Ismailzada et al. v. Canada (Minister of Citizenship and Immigration), (2013) 425 F.T.R. 271 (FC)

JudgeManson, J.
CourtFederal Court (Canada)
Case DateJanuary 23, 2013
JurisdictionCanada (Federal)
Citations(2013), 425 F.T.R. 271 (FC);2013 FC 67

Ismailzada v. Can. (M.C.I.) (2013), 425 F.T.R. 271 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2013] F.T.R. TBEd. JA.036

Nadir Ali Ismailzada and Shah Wali Azrati (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3505-12; 2013 FC 67; 2013 CF 67)

Indexed As: Ismailzada et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Manson, J.

January 24, 2013.

Summary:

An immigration officer of the Canadian High Commission in Islamabad refused the applicants' permanent resident applications made under the Convention refugee abroad class and the country of asylum class. The applicants applied for judicial review.

The Federal Court allowed the application and remitted the matter to another officer for reconsideration.

Aliens - Topic 1316.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee classes (IRPA Regulations) - Convention refugees abroad - An immigration officer of the Canadian High Commission in Islamabad refused the applicants' permanent resident applications made under the Convention refugee abroad class and the country of asylum class - The applicants applied for judicial review, asserting that regardless of the fact that the officer found some of the applicants' information not credible, the officer erred by failing to apply the evidence that he did accept to the legal definition of Convention refugee abroad class - The Federal Court allowed the application - The officer failed to assess the applicants' claim to protection as Convention refugees abroad - After finding that the applicants were not members of the country of asylum class, he merely stated the following: "Nor, on the basis of this information, am I satisfied that you, or your family members have a well-founded fear of persecution on a ground enumerated in the 1951 Refugee Convention." - See paragraphs 33 and 35.

Aliens - Topic 1316.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee classes (IRPA Regulations) - Humanitarian-protected persons abroad (incl. country of asylum class and source country class) - An immigration officer of the Canadian High Commission in Islamabad refused the applicants' permanent resident applications made under the Convention refugee abroad class and the country of asylum class - The applicants applied for judicial review, asserting that regardless of the fact that the officer found some of the applicants' information not credible, the officer erred by failing to apply the evidence that he did accept to the legal definition of country of asylum classes - The Federal Court rejected the assertion - The officer articulated the definition for the country of asylum class as whether the applicants would be personally and seriously affected by civil war, armed conflict or massive violation of human rights in their country of nationality - The officer correctly stated the criteria for the definition - The applicants could not meet that definition with respect to the information that the officer found was credible - See paragraphs 29 to 32.

Aliens - Topic 1329.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a fair hearing - An immigration officer of the Canadian High Commission in Islamabad refused the applicants' permanent resident applications made under the Convention refugee abroad class and the country of asylum class - The applicants applied for judicial review, asserting that the officer denied them procedural fairness by failing to separately interview the second applicant - The Minister admitted that the applicants deserved a chance to respond to the officer's credibility concerns, but asserted that the second applicant lost the chance to do so when he did not show up to the interview - The Federal Court accepted that the second applicant was present at the interview - He should therefore have been given the opportunity to respond to the officer's credibility concerns - The officer breached the duty of procedural fairness by not giving him the chance to do so - See paragraphs 10 to 22.

Aliens - Topic 1329.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a fair hearing - An immigration officer of the Canadian High Commission in Islamabad refused the applicants' permanent resident applications made under the Convention refugee abroad class and the country of asylum class - The applicants applied for judicial review, asserting that the officer breached the duty of procedural fairness by failing to inform them of his specific concerns and to give them an opportunity to respond - The Federal Court rejected the assertion - The applicants cited only one case to support their assertion and it was distinguishable because it was in the context of a refugee claim made in Canada and not a refugee claim made abroad - See paragraphs 23 to 25.

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - An immigration officer of the Canadian High Commission in Islamabad refused the applicants' permanent resident applications made under the Convention refugee abroad class and the country of asylum class - The applicants applied for judicial review, asserting that the officer's decision was unreasonable as he failed to explain why he rejected plausible, consistent evidence that the principal applicant's son had been killed by the Taliban and that he himself had been taken prisoner, as well as the explanation for why that information was not included in their forms - The Federal Court stated that the officer's negative credibility finding was, at first blush, reasonable given the fact that the principal applicant first raised the allegations respecting the Taliban at the interview and had not mentioned the claims on his application form for permanent residence - It also seemed reasonable for the officer to reject that the principal applicant signed a blank form and that the form was completed over the telephone by friends in Canada who were co-sponsoring the family - However, the officer failed to mention the interviewees' explanation that the principal applicant and his son in Canada were both illiterate - It was unreasonable for the officer to ignore that part of the explanation - See paragraphs 26 to 28.

Aliens - Topic 4105

Practice - Costs - For special reasons - An immigration officer of the Canadian High Commission in Islamabad refused the applicants' permanent resident applications made under the Convention refugee abroad class and the country of asylum class - The applicants successfully applied for judicial review - The matter was remitted to another officer for redetermination - The applicants asserted that an award of costs was justified because the officer made egregious errors (failed to give the second applicant a chance to respond to credibility concerns; erred in his credibility determination; and failed to assess their claim to protection as Convention refugees) and they endured a prolonged delay of six years for an interview - The Federal Court reviewed what was considered "special reasons" for awarding costs under rule 22 of the Federal Courts Immigration and Refugee Protection Rules - The circumstances here did not warrant an order as to costs - See paragraphs 36 to 41.

Cases Noticed:

Qarizada et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 944; 2008 FC 1310, refd to. [para. 8].

Adan v. Canada (Minister of Citizenship and Immigration) (2011), 391 F.T.R. 33; 2011 FC 655, refd to. [para. 8].

Karimzada v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 89; 2012 FC 152, refd to. [para. 8].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 9].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 10].

Oraha et al. v. Canada (Minister of Citizenship and Immigration), [1997] F.T.R. Uned. 296 (T.D.), refd to. [para. 12].

Sutharsan v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 141; 2007 FC 226, refd to. [para. 12].

Atahi v. Canada (Minister of Citizenship and Immigration) (2012), 413 F.T.R. 122; 2012 FC 753, refd to. [para. 12].

Wang v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 278 (T.D.), refd to. [para. 13].

Kozak et al. v. Canada (Minister of Citizenship and Immigration) (2006), 349 N.R. 309; 2006 FCA 124, dist. [para. 14].

Geza v. Canada (Minister of Citizenship and Immigration) - see Kozak et al. v. Canada (Minister of Citizenship and Immigration).

Shimokawa v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 271; 147 A.C.W.S.(3d) 863; 2006 FC 445, dist. [para. 14].

Mushimiyimana v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 745; 2010 FC 1124, refd to. [para. 15].

Hassani v. Canada (Minister of Citizenship and Immigration) (2006), 302 F.T.R. 39; 2006 FC 1283, refd to. [para. 20].

Akhtar et al. v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 371; 2002 FCT 560, dist. [para. 25].

Ndererehe et al. v. Canada (Minister of Citizenship and Immigration) (2007), 317 F.T.R. 23; 2007 FC 880, refd to. [para. 39].

Johnson v. Canada (Minister of Citizenship and Immigration) (2005), 275 F.T.R. 316; 2005 FC 1262, refd to. [para. 39].

Counsel:

Matthew Jeffery, for the applicants;

Stephen Jarvis, for the respondent.

Solicitors of Record:

Matthew Jeffery, Toronto, Ontario, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on January 23, 2013, by Manson, J., of the Federal Court, who delivered the following reasons for judgment on January 24, 2013.

To continue reading

Request your trial
8 practice notes
  • Navaratnam et al. v. Canada (Minister of Citizenship and Immigration), (2015) 481 F.T.R. 222 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • April 9, 2015
    ... [1989] 1 S.C.R. 560 ; 93 N.R. 81 , refd to. [para. 23]. Ismailzada et al. v. Canada (Minister of Citizenship and Immigration) (2013), 425 F.T.R. 271; 2013 FC 67 , refd to. [para. Ahmed v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 73 ; 2013 FC 205 , refd to. ......
  • Singh c. Canada (Citoyenneté et Immigration),
    • Canada
    • Federal Court (Canada)
    • May 6, 2016
    ...by an applicant is the basis of a visa officer’s concern: see Ismailzada v Canada (Minister of Citizenship and Immigration), 2013 FC 67 at para 20, citing Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at para 24 [emphasis added by Justice de Montigny]. The ......
  • Chawla v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 174 (FC)
    • Canada
    • Federal Court (Canada)
    • May 7, 2014
    ...submitted by an applicant is the basis of a visa officer's concern: see Ismailzada v Canada (Minister of Citizenship and Immigration) , 2013 FC 67 at para 20, citing Hassani v Canada (Minister of Citizenship and Immigration) , 2006 FC 1283 at para 24. The flexible nature of the duty of fair......
  • Bakhtiari v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 597
    • Canada
    • Federal Court (Canada)
    • December 6, 2013
    ...(Minister of Citizenship and Immigration) , 2009 FC 266 at paras 18-20; Ismailzada v Canada (Minister of Citizenship and Immigration ), 2013 FC 67 at para 8. [23] Accordingly, the analysis of the officer's decision will be concerned with the "existence of justification, transparency and int......
  • Request a trial to view additional results
8 cases
  • Navaratnam et al. v. Canada (Minister of Citizenship and Immigration), (2015) 481 F.T.R. 222 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • April 9, 2015
    ... [1989] 1 S.C.R. 560 ; 93 N.R. 81 , refd to. [para. 23]. Ismailzada et al. v. Canada (Minister of Citizenship and Immigration) (2013), 425 F.T.R. 271; 2013 FC 67 , refd to. [para. Ahmed v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 73 ; 2013 FC 205 , refd to. ......
  • Singh c. Canada (Citoyenneté et Immigration),
    • Canada
    • Federal Court (Canada)
    • May 6, 2016
    ...by an applicant is the basis of a visa officer’s concern: see Ismailzada v Canada (Minister of Citizenship and Immigration), 2013 FC 67 at para 20, citing Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at para 24 [emphasis added by Justice de Montigny]. The ......
  • Chawla v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 174 (FC)
    • Canada
    • Federal Court (Canada)
    • May 7, 2014
    ...submitted by an applicant is the basis of a visa officer's concern: see Ismailzada v Canada (Minister of Citizenship and Immigration) , 2013 FC 67 at para 20, citing Hassani v Canada (Minister of Citizenship and Immigration) , 2006 FC 1283 at para 24. The flexible nature of the duty of fair......
  • Bakhtiari v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 597
    • Canada
    • Federal Court (Canada)
    • December 6, 2013
    ...(Minister of Citizenship and Immigration) , 2009 FC 266 at paras 18-20; Ismailzada v Canada (Minister of Citizenship and Immigration ), 2013 FC 67 at para 8. [23] Accordingly, the analysis of the officer's decision will be concerned with the "existence of justification, transparency and int......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT