Date: 2004012214
Docket: IMM-6683-02
Citation: 2004 FC 89
Ottawa, Ontario, this 22nd day of January, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
SALIHA KHATOON
SAMI UDDIN
AZEEMA SAMI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mrs. Saliha Khatoon, Mr. Sami Uddin and Ms. Azeema Sami seek judicial review of the decision of immigration officer P. Russell (the "immigration officer"), dated December 11, 2002. In that decision, the immigration officer denied the applicants' request for an exemption pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), to apply from within Canada for permanent residence on humanitarian and compassionate ("H & C") grounds. The applicants seek an order setting aside the December 11, 2002 decision, as well as an order remitting their H & C application back for consideration by another officer.
BACKGROUND
[2] Mrs. Saliha Khatoon, her spouse, Mr. Sami Uddin and their daughter, Ms. Azeema Sami are all citizens of Pakistan. They arrived in Canada in August, 1997 and applied for Convention refugee status. They were determined not to be Convention refugees in September 1998 by the Immigration and Refugee Board (the "Board"). Their claim was based on the fact that Mrs. Khatoon's brother is Altaf Hussain, founder and leader of the Mohajir Quami Movement, also referred to as the Muttahida Quami Movement ("MQM") in Pakistan. Altaf Hussain went into exile in the United Kingdom in approximately 1991 and was granted asylum there in 1999. He has continued to run the MQM from London, England.
[3] Altaf Hussain, in a letter dated April 17, 2000, describes the MQM. This organization comprises "Mohajirs", Muslims who migrated from India to Pakistan in 1947, and were of a middle-class, educated background. The Mohajirs faced discrimination and abuse from the Pakistan authorities from about the 1970s onwards. Mr. Hussain founded the MQM in 1984 and it emerged as a political party, advocating the rights of Mohajirs. Since that time, many MQM workers and supporters have been arrested and killed by the authorities.
[4] A brother of Altaf Hussain and Mrs. Khatoon,. Nasir Hussain, and Mrs. Khatoon's nephew, Arif Hussain, were tortured and killed in 1995 due to their family connection to Altaf Hussain. Nasir Hussain's widow and remaining family were granted Convention refugee status in Canada in March 1999.
[5] In May 2000, the applicants applied for permanent residence from within Canada on H & C grounds. They submitted a great deal of documentary evidence about the treatment of MQM members and associates, news reports related to the torture and killing of Mrs. Khatoon's brother and nephew, and information related to their refugee claims.
[6] By letter dated July 5, 2002 the applicants were informed that the part of their application dealing with personalized risk in Pakistan had been forwarded to Post Determination Claim Officer ("PDCO"), R. Klagsbrun, for a risk assessment and opinion. Attached to this letter was the PDCO's risk opinion report. This report found that the applicants would not face a risk of inhumane treatment or death if returned to Pakistan. The applicants were given an opportunity to comment on any errors or omissions in this report.
[7] On July 16, 2002, the applicants submitted their response to the risk opinion report. They noted several alleged errors and omissions in the report.
[8] The PDCO forwarded his risk opinion report, including the applicants' submissions in response, to the immigration officer on July 23, 2002. In the cover letter to this submission the PDCO noted that the applicants' responding submissions to the risk opinion did not alter his conclusion that the applicants did not face an objectively identifiable personalized risk in Pakistan.
[9] By letter dated December 11, 2002, the immigration officer denied the applicants' request for an exemption to apply for permanent residence from within Canada on H & C grounds. The applicants were not interviewed by the immigration officer.
The Immigration Officer's Decision
[10] The tribunal record shows written notes of the immigration officer which are, by and large, illegible. In a form marked "Section 5: Decision and Rationale" the immigration officer wrote "Refer FOSS for decision and rationale". The Field Operating Support System ("FOSS") notes were also provided to the applicant, pursuant to Rule 9 of the Federal Court Immigration and Refugee Protection Rules, SOR/2002-232, as the reasons for the immigration officer's decision. The FOSS notes, therefore, form the reasons for decision in this case.
[11] The FOSS notes reveal that the immigration officer relied almost exclusively on the PDCO's risk opinion as the basis for her decision not to grant the applicants the H & C exemption. The immigration officer also refers to the fact that the applicants have no remaining relatives in Pakistan, that Mr. and Mrs. Khatoon have both worked for temporary placement agencies in Canada and that Azeema Sami, who the immigration officer mistakenly refers to as a son of Mrs. Khatoon, would not suffer undue hardship if she were required to return to Pakistan. The immigration officer also refers to the fact that the Board found that the applicants' refugee claims were based on implausible evidence and were not credible. At pages 460-461 of the tribunal record, the immigration officer wrote as follows in the FOSS notes:
... I HAVE REVIEWED THE THE RISK OPINION DECISION OF THE PPRA OFFICER AND HAVE FOUND NO REASON TO DOUBT THEIR EXPERTISE WITH THE ISSUES INVOLVED. AS SUCH, I CONCUR WITH THE DECISION. FURTHER THE IRB IN THEIR DECISION NOTED THAT THE REF/CLAIM WAS BASED ON IMPLAUSIBLE EVIDENCE AND LACKED CREDIBILITY. I AM NOT SATISFIED THAT SUBJS ARE ESTABLISHED. I AM NOT SATISFIED THAT SUFFICIENT H & C GROUNDS EXIST TO WARRANT EXEMPTION FROM NORMAL LEGISLATIVE REQUIREMENTS TO GRANT A11(1) WAIVER... I BELIEVE THAT THEY WOULD SUFFER NO UNDUE, UNUSUAL OR DISPROPORTIONATE HARDSHIP IS THEY WERE REQUIRED TO LEAVE CANADA AND RETURN TO THEIR COUNTRY.../ P. RUSSELL, I.O. 10DEC02
[Typographical errors in original]
APPLICANTS' SUBMISSIONS
[12] The applicants' submissions focussed on the content of the risk opinion prepared by the PDCO officer. Such officers are now referred to under IRPA as Pre-Removal Risk Assessment ("PRRA") officers and that is the term I will employ for the remainder of these reasons. The applicants acknowledge that the immigration officer can rely on the advice of a PRRA officer, provided that the immigration officer is the one who makes the final decision. Relying on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, they contend that since the standard of review of H & C decisions is reasonableness simpliciter, that same standard of review should apply to risk assessment opinions that are in turn relied upon by immigration officers in making the final H & C decision. This position was accepted by respondent's counsel during the course of the hearing.
[13] The applicants argue that the risk assessment in this case was not only unreasonable, but also patently unreasonable. The applicants say that the PRRA officer erred in relying on their return to Pakistan in 1997, rather than evaluating the prospective risk to them in Pakistan at the time of the risk assessment decision in 2002. The PRRA officer was required to evaluate the danger to the applicants in 2002. Further, the applicants argue that the PRRA officer failed to note a central matter that was "at the heart" of the Board's negative decision in 1998, namely that at the time of the Board's decision the MQM was "still part of a fragile alliance with the ML government which has been in effect since approximately March, 1997".
[14] The applicants submit that the PRRA officer ignored this key fact, while relying on the negative plausibility findings of the Board. The MQM was no longer in an alliance with the government by 2002, and was not in any sort of alliance in 1995, when Mrs. Khatoon's brother was murdered.
[15] The applicants also submit that the PRRA officer erred in relying on the fact that the applicants were not members of the MQM, as this was not a relevant issue, but rather the issue was whether Mrs. Khatoon and her family, due to their connection with Mrs. Khatoon's brother, Altaf Hussain, would be at risk if returned to Pakistan. The applicants say that the PRRA officer failed to appreciate this distinction.
[16] The applicants argue that the PRRA officer also erred in failing to consider the Board decision pertaining to Mrs. Khatoon's sister-in-law and family, wherein the Board found that family members of Altaf Hussain were at risk in Pakistan. Mrs. Khatoon's sister-in-law and family were found to be at risk and granted refugee status in Canada and there was no evidence that they were members of the MQM. Further, the applicants argue that the PRRA officer erred in relying on the fact that Altaf Hussain was in England and therefore the authorities in Pakistan would no longer have an interest in harming the applicants. The evidence demonstrated that notwithstanding Altaf Hussain's absence from Pakistan, family members of the applicants had been tortured and killed due to their family relationship to Altaf Hussain.
[17] Finally, the applicants submit that the process followed in this case did not comply with the principles set out in the Federal Court of Appeal decision of Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (C.A.) in that they did not have an opportunity to comment on the final version of the risk assessment forwarded to the immigration officer. However, counsel conceded at the hearing that the final version was virtually identical to the version that the applicants received and commented upon. In the circumstances, assuming there was a procedural breach, it would have had no effect on the outcome.
RESPONDENT'S SUBMISSIONS
[18] The respondent challenges the applicants' interpretation of the PRRA officer's findings. The officer never stated that the applicants' return to Pakistan in 1997 was determinative of the risk that the applicants may face at the time of their H & C application in 2002. Further the PRRA officer's conclusion was "precisely the same finding" made by the Board.
[19] With respect to the applicant's argument that the PRRA officer erred in not considering that the MQM was part of a "fragile alliance" in 1997 when the applicants returned to Pakistan, the respondent argues that this finding was not central to the Board's reasons and in any event, the Board found the applicants' account of the reasons for their return not to be plausible.
[20] Concerning the applicants' arguments that the PRRA officer did not consider all the evidence, the respondent submits that all of the evidence that was before the officer was considered. The PRRA officer was not bound by the determination of the Board in other refugee claims, that is, the claims of Mrs. Khatoon's sister-in-law and family. Further, the respondent argues that the reasons of the PRRA officer demonstrate that there was no finding or suggestion that the applicants had to be members of the MQM in order to be found to face a personalized risk if returned to Pakistan.
ISSUE
[21] Was the immigration officer's decision with respect to alleged risk unreasonable?
ANALYSIS
[22] The applicants' challenge to the H & C decision deals only with the rationale of the PRRA officer in his risk opinion which was subsequently adopted by the immigration officer. Both counsel concurred and I accept that the appropriate standard of review to be applied by the court in reviewing the immigration officer's decision, and the underlying risk opinion, is reasonableness simpliciter.
[23] In light of the fact that the immigration officer adopted the PRRA officer's recommendation on risk without analysis of her own or any comment on the applicants' responding submissions to the risk assessment, and then relied primarily on the risk opinion of the PRRA officer as the basis for her decision not to grant the applicants the H & C exemption, this risk opinion can be seen as forming part of the reasons for the immigration officer's negative decision. In coming to this conclusion, I am guided by the analysis set out in Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans), [2002] F.C.J. No. 436 (C.A.)(QL). In that case, the Federal Court of Appeal held that the recommendation of a fisheries board, upon which the ultimate decision-maker, the Minister of Fisheries and Oceans, based, in part, his decision, was "inexorably connected" to the final decision. The Court in Jada Fishing, supra, proceeded to review the board's recommendations.
[24] In the present case, the PRRA officer's risk opinion report was inexorably connected to the immigration officer's final decision. The immigration officer wrote in the FOSS notes that she "concurred" with this decision, and had no reason to doubt the expertise of the PRRA officer in assessing risk. The immigration officer herself completed no analysis of the risk faced by the applicants. Furthermore, the applicants' H & C application was based, almost entirely, on their claim that they would face personalized risk of inhumane treatment, severe sanction or threats to their life if they were returned to Pakistan.
[25] Applying the reasonableness simpliciter standard of review to the substance of the immigration officer's reasons, I find that the reasons, including the risk opinion report of the PRRA officer, do not stand up to a "somewhat probing examination", as stated by the Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at 776.
[26] First, the risk assessment makes no mention of the torture and killing of Mrs. Khatoon's brother and nephew. There was a great deal of evidence submitted by the applicants, including numerous, independent news reports of the killings and an inquiry into their deaths, together with rather graphic pictures of the dead bodies of her brother and nephew. Such evidence was fundamental to the applicants' claim that they faced risk and should have been mentioned in the risk assessment. However, the risk assessment is silent on this evidence.
[27] Contrary to the respondent's position, I find that the PRRA officer did rely, in error, on the fact that the applicants themselves were not politically active or members of the MQM. The officer quoted documentary evidence that indicated that MQM members were still being extra-judicially killed by government authorities and then stated that there "is insufficient compelling evidence to indicate that the applicants were and are politically active or were ever members of the MQM.".
[28] The applicants' claim to be at risk was related to perceived political involvement and their family connection to Altaf Hussain, the founder of the MQM. The above finding was made without regard to the evidence presented, and therefore cannot be said to be reasonable.
[29] Next, the PRRA officer concluded as follows:
Since the female applicant's brother is in England there is insufficient compelling evidence to indicate that the Pakistan authorities would be interested in harming her and her family today.
[30] This finding is unreasonable in light of the fact that Altaf Hussain went into exile in the United Kingdom in approximately 1991. From the documentary evidence that was before the PRRA officer and immigration officer, it is clear that he continues to play a very active role in running the MQM from London, England. Further, the fact that Altaf Hussain was no longer living in Pakistan did not stop the authorities from torturing and killing his brother and nephew in 1995. These facts indicate that the PRRA officer's conclusion above cannot stand up to a somewhat probing examination and therefore is not reasonable.
[31] The applicants also take issue with the fact that the risk opinion report focusses on their return to Pakistan in 1997, rather than focussing on the risk that they would face in Pakistan at the time of the assessment in 2002. In this area, I am not persuaded by the applicants' argument. The PRRA officer noted that there was insufficient evidence to indicate that the applicants were "actively" being sought or that anyone is "currently interested in their whereabouts or in seeking reprisals against them". In my view, the risk opinion as a whole indicates that it was conducted pursuant to the appropriate time period, with reference to possible risk that would occur at the time of the assessment, that is, 2002.
[32] Further, I am not persuaded by the applicants' contention that the PRRA officer failed to appreciate the fact that the Board's negative conclusions on subjective fear in the applicants' refugee claim was related to the fact that the MQM was part of a "fragile alliance" with the government at the time they returned to Pakistan in 1997. The Board's reasons do not indicate that this was a central factor in its analysis of subjective fear.
[33] Finally, although this issue was not pressed by applicants' counsel at the hearing, in my view, there was no denial of procedural fairness in this case, as the procedure outlined in Haghighi,supra, was followed. The applicants had contended in their written submissions that the cover letter of PRRA Officer, R. Klagsbrun, dated July 23, 2002, to which he attached his risk opinion report as well as the applicants' responding submissions of July 16, 2002, constituted another, altered opinion, to which they were entitled to have an opportunity to respond. A review of this letter indicates that the PRRA officer summarizeds the July 16, 2002 submissions of the applicants and then stated as follows:
I wish to note just because I did not mention specific evidence in my report that counsel submitted, does not mean I did not consider it. I did consider all the evidence that counsel submitted in my report. I have reviewed counsel's response and considered it, and it is still my opinion that that there is less than a mere possibility that the applicants would be a risk upon return to Pakistan. My opinion remains unchanged.
Thank you
R. Klagsbrun
Pre-Removal Risk Assessment Officer
[34] This information in no way alters the substance of the PRRA officer's original assessment. In my view, the PRRA officer's risk opinion report of July 5, 2002 is the final report with respect to risk, although, of course, the immigration officer was required to make the final decision concerning the applicants' overall H & C application.
[35] Evans J.A. stated as follows at page 423 of Haghighi,supra:
In my opinion, the duty of fairness requires that inland applicants for H & C landing under subsection 114(2) be fully informed of the content of the PCDCO's risk assessment report, and permitted to comment on it, even when the report is based on information that was submitted by or was reasonably available to the applicant. Given the often voluminous, nuanced and inconsistent information available from different sources on country conditions, affording an applicant an opportunity to comment on alleged errors, omissions or other deficiencies in the PCDCO's analysis may well avoid erroneous H & C decisions by immigration officers, particularly since these reports are apt to play a crucial role in the final decision. I would only add that an opportunity to draw attention to alleged errors or omissions in the PCDCO's report is not an invitation to applicants to reargue their case to the immigration officer.
[36] The procedure outlined above in Haghighi, supra, was followed in the present case. The July 5, 2002 disclosure allowed the applicants to be fully informed of the content of the PRRA officer's risk opinion report and gave them an opportunity to comment on any errors, omissions or other deficiencies in the opinion. As the July 23, 2002 letter to the immigration officer did not alter, in any meaningful way, this assessment, there was no obligation to disclose it to the applicants for further comment.
[37] In conclusion, for the reasons outlined above, this judicial review is allowed.
ORDER
THIS COURT ORDERS that :
1. This judicial review is allowed;
2. The decision of the immigration officer dated, December 11, 2002 is set aside and this matter is remitted to a different immigration officer and a different PRRA officer for the assessment of risk, for reconsideration in accordance with these reasons;
3. There is no question for certification.
"Richard G. Mosley"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6683-02
STYLE OF CAUSE: SALIHA KHATOON, SAMI UDDIN, AZEEMA SAMI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 14, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
APPEARANCES:
Mr. Lorne Waldman FOR THE APPLICANTS
Mr. Jeremiah Eastman FOR THE RESPONDENT
SOLICITORS OF RECORD:
WALDMAN & ASSOCIATES FOR THE APPLICANTS
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada