Jawad v. Canada (Minister of Citizenship and Immigration), (2012) 417 F.T.R. 150 (FC)

• Court: Federal Court (Canada)
• Case Date: August 23, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 417 F.T.R. 150 (FC);2012 FC 1035

Jawad v. Can. (M.C.I.) (2012), 417 F.T.R. 150 (FC)

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2012] F.T.R. TBEd. AU.042

Abdul Jawad (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-817-12; 2012 FC 1035; 2012 CF 1035)

Indexed As: Jawad v. Canada (Minister of Citizenship and Immigration)

Federal Court

Crampton, C.J.

August 29, 2012.

Summary:

Mr. and Ms. Jawad (spouses) were citizens of Afghanistan. They claimed refugee protection upon their arrival in Canada in 2009. The Refugee Protection Division of the Immigration and Refugee Board accepted Ms. Jawad's claim on the basis of her fear of persecution at the hands of a distant relative. However, the Board rejected Mr. Jawad's claim on the basis that he had not established that he would face a serious possibility of being persecuted if he were to return to Afghanistan, as contemplated by s. 96 of the Immigration and Refugee Protection Act, or that he would face a risk described in s. 97. Mr. Jawad applied for judicial review. He argued that the Board erred by assessing his claim on the basis of what would happen to him if he returned to Afghanistan without his wife, rather than on the basis of what would happen to him if he and his wife returned to Afghanistan together.

The Federal Court dismissed the application.

Aliens - Topic 1322.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Considerations - Family unity - The Federal Court stated that "the law's recognition of the family as a 'social group' that may be entitled to protection under section 96 [of the Immigration and Refugee Protection Act] does not logically imply that 'members of a nuclear family comprised of spouses and minor children are entitled to have their refugee claims determined on the basis of their fundamental right to live together.' The law may strive to facilitate family unity in certain circumstances, such as those contemplated by section 25 of the IRPA and section 176(1) of the Immigration and Refugee Protection Regulations, SOR/ 2002-227. However, it does not recognize any such fundamental right for refugee claimants to live together or require the Board to assess the claims of family members from the perspective that they will invariably remain together" - See paragraph 10.

Aliens - Topic 1326.8

Admission - Refugee protection, Convention refugees and persons in need of protection - Joint processing of claims - Mr. and Ms. Jawad (spouses) were citizens of Afghanistan - The Refugee Protection Division of the Immigration and Refugee Board accepted Ms. Jawad's claim for refugee protection on the basis of her fear of persecution at the hands of a distant relative (Usman), a former Taliban commander who worked in the Afghan government's intelligence operations - After Ms. Jawad rejected Usman's marriage proposal, Usman had threatened to kill her if she ever thought of marrying anyone else and to kill any prospective suitor - Shortly afterwards, the Jawads secretly got married - After accepting Ms. Jawad's claim, the Board rejected Mr. Jawad's claim on the basis that he had not established that he would face a serious possibility of being persecuted if he were to return to Afghanistan, as contemplated by s. 96 of the Immigration and Refugee Protection Act, or that he would face a risk described in s. 97 - Mr. Jawad applied for judicial review - He argued that the Board erred by assessing his claim on the basis of what would happen to him if he returned to Afghanistan without his wife, rather than on the basis of what would happen to him if he and his wife returned to Afghanistan together - The Federal Court dismissed the application - The Board found that there was less than a reasonable chance that Usman would come into possession of information regarding the marriage, and that therefore there was less than a reasonable chance that Mr. Jawad would be persecuted at the hands of Usman should he return to Afghanistan - The conclusions reached with respect to Mr. Jawad's claim were reasonable - In the absence of any evidence to the contrary, it was not unreasonable for the Board to assume that Ms. Jawad would avail herself of the refugee protection that she had received and that Mr. Jawad would return to Afghanistan without her if his application for protection was unsuccessful - Given the evidentiary record, it was reasonably open to the Board to assume that the couple would not return to Afghanistan together.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - Mr. and Ms. Jawad (spouses) were citizens of Afghanistan - The Refugee Protection Division of the Immigration and Refugee Board accepted Ms. Jawad's claim for refugee protection based on her fear of persecution at the hands of a distant relative - However, the Board rejected Mr. Jawad's claim on the basis that he had not established that he would face a serious possibility of being persecuted if he were to return to Afghanistan, as contemplated by s. 96 of the Immigration and Refugee Protection Act, or that he would face a risk described in s. 97 - Mr. Jawad applied for judicial review - He argued that the Board erred by assessing his claim on the basis of what would happen to him if he returned to Afghanistan without his wife, rather than on the basis of what would happen to him if he and his wife returned to Afghanistan together - The Federal Court stated that the issue was whether the Board erred in assessing Mr. Jawad's claim from the perspective that, if his claim were unsuccessful, he would return home to Afghanistan without his wife - That was a question of mixed fact and law reviewable on a standard of reasonableness - See paragraphs 7 to 9.

Cases Noticed:

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].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 9].

Tomov v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 922; 2005 FC 1527, dist. [para. 9].

Zheng v. Canada (Minister of Citizenship and Immigration) (2011), 384 F.T.R. 125; 2011 FC 181, refd to. [para. 9].

Casetellanos et al. v. Canada (Solicitor General), [1995] 2 F.C. 190; 89 F.T.R. 1 (T.D.), refd to. [para. 11].

Addullahi v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 150 (T.D.), refd to. [para. 11].

Rafizade v. Canada (Minister of Citizenship and Immigration) (1995), 92 F.T.R. 55 (T.D.), refd to. [para. 11].

Musakanda et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 883; 2007 FC 1300, refd to. [para. 11].

Cortes Silva v. Canada (Minister of Citizenship and Immigration) (2005), 265 F.T.R. 297; 2005 FC 738, refd to. [para. 11].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 12].

Counsel:

Peter Edelmann, for the applicant;

Jennifer Dagsvik, for the respondent.

Solicitors of Record:

Peter Edelmann, Vancouver, British Columbia, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application was heard on August 23, 2012, at Vancouver, British Columbia, before Crampton, C.J., of the Federal Court, who delivered the following decision on August 29, 2012.