Docket: IMM-2862-16
Citation:
2017 FC 56
Toronto, Ontario, January 17, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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ABDULLAH RAHIMI
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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.
Overview
[1]
The applicant, Mr. Abdullah Rahimi, is a citizen
of Afghanistan who entered Canada from the United States in January 2016. He
claimed protection alleging a fear of the Taliban due to: (1) his father’s work
with UNICEF in Kabul; (2) his involvement in the education of girls in a
village outside Kabul; and (3) his attendance at the American University of
Afghanistan in Kabul.
[2]
The Refugee Protection Division [RPD] refused
the claim on the basis of credibility. Mr. Rahimi submits that the RPD’s credibility
findings were unreasonable. He argues that corroborating evidence was ignored,
his personal evidence and testimony was misunderstood and misconstrued, the credibility
findings were speculative and illogical, and the analysis supporting the RPD‘s
decision was vague and imprecise.
[3]
The sole issue raised on this application is whether
the RPD decision is reasonable. Having considered the parties written and oral
submissions, I find that the RPD’s failure to address evidence corroborating
Mr. Rahimi’s claim and the misapprehension of evidence undermines the
justifiability, transparency and intelligibility of the decision rendering it
unreasonable. For the reasons that follow the application is granted.
II.
Background
A.
The Claim
[4]
Mr. Rahimi alleged that on completion of high
school, he enrolled as a student in the Professional Development Institute
[PDI] at the American University in Kabul. While attending the PDI, he
discussed the possibility of opening a school for girls with his father in their
village outside of Kabul. His father had the financial resources to establish
and operate a small school, he had property in the village, and his duties with
UNICEF related to education. The school was opened in early 2014. Mr. Rahimi
was responsible for supplies, books and the payment of staff. He travelled from
Kabul to the village on weekends to perform these tasks. The school was a
success.
[5]
In late 2014, Mr. Rahimi alleges that he started
to receive threatening calls from the Taliban telling him to close the school. Mr.
Rahimi did not view the initial call as serious but after receiving a second
call he stopped travelling to the village and made arrangements to support the
school from Kabul where he was continuing his own studies. He did return to the
village to attend a family funeral in late February 2015. He and his father
were warned that the Taliban were looking for them. They left immediately after
the funeral, but on the evening of the funeral the Taliban threatened family
members, assaulted others and threatened to kill Mr. Rahimi and his father.
Shortly thereafter, the Taliban forcibly shut down the school, delivered a
threatening letter and announced at the local mosque that the applicant and his
father would be punished. In May 2015, Mr. Rahimi reported that there was an
attempt to abduct him in Kabul. The attempted abduction was reported but the police
were unable to assist. Mr. Rahimi ceased attending university and looked for
ways to flee Afghanistan.
B.
Decision under Review
[6]
The RPD recognized that the objective
documentary evidence demonstrated that the Taliban often view individuals who
work for international organizations as traitors and consider the education of
girls as contrary to their ideology. The RPD further stated that there is no
credible evidence to establish that the Taliban consider men who attend
universities as traitors.
[7]
The RPD found that the applicant’s testimony
contained several discrepancies and inconsistencies. It found him hesitant and
vague throughout his testimony. As regard to Mr. Rahimi’s studies at the
American University in Kabul, the RPD found that his testimony was confusing and
concluded that there was no evidence that Mr. Rahimi was attending an American
university as he claimed.
[8]
With respect to his involvement in the education
of young girls, the RPD found the evidence did not establish that Mr. Rahimi,
who was 18 years old at the time, had the financial resources, the time or
experience to establish and administer a school away from Kabul. The RPD took
issue with Mr. Rahimi’s claim that his father provided financing for the school
and noted that the Mr. Rahimi had provided contradictory evidence with respect
to the legal status of the school. Finally, the RPD expressed the view that
after the closing of the school, there was no longer a reason for Mr. Rahimi to
be targeted by the Taliban in Kabul. It held that the story relating to the
school was incoherent and not believed.
[9]
In regard to the father’s employment with
UNICEF, the RPD was not satisfied that the father’s employment with an
international organization established that Mr. Rahimi was a target of
persecution. The RPD noted that the documentary evidence established that
individuals working in Kabul face a lesser risk and if the father feared the
Taliban he would have moved elsewhere or quit his job.
[10]
Finally, the RPD highlighted a number of
inconsistencies arising from the applicant’s testimony relating to the timing
of his departure from Afghanistan, his remaining in Kabul and his father’s
continued work with UNICEF. The RPD concluded that the applicant did not
demonstrate a serious possibility of persecution and that his true intent was to
study in Canada.
III.
Standard of Review
[11]
There is no dispute as between the parties;
the standard of review to be applied is reasonableness. The RPD is owed
significant deference but the decision must be reasoned and lead to a
justifiable finding (Shabab v Canada (Citizenship and Immigration), 2016
FC 872 at para 16, Yang v Canada (Citizenship and Immigration), 2016 FC
543 at para 8 and Njeri v Canada (Minister of Citizenship and Immigration),
2009 FC 291 at para 12).
IV.
Analysis
A.
Is the decision reasonable?
[12]
In support of the claim, Mr. Rahimi placed corroborative
documentation before the RPD. This included:
A.
A March 2015 threat letter from the Taliban;
B.
Student identification cards to evidence his
attendance at the American University in Afghanistan for at least part of the
period he claimed to be studying at that institution;
C.
A letter from his father’s cousin describing the
Taliban actions after the family funeral in March 2015;
D.
Receipts for school supplies purchased in
December 2013 and June 2014, setting out the name of the school and identifying
Mr. Rahimi as the individual who paid for the supplies;
E.
Employment contracts evidencing the employment
of two teachers at the school;
F.
A letter of agreement establishing the school,
setting out Mr. Rahimi’s responsibilities and his father’s responsibility to
cover all costs and provide rooms for the school; and
G.
A copy of a police report detailing the attempted
abduction of Mr. Rahimi in May 2015.
[13]
In rendering its decision, the RPD did not
consider or analyze any of this documentary evidence with the exception of one
of the ID cards. The respondent argues that this does not evidence an error,
submitting the decision-maker was under no obligation to address each piece of
evidence and is assumed to have considered all the evidence.
[14]
I accept this well-established principle. However,
a court may also infer that findings have been made without regard to the evidence
where those findings have been made without reference to directly contradictory
and relevant evidence. The more important the evidence not analyzed, the more
willing a court may be to reach this conclusion (Cepeda-Gutierrez v Canada
(Citizenship and Immigration), [1998] FCJ No 1425 at para 15).
[15]
In this case, there are numerous examples of
findings which on their face, are contrary to the documentary evidence advanced
in support of the claim. For example, the RPD concludes “[t]here is no evidence that the Claimant attended an
American university as he claimed to explain why he was targeted by the Taliban
in May 2015.” This statement fails to recognize that Mr. Rahimi placed
two identification cards before the RPD that on their face, indicate that he
did attend the American University of Afghanistan for at least some of the
period claimed. The RPD’s contrary conclusion without reference to the
totality of the corroborative evidence leaves the Court not knowing whether this
evidence was given little weight or simply overlooked.
[16]
Perhaps even more troubling is the RPD’s failure
to address the Taliban threat letter delivered to Mr. Rahimi’s family. The
letter is addressed to Mr. Rahimi and his father. The letter states that the
two of them have been found guilty by a Shura, and there is no way left for
them. This type of letter is described as a “night
letter” in an IRB Response to Information Request [RIR]. The RIR
describes targets and recipients of such letters. Mr. Rahimi and his father
appear to match the profile described. The RIR describes the appearance,
content and how such letters are delivered. Again, the RIR description is not
inconsistent with the evidence that was before the RPD. The RIR also describes
the consequences of receiving a night letter noting that they are taken
seriously by Afghan targets and are followed-up by real violence.
[17]
The respondent submits that the night letter was
acknowledged by the RPD in the course of Mr. Rahimi’s testimony and in the
decision where the RPD states that “… he claimed that
he received written threats in Kabul …”. However, there is no discussion
of the night letter or the letter from the father’s cousin describing Taliban
activity after the family funeral. There is no indication in the decision that this
evidence had been found unreliable or accorded little weight. The RPD did not
engage in an analysis of this corroborative evidence when concluding that any
threat from the Taliban would have ceased with the closing of this school.
[18]
The RPD also appears to have misapprehended the
circumstances leading to the closing of the school. The RPD decision suggests
that Mr. Rahimi complied with Taliban demands and closed the school himself. That
was not the evidence. The evidence as set out in his BOC and in testimony
before the RPD was that the Taliban had forcibly shut down the school.
[19]
I have similar concerns in respect of the
finding that Mr. Rahimi had failed to establish that he was “… able to head a girl school in Logar”. In reaching
this conclusion, the RPD makes absolutely no mention of the letter of agreement
establishing the school, the teacher’s contracts, and the receipts for supplies
identifying Mr. Rahimi and the school. All of this evidence directly
corroborates Mr. Rahimi’s narrative. While it was open to the RPD to reject the
narrative, to do so without addressing this evidence, again renders the decision
unreasonable.
[20]
While Mr. Rahimi has identified other
evidentiary related concerns, including that the RPD’s finding relating to the
nature of his testimony is imprecise and the credibility findings are
speculative and illogical, I need not address these issues. The RPD’s
misapprehension of key parts of the evidence coupled with the failure to address
highly relevant and directly contradictory documentary evidence corroborative
of the claim undermines the justifiability, transparency and intelligibility the
decision and renders it unreasonable (Dunsmuir at para 47).
V.
Conclusion
[21]
The application is granted. The parties have not
identified a question of general importance and none arises.
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