Date: 20030806
Docket: IMM-5370-02
Citation: 2003 FC 957
BETWEEN:
RAHMATULLA RUDI, MALIKA RUDI, ROMA RUDI,
EZATTULLA RUDI, KARISHMA RUDI NASRATTULA RUDI,
BASHARATTULLA RUDI, NAFISA RUDI, HEDAYETTULLA RUDI
and ROKHSAR RUDI
Applicants
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
[1] Rahmatulla Rudi (the principal applicant) his spouse, and eight of their nine children applied for permanent residence in Canada as Convention refugees seeking resettlement. Their application was refused on April 8, 2002 and they seek judicial review of that decision. I have determined that the application should succeed.
[2] In my view, there exist material errors in the decision that necessitate the matter being referred back for redetermination. The factual context giving rise to the application, briefly stated, is that the applicants are citizens of Afghanistan whose claim for refugee status is related to the eldest female minor applicant (the daughter). They fled Afghanistan because the principal applicant's fifty year old cousin demanded that the daughter be given to him in marriage. The family crossed the border into Pakistan where they hid, fearful of the cousin. Approximately 40 days later, they moved to Sri Lanka with the assistance of an agent. A cousin in Canada obtained the aid of the Calgary Vietnamese Victory Church which agreed to sponsor the applicants. The application for permanent residence was submitted to the Canadian High Commission in Sri Lanka on January 29, 2002. The principal applicant was interviewed by a visa officer on April 4, 2002. Two interpreters were used to translate. The principal applicant speaks Farsi and Pashtu. One interpreter translated from Farsi to Tamil and another translated Tamil to English. The refusal letter of April 8th indicates that the visa officer also assessed the principal applicant as an independent in the intended occupation of Mechanic (NOC 7321.0) and that insufficient units of assessment were obtained to qualify for immigration. In relation to the request for permanent residence as Convention refugees seeking resettlement, the officer states:
...[T]he definition of "Convention refugee seeking resettlement"is defined in subsection 2(1) of the Immigration Regulations,1978 and means a Convention refugee (as defined in the Immigration Act) who is outside Canada and is seeking admission to Canada for the purpose of resettling in Canada and in respect of whom there is no possibility, within a reasonable period of time, of a durable solution.
After carefully and sympathetically assessing all factors relative to your application, I have determined that you do not meet this definition because you have not demonstrated a well-founded fear of persecution based on any of the five grounds identified in the Convention refugee seeking Resettlement definition. Your difficulties in Afghanistan appear to be the result of a domestic issue within your family. You were unable to adequately explain why internal flight was not an option in your circumstances. Your claim that your family member would be able to seek you out in Afghanistan or Pakistan did not appear to be credible.
[3] The applicants allege four grounds of review:
(1) the inadequacy of the interpretation at the interview;
(2) the failure to find that the fear alleged was based on one of the five grounds;
(3) the inadequacy of the IFA finding due to the failure to identify the specific location or the reasonableness in the circumstances;
(4) the failure to provide a breakdown of the units of assessment in the refusal letter.
[4] There are substantial differences in the decision-making process with respect to those who apply for Convention refugee status from within Canada and those who apply to come to Canada as a Convention refugee seeking resettlement. For purposes of this matter, those distinctions are not material. A Convention refugee seeking resettlement must come within the definition of "Convention refugee". Here, the visa officer determined that the applicants' fear was not in relation to any of the five grounds set out in the definition. This conclusion flies in the face of Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60 (T.D.) wherein McKeown J. determined that women who are forced into marriage without their consent are a particular social group within the meaning of the definition. In Vidhani, the application for judicial review was allowed on the basis that the board failed to ask the proper question and to conduct the proper analysis of the persecution to which the claimant would be subject for refusal to marry. In the matter before me, the visa officer failed to consider that the daughter could be a member of a particular social group i.e., females forced into marriage in Afghanistan. This, in turn, led to a failure to analyse the allegations of persecution in relation to this social group. In short, the failure to recognize the existence of females forced into marriage as constituting a social group within the meaning of the definition tainted all that followed.
[5] Regarding the IFA finding, identification of an IFA generally is insufficient. A specified geographic location must be identified where the conditions are such as to make it a realistic and attainable safe haven: Rabbani v. Canada (Minister of Citizenship and Immigration) (1997), 125 F.T.R. 141 (T.D.); Ahmed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 390 (T.D.); Arunasalam v. Canada (Minister of Citizenship and Immigration), 2003 FC 885, [2003] F.C.J. No. 1132. Here, there is nothing in the visa officer's affidavit or in the CAIPS indicating that a specific area was identified.
[6] Having reviewed the material prior to the scheduled hearing of the application, I raised the above mentioned issues at the outset of the hearing. Counsel for the respondent readily acknowledged that nothing in the record indicated that a specific location had been identified as an IFA. In relation to the issue of the "Convention refugee" definition, counsel did question whether an evidentiary basis existed to support the applicants' argument given the absence of any mention of the daughter being part of a social group in the supporting affidavits. Upon being referred to the visa officer's affidavit, portions of the CAIPS notes and the applicants' application (Tribunal Record, pages 46-58, specifically pp. 55, 56), counsel acknowledged that there was ample evidence to establish that the application was based upon the daughter being forced into a marriage without her consent or the consent of her parents. The respondent's counsel stated that, as an officer of the court and in the interests of justice, the matter should probably be returned for redetermination.
[7] I wish to emphasize that my reasons are not to be construed as constituting an opinion on the merits of the application. It is the visa officer's failure to recognize the existence of females forced into marriages as a social group and the failure to identify a specific IFA that constitute material errors such that the matter should be returned for redetermination.
[8] Insofar as the applicants' grounds in relation to the issue of interpretation and the rejection of the principal applicant as an independent are concerned, those grounds are without merit and I accept and agree with the respondent's submissions in relation to each of them.
[9] In the result, the application for judicial review will be allowed and the matter will be remitted back for redetermination. An order will so provide. Counsel posed no question for certification. No question is certified.
"Carolyn Layden-Stevenson"
JUDGE
CALGARY, Alberta
August 6, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5370-02
STYLE OF CAUSE: RAHMATULLA RUDI, MALIKA RUDI,
ROMA RUDI, EZATTULLA RUDI,
KARISHMA RUDI, NASRATTULLA RUDI,
BASHARATTULLA RUDI,
NAFISA RUDI, HEDAYETTULLA RUDI and
ROKHSAR RUDI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: August 6, 2003
REASONS FOR ORDER : LAYDEN-STEVENSON, J.
APPEARANCES:
Mrs. Roxanne Haniff-Darwent FOR APPLICANTS
Mr. W. Brad Hardstaff FOR RESPONDENT
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SOLICITORS OF RECORD:
Darwent Law Office
Calgary, Alberta FOR APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT