Docket: IMM-3215-15
Citation:
2016 FC 443
Ottawa, Ontario, April 20,
2016
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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QURBAN ALI
BARAT
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 (the Act) of the decision of an immigration officer (the Officer),
dated May 19, 2015, whereby the Officer refused the application for permanent
residence as a member of the Convention refugee abroad class or as a member of
the country of asylum class pursuant to section 145 or 147 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations).
II.
Background
[2]
The Applicant is a citizen of Afghanistan and belongs to the Ismaili Shiite Hazara religious and ethnic minority.
[3]
He lived in Kabul with his wife and children
until 1993 when a group of Sunni extremists broke into his home, beat him and
demanded that the family leave their home or they would be killed. The very
next day, a rocket was launched into the Applicant’s home, destroying
everything. The family was able to escape and fled to Pakistan without any
possessions. The Applicant and his family allege to have resided in Pakistan for the past twenty-three years, where they benefit from temporary refugee status.
[4]
The Applicant, his wife and two sons applied for
Canadian permanent resident visas as members of the Convention refugee abroad
class or the country of asylum class. They were interviewed by the Officer at
the High Commission of Canada in Islamabad, Pakistan on May 13, 2015.
[5]
The Officer refused to grant the Applicant’s
application for permanent residence in Canada since she determined that the he does
not meet the criteria set out in section 145 of the Regulations. The Officer
held the opinion that the Applicant does not face a well-founded fear of
persecution on a ground enumerated in the refugee Convention. Although the
Applicant did not submit his ethnicity and religion as a ground of persecution,
the Officer nevertheless conducted an analysis to determine whether the
Applicant fell within the ambit of section 145 of the Regulations because of
his Hazara ethnicity and Ismaili Shiite faith. The Officer quoted the following
extracts from the UK Border Agency’s Country of Origin Information (COI) Report
on Afganistan dated February 15, 2013, reissued on May 8, 2013 (the COI
Report), which cites passages from a National Geographic article published in
February 2008 entitled Hazaras: Afghanistan’s Outsiders:
Hazaras have long been branded outsiders.
They are largely Shiite Muslims in an overwhelmingly Sunni Muslim country. They
have a reputation for industriousness yet work the least desirable jobs. Their
Asian features-narrow eyes, flat noses, broad cheeks-have set them apart in a
de facto lower caste, reminded so often of their inferiority that some accept
it as truth… ‘Six years after the Taliban fell, scars remain in the highlands
of the Hazara homeland […]. A new political order reigns in Kabul, seat of
President Hamid Karzai’s central government. Hazaras have new access to
universities, civil service jobs, and other avenues of advancement long denied
them […]
[6]
When discussing the presence of Hazaras in Kabul, the Officer noted the following passage from the same National Geographic article:
Some 40 percent of the population is now
Hazara. On neighbourhood streets in the western part of the city, you see
Hazara children in uniform going to school, Hazara vegetable vendors setting up
their carts, and Hazara shop owners and tailors opening stores […]. The middle
class of Hazaras is growing very fast.
[7]
The Officer also found that the Applicant does
not meet the criteria set out in section 147 of the Regulations as she held the
opinion that the Applicant is no longer seriously and personally affected by
civil war, armed conflict or massive violation of human rights in Afghanistan. On this point, the Officer wrote in her GCMS notes that Kabul is “relatively safe” and cites various statistics from a
report of the UK Home Office, entitled Afghanistan: Security (August
2014) to support this conclusion:
The violence is concentrated in certain
parts of the country, with 70 per cent of the security incidents in 2013 taking
place in the east, south-east, and in particular the south. […] Civilian deaths
and injuries in the first 6 months of 2014 have increased compared to the same
period in 2013 due to escalating ground engagements […] UNAMA documented
increased civilian casualties from ground engagements in every region
throughout Afghanistan. During 2013, the proportion of casualties caused by
ground engagement and the detonation of improvised devices (in particular
radio-controlled devices) increased by 43% and 14% respectively [..] Taking the
numbers of civilians killed and injured in the first six months of 2014, 0.02%
of the population were directly affected by violence during this time.
[8]
The Applicant alleges that the Officer failed to
consider all the evidence, namely, the Officer failed to have regard for the
Immigration Refugee Board’s National Documentation Package on Afghanistan and more specifically, sources concerning the conditions of persons of Ismaili Shiite
Hazara ethnicity and religion in Afghanistan.
[9]
The Applicant also alleges that the Officer
violated procedural fairness by failing to provide the Applicant an opportunity
to prove his residency in Pakistan after 2006 and by failing to provide the
Applicant an opportunity to be heard by not taking sufficient time to analyze
in depth the facts and stories of each of the three claimants. The Applicant
also contends that the Officer showed bias by assuming that the Applicant
repatriated to Afghanistan because according to the UNHCR, millions of Afghanis
have repatriated.
III.
Issue and Standard of Review
[10]
The issue to be determined in this case is
whether the Officer committed a reviewable error as contemplated by section
18.1(4) of the Federal Courts Act, RSC, 1985 c F-7.
[11]
It is well-established that an Officer’s
decision as to whether an applicant is a member of the Convention refugee
abroad class or the country asylum class essentially raises a question of mixed
fact and law and is therefore reviewable on the reasonableness standard of
review (Bakhtiari v Canada (Citizenship and Immigration), 2013 FC 1229,
at paras 22-23 [Bakhtiari]; Qarizada v Canada (Citizenship and
Immigration), 2008 FC 1310, at para 15; Saifee v Canada (Citizenship and
Immigration), 2010 FC 589, at para 25 [Saifee]).
[12]
For issues concerning procedural fairness, the
correctness standard of review applies (Atahi v Canada (Citizenship and
Immigration), 2012 FC 753, at para 13, 413 FTR 122 [Atahi]; Karimzada
v Canada (Citizenship and Immigration), 2012 FC 152, at para 10 [Karimzada];
Saifee, at para 25).
IV.
Analysis
[13]
As a preliminary issue, the Respondent alleges
that the Applicant is attempting to introduce new evidence before the Court,
namely, the UK Home Office, Country Information and Guidance of August 2015 and
the Court decision in Morad Mohammad v Canada (Citizenship and Immigration),
2014 FC 483 [Mohammad], insofar as it is presented as evidence of
the situation of Hazaras in Afghanistan. The Respondent requests that the new
evidence be disregarded.
[14]
I agree with the Respondent’s position that the
UK Home Office, Country Information and Guidance of August 2015 document should
not be considered in these proceedings since a party may not raise “evidence that was not before the administrative
decision-maker whose decision is the subject of this proceeding” (Yasane
v Canada (Citizenship and Immigration), 2008 FC 1213, at para 38; Saifee
at para 28).
[15]
With respect to the Court’s decision in Mohammad,
which the Applicant claims is evidence of the situation of Hazaras in
Afghanistan, I agree with my colleague Justice Luc Martineau’s position in Karimzada,
that although the case law is useful in bringing the Court’s attention to
the particular situation of a group, 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” (Karimzada, at para
24). Each case must be decided on its own merits.
[16]
The Applicant’s main contention as to the merits
of the Officer’s decision is related to the Officer’s analysis and reference to
country documentation regarding the Applicant’s eligibility to the Convention
refugee abroad class. Namely, the Applicant is of the view that the Officer
failed to have regard for the evidence in coming to the conclusion that if the
Applicant were to return to Afghanistan, he will not suffer a reasonable chance
of persecution due to his Hazara ethnicity and Ismaili faith.
[17]
An applicant will be considered to fall within
the Convention refugee abroad class pursuant to section 145 of the Regulations
if they show that there is a reasonable chance of persecution should they
return to their country of origin or that there are good grounds for their fear
of persecution if they were to return (Bakhtiari, at para 9).
[18]
It is trite law that an application for judicial
review is to be decided on the basis of the record before the decision-maker.
An applicant bears the burden of establishing that they meet the conditions of
the Act and must present all the evidence upon which they rely (Hakim v Canada (Citizenship and Immigration), 2011 FC 51, at para 14; Qurbani v Canada (Citizenship and Immigration), 2009 FC 127, at para 18 [Qurbani]).
While there may not be a positive obligation on officers to consult specific
documents not put before him or her by the applicant, in the case of refugee
claims, this Court has held that there is a presumption that generally
available country documents are either before the decision-maker prior to the
decision being made or could be readily accessible (Saifee, at para 28).
[19]
Moreover, while an application for judicial
review will not be granted on the basis of objective country documentation
alone, where an officer makes a decision without knowledge of country
conditions or fails to address evidence in the record that directly contradicts
an essential element of finding or fails to explain why the evidence was
disregarded, there may be a valid reason to overturn the decision on judicial
review (Saifee, at para 30; Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), 157 FTR 35, at paras 15, 17, 83 ACWS (3d) 264
[Cepeda-Gutierrez]; Hinzman v Canada (Citizenship and Immigration), 2010
FCA 177, [2012] 1 FCR 257, at para 380; Basran v Canada (Citizenship and
Immigration), 2015 FC 1221, at para 21; Hernandez Montoya v Canada
(Citizenship and Immigration), 2014 FC 808, at paras 33-36, 462 FTR 73).
[20]
In the past, this Court has found that where an
applicant has not raised persecution based on religious or ethnic grounds as a
separate ground of risk during an interview with an officer, the applicant
cannot then raise these grounds on judicial review with the view of overturning
an officer’s decision (see Bakhtiari at para 31; Atahi at para
17). While this may be so, an officer must nonetheless render a decision with
regard for country conditions. Where the country conditions demonstrate a
pervasive level of discrimination, this Court has found that an officer has a
duty to make inquiries to determine whether persecution may be a ground of risk
(Hakimi, at para 13).
[21]
In this case, the Applicant did not raise his
Hazara ethnicity or Ismaili faith as reasons for fearing to return to Afghanistan. The Applicant explained that he did not want to return because there “is no peace and security in Afghanistan” and “they are always killing each other and fighting.”
Despite the fact that the Applicant did not raise his Hazara ethnicity as a
ground of risk, the Officer reviewed national country documentation regarding
the situation of Hazaras in Afghanistan. Yet, the Officer’s GCMS ignores more
recent reports of targeted attacks against Hazaras in Kabul. For example, the
Refugee Documentation Centre of Ireland released a research report on January
22, 2014 detailing the situation of Hazaras in Afghanistan (the Report). The
Report cites an ABC News of Australia report dated March 13, 2013. The ABC news
report states that “the security situation in the
Afghan capital is getting worse and attackers are targeting members of the
Hazara ethnic group” and that “sending Hazaras
to Kabul would be a mistake.”
[22]
The United States Department of State report on Afghanistan in its Country Reports on Human Rights Practices for 2012 says:
Ethnic tensions between various groups
continued to result in conflict and killings. For example, in November riots
occurred at Kabul University after Sunni students tried to prevent ethnic
Hazara students from observing Shiite religious practices. Societal
discrimination against Shia Hazaras continued along class, race, and religious
lines in the form of extortion of money through illegal taxation, forced
recruitment and forced labor, physical abuse, and detention.
[23]
The COI Report cited by the Officer also refers
to the United States Department of State’s Country Report on Human Rights
Practices for 2011, Afghanistan, 24 May 2012,which states:
Ethnic tensions between Pashtun and
non-Pashtun groups resulted in conflict and occasional killings. The NGO
Minority Rights Group‘s Peoples under Threat index identified Afghanistan as a
country where communities were most at risk of mass killing, especially because
of targeting of persons based on ethnicity and religion.
Societal discrimination against Shia Hazaras
continued along class, race, and religious lines in the form of extortion of
money through illegal taxation, forced recruitment and forced labor, physical
abuse, and detention.
[24]
While the Officer recognizes that the security
situation in many parts of Afghanistan is still difficult, the Officer does not
explain why she disregarded evidence contradicting her finding that the
Applicant and his family will not suffer a reasonable chance of persecution due
to their Hazara ethnicity if they were to return to Kabul nor does she refer to
evidence directly contradicting her finding on this issue. In my view, the
Officer committed a reviewable error by failing to address evidence of past and
recent targeted killings of Hazaras in Kabul.
[25]
Given my finding that the RPD’s decision is
fatally flawed in this respect, there is no need to determine whether a breach
of procedural fairness occurred or to deal with the Applicant’s request for
certification of a question for the Federal Court of Appeal, a request that the
Respondent opposed.
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