Docket: IMM-6752-13
Citation:
2014 FC 659
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 7, 2014
PRESENT: The Honourable Mr. Justice Simon Noël
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BETWEEN:
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WALEED KANDEL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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ORDER AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 (IRPA) of a decision rendered on October 17, 2013, by
Angela Papadakis, Senior Immigration Officer (the Officer) of Citizenship and
Immigration Canada (CIC), rejecting the applicant’s
pre-removal risk assessment (PRRA application).
II.
Facts
[2]
The applicant, a citizen of Egypt and originally
a Muslim, was born on January 5, 1975.
[3]
In February 2013, the applicant left Egypt for
Russia. He made a claim for refugee protection in that country, which was refused,
and he converted to Christianity in June 2013.
[4]
Upon being ordered to leave Russia in August
2013, the applicant arrived in Canada on September 11, 2013, using false
documents. An exclusion order was issued against him on the same day.
[5]
The applicant submitted his PRRA application on
September 16, 2013. Upon reviewing the evidence presented and noting significant
discrepancies, the Officer summoned the applicant to a hearing, which was held
on October 1, 2013. In addition to interviewing the applicant, the Officer telephoned
Inna Kharlamova-Grigoryeva (Inna), a friend of the applicant, to ask her questions
regarding the applicant’s file and an affidavit submitted by her.
[6]
Among the applicant’s allegations in his PRRA
application, note, inter alia, that he has been a homosexual since his
teens and that, more recently, he was apparently in a homosexual relationship
with a man named Hany and that they were both allegedly attacked on December 24,
2012, by the Muslim Brotherhood. Hany allegedly died as a result of this attack.
He also claimed that his conversion to Christianity exposed him to danger in
Egypt, owing primarily to the influence of his sister, an allegedly well-known
Egyptian actress, and of her husband, who is a judge.
[7]
The PRRA application was refused on October 17,
2013.
[8]
The applicant was under a deportation order, but
the United Nations Human Rights Committee, called upon by the applicant to
intervene, asked Canada not to effect that deportation order while awaiting the
final disposition of his file.
III.
Impugned decision
[9]
The Officer was of the view that the applicant’s
testimony was replete with inconsistencies and contradictions and that the
applicant had adduced insufficient credible evidence in support of his
application. The application was based on two grounds: the applicant’s sexual
orientation and his conversion to Christianity. Thus, the Officer concluded that
the applicant had not established, on a balance of probabilities, that he was
in a homosexual relationship with Hany and that he was attacked on December 24,
2012, by Muslim Brotherhood. In addition, the Officer concluded that the
applicant was unable to establish that his conversion to Christianity exposes
him to any risk at the hands of his family. In short, the Officer concluded
that the applicant did not produce sufficient evidence—testimonial or other—to
support his claims and that, accordingly, he failed to discharge his burden of
proof under sections 96 and 97 of the IRPA.
IV.
Issue
[10]
The applicant is asking the Court to address two
issues in addition to considering the reasonableness of the decision as a whole.
The applicant therefore submitted the following issues:
- Did the Officer fail to undertake an analysis and make a
finding regarding one of the bases for the claim for protection, namely,
the applicant’s sexual orientation?
- Did the Officer fail to consider the objective risk to the applicant
as an apostate, considering that his conversion was proven on a balance of
probabilities?
[11]
For his part, the respondent submits that the
Court should limit its consideration to the reasonableness of the decision. I
do not agree: the alleged problems are sufficiently specific for attention to
be focused not only on the reasonableness of the decision, but also on the
various disputed items.
[12]
That said, I am of the view that the applicant’s
issues should be rephrased so as to better reflect the procedures undertaken by
him. Indeed, the issue is whether the Officer erred in rejecting the applicant’s
PRRA application, which contained two grounds: “[TRANSLATION]
my sexual orientation; my religion (I converted from Islam
to Christianity in Russia in June 2013)” (PRRA application, Applicant’s
Record, at page 43).
[13]
With sexual orientation being indeed at the
heart of the PRRA application, the Officer could not ignore it, and that is why
this will have to be considered distinctly in this
case. Furthermore, although the applicant refers to his apostate status
in his affidavit in support of his PRRA application, this Court cannot conclude
that it is a ground for the application; the second ground in support of the PRRA
application is the applicant’s religion/conversion. The applicant is of the
view that the Officer failed to address the applicant’s apostasy, but she was
correct to limit herself to the grounds relied on. Therefore, I do not believe
that it is necessary to address the specific issue of apostasy and that the
analysis of this judicial review should focus on the religion/conversion. Thus,
I would rephrase the applicant’s issues as follows:
- Did the Officer fail to undertake an analysis and make
a finding regarding one of the bases for the PRRA application, namely,
the applicant’s sexual orientation?
- Did the Officer err in finding that the applicant did not face
a risk because of his conversion to Christianity?
- Is the Officer’s
decision for the most part reasonable?
For the reasons
set out below, it will not be necessary to address the last two issues.
V.
Standard of review
[14]
Just as they disagreed over the issues to be
decided in this case, the parties disagree over the standard of review to be applied.
Although we are not addressing the last two issues, it is important to comment
on them.
[15]
My colleague, Mr. Justice Zinn, addressed the
first issue in this case, which concerns the applicant’s sexual orientation, in
Fosu v Canada (Minister of Citizenship and Immigration), 2008 FC 1135,
[2008] FCJ No 1418. In that same decision, according to Justice Zinn, the issue
of the refusal to address the applicant’s sexual orientation could open the
door to two standards of review; this refusal on the part of the decision-maker
to make any findings can actually be perceived as a failure
to exercise jurisdiction (standard of correctness) or as a perverse and capricious decision (reasonableness standard):
[13] .
. . In light of the findings that follow I need not
address whether the failure to address the issue of the Applicant’s sexual
orientation is a failure to exercise jurisdiction. It is very exceptional that
a Member would explicitly make no findings on whether the claimant is a member
of the social group on which he or she bases the claim for protection. It may
be that the failure to make such a finding is an error of law, being as it is
the ultimate grounding of the claim. As such, the standard might be seen to be
correctness. However, it could be equally argued that the refusal to make this
factual finding is perverse and capricious and would fail against the
reasonableness standard.
[16]
I am of the view that the fact that a
decision-maker’s fails to make a determination with respect to a ground, if
any, is a failure to exercise jurisdiction. Such
an issue inevitably results in the standard of correctness (Dunsmuir v New Brunswick,
2008 SCC 9, at paragraph 59, [2008] SCJ No 9 (Dunsmuir)). Accordingly, the
Court must show no deference to the Officer’s decision as far as it relates to
the applicant’s sexual orientation (Dunsmuir, supra, at paragraph
50).
[17]
The two other issues relate to the findings of
fact made in a PRRA application and will therefore be assessed on the standard
of reasonableness (see for example Martinez v Canada (Minister of Citizenship
and Immigration), 2010 FC 31, at paragraph 18, [2010] FCJ No 41; Pareja
v Canada (Minister of Citizenship and Immigration), 2008 FC 1333, at paragraph
12, [2008] FCJ No 1705). Under this standard, the Court ought not to interfere
where the Officer’s findings is justified, transparent and intelligible and
where it falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir,
supra, at paragraph 47).
VI.
Applicant’s arguments
[18]
The applicant submits that the Officer’s decision
is unreasonable as a whole, but that two errors in particular are damaging to
the decision. On the one hand, the Officer failed to analyze one of the bases
for the application, namely, the applicant’s sexual orientation, and she made
no explicit finding in that regard, preferring to confine her analysis to the applicant’s
relationship with Hany and to the attack of December 24, 2012. The applicant’s
documentary and testimonial evidence in that regard was, however, ample and clear
with respect to the risk to the LGBTQ community in Egypt.
[19]
On the other hand, while she accepted the applicant’s
conversion to Christianity, the Officer did not consider the objective risk
associated with said conversion. Membership in a persecuted group is, however,
a ground for protection, and the applicant is not simply a Christian in Egypt, he
is, in addition, an apostate. This situation puts him at a higher risk than other
Christians and the Officer should have taken into account the evidence relating
to apostasy.
[20]
Alternatively, the applicant submits that the
determination made against him is for the most past unreasonable because it
relied on a microscopic analysis of certain elements and that some of the
findings underlying it were made without regard to the evidence. With respect
to the applicant’s sexual orientation, the Officer failed to consider numerous
elements regarding his relationship with Hany. The applicant states that the contradiction
as to the telephone call between him and Inna at the time of the attack of
December 24, 2012, is the only contradiction regarding the attack and that it
is not sufficient to disbelieve that the event did not occur. As for the
location of the applicant’s head injury, notwithstanding the contradictions raised,
the applicant was actually injured, which the Officer herself acknowledged. The applicant also states that the Officer’s
conclusion regarding his conversion is not reasonable. Indeed, in coming to
this conclusion, the Officer ignored the applicant’s particular circumstances and
failed to consider testimony corroborating his account of his religious practice
in Canada. Furthermore, the Officer’s conclusion regarding the fact that it is
not plausible that he told his friends about his conversion does not meet the
strict jurisprudential tests for a finding of implausibility. And, finally, the
applicant claims to have submitted documentary evidence regarding his famous
sister and her judge husband and the influence they could have in Egypt, but
that said evidence was ignored.
VII.
Respondent’s argument
[21]
The respondent submits that the Officer’s decision
is reasonable and must be upheld.
[22]
First, concerning the applicant’s sexual
orientation, his homosexual relationship with Hany was at the heart of his
application, and it was therefore reasonable that it also be at the heart of
the decision. Moreover, the applicant’s contradictions and explanations in that
regard are irreconcilable given the importance placed on this point in the interview.
The Officer did not believe the applicant’s alleged sexual orientation because
he did not submit any evidence that he was in a homosexual relationship. This
conclusion is all the more reasonable considering the contradictions between
the applicant’s testimony and Inna’s answers, particularly with respect to the phone
call of December 24, 2012, and the fact that she allegedly met the applicant’s little
brother in 2012, whereas the applicant claims that he has not seen him since 2010.
Furthermore, the interview revealed contradictions with respect to the
applicant’s head injuries, and the photographic evidence in this regard did not
show where the applicant had been attacked.
[23]
Second, with respect to the applicant’s conversion
to Christianity, the respondent notes that the applicant contradicted himself
with regard to the manner in which his sister found out and that he did not submit
any evidence of the possible difficulties that could be caused to him by his
sister and her husband in Egypt. Furthermore, it was perfectly reasonable for the
Officer to conclude that it was not plausible that the applicant told his
friends in Egypt of his conversion considering his fears about being in that
country.
VIII. Applicant’s reply
[24]
Regarding his conversion, the applicant replies that
it makes perfect sense that an individual would confide in his close friends
about such a deep issue, such an important event in one’s life, and that this
was part of his spiritual process.
[25]
The applicant also reiterates that the Officer
simply failed to make a finding regarding the applicant’s sexual orientation.
IX.
Analysis
A.
Did the Officer fail to undertake an analysis and
make a finding regarding one of the bases for the PRRA application, namely,
the applicant’s sexual orientation?
[26]
As stated above, the first issue in this case is
sufficient to conclude that the impugned decision is not valid and that the
matter will have to be referred back to another CIC officer for reconsideration.
[27]
Indeed, the Officer’s decision regarding the applicant’s
PRRA application, and in particular regarding one of the two grounds relied on,
does not withstand scrutiny on the basis of a standard
of correctness. In reading the decision, it is clear that the Officer did
not make any explicit finding as to the applicant’s sexual orientation, an element
central to his PRRA application.
[28]
Although her decision includes the subtitle Sexual
Orientation, the Officer limits her analysis to the applicant’s claim of a relationship
with Hany and to the attack of December 24, 2012, of which both were victims. Indeed,
the Officer made the following finding regarding the applicant’s sexual
orientation: “Consequently, the applicant has not
established that, on a balance of probabilities, he was in a homosexual
relationship, that he was attacked on Christmas Eve 2012 by the Muslin
Brotherhood”.
[29]
To disbelieve the relationship between the
applicant and Hany and the fact that the two were allegedly attacked is one
thing, to disbelieve the applicant’s sexual orientation is another. A specific
finding in that regard was required. Arguably, the Officer’s findings had the potential
to undermine the applicant’s credibility, but she had to nonetheless make a decision
in respect of the grounds for the application. In that regard, my colleague, Justice
Martineau, wrote as follows in Odetoyinbo v Canada (Minister of Citizenship
and Immigration), 2009 FC 501, at paragraphs 5 to 8 (Odetoyinbo):
[5] At the hearing, the applicant was questioned at length both
about his bisexuality and the facts which led him to flee Nigeria. With respect
to the first matter, the applicant was asked about the moment at which he
initially realized that he was bisexual, the number of partners he had, if and
when he had revealed his bisexuality to the members of his family, if his
partners disclosed their sexual orientation to their families, the existence in
Nigeria of organizations devoted to homosexual rights advocacy, his personal
knowledge of the law condemning homosexuality in Nigeria and of people having
been tried or arrested pursuant to this law, his current partner since his
arrival in Canada and his knowledge of the gay community in Canada.
[6] Unfortunately, despite extensive questioning at the hearing
on the identity of the applicant as a bisexual person, the Board's reasons are
totally silent on this key issue of the applicant's claim. Having closely
reviewed the tribunal's record, including the transcripts and documentary
evidence, overall, I find the Board's conclusion unreasonable. Notwithstanding
the Board's negative credibility findings with regards to the events causing
the applicant to flee Nigeria, an assessment of the applicant's sexual
orientation both in Nigeria and in Canada was nevertheless necessary
considering the documentary evidence on record pertaining to the persecution of
homosexuals in Nigeria, and the elaborate testimony of the applicant on this
very central issue of his claim (which incidentally was corroborated by the
letters produced by the applicant). Accordingly, the Board's failure to make an
explicit determination as to the applicant's bisexuality constitutes a reviewable
error and justifies a redetermination of the applicant's claim (Burgos-Rojas v. Canada
(Minister of Citizenship and Immigration), 162 F.T.R. 157, [1999] F.C.J. No. 88); Alemu v. Canada (Minister of
Citizenship and Immigration).,
2004 FC 997 at paras. 45 and 46, [2004] F.C.J. No. 1210).
[7] It is well settled that an adverse credibility finding,
though it may be conclusive of a refugee claim under section 96 of the Immigration and Refugee
Protection Act, S.C. 2001,
c. 27 (the Act), is not necessarily conclusive of a claim under subsection
97(1). The reason for this is that the evidence necessary to establish a claim
under section 97 differs from that required under section 96 (Jarada v. Canada (Minister
of Citizenship and Immigration), 2005 FC 409, [2005] F.C. J. No. 506). When considering section 97, the
Board must decide whether the claimant's removal would subject him personally
to the dangers and risks stipulated in paragraphs 97(1)(a) and (b) of the Act (Bouaouni v. Canada (Minister of Citizenship and Immigration), 2003 FC 1211, [2003] F.C.J. No.
1540). Further, there are objective and subjective components to section 96,
which is not the case for paragraph 97(1)(a): a person relying on this paragraph must show on a
balance of probabilities that he or she is more likely than not to be
persecuted (Chan
v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, [1995] S.C.J. No. 78; Li v. Canada (Minister of
Citizenship and Immigration),
2005 FCA 1, [2005] F.C.J. No. 1).
[8] It must be stressed that the claimant's fear of persecution
or individualised risk must be evaluated in light of or take into account what
is generally known about conditions and the laws in the claimant's country of
origin, as well as the experiences of similarly situated persons in that
country. In the case at bar the Board did not explicitly state in its reasons
that it did not believe that the applicant was bisexual. Accordingly, it could
not ignore compelling objective evidence on record demonstrating the abuses which
gay men are subjected to in Nigeria. Therefore, even if the Board rejected the
applicant's account of what happened to him in Nigeria, it still had a duty to
consider whether the applicant's sexual orientation would put him personally at
risk in his country.
[30]
The present case is similar to that considered
by Justice Martineau in Odetoyinbo. It can be seen from the Officer’s notes
that the applicant’s testimony about his homosexuality went well beyond his
relationship with Hany (see the applicant’s affidavit, at paragraphs 16-19, Applicant’s
Record, at pages 28 and 29; see also the affidavits in the certified tribunal
record submitted by the applicant, at paragraph 6 of page 245 and at pages 355
et seq. in their entirety, and by Inna, at paragraph 7 of page 276; see also, the
Officer’s notes taken at the hearing, certified tribunal record, at pages 117
and 118). However, the Officer did not in any way explicitly conclude that the
applicant was not homosexual. A court on judicial review may be called upon to consult
the record to supplement seemingly failed reasons, but it cannot substitute its
finding for that of the decision-maker. In noting this fatal error, the Court is
mindful that to make a determination as to a person’s homosexuality is a
difficult task. In order to do so, however, the decision-maker must at least
consider all of the evidence submitted in that regard and either way make a
decision with reasons. This is essential.
[31]
This error is sufficient to invalidate the Officer’s
decision and refer the matter back to another CIC officer for reconsideration and
decision in accordance with the grounds raised by the applicant.
[32]
Such a finding to refer the matter back is all
the more necessary since the Officer, who failed to make a finding regarding the
applicant’s sexual orientation, recognized that the documentary evidence establishing
that homosexuals are at risk in Egypt and that they are subject to some level
of violence and discrimination.
[33]
In view of my finding with respect to the first
issue, it is not necessary to address the other issues.
[34]
The parties were invited to submit a question
for certification but none was submitted.
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