Docket: IMM-1100-17
Citation:
2017 FC 986
Ottawa, Ontario, November 2, 2017
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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ENAYAT SHARIATY
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT 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 made by the Minister’s Delegate (the “Delegate”)
to refuse the Applicant’s Pre-Removal Risk Assessment (“PRRA”) application.
II.
Background
[2]
The Applicant was born in Afghanistan in 1989
and is an Afghan citizen. He came to Canada at the age of 11 as a permanent
resident, after being sponsored with his father by his older brother, who was a
refugee in Canada.
[3]
The Applicant’s mother died when he was a child,
he never met his brother before moving to Canada and did not have a close
relationship with his father. In Canada, relationships with his family broke
down and he ended up in foster care and group homes. He was addicted to drugs
at a young age and began selling drugs to make a living.
[4]
As a result, by 2010 the Applicant had a lengthy
criminal record including convictions for: possession of a controlled
substance; possession for the purposes of trafficking (5 convictions); failure
to comply with a recognizance (2 convictions); failure to stop at the scene of
an accident; failure to comply with a disposition; escaping lawful custody;
failure to attend court; flight while being pursued; dangerous operation of a
motor vehicle; unauthorized use of a loaded restricted firearm; unauthorized
possession of a prohibited device; and assault causing bodily harm.
[5]
In 2010, the Applicant was reported for
inadmissibility on grounds of serious criminality. In February 2011, a
deportation order was issued against the Applicant. He submitted a PRRA
application but that application was refused in November, 2012.
[6]
In September 2013, the Applicant was convicted
of assault and assaulting a peace officer. In December 2013, he was convicted
of two counts of robbery.
[7]
In November 2014, the Applicant was placed in
immigration detention and scheduled for removal.
[8]
In December 2015, the Applicant submitted a
deferral of removal request and a second PRRA application. The deferral was
granted and a positive PRRA opinion was rendered.
[9]
In January 2016, the positive PRRA opinion was
forwarded to the Delegate for a “Restriction
Assessment” under paragraph 112(3)(b), subparagraph 113(d)(i) and
paragraph 114(1)(b) of the IRPA. Those provisions provide that, since the
Applicant was inadmissible for serious criminality, his risk would be assessed
only under section 97 of the IRPA and a positive decision would not result in
refugee status, but only in a stay of removal.
[10]
As well, the Applicant’s inadmissibility made
him an exception to the moratorium on removals to Afghanistan, pursuant to
section 230 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [IRPA Regulations].
[11]
The basis of the Applicant’s PRRA application
was that his life would be at risk should he be removed to Afghanistan, due to
a combination of personal characteristics: he is an ethnic Hazara, an atheist
and a westernized individual.
[12]
As part of the December 2015 PRRA application,
the Applicant submitted an expert report from Professor Brian Williams (“Prof.
Williams”) regarding the risks faced by the Applicant in Afghanistan due to his
identity as an ethnic Hazara and a western, non-believer in Islam (the “Expert
Report”).
[13]
In October 2016, as part of his response to a
request for further submissions, the Applicant submitted evidence showing
nothing had improved in Afghanistan since the PRRA application was filed in
December 2015 and in fact there had been a deterioration of conditions.
[14]
On February 21, 2017, the Delegate rejected the
PRRA application and found there was insufficient evidence to show the
Applicant was likely to face death, torture or cruel or unusual treatment or
punishment if returned to Afghanistan.
[15]
The Delegate’s reasons contained quotes from the
Applicant’s written submissions and the Expert Report, which focused on the
deteriorating situation in Afghanistan, threats faced by Hazara, and that the
Applicant’s risk is compounded by being a westernized atheist.
[16]
The Delegate accepted the history of persecution
of the Hazara and that the Applicant was visibly identifiable as part of that
ethnic group. However, the Delegate found it was difficult to distinguish
whether the Hazara are targeted for their ethnicity, or the fact they practice
Shiite Islam. Therefore, the Applicant’s lack of interest in religion would
likely diminish his risk of becoming a victim of sectarian violence directed
towards Shiites.
[17]
The Delegate also accepted the Applicant as a
non-believer in Islam, but found there was no evidence of non-believers being
at risk in Afghanistan, as a distinct risk factor.
[18]
The Delegate found that the most serious risks
came from Anti-Government Elements (“AGEs”) such as the Taliban and ISIS. Both
the Applicant’s western mannerisms and Hazara identity put him at risk from
AGEs. Therefore, the crux of any threats to the Applicant’s safety would be how
and why he would be identified by AGEs, whether areas existed where he could
reside in safety and whether state protection existed.
[19]
The Delegate found there was little to suggest
the Applicant had a profile of significance to AGEs. He was not employed by an
international organization, a member of a political or social group, nor a
journalist or activist. As well, measures could be taken to diminish the
perception of being western, such as not travelling with documents or symbols
that link him to the Afghan government or western countries. Furthermore, the
style of dress in Afghanistan is such that it would be normal for the Applicant
to not show his forearm, which has a western-style tattoo.
[20]
The Delegate accepted that the Applicant’s
Hazara ethnicity put him at risk of AGEs, but state protection from AGEs
existed in government controlled areas. The Delegate noted that 57 percent of
the country’s districts were under government control, including Kabul. In
areas where the government was in control, they were receiving support from US
and Coalition forces as well as the UN. Furthermore, urban areas were safest
and internal relocation was possible for low-profile individuals.
[21]
The Delegate concluded that the Applicant was
not likely to face death, torture, or cruel or unusual treatment or punishment
if returned to Afghanistan. The Afghan government had made efforts to protect
civilians in government controlled areas, including the Hazara. While those
measures were imperfect and AGEs continued to target civilians in government
controlled areas, there was little to suggest that they would have any
particular interest in targeting the Applicant given he did not have a profile
of significance. Should the Applicant reside in Kabul, he would be in a
populous environment where ethnic and religious groups were mixed, including
the Hazara. Furthermore, if he adapted quickly and behaved appropriately, there
was little to suggest he would be targeted for being associated with western
beliefs and customs.
[22]
On March 9, 2017, the Applicant applied to this
Court for judicial review of the Delegate’s decision.
III.
Issues
[23]
The issues are:
- Was there a
denial of nature justice by the Delegate failing to give the Applicant an
opportunity to respond to his concerns about the Expert Report?
- Did the Delegate
err by ignoring the Expert Report and relying selectively on the rest of
the evidence?
IV.
Standard of Review
[24]
The standard of review for procedural fairness
related to a denial of natural justice is correctness.
[25]
The standard of reasonableness applies to the
consideration of the evidence in respect of the Applicant’s PRRA application
V.
Analysis
Legislation
[26]
The Minister of Citizenship and Immigration has
imposed a stay on removals to Afghanistan pursuant to paragraph 230(1)(a) of
the IRPA Regulations; however, the stay does not apply to the Applicant
pursuant to paragraph 230(3)(c) of the IRPA Regulations:
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Stay of Removal Orders
Considerations
230 (1) The Minister may impose a stay on
removal orders with respect to a country or a place if the circumstances in
that country or place pose a generalized risk to the entire civilian
population as a result of
(a) an armed conflict within the country or
place
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Sursis
Sursis : pays ou lieu en cause
230 (1) Le ministre peut imposer un
sursis aux mesures de renvoi vers un pays ou un lieu donné si la situation
dans ce pays ou ce lieu expose l’ensemble de la population civile à un risque
généralisé qui découle :
a) soit de l’existence d’un conflit
armé dans le pays ou le lieu
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Exceptions
(3) The stay does not apply to a person who
(c) is inadmissible under subsection 36(1)
of the Act on grounds of serious criminality or under subsection 36(2) of the
Act on grounds of criminality;
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Exception
(3) Le paragraphe (1) ne
s’applique pas dans les cas suivants :
c) il est interdit de territoire
pour grande criminalité ou criminalité au titre des paragraphes 36(1) ou (2)
de la Loi
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[27]
Paragraph 112(3)(b), subparagraph 113(d)(i) and paragraph
114(1)(b) of the IRPA provide that where an applicant is inadmissible for
serious criminality, his or her risk is assessed only under section 97 of the IRPA
and a positive decision does not result in refugee status but only in a stay of
removal:
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Protection
Application for protection
Restriction
112 (3) Refugee protection may not
be conferred on an applicant who […]
(b) is determined to be
inadmissible on grounds of serious criminality with respect to a conviction
in Canada of an offence under an Act of Parliament punishable by a maximum
term of imprisonment of at least 10 years or with respect to a conviction
outside Canada for an offence that, if committed in Canada, would constitute
an offence under an Act of Parliament punishable by a maximum term of
imprisonment of at least 10 years;
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Protection
Demande de protection
Restriction
(3) L’asile ne peut être conféré au
demandeur dans les cas suivants :
b) il est interdit de territoire pour
grande criminalité pour déclaration de culpabilité au Canada pour une
infraction à une loi fédérale punissable d’un emprisonnement maximal d’au
moins dix ans ou pour toute déclaration de culpabilité à l’extérieur du
Canada pour une infraction qui, commise au Canada, constituerait une
infraction à une loi fédérale punissable d’un emprisonnement maximal d’au
moins dix ans;
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Consideration of application
113 Consideration of an
application for protection shall be as follows:
(d) in the case of an applicant
described in subsection 112(3) — other than one described in subparagraph
(e)(i) or (ii) — consideration shall be on the basis of the factors set out
in section 97 and
(i) in the case of an applicant
for protection who is inadmissible on grounds of serious criminality, whether
they are a danger to the public in Canada
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Examen de la
demande
113 Il est disposé de la demande comme il
suit :
d) s’agissant du
demandeur visé au paragraphe 112(3) — sauf celui visé au sous-alinéa e)(i) ou
(ii) —, sur la base des éléments mentionnés à l’article 97 et, d’autre part :
(i) soit du fait
que le demandeur interdit de territoire pour grande criminalité constitue un
danger pour le public au Canada
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Effect of decision
114 (1) A decision to allow the
application for protection has
(b) in the case of an applicant
described in subsection 112(3), the effect of staying the removal order with
respect to a country or place in respect of which the applicant was
determined to be in need of protection.
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Effet de la décision
114 (1) La décision accordant la demande
de protection a pour effet de conférer l’asile au demandeur; toutefois, elle
a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir,
pour le pays ou le lieu en cause, à la mesure de renvoi le visant.
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A.
Was there a denial of nature justice by the Delegate
failing to give the Applicant an opportunity to respond to his concerns about
the Expert Report?
[28]
The Applicant’s counsel acknowledged at the
hearing that only if the Court finds the Delegate’s treatment of the Expert
Report was unreasonable should there be a determination of whether there has
been a breach of natural justice.
[29]
The Applicant argues that the Delegate breached
procedural fairness by denying him the chance to respond to concerns regarding
the Expert Report. That Report was central to the Applicant’s case, and the
expert has unassailable credentials and would’ve provided rebuttal evidence.
Given this breach of procedural fairness, the Applicant asks the Court to now
accept rebuttal evidence from the expert.
[30]
The Respondent argues that the Delegate’s reasons
do not indicate specific problems or concerns with the Expert Report. The Delegate
weighed all the evidence, including that Report, and came to a reasonable
conclusion. Furthermore, the Delegate provided the Applicant with an
opportunity to submit updated submissions on risk prior to making a decision.
[31]
I agree with the Respondent. In a PRRA
application, the Applicant bears the burden of proof. The Delegate was only obliged
to consider evidence that was submitted and was not required to solicit the Applicant
for better or additional evidence (Ormankaya v Canada (Minister of
Citizenship and Immigration), 2010 FC 1089 at paras 31-34).
[32]
The cases cited by the Applicant are
distinguishable. The Court in Muliadi v Canada (Minister of Employment and
Immigration), [1986] 2 FC 205, dealt with evidence from a third party that
was not put to the applicant. The Court in Malala v Canada (Minister of
Citizenship and Immigration), [2001] FCJ No 290 (QL), dealt with a finding
that the applicant was evasive and not plausible due to anomalies and
contradictions in her evidence.
[33]
However, even if I accept the expert rebuttal
report as evidence, I do not find that there has been a breach of natural
justice.
B.
Did the Delegate err by rejecting the Expert
Report and relying selectively on the rest of the evidence?
[34]
The Applicant argues that the Expert Report was
the central piece of evidence in this case and was the only evidence that
addressed the risk to someone with the Applicant’s particular characteristics.
However, the Delegate implicitly rejected that Report by ignoring significant
portions of the Report, picking and choosing among its contents, preferring
more general information and reaching conclusions that contradict the import of
the report, without explanation.
[35]
The Respondent argues that the Delegate’s
reasons indicate that the Delegate was aware of the contents of the Expert
Report and it was given fair consideration. The Delegate cited other reliable
documentary sources in support of the decision and was entitled to prefer those
sources over the conclusions in the Expert Report. Essentially, the Applicant
is asking the Court to re-weigh the evidence.
[36]
The Delegate failed to address important
portions of the Expert Report, including its conclusion that the Applicant
would face significant risks if deported to Afghanistan. At best, the Delegate
effectively minimizes the value and import of the Expert Report. Furthermore,
the Delegate chose to rely selectively on generic, documentary evidence to come
to a contrary decision to what the Expert Report actually supports.
[37]
Decision-makers are assumed to have considered and
weighed all the evidence presented to it unless the contrary is shown; however,
the more important the evidence that is not mentioned specifically and analyzed
in the agency's reasons, the more willing the Court may be to infer from the
silence that the agency made an erroneous finding of fact without regard to the
evidence (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration),
[1998] 157 FTR 35 at para 17).
[38]
This Court has held that where expert evidence
is put forward and considered by the decision-maker, it deserves thoughtful and
comprehensive analysis if it is to be rejected (Naeem v Canada (Minister of
Citizenship and Immigration), 2008 FC 1375 at para 24).
[39]
As well, this Court has held that
decision-makers cannot selectively rely on evidence presented to the detriment
of an applicant, or ignore pertinent evidence supporting the claim (Zaatreh
v Canada (Minister of Citizenship and Immigration), 2010 FC 211 at paras
53-57). Indeed, in the refugee context, this Court has held on several
occasions that a decision-maker failed to properly account for the conditions
faced by Hazaras in Afghanistan (Barat v Canada (Minister of Citizenship and
Immigration), 2016 FC 443; and Hossain v Canada (Minister of Citizenship
and Immigration), 2016 FC 313).
[40]
The author of the Expert Report, Prof. Williams,
is Professor of Islamic History at the University of Massachusetts. He has
travelled throughout Afghanistan, been consulted by the US and Afghan
governments, published books on history, politics and war in Afghanistan and
written academic articles about the repression of ethnic minorities in that
country. This Court has previously recognized his qualifications (Re Harkat,
2010 FC 1241 at para 46; and Re Almrei, 2009 FC 1263 at paras 268
and 349-361).
[41]
While the Delegate recognizes Prof. William’s
Expert Report, he or she omits relevant portions of the Expert Report, such as
the statement that “extreme perils” await the
Applicant in
Afghanistan. An example of the Delegate’s selective editing is shown by
comparing a portion of the Delegate’s reasons to the corresponding portion of
the Expert Report:
Delegate’s reasons:
…the Taliban fanatics declared a war on
Hazaras in both Afghanistan and Pakistan. (…) While that story made headlines,
most massacres of Hazaras do not because they have become so routine in the
last few year [sic] (…).
Original statement:
...the Taliban fanatics declared a war on
Hazaras in both Afghanistan and Pakistan. Hundreds of Hazara “infidels” were
systematically hunted down and killed by the Taliban in both countries. The
press was routinely filled with stories of Hazaras who were pulled off buses at
Taliban checkpoints and gunned down or beheaded, of suicide bombings of Hazara
gatherings, etc. As recently as mid-November 2015 seven Hazaras, including a
nine year old girl, were beheaded in the Afghan province of Zabul. While
that story made headlines, most massacres of Hazaras do not because they have
become so routine in the last few years and especially in the last few
months.
[Emphasis added]
[42]
More significantly, the Delegate fails to make
any reference to the conclusion and recommendation of the Expert Report, which
contradicts the Delegate’s finding:
To put it mildly, [the Applicant’s] case is
fraught with tremendous risk and, should he be deported back to his
ancestral land, he will find himself in considerable danger on both a
personal and ethnic level as a Westernized Hazara who may well be declared an
infidel not only [sic] the Taliban fanatics who are conquering much of the
country, but by the close-minded and often fanatical mullahs or priests who
dominate the lives of his own Shiite ethnic group…
In these circumstances I would strongly
advise against deporting [the Applicant] to the warzone known as
Afghanistan as it faces the prospect of a further drawdown of US troops next
year and further conquests by a resurgent Taliban.
[Emphasis added]
[43]
The Delegate chose to rely selectively on general,
documentary evidence to reach a conclusion that contradicted the essence of
Expert Report. For example, the Delegate cited a UK Home Office report for the
fact the Afghan government controls portions of the country, internal
relocation may be possible for individuals with a low-profile and urban rather
than rural areas are safest. However, the Delegate neglected to refer to that
report’s section on state protection. In particular, the Delegate does not
mention this statement from that section:
In Kabul, and other districts, cities and
towns controlled by the government, the authorities may be willing but will
usually be unable to offer effective protection given the structural
weaknesses in the security forces and the justice system…
(United Kingdom: Home Office, Country
Policy and Information Note – Afghanistan: Fear of anti-government elements
(AGEs), 29 November 2016, Version 2.0 at 2.4.3 [UK Home Office Report])
[Emphasis added]
[44]
Finally, the Expert Report is consistent with
the documentary evidence. The reports by the UK Home Office, UNHCR and
Immigration and Refugee Board, which were all cited at length by the Delegate,
support the proposition that Hazaras, non-believers and westernized individuals
are among the highest risk profiles in Afghanistan – the unique combination of
these three characteristics by the Applicant puts him at an increased risk, not
a minimized risk as found by the Delegate.
[45]
The decision is unreasonable.
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