BETWEEN:
SULTAN MOHAMED MALEKZAI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] This is an application for judicial review of a decision of a Citizenship and Immigration Officer dated February 2, 2005 wherein it was determined that there were insufficient humanitarian and compassionate grounds for the processing of an application for permanent residence in Canada on behalf of the Applicant, Ahmad Sharif Malekzai.
[2] The Applicant claims to be an Afghanistani citizen. He arrived in Canada in 1995 having previously been in Germany and the former Soviet Union. He claims to have originally resided in Kabul, Afghanistan. Upon arrival in Canada the Applicant claimed status as a convention refugee. This claim was rejected by the Immigration and Refugee Board in a decision dated 17 December, 1996. The Board found that there was no credible or trustworthy evidence to find that the Applicant was indeed from Afghanistan. The Board further found that if he was from Afghanistan, he was given a membership in KHAD when he worked in the Parachute unit in the military where his father was a high ranking official. KHAD was found to be principally directed to a limited, brutal purpose. The Applicant apparently never attempted to leave KHAD throughout its existence.
[3] The Applicant sought to apply for permanent residence while within Canada on humanitarian and compassionate grounds. He had married a Canadian citizen, they had a child born in Canada. The Applicant claimed to have established a thriving small business in Canada. This claim was rejected on the basis of insufficient grounds by a decision of an Immigration Officer dated April 23, 2003. The Applicant sought judicial review of this decision in the Federal Court and was successful by a decision dated August 10, 2005 in file IMM-3400-03. Justice O'Keefe in that decision stated that he was satisfied that the Officer did not take into consideration the potential inadmissibility of the Applicant when assessing the best interests of the Applicant's Canadian born child and that a meaningful assessment of hardship likely to be suffered by the child could not ignore the length of parent-child separation, especially given the country conditions in Afghanistan where it was unreasonable to consider that his wife and daughter could visit him there.
[4] The Applicant's case was returned to a different Officer who, in a decision dated 1 February 2005, again rejected the application stating that there were insufficient grounds to warrant any exception to apply for permanent resident status within Canada based on humanitarian and compassionate grounds and requiring the Applicant to make such application in the normal manner.
[5] The Applicant's position is a unique one. He was found by the Refugee Board, in its decision dated December 17, 1996, not to be a convention refugee. This decision appears to have been made on alternative grounds, the first ground was that the Board found no credible or trustworthy evidence that he was from Afghanistan. The alternative ground was that he was a member of KHAD, a group principally directed to a limited, brutal purpose. The Board said at pages 5-6 of its Reasons:
Thus, the panel has no credible or trustworthy evidence to find that the claimant was indeed from Afghanistan. In the alternative, even if the panel believes that the claimant was credible and was from Afghanistan, he admitted at the hearing that he was given KHAD membership when he worked at the Parachute unit in the military where his father was a high ranking official. His office is under the auspices and part of KHAD. As such he might indeed have a fear of persecution should he return to Afghanistantoday. However, even though he denied being in cohort with the cruel, infamous activities of torture and repressing activities carried out by the KHAD, which he was aware of, his mere membership in such a group, which has been found to be principally dedicated to "inhuman, cruel" purposes could be enough for exclusion to be applicable to his case. He has been a member of KHAD since 1987 and he joined voluntarily. The claimant never attempted to leave the KHAD throughout its existence. In fact he admitted that his being employed under KHAD was a form of protection under the previous regime. He could have left KHAD but he stayed on for his personal benefit. The panel respectfully followed the Federal Court's decision in Zadeh v. MCI and adopted the case law in previous CRDD T93-04927 and T93-10912 decisions. In Zadeh, the court upheld the decision in CRDD T93-04927 that KHAD was "principally directed to a limited, brutal purpose" and that a person who had minimal participation (a cleaner/receptionist, later promoted to driver and part-time bodyguard who never participated in brutal acts of the organisation) and mere membership in KHAD, having had the knowledge of the KHAD's cruel doing and did not attempt to leave earlier when he had the chance to do so, was found to be excludable under Article 1F(a). Thus the claimant is excluded in accordance with Article 1F(a).
[6] The Applicant now denies that he was a member of KHAD and asserts that he was a student in Russia at the relevant time. This issue, however, is not before me at this time.
[7] In January 1998 the Applicant married a woman who was a Canadian citizen and in March 1998 sought permanent residence in Canada based in humanitarian and compassionate grounds (H & C). This application was refused and judicial review denied.
[8] In October 2000 the Applicant filed another H & C application from within Canada. By the time this application was considered the Applicant and his wife had a child born in Canada. This application was refused in April 2003. Judicial review was undertaken by the Federal Court and in a decision dated August 11, 2004 the review was allowed and the matter sent back for a new determination (2004 F.C. 1099). In that decision Justice O'Keefe of this Court said at paragraphs 60 to 65:
[60] I am satisfied that the H & C Officer did not take into consideration the potential inadmissibility of the applicant when assessing the best interests of the applicant's Canadian-born child. I wish to make it clear that I am not saying that the H & C Officer should have made a ruling on the applicant's inadmissibility or admissibility to Canadaas that is not for the H & C Officer to decide. The H & C Officer should have taken into consideration as a factor, however, the applicant's possible inadmissibility to Canada, when assessing the best interests of the child, especially since section 15 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 deems the Board's findings of fact regarding war crimes conclusive on subsequent decisions regarding inadmissibility.
[61] The direction of the Federal Court of Appeal in Hawthorne, supra is that an H & C Officer is obliged to determine "the likely degree of hardship to the child caused by the removal of the parent" and the weigh that against other factors. While I agree that the H & C Officer is not obliged or empowered to make an admissibility determination, her disregard for the reality of IRPA's statutory scheme resulted in a completely artificial assessment of the degree of hardship that would be suffered by the applicant's child. A meaningful assessment of hardship could not ignore the length of parent-child separation, especially given the country conditions in Afghanistan.
[62] The H & C Officer's reasoning also commented that the applicant's wife and his daughter could visit or join him in Afghanistan. The country condition documentation before the H & C Officer, however, spoke to an extremely dangerous situation in that country and in fact, the Canadian government issued a travel advisory stating that Canadians should not travel to Afghanistan. It was, therefore, unreasonable for the H & C Officer to state that the applicant's wife and daughter could visit him in Afghanistan.
[63] If part of the H & C Officer's reasoning for finding insufficient humanitarian and compassionate grounds to grant the applicant an exemption was that his family could visit him in Afghanistan or that they could relocate there, those conclusions must have some basis in the evidence. The H & C Officer, on cross-examination, admitted that Afghanistanwould not be a safe place for a child, and I see no explicit consideration of country conditions in her written decision, even though plenty of documentation was before her on this issue.
[64] My reasoning on this issue does not go so far as to impose a general obligation on H & C Officers to analyze country conditions even where risk is not alleged by an applicant, however, where the officer's justification for refusing an application is grounded in the possibility of certain events, those events must not merely be illusory. Where country conditions are as they are in Afghanistan, it is unreasonable for the H & C Officer to base her decision on the ability of a family to reunite there if it is not safe to do so.
[65] I am of the opinion that the H & C Officer's decision was unreasonable as it was not alive, alert and sensitive to the best interests of the applicant's Canadian-born child. I have no way of knowing what the H & C Officer's decision might have been had she considered the fact of a separation to be brought about should the applicant be declared to be inadmissible to Canada.
[9] Thus the new Officer considering the matter again was directed to take into consideration:
- the applicant's possible inadmissibility to Canada when assessing the best interest of the child
- not ignore the length of parent-child separation, especially given the country conditions in Afghanistan.
- that it was not reasonable to state that the applicant's wife and daughter could visit him in Afghanistan.
- country conditions in Afghanistan.
- that it is unreasonable to base a decision on the activity of a family to reunite when it is not safe to do so.
- the fact of a separation to be brought about should the applicant be declared to be inadmissible to Canada.
[10] The Applicant's situation was, at the time of Justice O'Keefe's decision that, under section 35(1)(a) of the Immigration and Refugee Protection Act (IRPA) S.C.2001, C.27 and section 15 of the Regulations made under that Act, because of the finding as to his membership in KHAD, he would be inadmissible into Canada. While certain persons can nonetheless be admitted to Canada by the Minister under sections 112 and 113 of IRPA, these provisions do not apply to someone found to have membership in an organization like KHAD.
[11] Thus, if removed from Canada, the Applicant cannot get back in.
[12] In the meantime a pre-removal risk assessment (PRRA) was undertaken in respect of the Applicant's potential return to Afghanistan and it was determined on 20 July 2004 that the Applicant would be at risk to life or at risk to cruel and unusual treatment or punishment if he returns to Afghanistan.
[13] In sum, if the Applicant is removed to Afghanistan he cannot return to Canada and if removed to Afghanistan he is at risk of being killed and tortured.
[14] In the meantime, the Applicant and his wife, in August 2005, had a second child. The Applicant's wife has some training in accounting or bookkeeping but has no strong history of earning an income that would allow her to work and support two small children. There is no evidence as to support, if any, to be gained from family or friends.
[15] The decision now under review is that of a Citizenship and Immigration Officer dated February 2, 2005. Counsel for the Applicant raised four issues in respect of that decision:
1. Did the officer ignore or proceed by mistake in considering that the Applicant, if removed, could not return to Canada.
2. Did the officer consider a truly balanced approach in dealing with the best interests of the children.
3. Did the officer ignore the fact that the Applicant had established a viable small business in Canada. This issue was not further pursued by Applicant's counsel; and
4. Was there a genuine apprehension of bias in that the Officer was located within the War Crimes branch of the Canada Border Service Agency.
[16] These issues will be considered in turn.
ISSUE #1- Did the Officer ignore or proceed by mistake in considering that the Applicant, if removed, could not return to Canada
[17] It is clear from the Officer's decision that the Officer believed that the Applicant could, with some difficulty, return to Canada. At page 6 of the Tribunal Record the Officer says:
Counsel in his submission addresses the factors relating to Mr. Malekzai return to Canadaand the barriers he could face in trying to return. At this time other than the fact he was excluded pursuant to section 1F(a) of the Convention there is no other evidence that shows he could not return to Canada under a sponsorship by his spouse. The time line may prove to be longer than usual but not total unobtainable.
[18] At page 9 the Officer contemplates an H & C application from abroad that could result in the Applicant's return to Canada:
There are insufficient grounds to warrant any exemption to apply for permanent resident status from within Canadabased on H & C grounds and therefore he would be required to make such application in the normal manner.
[19] Justice O'Keefe in his decision sending the matter back for re-consideration made it clear in paragraph 60 of his Reasons that the findings of the Board were conclusive as to inadmissibility:
[60] I am satisfied that the H & C Officer did not take into consideration the potential inadmissibility of the applicant when assessing the best interests of the applicant's Canadian-born child. I wish to make it clear that I am not saying that the H & C Officer should have made a ruling on the applicant's inadmissibility or admissibility to Canadaas that is not for the H & C Officer to decide. The H & C Officer should have taken into consideration as a factor, however, the applicant's possible inadmissibility to Canada, when assessing the best interests of the child, especially since section 15 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 deems the Board's findings of fact regarding war crimes conclusive on subsequent decisions regarding inadmissibility.
[20] It appears that the Officer ignored this direction or acted in error in making the re-determination on the basis that the Applicant could somehow return to Canada. This is a fundamental error.
ISSUE #2- Did the Officer consider a truly balanced approach in dealing with the best interest of the children
[21] Starting with Baker v. Canada (MCI) [1999] 2 S.C.R. 817 and then with Legault v. Canada (MCI) (2002), 212 D.L.R. (4th) 139 (F.C.A.) and Hawthorne v. Canada (MCI), [2003] 2 F.C. 555 (CA) the Courts have held that an Officer considering the "best interest of the child" is an important but not necessarily determinative factor in considering H & C application. The Officer is to determine the likely degree of hardship and weigh it with other considerations that militate in favour of or against the removal of a parent.
[22] The Court can give a "somewhat probing" examination of the Officer's decision which is to be reviewed on a basis of reasonableness simpliciter (Hawthorne supra, para 34, Baker supra, para 60).
[23] Baker at paragraph 75 instructs that the decision maker:
"...should consider the children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them."
[24] The officer in this case at page 6 of the Tribunal Record said:
Having reviewed and taken into consideration all the information and circumstance of this case, I acknowledge that Mr. Malekzai may experience some emotional difficulty in leaving Canadaand returning to Afghanistan. I also acknowledge that his wife and child may be face with the some difficulties and readjustments to their lives without having him in Canada. I have weighed all the evidence in this case and find that the Article 1F(a) exclusion is very serious and strong factor and one that outweighs all other factors in this case. In the case of Sultan Mohamad Malekzai AKA Khesrow Malekzai, I do not find any grounds that would constitute any unusual, undeserved or disproportionate hardship if he were to return to Afghanistan. (emphasis added)
at page 7:
In reviewing all the factors of the marriage and the establishment of Mr. Malekzai, I have concluded that the marriage appears to be one that was entered into in good faith and they have a genuine and loving relationship. I accept that Ms. Malekzai is responsible for supporting his family and the he provides for all of their needs. I also accept that Mr. Malekzai has a strong relationship with his children and that a separation from his wife and child may result in the entire family making personal adjustments. Notwithstanding all these points, Mr. Malekzai was aware of his Imigration situation at the time he married and started a family. He knew that his convention refugee status had been denied and that his appeal of that decision had also been denied and therefore he faced the possibility of being returned to Afghanistan.(emphasis added)
and at page 8:
In reviewing the all the factors surrounding the marriage, I am satisfied that Mr. Malekzai and his spouse are in a loving and genuine relationship. They have known each other since 1997 and were married five months later in January 1998. At the time that Mr. Malekzai made the decision to enter into a relationship and get married he knew that his refugee claim had been denied and the he was under an effective removal order. He assumed the responsibilities of the marriage knowing that a separation from his wife could be possible. He again assumed these same risks from his daughter and his soon to be born second child when he made the decision to start a family in Canada. In his submission counsel presents that the statutory obligation of an H & C officer is to take into consideration the best interest of the child. He states that since the child is four years of age a separation from her father would be a profound detrimental impact to her psychological and emotional well being. He goes on to state that a Canadian citizen has a right to remain in Canadaand that the best interest of that child must be assessed from her perspective. Having considered counsel's submission and the best interest of the child, while I am empathetic to the situation that Mr. Malekzai's children face should their father be required to leave Canada, I am cannot comment on what psychological or emotional factors they may face. This in my opinion can only be determined by a professional member of the medical society. It is however not a situation that is uncommon to many single parents in Canada. In reviewing the Supreme Court decision in Baker and the best interest of the children, and the current country conditions in Afghanistan, Mrs. Malekzai's statement that she would not risk her safety and that of her children by going to Afghanistan then it goes without saying that the best interest of these children is to remain in Canada with their mother. In Canadathey would have the support of their mother and other family members whocould assist in their upbringing and care. As citizens of Canadathey would have all and any benefits that any Canadian citizen would receive. While they are still young their care would be the mother's responsibility, however when they are older and able to make choices they can determine for themselves what relationship they will have with their father. In his submission counsel addressed the financial situation of the family and that Mr. Malekzai is the primary contributor to the household and that his family would be unable to pay the mortgage on their home. When the second H & C application was submitted, Mrs. Malekzai provided information in which she stated that she had full time employment from 1994-1998 and graduated from the Toronto School of Business in accounting. She provided a letter from Smartech Limited to confirm that she was in full time employment from 1999-2001. Having considered this information, I am of the opinion that Mrs. Malekzai has work skills in the field of accounting and could seek employment if it was necessary and therefore provided for her children. Other than statements made in the H & C application and counsel's submission there is insufficient evidence to satisfy to suggest that the applicant or the child would suffer undue disproportionate hardship in the event of separation.(emphasis added)
[25] There is no doubt that the Officer intended to be "alert and alive" to the interests of the child(ren) but appears to have been insensitive. The Officer expressly refused to consider "psychological and emotional factors." In reality, the Office ignored what truly would happen. The father would be removed from Canada, never to return and likely killed or at least tortured. The mother would be left with limited means of support. Is it necessary to create another welfare situation and broken home!
[26] Counsel for the Respondent has referred the Court to the case of Sumaida v. Canada (MCI) 2004 F.C. 1533 where an H & C application based on "best interests of the child" was rejected on the basis that the applicant was a member of the Iraqi secret police the "Mukhabarat" an organization said to be dedicated to torture and like activities. I have reviewed the memoranda filed in that case and the comments of Campbell J. at paragraph 2 of the decision. In that case there was evidence that the Applicant apparently personally participated in brutal activities such as activity as a "mole" turning people over to be tortured and facilitated an arms sale. Further the Applicant could be returned to either Iraq or Tunisia. It can be seen that, on balance, in that case an application could fail.
[27] In the case at hand there is no evidence that the Applicant personally participated in any activity related to KHAD and his only place of return is Afghanistan where he will be likely killed or at least tortured.
[28] What the Officer is really saying in this case is that the Applicant's purported membership alone, at one time, in KHAD trumps the interests of the wife and children, whatever the result might be to them. No true balancing has taken place. The matter must be sent back for re-determination by a different Officer.
ISSUE #3- Did the officer ignore the fact that the Applicant had established a viable small business in Canada
[29] This issue was not pressed by Counsel and does not need to be dealt with here.
ISSUE #4- Was there a genuine apprehension of bias in that the Officer was located within the War Crimes branch of the Canada Border Service Agency
[30] This issue was determined against the interests of a person in like circumstances in Say v. Canada, 2005 F.C. 739. This decision is subject to an appeal scheduled to be heard in December 2005. In light of the findings on Issues #1 and #2 it is unnecessary to consider this issue further.
CONCLUSION
[31] In conclusion, the Officer erred in law in considering that the Applicant could return to Canada if sent back to Afghanistan. Further the Officer's decision does not withstand a reasonably probing examination in balancing all issues including the best interests of the children.
[32] The issues in this case are highly fact specific thus no question for certification arises.
[33] There is no order as to costs.
"Roger T. Hughes"
Toronto, Ontario
November 21, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1131-05
STYLE OF CAUSE: SULTAN MOHAMED MALEKZAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 15, 2005
APPEARANCES:
Lorne Waldman FOR THE APPLICANT
John Loncar FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT