Federal Court

Constitutional Law

Charter does not provide positive right to refugee protection

Foreign nationals were citizens of Afghanistan. Officer found principal foreign national was senior official in Afghan government from 1995 to 1997, which overlapped with rule of Taliban, regime designated by minister pursuant to s. 35(1)(b) of Immigration and Refugee Protection Act. Given this determination, officer found foreign national and his family inadmissible by operation of s. 42 of act. Foreign national applied for judicial review. Application dismissed. There was no merit in foreign national’s contention that he was forced out of government employment by Taliban in 1996. There was ample evidence from which officer could conclude that principal foreign national was in service of government until August 1997 and this finding of fact was reasonable. Finding that individual is or was senior member of public service of government described in s. 35(1)(b) is sufficient for finding of inadmissibility. Officer was not required to consider whether foreign national was complicit in Taliban regime. Officer was only required to consider whether foreign national was senior official of that regime within meaning of s. 16 of Immigration and Refugee Protection Regulations. Officer adequately assessed whether foreign national’s service satisfied meaning of prescribed senior official. No procedural fairness arose from failure to disclose poison pen e-mail alleging that foreign national assisted Taliban as there was no indication officer relied on this e-mail in decision. Section 7 of Canadian Charter of Rights and Freedoms was not engaged in present case as Charter does not provide positive right to refugee protection. Unavailability of refugee protection to person facing removal to risk of harm will not violate s. 7 where other protections are available. Even if s. 7 were engaged by finding of inadmissibility, foreign nationals could seek ministerial relief from this finding pursuant to s. 42.1(1) of act.

Tareen v. Canada (Minister of Citizenship and Immigration) (Nov. 6, 2015, F.C., Robin Camp J., File No. IMM-309-15) 260 A.C.W.S. (3d) 563.

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