Date: 20080429
Docket: IMM-2075-07
Citation: 2008 FC 547
Ottawa, Ontario, April 29,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
BABAK
SIAMAK SALEHIAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is a case where Canada found the Applicant to be a genuine refugee
because of the torture experienced in his home country but when the
psychological effects of that torture manifested itself as anti-social
behaviour, Canada sought to
return the Applicant to the very place of that torture.
[2]
This
is the judicial review application of a “Danger Opinion” rendered under s.
115(2)(a) of the Immigration and Refugee Protection Act that
found the Applicant to be a danger to the public in Canada.
II. BACKGROUND
[3]
Mr.
Salehian is a Convention refugee from Iran and was granted that
status in October 1998. He has no family in Canada. He was
convicted of several criminal offences and found to be a danger to the public
by the Minister’s Delegate on April 10, 2007.
[4]
Originally,
the Applicant was an Iranian Kurd living in Mahabad until 1997.
[5]
From
1994 until he left Iran, the Applicant was a member of the Democratic Republic
of Kurdistan, active in the city of Mahabad.
[6]
From
June 1995 until May 30, 1996, the Applicant was detained in prison in Mahabad
and another city, Ouromiech, because of his political activities. During his
imprisonment, he was interrogated, beaten and tortured.
[7]
After
his release from detention, Mr. Salehian continued his political activities but
was ultimately forced into hiding and had to flee the country in 1997. He
claimed and was granted refugee status in 1998 on the basis of the political
persecution and torture that he had experienced.
[8]
Even
before his arrival in Canada, the Applicant began developing his
criminal record. On the flight to Canada he grabbed a female
passenger; he later claimed that he had been intoxicated but he pled guilty to
sexual assault.
[9]
Since
that time he has been convicted of robbery, assault, failure to comply with
court orders and of uttering death threats.
[10]
In
the latest incident in 2006, while on bail for a charge of threatening death,
he attacked a TTC driver. The arresting officers determined that a Mental
Health Assessment was necessary because the Applicant was disjointed in his
conversation. He received a lengthy sentence, on the basis of a joint
submission, so that he could receive treatment for his mental health issues.
[11]
As
manifested by his criminal record, the Applicant has serious mental health
issues commencing with a suicide attempt in 1999. He has been hospitalized on
several occasions for psychiatric treatment.
[12]
The
Applicant is currently residing in the St. Lawrence Valley
Correction and Treatment Centre in Brockville. During much of his
time in Canada, the
Applicant has lived with friends, in shelters or in rooming houses, struggling
with his psychiatric problems and with his alcohol addiction.
[13]
The
Applicant had, prior to being tortured, never suffered from depression. After
that incarceration and torture, he became mentally ill and an alcohol abuser –
his first drink of alcohol was on his flight to Canada. The medical
evidence is consistent that the Applicant suffers from mental health disorders
and alcoholism directly related to the torture he suffered.
[14]
All
of this evidence was before the Minister’s Delegate. As part of the record
before the Minister’s Delegate, the Applicant filed a community treatment plan,
which was endorsed by the attending psychiatrist. In the opinion of that
psychiatrist:
“[…] with adequate ongoing psychiatric
treatment and support Mr. Salehian’s prognosis is good. With abstinence from
alcohol, there is no evidence of him posing a danger to himself or others.
[…]
It is my view that the community treatment
order being drafted will allow Mr. Salehian to be released in a manner which
optimizes his care and minimizes risk. This plan will ensure that he remains in
psychiatric treatment, lives in a supervised setting, complies with medication
and treatment and abstains from alcohol.”
[15]
With
respect to the issue of the danger that the Applicant faces if returned to the
country of torture, there were numerous traditional sources of information,
such as U.S. DOS Reports and Amnesty International Reports, all evidencing
repression in Iran and
targeting of Kurds, particularly those who are politically active against the
government.
[16]
In
addition to this evidence, there was direct evidence from Iranians in Canada, a
journalist and a publisher, both of whom follow issues in Iran. Their
evidence is with respect to the likelihood of further incarceration, torture,
and danger due to past political activities, and the suspicion – not just the
mere “interest” - of Iranian authorities regarding returning citizens.
[17]
The
Minister’s Delegate was not satisfied, based on past history, that the
Applicant would comply with the community treatment plan. The Minister’s
Delegate concluded that there was no independent corroboration that the
Applicant had participated in activities that could lead to persecution.
Lastly, the Minister’s Delegate concluded that the only consequence of his
return to Iran is that the
Applicant might be questioned upon arrival, as is the case with other
returnees.
III. ANALYSIS
[18]
The
consequences of a Danger Opinion are serious as they result in the removal of
the protection from refoulement. Refoulement is contrary to the
Convention Against Torture to which Canada is a party and generally prohibited
by Canadian law and admonished in Suresh v. Canada (Minister of Citizenship
and Immigration), [2002] 1 S.C.R. 3.
[19]
Prior
to Dunsmuir v. New Brunswick, 2008 SCC 9, the
standard of review for a Danger Opinion was patent unreasonableness. That
standard has now been discarded by the Supreme Court in favour of “reasonableness”.
Reasonableness takes into account several factors including the expertise of
the decision maker. In my view, a consideration of the factors in a
reasonableness analysis is not an invitation to the Court to return to a
“patent unreasonableness” standard under another guise. At the end of the day a
court must be satisfied with the reasonableness of the decision.
[20]
Despite
the generally thorough review conducted by the Minister’s Delegate, the
decision is infirmed in three areas and cannot stand the test of
“reasonableness”.
A. Community
Treatment Plan
[21]
The
Minister’s Delegate considered the community treatment plan as one of voluntary
compliance and concluded, given his history, that the Applicant would not
voluntarily comply. Had the Minister’s Delegate been faced with a plan or order
like those of the past, his conclusion would have been at least reasonable.
However, he was faced here with a different fact scenario. His analysis missed
the compulsory nature of the community treatment plan and failed to take into
account the consequences for non-compliance.
[22]
In
addition, there was independent expert psychiatric evidence from Dr. Cameron at
the Brockville facility as
to the effectiveness of the plan and his opinion that it would work in respect
of this Applicant. The Minister’s Delegate had no evidence to the contrary, but
nevertheless concluded that the plan would not be effective, failing to
consider its compulsory nature. The Minister’s Delegate has no established
expertise in the treatment of addiction or of the success of various
treatments. Therefore, the opinion of the Minister’s Delegate has no reasonable
basis.
B. Independent
Corroboration
[23]
The
Minister’s Delegate indicated that there was no independent corroboration or
indication that the Applicant participated in any activities that would support
a finding that he faced a reasonable chance of persecution. It is difficult to
square this conclusion with the Immigration and Refugee Board’s conclusion that
the Applicant was a Convention refugee because he had been tortured and
persecuted for his political activities.
C. Risk
of Torture
[24]
In
Suresh, the Supreme Court set out a number of factors to consider
in assessing whether deportation would result in refoulement to torture.
These included the human rights record of the country, the personal risk faced,
any assurances that a deportee would not be tortured, the worth of the
assurances and the ability of the state to control its own security forces.
[25]
The
only risk the Minister’s Delegate foresaw was that the Applicant would be
questioned as a returning Iranian. While the Minister’s Delegate may disagree
with the weight of the evidence from other sources, he must explain how he
reached that conclusion – the Minister’s Delegate did not.
[26]
There
were two specific pieces of evidence as to the Applicant’s risk, that of the
journalist and of the publisher, yet no mention is made of that evidence. While
it is trite law that a decision maker does not have to mention every piece of
evidence considered, the more important the evidence, the more that evidence addresses
the issue on which the decision maker disagrees, the greater the necessity to
explain the reason for rejecting that evidence.
[27]
As
stated earlier, the results of the Danger Opinion is to strip the Applicant of
the protection of Convention refugee status and subject him to refoulement
to torture. Given this fact, it was incumbent on the Minister’s Delegate to
address evidence which is weighty, current and goes to the very root of the
decision.
IV. CONCLUSION
[28]
For
the reasons above, this Danger Opinion cannot stand the test of reasonableness.
It must therefore be quashed and the matter referred to a different delegate
for a new assessment, including the ability to consider new or more current
evidence in addition to the existing record.
[29]
Given
the reasons for this decision, which are the application of the specific facts
to accepted principles of law, there is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the Danger
Opinion is quashed and the matter is to be referred to a different delegate for
a new assessment, including the ability to consider new or more current
evidence in addition to the existing record.
“Michael
L. Phelan”
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