Date: 20220401

Docket: IMM-5696-19

Citation: 2022 FC 445

Ottawa, Ontario, April 1, 2022

PRESENT: Madam Justice St-Louis

JUDGMENT AND REASONS

I. Overview

[1] The Applicants are a family of six, Mr. Zafar Sarwari [the Principal Applicant], his wife, Ms. Zainab Sarwari, and their four (4) children. The Afghan Women’s Organization refugee and Immigrant Services is the organisation that applied to sponsor them.

[2] The Applicants seek judicial review of the decision rendered by a migration officer of Citizenship and Immigration Canada at the Embassy of Canada in Turkey [the Officer] rendered on July 3, 2019, and refusing their permanent resident visa application as members of the Convention refugee abroad class [the Decision]. In the Decision, the Officer cited, inter alia, section 145 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations] that pertains to the Convention refugee abroad class as well as section 147 of the Regulations that pertains to the country of asylum class.

[3] In brief, the Officer considered that the Applicants’ story was not credible and found that there were no credible evidence to establish the Applicants met the requirement of the Convention refugee abroad class as set out in section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] and in paragraph 139(1)(d) and sections 145 and 147 of he Regulations.

[4] For the reasons that follow, I will grant the Applicants’ application and will return the file to a new officer for a new determination of the Applicants’ permanent resident visa application as members of the Convention refugee abroad class.

II. Background and Impugned decision

[5] In February 2018, the Applicants left Afghanistan for Tajikistan and in January 2019, they applied for Canadian permanent resident visas as members of the Convention refugee abroad class, sponsored by the Afghan Women’s Organization refugee and Immigrant Services. On May 9, 2019, the Applicants were interviewed by the Officer.

[6] On May 15, 2019, the Officer addressed a letter to the Applicants, and outlined both sections 145 and 147 of the Regulations. The Officer stated their concerns that they did not find the events as outlined in the application and at the interview to be credible and that they did not believe that the Principal Applicant had a well-founded fear of persecution in Afghanistan. The Officer particularly raised the below elements, and provided the Applicants with the opportunity to respond: (1) the country condition evidence suggests that the Taliban practice force recruitment only exceptionally; (2) the Taliban are largely Pashtun and the Principal Applicant’s family are Tajik; (3) the Applicants lived in Kabul, an area under government control; (4) the complaint submitted to the police refers to having received threats “for a while” whereas the Principal Applicant stated at the interview having received one call; and (5) the complaint does not mention either the Taliban or the Principal Applicant’s son.

[7] On June 7, 2019, the Principal Applicant responded, and outlined essentially that (1) he was nervous at the interview; (2) a large amount of members of Taliban act in Kabul, citing a report from AP, AFP and Reuters reporting attacks in Kabul and bombings; (3) the government is too weak to be able to control this; (4) the Taliban do recruit from all ethnic backgrounds and they target all people of Afghanistan; (5) he was nervous but meant that he received the same call repeatedly; and (6) he did not mention the Taliban name in the complaint because he was very scared and nervous to mention the name because Afghanistan’s police office and government are very corrupted and a majority of them are connected with the Taliban.

[8] On July 3, 2019, the Officer refused the Applicants’ application, decision that is the subject of this judicial review. In their July 3, 2019 letter to the Principal Applicant, the Officer noted that the Applicants had alleged that they could not return to Afghanistan as the Principal Applicant’s son was targeted for forcible recruitment by the Taliban. The Officer indicated having considered the Applicants application forms, the responses they provided at the May 9, 2019 interview and in their response to the Officer’s letter of May 15, 2019.

[9] The Officer did not find the information provided to be credible given what they considered the significant discrepancies therein, and did not therefore believed that the Principal Applicant had a well-founded fear of persecution in Afghanistan. In regards to section 147 of the Regulations, the Officer found there were no credible evidence in the Principal Applicant’s submissions that he had been, and continue to be seriously affected by civil war, armed conflict or massive violation of human rights.

[10] The Officer noted that (1) the country condition evidence suggests that the Taliban practices forced recruitment only exceptionally, relying on a 2017 report by the Norwegian Country of Origin Information Centre [Norwegian report]; (2) the Principal Applicant’s son would appear to be an unlikely candidate as (i) the Taliban are largely Pashtun and the family is Tajik; and (ii) the family lived in Kabul, an area under government control; and (3) the Principal Applicant’s explanation was that the Taliban were looking for “smart, young people”.

III. The statutory framework

[11] The relevant provisions of the Regulations read as follows:

IV. Issues before the Court and decision

[12] The parties agree that the Court must decide if the Decision is reasonable or not, per the Supreme Court of Canada’s decision Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].

[13] Under the standard of reasonableness, the reviewing court must consider “[t]he decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome”, to determine whether the decision is “based on an internally coherent and rational chain of analysis” and is “justified in relation to the facts and law that constrain the decision maker” (Vavilov at paras 83, 85; see also Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 [Canada Post] at paras 2, 31).

[14] The Applicants submit that the Decision is unreasonable because (1) the Officer ignored evidence from the cited Norwegian report which directly contradicts their findings; (2) the Officer did not explain why the Applicants’ explanation that the son was young and smart and needed by the Taliban was not an exceptional circumstance; (3) the Officer’s finding on the number of telephone calls received without explanation is unreasonable; (4) the Officer rejecting the letter from the Taliban without making a direct finding of fraud is unreasonable as the document would be enough for the family to be Convention refugees; and (5) the Officer did not explain why they rejected the Applicants’ claim to membership of the asylum class.

[15] One issue allows the Court to grant the Application, and it is thus not necessary to examine the other arguments. The Applicants have demonstrated that the Officer failed to explain why the Applicants, refugees outside of Afghanistan in Tajikistan, have not shown they are personally affected by the civil war, armed conflict of massive violation of human rights in Afghanistan. The Applicants submit that it is not incumbent on them to demonstrate that they are being threatened by the Taliban in order to meet the requirements of the asylum class, and assert that there was evidence of war in Afghanistan in the record.

[16] Section 147 of the Regulations clearly states that a foreign national is a member of the country of asylum if they have been determined by an officer to be in need of resettlement because (1) they are outside all of their countries of nationality and habitual residence; and (2) 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. The Applicants referred to evidence on the Afghan state in their reply to the procedural fairness letter, and the Officer did not address or engage with their evidence in that regard. I agree with the Applicants. Once the Officer themself raised section 147 of the Regulations, and given the Applicants’ response to the procedural fairness letter, the Officer had to provide some explanation as to why the Applicants did not meet the requirements of the country of asylum class. In the particular circumstances of this case, this is a fatal flaw.

JUDGMENT in IMM-5696-19

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is granted;

2. No question is certified.

"Martine St-Louis"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: