Docket: IMM-4824-15
Citation:
2016 FC 1347
Ottawa, Ontario, December 7, 2016
PRESENT: The
Honourable Madam Justice Roussel
|
BETWEEN:
|
|
KHALID SAFI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The Applicant seeks judicial review of a
decision of the Refugee Protection Division [RPD] of the Immigration and
Refugee Board of Canada [IRB], dated September 30, 2015, which found him to be neither
a Convention refugee nor a person in need of protection within the meaning of
sections 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA].
[2]
For the reasons set out below, the application
for judicial review is allowed.
I.
Background
[3]
The Applicant is a citizen of Afghanistan who
arrived in Canada on October 20, 2012, and claimed refugee protection on the
basis of three (3) alleged grounds of risk for which he claims to have a
well-founded fear of persecution: (1) the identity of his late father, a well-known
and highly-regarded General in Afghanistan who fought against the Russian
invasion; (2) the fact that he worked as an interpreter for the United States Special
Forces at the Bagram Air Base in Afghanistan; and (3) the fact that he has been
diagnosed with schizophrenia and suffers from unwanted auditory hallucinations
and delusions that he is being pursued by the Central Intelligence Agency [CIA].
[4]
The Applicant’s claim was heard by the RPD over
the course of two (2) days on May 20, 2015 and July 14, 2015. In light of the
Applicant’s vulnerable status, a designated representative from the
Schizophrenia Society of Ontario was appointed to assist him during the RPD
hearings. His counsel was also allowed to question him first.
[5]
To support his claim, the Applicant produced a
number of documents, including documentation demonstrating his father’s reputation
and prominent position in the Afghan government, a letter from an interpreter
contracting company in Afghanistan confirming that he had worked as an
interpreter at the Bagram Air Base, a psychiatric evaluation report, a letter
from his primary care physician in Canada and a letter from the Schizophrenia
Society of Ontario. The Applicant also relied on country condition reports
establishing that Taliban and other anti-government elements in Afghanistan
routinely target, kidnap and murder perceived sympathizers, spies, or
associates of the American Forces as well as evidence confirming the lack of
mental health care for individuals with schizophrenia in Afghanistan.
[6]
On the first day of the hearing, the RPD heard
testimony from the Applicant. In a pre-hearing conference which immediately
preceded the Applicant’s testimony, the RPD member indicated that he wished to submit
the letter from the interpreter contracting company for verification by the Special
Investigations Research Unit [SIRU] of the IRB. After the hearing, the SIRU
communicated with the Canadian Embassy in Afghanistan, who in turn contacted
the interpreter contracting company. The company’s response was that the letter
was a counterfeit and recommended that the Applicant’s application process be
cancelled. This information was communicated to the Applicant and the RPD
hearing resumed on July 14, 2015, at which time the RPD heard additional
testimony from the Applicant and his designated representative as well as submissions
from the Applicant’s counsel.
[7]
The RPD rejected the Applicant’s claim for
protection on September 30, 2015.
II.
RPD decision
[8]
The RPD found that, on the balance of
probabilities, the Applicant was neither a Convention refugee nor a person in
need of protection as per sections 96 and 97 of the IRPA. Given the false
documentation submitted as evidence of his employment with the interpreter
contracting company, as well as the absence of any evidence to corroborate his work
for the United States Special Forces, the RPD found the Applicant’s allegations
to be non-credible. It also found the Applicant’s claim that he is at risk of
persecution in Afghanistan based on his schizophrenia to be “simply speculation”. Finally, the RPD found that it
did not have jurisdiction to consider whether, on a humanitarian and
compassionate basis, the Applicant should be allowed to remain in Canada in
order to receive further attempts at treatment.
III.
Analysis
[9]
The Applicant submits that the RPD breached procedural
fairness in failing to address two (2) of the three (3) grounds of risk arising
from his claim for protection: the risk based on his hallucinations and
delusions that he is being pursued by the CIA and the risk based on his
father’s prominent profile.
[10]
The Applicant contends that the evidence is
undisputed that he suffers from schizophrenia and that he has auditory
hallucinations and delusions that the CIA is monitoring his every move and
communicating with him directly. If he returns to Afghanistan and verbalizes
these thoughts, he is objectively at risk of being persecuted because of what
will be perceived to be an association with the CIA. The documentary evidence adduced
before the RPD clearly demonstrates that the Taliban and other anti-government
and anti-Western armed groups routinely target Afghan citizens with known
associations to the United States or international forces, or those suspected
of being spies. The Applicant argues that the RPD failed to address this
specific and distinct ground of risk.
[11]
The Applicant further submits that the RPD
failed to consider and address the additional ground of persecution stemming
from his fear of recruitment by the Taliban due to his father’s profile. Since
there was corroborative evidence of his father’s position and prominent
reputation in Afghanistan, along with objective evidence of forcible
recruitment by the Taliban, the RPD had the obligation to assess this ground of
risk, even if it found his claim that he worked for the United States Special
Forces at the Bagram Air Base not to be credible.
[12]
The Respondent argues on the other hand that the
RPD’s decision was reasonable and should not be disturbed. The negative
credibility finding of the Applicant was reasonable as it was based on the
submission of a false document. Moreover, the RPD did address the Applicant’s schizophrenia
but concluded that any related risk was speculative. Despite the evidence
indicating that the Applicant suffered from delusions and hallucinations, it did
not indicate that he was prone to share them with others.
[13]
As for the risk resulting from the Applicant’s
father’s profile, the Respondent contends that the evidence adduced before the
RPD only confirms the position held by the Applicant’s father. It does not
confirm that the Applicant was targeted for recruitment in the hopes of
attracting others to join the cause of the Taliban. There was also no evidence
that the Taliban wanted to harm him based on the profile of his late father.
The RPD’s negative credibility assessment of the Applicant’s allegations
impugned his overall credibility, including his alleged recruitment by the
Taliban.
[14]
It is well established in jurisprudence that the
RPD is required to assess all grounds of risk which are apparent on the face of
the record. This duty was articulated by the Supreme Court of Canada in Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689 at page 745 and reiterated by
this Court in Thurairaja v Canada (Citizenship and Immigration), 2015 FC
409 at paragraph 10, Ajelal v Canada (Citizenship and Immigration), 2014
FC 1093 at paragraphs 19 to 21; Varga v Canada (Citizenship and Immigration),
2013 FC 494 at paragraphs 5 and 6. This duty persists in all situations, even
where an applicant’s credibility is impugned (Jama v Canada (Citizenship and
Immigration), 2014 FC 668 at paras 19-20; Hannoon v Canada (Citizenship
and Immigration), 2012 FC 448 at para 47; Bastien v Canada (Citizenship
and Immigration), 2008 FC 982 at paras 8, 10-13).
[15]
In the case at hand, whether reviewed on a
standard of reasonableness or correctness, I am of the view that the RPD
committed a reviewable error in failing to assess and address two (2) of the
three (3) grounds of risk raised by the Applicant.
[16]
The evidence before the RPD clearly demonstrated
that the Applicant has been diagnosed with schizophrenia and post-traumatic
stress disorder and that he suffers from auditory hallucinations and delusions.
He claims to hear the voice of a man he befriended while working at the Bagram
Air Base in Afghanistan and believes that he is being monitored by the CIA. While
the medication he has been prescribed helps him sleep at night, it has not
eliminated his auditory hallucinations. This undisputed evidence was accepted
by the RPD at paragraph 5 of its decision.
[17]
The Applicant’s designated representative from
the Schizophrenia Society of Ontario also testified before the RPD that it is
common for individuals like the Applicant to verbalize their auditory
hallucinations. She also testified that schizophrenia is a chronic mental
illness whose symptoms are always present and that while the Applicant’s
symptoms may be controlled with medication and the capacity for managing them
may change over time, they are likely to intensify if he is removed to
Afghanistan.
[18]
Moreover, the country condition documentation submitted
by the Applicant also attests to the risk faced by people in Afghanistan who
are associated or perceived to be associated with the Americans, or who are
suspected as spies.
[19]
While I agree with the Respondent that a mental
illness does not give a non-Canadian the right to remain in Canada (Beaumont
v Canada (Public Safety and Emergency Preparedness), 2007 FC 787 at para
14), I consider that in the present case, the objective risk based on a perceived
association with the CIA was apparent on the face of the record. It was also
expressly pleaded by his counsel. When the RPD member indicated at the
pre-hearing conference that he wished to have the letter from the interpreter
contracting company authenticated, the Applicant’s counsel explained to the RPD
member that, leaving aside the letter and the Applicant’s work with the United
States Special Forces as an interpreter, two (2) independent grounds of risk
remained that required examination by the RPD, including the objective risk
stemming from his continued hallucinations and delusions regarding the CIA.
Counsel specifically stated that if the Applicant vocalizes in Afghanistan that
the CIA is in contact with him, an objective risk profile would be created in
addition to the already existing risk resulting from the level of intolerance associated
with people who suffer from mental illness. In this case, the RPD had a duty to
assess this specific objective risk.
[20]
The Respondent submits that the RPD considered
the risk associated with the Applicant’s schizophrenia and relies on the
following passage in the decision to support its contention:
[9] What I am left with is the claimant
being diagnosed with schizophrenia in Canada. While counsel speculated that if
the claimant were to return to Afghanistan he may continue to claim to be a
person who worked for the Americans, that this may somehow come to the
attention of the Taliban and this would then cause him to be persecuted, this
is simply speculation.
[21]
Contrary to the Respondent’s contention, I do
not consider that this passage demonstrates that the RPD assessed and
considered the objective risk of the Applicant’s perceived associations with
the CIA as a ground of persecution distinct from the risk associated with his
work as an interpreter for the Americans in Afghanistan. If so, the RPD’s assessment
is insufficiently extensive and detailed to render the decision transparent and
intelligible. I would also add that it is unclear from this passage whether the
RPD found it speculative that the Applicant would verbally express his hallucinations
and delusions if he returned to Afghanistan, that his delusions would come to
the attention of the Taliban or that the hallucinations would result in
persecution.
[22]
The RPD’s failure to assess and consider this
specific ground of risk which was both apparent from the record and raised by the
Applicant constitutes a reviewable error and as such, the decision cannot
stand.
[23]
While this error is sufficient to dispose of the
application, I am also of the view that the RPD failed to address the Applicant’s
ground of persecution based on his risk of being recruited due to his late
father’s identity. While the Respondent contends that there is no evidence that
the Taliban wanted to recruit the Applicant in the hopes of attracting others to
their cause or that the Taliban would harm him based on the profile of his late
father, there was evidence on the record corroborating the prominent reputation
of the Applicant’s father as well as objective evidence of forcible recruitment
by the Taliban. The fact remains that the RPD’s decision is silent on this
issue and one cannot know whether the RPD turned its mind to it or not. Once
again, the RPD’s failure to address this ground of persecution constitutes a
reviewable error which warrants this Court’s intervention.
[24]
For these reasons, the application for judicial
review shall be allowed and the matter remitted to a differently constituted
panel of the RPD for redetermination.
[25]
The parties did not propose any certified question
in the present proceedings.
Email this Content