see Canada (Minister of
Citizenship and Immigration) v. Choovak, 2002 FCT 573).
[8]
The
RPD failed to have before it clear evidence of the rights of U.A.E. nationals,
as compared to the rights of the Applicant, before it made its determination.
Therefore, the decision of the RPD is not reasonable in these circumstances.
IV. CONCLUSION
[9]
This
judicial review will be granted, the RPD’s decision quashed and the matter
remitted to the RPD for a new determination by a differently constituted panel.
[10]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted, the RPD’s decision is quashed and
the matter is to be remitted to the RPD for a new determination by a
differently constituted panel.
“Michael
L. Phelan”
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