Docket: IMM-7914-14
Citation:
2015 FC 737
Vancouver, British Columbia, June 11, 2015
PRESENT: The
Honourable Mr. Justice Hughes
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BETWEEN:
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NAVID KAWA
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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
[1]
This is a judicial review of a decision of a
Senior Immigration Officer dated November 18, 2014 wherein, in the context of a
second Pre-Removal Risk Assessment (PRRA), it was determined that the Applicant
would not be subject to risk of persecution, danger of torture, unusual
treatment or punishment if returned to Kabul, Afghanistan.
[2]
The Applicant is an adult male citizen of
Afghanistan. He left that country in 2004 and entered the United States on a
student visa. While in the United States, he was charged and convicted of the
crime of obtaining prescription medicine by fraud and was ordered to be
deported. Prior to the enforcement of that Order, the Applicant fled to
Canada, entering Canada in May, 2014.
[3]
The Applicant’s claim for refugee status was refused
on the basis of criminal ineligibility. His first PRRA application was rejected
but was returned for re-determination. At issue here is that re-determination
wherein it was determined that there was insufficient evidence to demonstrate
that the Applicant would suffer personalized risk upon return to Afghanistan
and there was a viable Internal Flight Alternative in Kabul.
[4]
I will start by quoting two paragraphs of the
decision at issue:
With respect
to the option of internal relocation counsel writes that since there is a
current temporary suspension of removals to Afghanistan “internal flight alternative is not an
issue in this application”. Counsel
submits no further information regarding the current situation in Kabul aside
from noting that suicide attacks, kidnappings and military attacks on the
airport in Kabul have taken place. Although Canada Border Services Agency
(CBSA) currently does not remove individuals to Afghanistan, as a Senior
Immigration Officer I am tasked to assess personalized risk which only applies
to the applicant. Having reviewed the applicant’s particular profile and
circumstances, I find that a viable IFA exists for him in Kabul.
…
In the present
case, I find that the applicant has not established through sufficient evidence
that it would be unrealistic or an unattainable option for him to return to
Kabul in order to avoid any potential confrontation with the Taliban. I find
that the applicant adduces insufficient evidence to demonstrate that the
Taliban would have an interest in locating the applicant in Kabul, a large
municipality with the population of over 3 million people. While documentary
evidence established that the Taliban’s presence in Kabul has significantly
diminished, I find that this terrorist group still has the capacity to carry
out deadly attacks in Kabul and other major cities of Afghanistan. However,
the evidence before me indicates that Taliban’s targets in Kabul are primarily
government officials, religious leaders, tribal elders, off-duty police officers
and persons supporting the peace process. I do note that everyday people and
bystanders have been killed by terrorist attacks carried out by the Taliban and
other insurgency groups; however, it appears they happened to be innocent
victims in the wrong place at the wrong time rather than specific targets.
[5]
Having found that, even in Kabul where there are
suicide attacks, kidnappings and military attacks, where there is a terrorist
group that has the capacity to carry out deadly attacks primarily on government
officials, religious leaders, tribal elders, off-duty police officers and
persons supporting the peace process as well as innocent victims in the wrong
place at the wrong time, is it the case that the Officer still found that the
Applicant could be removed to Kabul.
[6]
In fact, that is not quite what the
Officer found. As set out in the last passage quoted above, the Officer found
that “the applicant has not established through sufficient
evidence that it would be unrealistic or an unattainable option
for him to return to Kabul”.
[7]
Section 97 of the Immigration and Refugee
Protection Act, SC 2001, c.27 (IRPA) speaks to a person who would be
subjected personally to a danger or risk to life or cruel treatment. The
Officer has set the bar too high in saying that sufficient evidence must
be given to persuade him or her that safety would be unrealistic or unattainable.
[8]
Afghanistan is a country that Canada has designated
as one wherein removals are temporarily suspended. Brief mention of this was
made in the decision at issue in the first passage previously quoted. It is
recognized that subsection 230(3) of the Regulations under IRPA
stipulates that a stay of removal order does not apply to, among other things,
persons who are inadmissible on grounds of serious criminality under paragraph
36(1)(a) of IRPA. The Applicant is such a person. However, it would be
unreasonable for the Officer not to inquire as to the nature of the offence
committed. A person who altered a date on a prescription in order to obtain painkillers
when their supply has run out is quite different from a murderer or terrorist.
Similarly, the fact that a country is on a do not remove list is not to be
ignored; it is to be taken into account as one of the factors under
consideration. In other words, if a country is dangerous where many are killed
or subjected to cruelty, a place within that country is not “safe” simply because fewer people are shot or
subjected to cruelty within some area there.
[9]
In the present case, the Applicant has presented
evidence as to a number of factors which, taken cumulatively, place him within
a narrow group of persons likely to be subjected to death or cruelty. The
Officer was very selective in the consideration given to those factors. The
decision was not reasonable. It will be set aside.
[10]
No party requested a certified question.
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