Docket: IMM-5755-15
Citation:
2016 FC 797
Ottawa, Ontario, July 13, 2016
PRESENT: The
Honourable Mr. Justice Barnes
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BETWEEN:
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ABD EL RASOL
ABREE
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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
UPON hearing this
application for judicial review at Calgary, Alberta on June 9, 2016;
AND UPON reviewing the
materials filed with the Court and hearing counsel on behalf of the parties;
AND UPON reserving
decision;
AND UPON concluding that this application
should be allowed for the following reasons:
[1]
This application concerns a decision of the
Immigration Appeal Division [Board] cancelling a stay of removal order
previously granted to the Applicant, Abd El Rasol Abree. Mr. Abree is a
citizen of Sudan who came to Canada with his family at the age of eleven.
[2]
Mr. Abree’s immigration troubles arise out
of his criminal behavior. In 2010, he was deemed inadmissible after being
convicted of trafficking in cocaine and sentenced to 5 months in custody.
Mr. Abree did not take issue with the inadmissibility finding and,
instead, sought relief from the Board on humanitarian and compassionate
grounds. That effort proved successful. On July 25, 2011, the Board granted a
stay of removal for 3 years on conditions that, inter alia, he not
commit any criminal offences and, if charged, that he report immediately to the
Canada Border Services Agency.
[3]
Unfortunately, Mr. Abree did not stay out
of trouble. On September 9, 2013, he was found guilty for having possession of
a small amount of crack cocaine and sentenced to a conditional discharge.
Further, on October 16, 2013, he was charged with impaired driving, and pleaded
guilty on September 2, 2014. His sentence for this conviction was a one
thousand dollar ($1,000.00) fine and a driving prohibition of one year. Not
surprisingly, these matters led to the reconsideration of the Board’s stay of
removal order. After receiving evidence, including testimony from
Mr. Abree, the Board cancelled its earlier stay of removal order thereby rendering
Mr. Abree subject to removal to Sudan.
[4]
Counsel for the Minister acknowledges an error
in the Board’s decision where it referred to two intervening criminal
convictions. By receiving a conditional discharge, Mr. Abree was not “convicted” of criminal possession of cocaine albeit
he was guilty of the offence. I do agree, however, with the Respondent’s point
that this error was immaterial to the outcome of the case because the finding
of guilt on this charge was proof of the breach of the stay condition that he “not commit any criminal offences”.
[5]
There is, however, a problem with the Board’s
treatment of the evidence bearing on the risks Mr. Abree would face on
return to Sudan. This was a material factor in the Board’s first decision
granting a stay of removal and it was not altered by his subsequent criminal
behaviour. In the first-instance decision, the Board described the personal
hardships he would likely face as “significant”.
Given the prevailing level of armed conflict in the Sudan this is a fair
characterization. On that occasion, the Board also paid considerable attention
to a detailed psychological report written by Dr. Meghan Davis.
Dr. Davis described the hardships that Mr. Abree would likely face in
the Sudan in the following way:
He is not well educated, by any standard,
having entered school late in Sudan and having been passed through the
educational system in Canada by attending ESL classes. Still, he is qualified
to do manual labor in Canada and has recently shown himself able to integrate
into the Canadian work-force on this basis. In Sudan, we have no reason to
expect that he would have the same advantage as he has not lived there since he
was in his early teens. Indeed, it is not reasonable to assume that the life he
has started to construct for himself in Canada — working and integrating into
society as a liberal, non-adherent Muslim — would be replicated in Sudan.
There is an indication that Mr. Abree has
suffered from a mental illness (PTSD). While this would not predict criminal
recidivism, it would predispose him to additional functional challenges in
Sudan and it would be completely unreasonable to assume that his already
chronic status would not deteriorate further due to the following social
factors that are known to be environmental risk factors for the development of
depression: social isolation, removal from contact with family of origin, and
loss of a newly constructed, meaningful role in Canadian society.
It is not that Mr. Abree knows little about
Sudan and could not reasonably be expected to reintegrate; rather, it is the
case that he knows nothing about Sudan that would be of use to him in his
attempts to relocate in a manner that would yield well-being and emotional
health. It is important that his identity is not that of a Sudanese man seeking
protection. He sees himself, instead, as a man of Sudanese descent whose family
brought him to Canada — for reasons related to violence and family risks which
he witnessed and would have inferred as a boy — and who is now seeking to
establish himself in Canada. He does not know today whether he would face
personal risks in Khartoum, for instance, because he does not know much about
Khartoum, because he could not even find this city on a map in my office, and
because he is of the mistaken opinion that “things are pretty good there”
(presumably an indication that he does not know of current conflict).
Importantly, he does not know how the dynamics of current north-south conflict
in and around the location of his birthplace could potentially affect him.
Beyond this, he also knows little of the role of religion in this conflict; he
states that he had left the practice of Islam when he decided that drinking
alcohol was an acceptable social practice for him. He does not know, and appears
to have not considered, whether his being a non-practicing Muslim would put him
at risk. His re-exposure to general violence, however, — violence which he is
today not expecting to see — would by itself most likely trigger serious
decompensation.
…
Taking all facts together, it is our opinion
that a removal of Mr. Abree to Sudan could unnecessarily impose
disproportionate emotional, occupational, and familial hardship on him based on
the reality that he would in a return to Sudan be forced to re-enter a society
about which he knows essentially nothing and within which he would have (above
cited) high risks for mental illness. The challenge to his mental illness would
be principally due to his having had extraordinary exposures to violence and
killing as a boy, due to social and familial isolation that would result from
removal, and due to risks for not prospering educationally or occupationally in
Sudan.
[6]
The record before the Board dealing with the
prevailing conditions in the Sudan also described, in considerable detail, the
grave situation facing the population in the region. Brutal conflict, massive
displacement of the civilian population, famine, and the widespread killing and
torture of civilians are all reported by reliable sources.
[7]
The above evidence is not reasonably accounted
for in the impugned reasons with the bare statement “there
would be some degree of hardship if the appellant was removed to the Sudan”.
The prevailing situation facing Mr. Abree was profoundly more serious than
the Board allowed and was deserving of far more attention. In the result, the
decision is set aside as unreasonable. The matter is to be redetermined on the
merits by a different decision-maker.
[8]
Neither party proposed a certified question and
no issue of general importance arises on this record.
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