Docket: IMM-8290-14
Citation:
2015 FC 1153
Ottawa, Ontario, October 9, 2015
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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EMAL WAFA
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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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JUDGMENT AND REASONS
[1]
This application for judicial review, brought
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], concerns the decision of the respondent Minister’s
Delegate [the Delegate], wherein it was determined that the applicant
constitutes a danger to the public in Canada, pursuant to paragraph 115(2)(a)
of the IRPA.
[2]
The application is granted for the reasons that
follow.
I.
Background
[3]
The applicant is an unmarried male citizen of
Afghanistan, born in Kabul on October 6, 1981. He came to Canada on February
14, 1995 with his elder brother and joined his mother and sister. The applicant
and his family received Convention refugee status on May 10, 1995.
[4]
Between August 14, 2001 and March 4, 2013, the
applicant was convicted for various offences of increasing seriousness. The convictions
are not in dispute.
[5]
In determining that the applicant is a danger to
the public in Canada, the Delegate focused on the following:
A.
convictions arising from December 1, 2010
relating to the possession of a schedule I substance for the purposes of
trafficking, contrary to section 5(2) of the Controlled Drugs and Substances
Act for which the applicant received a sentence of seven months [the 2010
Convictions]; and
B.
convictions arising from March 4, 2013 which
related to (1) Trafficking in a schedule 1 substance contrary to the Controlled
Drugs and Substances Act, (2) Possession for the purpose of trafficking a
schedule 1 substance, namely crack cocaine, (3) Possession of a schedule 1
substance, namely heroin, (4) Trafficking a schedule 1 substance, namely crack
cocaine, (5) Possession for the purposes of trafficking a schedule 1 substance,
namely crack cocaine, and (6) failure to comply with recognizance [the 2013
Convictions]. The applicant received a sentence of eighteen months for the
first three offences served concurrently, twelve months for the fourth offence
served consecutive to the first count and twelve months of imprisonment for the
fifth and sixth count to be served concurrently to the fourth count.
[6]
In November, 2011 the applicant’s permanent
residence application was refused based on criminal inadmissibility, and a
deportation order was issued in August, 2013. On completion of his criminal
sentence in October, 2014 the applicant was transferred to the custody of the
Canadian Border Services Agency [CBSA] who has detained him on the grounds that
he is a danger to the public and will not appear for removal.
[7]
In the process leading up to the CBSA seeking an
opinion from the Minister under paragraph 115(2)(a) of the IRPA the applicant
disclosed that he is bisexual. Although having hidden his sexual orientation he
reports having engaged in sexual relationships with other men and being caught
on one occasion with another man by a family member. As a result of being
caught, news of his sexual orientation has spread to extremist family members
in Afghanistan who the applicant fears will kill him.
[8]
In the Request for Minister’s Opinion, the
Citizenship and Immigration Canada [CIC] analyst [the Analyst] notes the
applicant’s declaration of sexual orientation and indicates that the
declaration may be viewed as both opportunistic and inconsistent. In response
to this statement the applicant specifically requested the Delegate conduct an
interview with the applicant if there are further concerns regarding the
applicant’s sexual orientation.
[9]
Currently, the applicant is in a relationship
with a female Canadian citizen, with whom he has a four-year old son. The son
is in the custody of his mother.
II.
Decision Under Review
[10]
The Delegate notes that the decision is being
prepared pursuant to paragraph 115(2)(a) of the IRPA, which incorporates
article 33(2) of the United Nations Convention Relating to the Status of
Refugees, creating an exception to the general protection provided to
convention refugees in Canadian law. The Delegate then sets out the applicant’s
criminal history and concludes, based on the 2010 and 2013 Convictions, that
the applicant is inadmissible for serious criminality pursuant to paragraph
36(1)(a) of the IRPA.
[11]
The Delegate concludes on a balance of
probabilities that the applicant represents a present and future danger to the
Canadian public and his presence in Canada poses an unacceptable risk due to
(1) the applicant’s criminal activities, which were serious and dangerous to
the public; and (2) the absence of evidence of rehabilitation. In reaching this
conclusion the Delegate relies on Justice François Lemieux’s decision in La
v Canada (Minister of Citizenship and Immigration), 2003 FCT 476 at para
17, 36 Imm LR (3d) 64 (TD) for the meaning of “danger
to the public” under paragraph 115(2)(a) of the IRPA. The Delegate
concludes that the applicant’s most recent offences were extremely serious and
demonstrate an escalation from petty theft and break and enter convictions to
drug trafficking offences involving large sums of illicit substances of an
addictive nature, posing a danger to the public. The Delegate notes that
despite the applicant’s genuine desire for change, the applicant failed to
bring evidence demonstrating his rehabilitation. As a result the Delegate
concludes that there is sufficient evidence to formulate the opinion that the
applicant is a likely re-offender, whose presence in Canada poses an
unacceptable risk to the public.
[12]
Having concluded that the applicant is a danger
the Delegate undertook a risk assessment pursuant to paragraph 115(2)(a) of the
IRPA based on the process articulated in Ragupathy v Canada (Minister of
Citizenship and Immigration), 2006 FCA 151 at paras 18-19, 350 NR 137, assessing
both documentary evidence related to Afghanistan and the applicant’s personal
circumstances. On the issue of the applicant’s sexuality, the Delegate did not
dispute the applicant’s statement that he is bisexual, but attributes little
weight to the applicant’s evidence regarding prior same-sex relationships, in
particular the applicant’s evidence where he describes being caught with
another male by a cousin. The Delegate takes issue with this evidence on the
basis that the applicant failed to bring objective supporting evidence
demonstrating that he engaged in same-sex relations. Having failed to
demonstrate he has previously engaged in a same-sex relationship, the Delegate
concludes, on a balance of probabilities, that the applicant’s removal to Kabul
would not subject him to a personal risk to life, liberty or security of the
person.
[13]
In addressing Humanitarian and Compassionate
[H&C] considerations, the Delegate finds that the applicant did not
demonstrate a degree of establishment in Canada, either social or economic that
would cause him disproportionate hardship if removed. Furthermore, while the
applicant’s removal will create long-term or even permanent separation from his
family, separation will not cause the applicant or his family hardship that is
disproportionate or unusual and undeserved. The Delegate concludes that the
need to protect Canadian society from the danger the applicant poses outweighs
the H&C factors and possible risks that arise from the applicant’s removal
to Afghanistan.
III.
Issues
[14]
I have framed the issues raised in this
application as follows:
1. Did the Delegate unreasonably conclude that the applicant
constituted a danger to the Canadian public;
2.
Did the Delegate err in not conducting an
interview to put credibility concerns to the applicant;
3.
Did the Delegate reasonably determine that the
applicant would not be at risk if returned to Afghanistan; and
4.
Did the Delegate reasonably find that H&C
considerations did not weigh in favour of the applicant remaining in Canada?
[15]
After carefully considering the documents,
authorities and the oral and written submissions of the parties I need only
deal with the third issue, as I am of the opinion that the Delegate’s risk
assessment as it relates to the applicant’s sexuality was unreasonable.
IV.
Standard of Review
[16]
Issue 3 calls into question the reasonableness
of the findings and conclusion of the Delegate. It is well-established within
the jurisprudence of this Court that a delegate’s risk assessment, which
engages questions of fact and mixed fact and law, is to be reviewed on a
reasonableness standard (Alkhalil v Canada (Minister of Citizenship and
Immigration), 2011 FC 976 at para 16, 395 FTR 76 and Nagalingam v Canada
(Minister of Citizenship and Immigration), 2008 FCA 153 at para 32, 292 DLR
(4th) 463).
[17]
Where conducting a review on a reasonableness
standard, the analysis will address “the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”. (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 at
para 47).
V.
Positions of the Parties and Analysis
A.
Applicant’s Position
[18]
The applicant argues that the Delegate conducted
an unreasonable risk assessment related to the applicant’s sexual orientation.
First the applicant argues that the Delegate imposed unreasonable evidentiary
demands on the applicant in the form of corroborative evidence of previous
same-sex partners. Secondly, the applicant argues that the delegate repeatedly
conflated sexual orientation with the act of having sex with someone of the
same gender. The Delegate did not recognize that same-sex attraction can be
expressed in a multitude of ways and is not limited to sexual acts. In effect
the applicant argues that the Delegate’s line of reasoning was that so long as
the applicant did not engage in same-sex relations he would not be at risk of
persecution in Afghanistan, a line of reasoning, the applicant submits, that is
inconsistent with the jurisprudence of this Court.
B.
Respondent’s Position
[19]
The respondent argues that the Delegate’s risk
assessment was based on the applicant’s own evidence. Despite self-identifying
as a bisexual, there was insufficient evidence for the Delegate to conclude
that the applicant had conducted himself as a bisexual male. In addition there
was no assertion of an intention to engage in same-sex relations and the
evidence before the Delegate was that the applicant intended to marry the
mother of his child upon release from jail and parent his son. In effect there
had been no outward expression of bisexuality and thus the applicant would not
need to suppress his asserted identity. The applicant had conducted himself in
Canada as a heterosexual male and there was no reason to find that he would
conduct himself differently in Afghanistan.
C.
Analysis
[20]
The Delegate states at page 22 of the Certified
Tribunal Record [CTR] that “Mr. Wafa may well be
bisexual, and I do not dispute that fact”. The Delegate at page 23 of
the CTR also states “I accept that an individual may
identify as bisexual, and therefore I do not question Mr. Wafa’s statements
regarding his sexual orientation, and I do not ask him to prove his feelings”.
In effect the Delegate accepts the applicant’s evidence as it relates to his
sexual orientation. The Delegate then proceeds to give little weight to the
applicant’s evidence of prior same-sex relationships on the basis that there is
a lack of objective supporting evidence. The Delegate also concludes that the
applicant’s evidence relating to having been caught with a same-sex partner by
a family member “has been concocted by Mr. Wafa to
bolster his risk submissions” (CTR at page 23).
[21]
Having concluded that the applicant had failed
to demonstrate prior same-sex relations the Delegate finds that the applicant
will not be subjected to the risks identified in section 115 of the IRPA and
section 7 of the Charter based on sexual orientation. Essentially the
Delegate has concluded that the central claim to risk for bisexual individuals
in Afghanistan is prior sexual relations with other men, not sexual
orientation. The reasoning underpinning this conclusion and the conclusion
itself are, in my opinion fundamentally flawed and undermine the
intelligibility of the decision.
[22]
It may well have been within the range of
reasonable acceptable outcomes for the Delegate to have reached a different
conclusion on the applicant’s claim of bisexuality based on the insufficiency
of the applicant’s evidence (Ferguson v Canada (Minister of Citizenship and
Immigration), 2008 FC 1067 at paras 32, 34, 74 Imm LR (3d) 306; II v
Canada (Minister of Citizenship and Immigration), 2009 FC 892 at paras
18-22, 24), but having accepted the applicant’s evidence of his sexuality,
including his sworn statements, I am of the opinion that the Delegate was
obligated to conduct the risk assessment on that basis. Instead the Delegate
has conducted a risk assessment on the basis that the applicant’s sexuality
would not be displayed or discovered based on his past behaviour. This approach
is not consistent with the jurisprudence of this Court and fails to consider
the applicant’s evidence that having come out to his family he no longer has
anything to hide (Sadeghi-Pari v Canada (Minister of Citizenship and
Immigration), 2004 FC 282 at para 29, 37 Imm LR (3d) 150).
[23]
In the context of claim for convention refugee
status, Justice Leonard Mandamin addressed the propriety of expecting an
individual to practise discretion with respect to their sexual orientation in Okoli
v Canada (Minister of Citizenship and Immigration), 2009 FC 332, 79 Imm LR
(3d) 253 where he states at para 36:
[36] The board member found that the
Applicant did not present sufficient credible evidence that he would be
personally targeted by the police or the public in Nigeria based on his
sexuality. Although he noted that the British-Danish Fact Finding Mission
Report stated that homosexuals in large cities in Nigeria have a well-founded
fear from the person’s local community and society at large, he preferred the
statement in the Report that homosexuals in larger cities may not have reason
to fear persecution as long as they do not present themselves as homosexuals in
public. The board member stated: “There was no evidence to suggest that he
[the Applicant] would have to remain in hiding, should he live there, although,
as with respect to certain elements of his life in Canada, he would possibly
have to practice discretion with respect to his sexual orientation in
Nigeria.” The Federal Court has repeatedly found such findings perverse as
they require an individual to repress an immutable characteristic (Sadeghi-Pari
v. Canada (M.C.I.), 2004 FC 282, para. 29). [Emphasis added]
[24]
In AB v Canada (Minister of Citizenship and
Immigration), 2010 FC 1332, 381 FTR 312, Justice Mandamin was considering
the decision of a Pre-Removal Risk Assessment Officer and similarly states:
[24] The Officer was required to
analyse whether the Applicant, as he is within his personal context, would face
a risk of torture, risk to life, or risk of cruel and unusual treatment or
punishment. The Applicant’s history suggests that the Applicant has lived his
life being openly gay, that is, in the conventional sense of being open about
his sexual orientation. In conducting a risk analysis based on the assumption
that the Applicant would not be openly gay in this manner in Guyana, the
Officer made an error in his analysis. In conducting the risk assessment, the
Officer was not required to dictate how the Applicant should conduct himself in
the future. Nor was it the Officer’s place to speculate that the Applicant
would choose wisely to be discreet. What was relevant was the Applicant’s
personal risk as an openly homosexual man.
[25] There may or may not have been
enough evidence for the Officer to conclude that the Applicant would have faced
cruel and unusual treatment as a sexual minority in Guyana. Because the Officer
based his analysis only on the treatment faced by transvestites/commercial sex workers
and by homosexual persons who were discreet about their sexual orientation, the
Officer failed to examine whether the applicant himself, as an openly
homosexual man does not fall into either of those categories, would face such a
risk.
[25]
The Delegate in this case failed to examine
whether the applicant himself, a bisexual male who had recently come out to his
family would be at risk in Afghanistan (CCF v Canada (Minister of
Citizenship and Immigration), 2012 FC 1141 at paras 57-58, 419 FTR 42). The
result was an incomplete and therefore unreasonable risk assessment. An
unreasonable risk assessment undermines the reasonableness of the decision as a
whole. The risk assessment is a necessary step in the process articulated by
the Federal Court of Appeal in Ragupathy at paras 17-19 that leads to
the balancing of the risks inherent in removal and other humanitarian and
compassionate circumstances against the magnitude of the danger to the public
if the applicant remains in Canada in order to determine if removal from Canada
would so shock the conscience as to breach the applicant’s rights under section
7 of the Charter.
[26]
The parties did not identify a question of
general importance.
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