Docket: IMM-1735-17
Citation:
2017 FC 1117
Ottawa, Ontario, December 7, 2017
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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OBAID ENAM
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review
brought by the Applicant pursuant to section 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the IRPA], of a decision made
by the Refugee Appeal Division of the Immigration and Refugee Board [the RAD],
dated March 28, 2017, dismissing the Applicant’s appeal of the decision of the
Refugee Protection Division [RPD] which held that the Applicant is not a
Convention Refugee or a person in need of protection [the Decision].
[2]
The central issues are identity and the Applicant’s
change in gender identification he identified between the hearing of the RPD
and the RAD appeal.
II.
Facts
[3]
The Applicant claims to be a 27-year-old citizen
of Afghanistan of Hazara ethnicity.
[4]
Consistent with his identification documents, the
Applicant identified himself as female in his claim before the RPD. Female
pronouns were used by his counsel and the RPD. No issue was raised concerning
his gender identification, which was simply taken to be female.
[5]
Significantly, however, in his appeal to the
RAD, he tendered completely new allegations and evidence that, although he was
assigned female at birth (and proceeded as a female before the RPD), he now identifies
as a male.
[6]
I emphasize that the Applicant’s being transgender
was not before the RPD.
[7]
The Applicant alleged before the RAD that when
he was born, his parents did not want a second daughter. Therefore, they raised
the Applicant as a boy and gave him a male name. The evidence in this regard consisted
of an affidavit of the Applicant to that effect, and an expert report by Dr.
Patricia Durish [the Durish Report]. Dr. Durish is a registered clinical social
worker who interviewed the Applicant.
[8]
In terms of risk, the Applicant alleges that while
studying at the Behzad Institute in Afghanistan from July 2015 to January 2016,
he became the target of a well-connected and powerful classmate. According to
the Applicant, this classmate sought to rape and kill him. The Applicant
describes an incident in January 2016 where he refused an invitation to
accompany the classmate to help him install a computer program. When the
classmate tried to get the Applicant into a car with tinted windows and two
other individuals inside, the Applicant ran away. After the classmate called
his cell phone, the Applicant says he disabled his SIM card and stopped attending
school. He also says that a car with tinted windows and no license plate was
frequently seen in his area. The Applicant claims he could no longer leave his
home.
[9]
The Applicant submits that a relative helped him
to procure a visitor visa to Turkey. The Applicant claims to have used his
Afghan passport to enter Turkey, where he stayed for three weeks. According to
the Applicant, he was then introduced to smugglers who took his passport and
brought him to Canada on a false Turkish passport. The Applicant claims never to
have held the fraudulent passport in his hands as the smuggler kept it and
directed the Applicant through customs. He could not recall, with precision, the
name he used upon his arrival at the airport in Canada. He provided the RPD
with several variants. The Applicant believes the name on the passport was
‘Ozel Ibrahim’, ‘Osal Ibrahim’, ‘Ozal Ibrahim’ or ‘Uzel Ibrahim’.
[10]
Upon arrival in Canada, the Applicant says that the
smuggler kept the Applicant’s original Afghan passport, put the Applicant in a
taxi and gave him the address of a shelter. The Applicant filed an inland claim
for refugee protection based on what he then considered his gender (female),
and based on his ethnicity (Hazara).
[11]
The Applicant had a hearing before the RPD over
two days in June and July 2016. The RPD found that the Applicant was not a
credible witness and that he did not provide sufficient reliable and
trustworthy evidence to establish his identity (which at the time was female) on
a balance of probabilities. The Applicant’s failure to establish his identity
was fatal to his claim for refugee protection.
[12]
As noted above, the Applicant identified himself
as female before the RPD. Therefore, the RPD approached the Applicant’s claim
as if he was an Afghan woman. The RPD applied the Chairperson’s Guideline 4
- Women Refugee Claimants Fearing Gender-Related Persecution, considered
the unique set of circumstances faced by Afghan women in terms of accessing
personal identification documents and other official documents, and the
obstacles and abuses Afghan women often face in their daily lives.
[13]
The RPD had several issues with the Applicant’s
application, including:
•
the “claimant who
appeared before the panel was of significantly older age than 26 years old”;
•
the Applicant’s appearance did not correspond
with photographs on certain documents he submitted;
•
the Applicant’s appearance was identical on
various documents dated 2003 to 2015;
•
the Applicant’s Secondary School Transcript was
visibly altered without any satisfactory explanation by the Applicant;
•
the Applicant alleged to not possess her genuine
Afghan passport because the smuggler maintained it, and despite stating that
his sister paid the smuggler by transferring funds from a bank account, the
Applicant could provide no evidence of any bank transfer, even when asked by
the RPD;
•
the Applicant’s Ministry of Public Health
Certificate contained sections that had been whited out;
•
the Applicant modified the birthdates of his
parents on a declaration from his sister;
•
a search of the Immigration and Customs
Enforcement database revealed no record of an individual entering Canada on or around
March 23rd, 2016 under the name Ozel Ibrahim or Obaid Enam;
•
the Applicant claimed to have no documentary
evidence to establish her entry to Canada, including tickets, boarding passes,
luggage tags, etc., because the smuggler kept everything; and
•
although the Applicant claimed to have attended
an all-girls school, according to documentary evidence before the panel, girls
did not attend school during Taliban rule in Afghanistan during the years the
Applicant alleges to have attended school.
[14]
The RPD found that the Applicant provided
insufficient explanations for each of these issues. Having found that the
personal and national identity of the Applicant had not been established on a
balance of probabilities, the RPD did not assess the refugee aspect of the
Applicant’s claim.
[15]
At his RPD hearing, the Applicant was
represented by counsel.
[16]
He retained different counsel to represent him
at the RAD, who also represented him before this Court.
[17]
On appeal to the RAD, the Applicant brought
forward new evidence relating to his gender identity, the Durish Report, a
money transfer receipt, a school transcript and certificate, and country
documents regarding school during Taliban rule.
[18]
He filed an affidavit addressing his different gender
identity from that before the RPD. This affidavit among other things, criticized
his former lawyer. It is significant that the Applicant did not file a complaint
against his former counsel. In oral argument, his new counsel conceded there was
“no blame” against former counsel for not
representing the Applicant as a transgender male instead of a female. This was a
wise concession; former counsel was blameless.
[19]
As noted above the RAD dismissed the Applicant’s
appeal.
III.
Issues
[20]
In my view the determinative issue on this
appeal is the reasonableness of the RAD’s decision.
IV.
Standard of Review
[21]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is not necessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.”
The Federal Court of Appeal stated in Canada (Minister of Citizenship and
Immigration) v Huruglica, 2016 FCA 93 [Huruglica], at para 70 that
the RAD is to review the RPD’s findings on the standard of correctness, but may
defer to the RPD on credibility findings “where the RPD
enjoys a meaningful advantage.” Huruglica also determines that
reasonableness is the standard of review to be used by this Court when
reviewing decisions of the RAD, see paras 31-35, and Fu v Canada (Minister
of Citizenship and Immigration), 2017 FC 1074 at para 10 per Diner J:
The RAD’s assessment of the evidence, and findings of mixed
fact and law, are to be reviewed on a standard of reasonableness (Canada (Minister of Citizenship and
Immigration) v Huruglica, 2016 FCA 93 (CanLII) at
para 35; Dunsmuir
v New Brunswick, 2008 SCC 9 (CanLII) at
paras 47, 51, 54, and 57) […].
[22]
In Dunsmuir at para 47, the Supreme Court
of Canada explained what is required of a court reviewing on the reasonableness
standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with 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.
[23]
The Supreme Court of Canada also instructs that
judicial review is not a line-by-line treasure hunt for errors; the decision
should be approached as an organic whole: Communications, Energy and
Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013
SCC 34. Further, a reviewing court must determine whether the decision, viewed
as a whole in the context of the record, is reasonable: Construction Labour
Relations v Driver Iron Inc, 2012 SCC 65; see also Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62.
V.
Discussion and Analysis
[24]
The RPD confirmed the determination of the RPD,
finding that the Applicant is neither a Convention refugee nor a person in need
of protection.
[25]
In making this decision, the RAD considered a
number of pieces of new evidence:
1.
Assessment of the Appellant by Dr. Patricia
Durish, Ph.D. [Item 1];
2.
New letter from the Applicant’s sister
corroborating the Applicant’s new allegations regarding his gender identity and
the risks he faces [Item 2];
3.
Online article about gender identity,
Misgendering is Violence [Item 3];
4.
Online articles regarding the practice of Afghan
girls posing as boys [Item 4];
5.
Money transfer receipt regarding payment made to
smuggler [Item 5];
6.
Original school transcript and certificate
issued June 25, 2016 [Item 6]; and,
7.
Country documents regarding schooling during the
Taliban Rule [Item 7]
[Collectively, the New Evidence]
A.
RAD’s findings of admissibility of New Evidence
[26]
The RAD summarized the Applicant’s submissions
regarding his gender as follows:
The Appellant has submitted a new allegation
that was not before the RPD. He argues that, although he was female assigned at
birth, he was raised as a male by his parents. Since that time, he has
identified as a male. He argues that, in Afghanistan any form of trans-identity
placed him in immediate danger, and, as such, he developed coping mechanisms
around his gender identity, which include extreme avoidance when these issues
arise. The Appellant submits that, although he suffered extreme and protracted
abuse and bullying in addition to sever ostracization and isolation as a
male-presenting woman in Afghanistan, because of his psychological profile, he
could not have reasonably been expected to present the evidence with regard to
his sexual identity at the RPD because he would not think or be able to
volunteer this information about himself, and would not object to a female
identity being imposed on him. To support his new allegations in this regard,
the Appellant has tendered an assessment by Patricia Durish Ph. D, a letter
from his sister Aahar Enam, as well as online articles dealing with gender
identity and the practice of Afghan girls posing as boys.
B.
New Evidence regarding gender identity
[27]
The RAD found that Items 1-4 met the requirements
to be admitted as new evidence.
[28]
However, while the RAD accepted the Durish
Report (Item 1), the RAD concluded it should be afforded little weight. I will
review the RAD’s assessment of the Durish Report on the reasonableness standard,
and consider each factor identified by the RAD:
(i)
First, the RAD found that the Durish Report was
not a “psychiatric assessment” because Dr. Durish
is not a medical doctor, psychiatrist, nor psychologist. Court Comment: I
agree that she is not a doctor, psychiatrist, or psychologist. That said, the Durish
Report is nonetheless a report of a person qualified as a registered clinical
social worker. It must be reviewed in that light. I am not satisfied that this took
place here. I note that clinical social work is a regulated profession under
Ontario’s Social Work and Social Service Work Act, 1998, SO 1998
c 31, and its regulations and by-laws. Under that legislation and subsection
27(4) of the Ontario Regulated Health Professionals Act SO 1991, c 18,
registered clinical social workers are authorized to perform the controlled act
of “treating […] an individual’s serious disorder of
thought, cognition, mood, emotional regulation, perception or memory that may
seriously impair the individual’s judgment, insight communication or social
functioning”;
(ii)
The RAD criticized the Durish Report because it
communicated a diagnosis, which is not permitted according to section 27 of the
Regulated Health Professionals Act, SO 1991, c 18. Court Comment:
I agree both that the Durish Report appears to communicate a diagnosis, and
that Dr. Durish is not permitted to make diagnoses under Ontario law. However,
that is not the end of the matter, because as a registered clinical social
worker, Dr. Durish nonetheless had expertise which, acting reasonably, the RAD should
have considered. As just noted, I am not satisfied that occurred here;
(iii)
Third, the RAD noted inconsistencies between the
Durish Report and the evidence. In particular, Dr. Durish had noted that “much of the trauma [the Applicant] suffered in Afghanistan
manifests as extreme deference and submission to authority”. The RAD
pointed to examples of the Applicant defying authority and taking actions that
were in his own best interests, such as when he ran away from his classmate. Court
Comment: In my view, while these observations were relevant, they were only
marginally so, considering the RAD’s overall assessment of the Durish Report;
(iv)
Finally, the RAD criticized the Durish Report
because it “advocated” for the Applicant to
remain in Canada. The Durish Report concluded that the Applicant’s: “[…] fear is so great and the certainty of his capture, and
torture and eventual death is so strong that it is my professional opinion that
there is a real threat of [the Applicant] committing suicide if he is forced to
return to Afghanistan.” Court Comment: While this aspect of the Durish
Report should be given no weight because it calls for expertise on Afghan
country conditions, which Dr. Durish did not possess, I am not persuaded it
went over the line into advocacy; the RAD’s “advocacy”
finding was unreasonable.
[29]
The RAD gave the Durish Report little weight; in
my view, this finding taken alone was unreasonable as outlined above. As will
be seen below, there will be a redetermination of this matter. The Durish
Report should not simply be accepted without more; its consideration must take
into account the professional’s qualifications and what the report says in that
regard, together with other factors including, but not limited to, the thoroughness
of the analysis, the information the claimant gave the professional in advance
of the interview, other information the professional relied upon, instructions
and questions counsel put to the professional, the time the professional spent
with the Applicant, whether the report crosses the line into impermissible
advocacy, and of course whether matters underlying or considered in the report
are consistent with the new decision-maker’s findings of fact.
[30]
In the normal course, I would assess other
findings made by the RAD, and consider other factors raised by the parties. However,
that is not necessary because of the importance of my finding with respect to
the Durish Report, and the additional finding discussed below.
[31]
As of May 1st, 2017 (i.e., after
the RAD made its Decision) the IRB released Chairperson Guideline 9 -
Proceedings before the IRB Involving Sexual Orientation and Gender Identity and
Expression [the SOGIE Guidelines]. The SOGIE Guidelines seek
to address “the particular challenges individuals with
diverse SOGIE may face in presenting their cases before the
Immigration and Refugee Board of Canada (IRB) and establishes guiding
principles for decision-makers in adjudicating cases involving SOGIE”.
[32]
The SOGIE Guidelines set out
considerations for the RPD including:
•
An individual’s self-awareness and
self-acceptance of their SOGIE may present as a gradual or non-linear
process;
•
Many individuals with
diverse SOGIE conceal their SOGIE in their country of
reference out of mistrust or fear of repercussion by state and non-state
actors, or due to previous experiences of stigmatization and violence. These
circumstances may manifest themselves as an individual being reluctant to
discuss, or having difficulty discussing, their SOGIE with a
decision-maker based on a fear or general mistrust of authority figures,
particularly where intolerance or punishment of individuals with
diverse SOGIE are sanctioned by state officials in an individual's
country of reference;
•
Individuals with diverse SOGIE may
face a heightened risk of experiencing mental health challenges, often stemming
from a history of social isolation, mistreatment and lack of social support in
their countries of reference. Individuals with diverse SOGIE may
experience internalized homophobia, sexual stigma or oppression. They may also
have depression, post-traumatic stress disorder relating to past physical or
sexual violence, anxiety, suicidal tendencies, dissociation, decreased capacity
for trust, and other trauma based on their SOGIE. These issues may manifest
themselves in a variety of ways and can have an impact on an individual's
ability to testify in a proceeding before the IRB; and,
•
Some individuals with
diverse SOGIE may be particularly vulnerable due to mental health
issues or traumatic circumstances experienced because of their SOGIE.
[33]
The SOGIE Guidelines also emphasize the
importance of using proper language and terminology in SOGIE claims. The RAD
accepted the change in the Applicant’s gender identification which leads me to
conclude the Applicant was entitled to an assessment that was considered, among
other things, pursuant to the SOGIE Guidelines. In my respectful view, the
SOGIE Guidelines, although not released at the time of the RAD’s
decision, require the RPD to be cognizant of the particular issues facing the
LGBTQ community, including transgender claimants such as the Applicant. Because
the Applicant is still in the immigration system, in my view, he is entitled to
the benefit of the SOGIE Guidelines. This he did not receive; a matter
which again is of central importance to the disposition of this case.
[34]
Stepping back and viewing the RAD decision as an
organic whole, and not approaching judicial review as a treasure hunt for
errors, I am not satisfied that the Decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law, as
required by Dunsmuir. As noted, I have come to this conclusion having
regard to the unreasonable assessment of the Durish Report and because the
Applicant did not, but should have had, the benefit of the SOGIE Guidelines
at a hearing. To recall, these matters are of central importance in this
disposition.
[35]
Therefore, the Decision is set aside and will be
remanded for reconsideration by the RAD in accordance with these reasons.
[36]
Neither party suggested a question of general
importance for certification, and none arises.
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