Docket: IMM-2975-15
Citation:
2016 FC 328
Ottawa, Ontario, March 18, 2016
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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RUBYATH MAHMOOD
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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
I.
Introduction
[1]
A senior immigration officer [Officer] denied
the Applicant’s Pre-Removal Risk Assessment [PRRA] application [Decision] by
concluding that the Applicant faced no serious possibility of persecution and
no risk of torture, death or cruel and unusual treatment or punishment. The
Applicant applies for judicial review of this Decision.
II.
Background
[2]
The Applicant was born in Bangladesh in 1976 and
raised in the United States. He was convicted of an indictable drug-related
offence in the U.S. in March 2005. Having served his sentence, he was deported
to Bangladesh in September 2012.
[3]
The Applicant claimed that while he was in
Bangladesh, he was attacked several times by Muslim fundamentalists. He
complained to police but received no response.
[4]
In December 2013, the Applicant came to Canada.
His refugee claim was not heard and he was to be deported as he was reported to
be inadmissible due to serious criminality outside of Canada. His application
for leave to judicially review the deportation order was denied.
[5]
The Applicant’s PRRA application was denied in
May 2015. The Officer analysed the evidence submitted and relied particularly
on the most current U.S. DOS Report. The Officer refused to consider
humanitarian and compassionate considerations. The Officer accepted the
Applicant as an atheist and that as such, he faced a greater risk than
otherwise.
[6]
The Officer held that there was insufficient
evidence that the Applicant would suffer at the hands of Islamic extremists and
others. The Officer rejected various pieces of documentary evidence including a
photograph of the Applicant allegedly being attacked.
[7]
The Officer concluded that state protection was
available despite evidence of corruption, arbitrary arrests and trafficking.
Finally, the Officer found that the Applicant faced only a generalized risk.
The
Decision noted that there was no oral hearing because credibility was not an
issue.
[8]
The issues in the case are the reasonableness of
the risk assessment and the reasonableness of the state protection finding.
III.
Analysis
[9]
Although neither party made submissions on the
standard of review, as held in Morales v Canada (Citizenship and
Immigration), 2013 FC 557, it is reasonableness in respect of both issues.
[10]
The Officer, having noted that credibility was
not an issue, went on to make findings that implicitly rejected the Applicant’s
version of events. It is no answer to assert that the determinative issue was
sufficiency of the answer rather than an adverse credibility finding. An
applicant is presumed to be telling the truth and the Officer does not refer to
any evidence which rebuts that presumption.
[11]
In reaching his conclusion, the Officer ignored
evidence of individual risk. The Officer made no mention of either a police
report or a doctor’s report, both of which are corroborative of the Applicant’s
narrative and are critical pieces of evidence in the context of this case.
[12]
In finding “insufficiency”,
the Officer must explain why key corroborative evidence is not “sufficient”. Not only is there no explanation, there
is no mention of the evidence. Likewise, there is no explanation for or basis
advanced supporting the conclusion that the Applicant was not shown in a
photograph corroborating that the Applicant was beaten.
[13]
The Decision is further infirmed because the
state protection analysis, which recognized the low level of state protection, concentrated
on efforts by government to protect, not on the effectiveness of those efforts.
The Applicant engaged the function of state protection in filing a police
report which was not acted upon.
IV.
Conclusion
[14]
The Decision is not reasonable for these
reasons. The judicial review will be granted, the Decision quashed and the
matter remitted back to a different officer.
[15]
There is no question for certification.
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