Toronto, Ontario, April 19, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
PAIANDA OSMANI
SURHAB OSMAIN
SEAIR OSMANI
SORIA OSMANI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicants are a family, all citizens of Afghanistan, presently situated in Pakistan. The principal applicant is the wife, and her husband is the co-applicant. There was at the time the initial application was made, three children in the family. Since that time, a fourth child was born in Pakistan but that child is said to be a citizen of Afghanistan.
[2] The applicants applied in Pakistan for a visa, to enter Canada as convention refugees, being sponsored by the principal applicant’s sister who is a Canadian citizen and resident. The applicants were interviewed by a Canadian visa officer in Pakistan and an assessment was made. A second interview was conducted by another visa officer and by letter dated February 3, 2006, the applicants were advised that the second visa officer was not satisfied that they met the requirements for immigration to Canada. The stated reason was set out in that letter as follows:
After carefully assessing all factors relative to your application, I am not satisfied that you are a member of any of the classes prescribed because in my opinion you do not meet the requirements to be resettled to Canada as a member of the country of asylum class. I am not satisfied that your husband has provided credible information with respect to her personal history in Afghanistan and provided inconsistent information without an acceptable explanation. This overall lack of credibility directly affects the information you provided with respect to your stated claim. As such, you have not satisfied me that you meet the definition of the country of asylum class.
[3] The applicants seek to set aside this decision and have the matter re-determined by a different Officer. For the reasons that follow, I will grant this application.
[4] A brief outline of the history of the matter is necessary. On December 11, 2003, each of the principal applicants filed an application for permanent residence in Canada on a standard form. In the area provided respecting details of military service, there appeared N/A in the male applicant’s form. The male applicant is illiterate, thus the form is signed only with a thumbprint. However, an interpreter has also signed stating that he/she believes the applicant understood what was being asked and provided the answers as indicated. The male applicant’s wife in an affidavit provided to
the Court swears that she was the one who competed this form with the assistance of a translator and that she was unaware as to any military service done by her husband as it would have occurred prior to their marriage.
[5] The adult applicants were interviewed by a first visa officer together in Pakistan on March 22, 2005. In respect of military service the officer’s notes state that the following was disclosed.
MILITARY SERVICE; PA’S HUSBAND WAS 36 YEARS OLD WHEN HE LEFT AFGHANISTAN. PA’S SPOUSE DID HIS MILITARY SERVICE FROM 1988 UNTIL 1991. HE WAS IN THE ARMOUR UNIT 15. HE WAS RAISED IN KANDAHAR, HE WAS THE TANK DIVISION. HE WAS A COOK THERE. HE WOULD REPORT TO SENIOR CAPTAIN (JEGTOORAN) GUL KIL KHAN WHO WAS COMMANDER OF SERVICE BATTALION WITHIN THE TANK DIVISION.. GUL DIL KHAN WOULD REPORT TO THE MAJOR OMAR, THE COMMANDER OF THE TANK DIVISION. MAJOR OMAR WOULD REPORT TO GENERAL (BRID GENERAL) MUNIR MANGAL COMMANDER OF ARMOURED UNIT 15,. MUNIR MANGAL WOULD REPORT TO THE COMMANDER IN CHIEF OF ARMY WING NUMBER 7 OF KANDAHAR, ABDUL HUQ ULUMI. ABDUL HUQ ULUMI WOULD REPORT TO THE MINISTER OF DEFENCE.
PA HAS NEVER WITNESSES FACE TO FACE WAR.
PA’S SPOUSE RECEIVED BASIC MILITARY TRAINING FOR 2 MONTHS AND 21 DAYS.
[6] The first visa officer’s notes of the interview contain the following conclusion:
GIVEN THAT THERE IS STILL ONGOING CIVIL UNREST IN AFGHANISTAN WITH NO RECOURSE TO RELIABLE OFFICIALS, WILL ACCEPT THAT APPLICANT IS STILL PERSONALLY AND SERIOUSLY AFFECTED BY THE SITUATION AND THEREFORE MEETS THE DEF’N OF COUNTRY OF ASYLUM CLASS
NO B CONCERNS: BDEC ENTERED
IMM500 C067897 HAS BEEN SIGNED AND IS ON FILE.
[7] The affidavit of the wife explains her version of the interview this way:
32. They asked why he did not give proper information about them in the forms. Again my husband answered that he was just a soldier that during the three year service those people were his commanders but he did not fight in a war. He was cooking in the kitchen with five other cooks, sometimes peeling onions, cooking potatoes and sometimes cooking rice.
33. They again asked what was written in the forms such as names and dates of birth.
34. With that the interview ended. The visa officer did not ask us for any documents or any further clarification. The visa officer stood up, shook hour (sic) hands and said congratulations and then gave us medical forms. They said they would be in contact with us.
35. We understood then that our case had been accepted as we understand it that is the practise of the Canadian Visa office only to issue immigration medicals when applications have been approved. We did the immigration medicals and advised the visa office of that.
[8] The applicants were summoned for a second interview which took place before a different visa officer in Pakistan on January 23, 2006. Immediately prior to interview, a form had been completed as to the male applicant’s military service indicating that he was a cook during his period of service.
[9] The second interview was conducted with notes being made by the interviewing officer. They are too long to repeat in their entirety but conclude:
At this time, I will have to refuse this applicant for lack of credibility. I am unable to overcome the discrepancy between what the prior interviewer has recorded, with multiple incidents mentioning ‘armoured’ and ‘tank’. I am not satisfied that the applicant has been as forthcoming with me as possible at this interview. This is not an incident of a single discrepancy, but that the applicant’s story today contradicts something that was mentioned several times in the prior interview notes, and in such a fashion that would make a translation error extremely unlikely. This is in addition to the fact that no military service was mentioned at all on the original IMM8 Sched 1.
As I am unsatisfied of credibility, and unable to assure myself that the applicant would not be outside of the definition for this Class (R139 (1) (i)).
MSS: Please prepare refusal letter.
BO43734563 JR 23-JAN-2006.
[10] Three things are to be noted in respect of this entry. First, the refusal is expressed as tentative: “At this time”. Second, the refusal is stated to be on the basis that the (male) applicant, in a double negative way of expressing it, has been unable to assure the officer that he would not be outside the definition of the class provided for by sections 139 (1) (i) of the Immigration and Refugee Protection Regulations. Third, a person identified as MSS is instructed to prepare a refusal letter.
[11] As to the first point, the expression of the decision as being “at this time”, it is clear that the applicant’s sponsor in Canada apparently on receipt of some information as to the interview, immediately instructed her Canadian solicitor to communicate with the officer in order to attempt to resolve some concerns expressed. This was done by a letter from Mr. Loebach, a Canadian lawyer, dated January 25, 2006 and received by the Canadian Immigration Office in Pakistan on February 3, 2006. That letter indicated that the lawyer was acting for the applicants and their Canadian sponsor. It requested time before a decision was made in order to permit his clients to endeavour to secure further documents that may be of assistance. Strangely, no acknowledgement of this letter was made although the Canadian High Commission sent a letter directly to the female applicant on February 27, 2006 referring to her “recent letter” which, if it is a different letter than the lawyer’s letter, cannot be found anywhere on the Record.
[12] At this point, the third matter requires consideration. The following entries appear in the Officer’s recorded notes:
JR: REFUSAL LTR TO YR REVIEW AND SIGNATURE PLEASE. BO43734563 MSS 01-FEB-2006.
REFUSAL LTR. SIGNED BY JR. SENT TO FN BY REDG MAIL. CC SENT TO CIC. COPY PLACED ON FILE.
BO43734563 MSS 06-FEB-2006.
[13] These entries appear immediately following that of January 23, 2006 previously quoted. What the notes appear to mean is that a refusal letter was prepared for the officer’s signature on February 1, 2006 but not signed or sent until February 6, 2006. The letter itself is the decision letter at issue and is dated February 3, 2006.
[14] It appears, therefore, that the Canadian lawyer’s letter was received in the visa officer’s office on February 3, 2006, the same date that the decision letter bears and that the Canadian lawyer’s letter was in the hands of that office for some two or three days before the February 3, letter was in fact signed and delivered on February 6, 2006. There is no affidavit or any other evidence from the visa officer or anyone else as to what went on. It is reasonable to infer that the visa officer simply chose to ignore the Canadian lawyer’s letter for reasons not disclosed.
[15] The second point, the fact that the officer relied on section 139 (1) (i) of the IRPA Regulations in most telling. That section simply provides that a visa shall not issue if an applicant or family member applying, is inadmissible. The officer does not state upon what ground it has been found that the applicant or family member is inadmissible. For instance, if the grounds are those of health or national security or human or international rights violations or serious criminality that has not been stated. One is left to guess.
[16] Nothing on the record shows or even suggests that the male applicant has committed human or international rights violations, as has been convicted of any criminal offence. He was in the Afghan army as a conscript performing duties as a cook during the Marxist regime but that is
nowhere stated to be a ground for exclusion.
[17] It is clear that the second visa officer, but not the first, was uncomfortable with some of the answers given by the male applicant as to prior military service. But in itself, that leads nowhere. If that forms the basis for exclusion it should be clearly stated.
[18] Given that the visa officer failed to deal with the lawyer’s letter in hand and has failed to state clearly what basis, if any, has been found for refusal, it is clear that this matter must be reconsidered by another officer who is clearly and fully advised as to all pertinent facts and will, thereby, be able to make a reasoned decision.
[19] Counsel for the respondent suggested a question for certification, however, this matter is fact driven and will have no broad general application. No question will be certified.
JUDGMENT
For the Reasons given;
THE COURT ADJUDGES that:
1. The application is allowed.
2. The matter is sent back for re-determination by a different visa officer.
3. There is no question for certification.
4. No Order as to costs.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2018-06
STYLE OF CAUSE: LINA OSMANI ET AL v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 18, 2007
APPEARANCES:
Michael Loebach FOR THE APPLICANT
David Tyndale FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michael Loebach
Barrister and Solicitor FOR THE APPLICANT
Toronto, Ontario
John H. Sims, QC
Deputy Attorney General of Canada FOR THE RESPONDENT
Toronto, Ontario