Date: 200601129
Docket: IMM-543-06
Citation: 2006
FC 1444
Ottawa, Ontario, November
29, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
SORAYA
HAGHIGHI NEJAD
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Nejad, a 27-year-old Iranian citizen, received a negative
pre-removal risk assessment (PRRA). The PRRA officer was not satisfied that
the extent of Ms. Nejad’s involvement in Iranian human rights protests in
Canada would subject her to any greater risk than the average Iranian citizen
returning to Iran.
[2] Ms. Nejad seeks judicial review of the
decision and contends that the PRRA process was flawed. She asserts that the
officer ignored the documentary evidence submitted with the application and
selectively focussed on an outdated United States Department of State (DOS) Report.
She also claims that the officer failed to consider that the human rights
conditions in Iran deteriorated
following the change of government in June 2005. Further, she argues that she
ought to have been granted an oral hearing.
[3] For the reasons that follow, I have
concluded that the PRRA officer’s assessment was not unreasonable and that the
application for judicial review should be dismissed.
Background
[4] Ms. Nejad’s parents are deceased. She has nine siblings: two live
in Canada; two live in Kuwait;
and five reside in Iran. Ms.
Nejad arrived in Canada on
August 11, 2002 and claimed refugee status on October 29, 2003 on the basis of
her “objection to the rules of Islamic law as they were being interpreted and
enforced in Iran”. The Refugee
Protection Division (RPD) of the Immigration and Refugee Board denied her claim
and noted that she was only “passively involved” in resistance.
[5] Since the refugee hearing, Ms. Nejad says that she has become “much
more informed” and “more proactive” regarding the treatment of women in Iran. She states that although she was
initially apprehensive about becoming more visibly and actively involved in these
issues, the recent victory of an “ultra-conservative President in Iran” convinced her otherwise. Her
involvement moved beyond email contact with other activists to attendance at
public functions in aid of the cause.
[6] In support of her PRRA application, Ms.
Nejad submitted nine undated photographs. Five photographs depict her with
prominent female activists and four photographs show her in a room containing
literature and posters dealing with the defence of civil rights in Iran. The photographs were tendered to
establish the change in her approach.
[7] Ms. Nejad claimed that she is known to the secret police and
national intelligence in Iran, who are “active in Toronto”. She submitted that she will be arrested at the airport in Tehran upon her return. The arrest could
lead to imprisonment and interrogation, which, in turn, could lead to rape, torture
and possible death. Ms. Nejad maintained that she “has been fighting sharia
law for many, many years” and that this cause was not “something new” which she
took up to support her application.
[8] The PRRA application was rejected on December 29, 2005. Ms. Nejad
filed an application for leave and judicial review on February 1, 2006. On
February 22nd, a judicial stay of removal was granted, pending
determination of the leave application. Leave was granted on August 23, 2006.
[9] Ms. Nejad filed a further affidavit on September 25, 2006. The information
in the affidavit and the attached documents was not before the PRRA officer. The
affidavit contains a significant amount of “new” evidence. For example, Ms.
Nejad states that she divorced her husband (who resides in Iran) in Canada, but the divorce is not
recognized in Iran. Paragraph
20 is an allegation that “husbands ‘own’ their wives in Iran and can even have them imprisoned”.
Her husband “can allege that I have committed adultery here in Canada, and as a result all the detention,
torture and executions detailed above and in previous filings could well happen
to me personally”. There are a total of 14 documents exhibited to the
affidavit; all post-date the PRRA decision. The first exhibit is a copy of a
February 28, 2006 front-page article in the Toronto Star newspaper. There is a
large photograph of Ms. Nejad, but her face is covered except for her eyes,
forehead and hair. Paragraph 18 of the affidavit states that Ms. Nejad’s
ex-husband has been provided with a copy of the article. I will address the
affidavit and its exhibits later in these reasons.
The Decision
[10] The PRRA officer did not dispute that Iran seriously violates the human rights of certain people, such as
active political dissidents. However, the officer determined that Ms. Nejad
had not demonstrated that she was a person who possessed such an identity. The
PRRA officer also concluded that Ms. Nejad had failed to demonstrate that the
Iranian authorities had identified her as a political activist. Consequently,
Ms. Nejad’s risk, upon return to Iran, was assessed as that of an average Iranian citizen returning from
abroad.
[11] The PRRA officer made the following
pertinent observations:
• Ms. Nejad was not identified by name (i.e.,
through the use of a name tag) in any of the photos taken with prominent
women’s rights activists;
• there was nothing to support Ms. Nejad’s
allegation that the Iranian secret police have knowledge of her activities in Toronto. The PRRA officer’s research on
this specific issue did not reveal any documents specifically referring to any
personal risk Ms. Nejad would face;
• the extensive documentary evidence submitted
by Ms. Nejad was acknowledged. The PRRA officer noted that, although the
documents spoke to human rights issues in Iran, none of the proffered documents referred to Ms. Nejad personally.
Rather, they spoke more generally to Iranian human rights issues;
• the PRRA officer referred specifically to
the 2004 U.S. DOS Report for Iran, which addressed the issue of freedom of movement as follows:
Citizens
returning from abroad sometimes were subjected to searches and extensive questioning
by government authorities for evidence of anti-government activities abroad.
Recorded and printed material, personal correspondence, and photographs were
subject to confiscation. (tribunal record at p. 110)
[12] The PRRA officer concluded that there was insufficient
evidence to establish that Ms. Nejad would be at risk if returned to Iran. Put another way, Ms. Nejad did not
satisfy the onus upon her to demonstrate a personalized risk of persecution,
torture, risk to life or risk of cruel and unusual treatment or punishment.
Issues
[13] The
issues may be delineated as follows:
(a) whether evidence that postdates the date of the
decision is admissible on judicial review;
(b) whether
the PRRA assessment process was flawed as a result of the PRRA officer’s
failure to refer to the documentary evidence submitted by Ms. Nejad, when that
evidence unequivocally “addresses the human rights conditions in Iran and the
deterioration in those conditions under the new government”; and
(c) whether Ms. Nejad was entitled to an oral
hearing.
The Standard of Review
[14] In Nadarajah
v. Canada (Solicitor General) (2005), 48 Imm. L.R. (3d) 43,
I adopted Mr. Justice Mosley’s pragmatic and functional analysis in Kim v. Canada (Minister of Citizenship and
Immigration)
(2005), 272 F.T.R. 62 regarding the standard of review applicable to PRRA
decisions. The standard of review for questions of fact is patent
unreasonableness, for questions of mixed law and fact, reasonableness, and for
questions of law, correctness. When the decision is considered “globally and
as a whole”, as noted by Mr. Justice Martineau in Figurado v. Canada (Solicitor General), [2005] 4 F.C.R. 387 (F.C.),
the standard of review is reasonableness.
Analysis
Evidence Postdating the Decision
[15] Ms.
Nejad’s affidavit of September 25, 2006, reveals that she is not aware of, or
is confused regarding, the extent of the court’s jurisdiction in matters of
judicial review. Judicial review proceedings are narrow in scope. Their
essential purpose is the review of decisions for the purpose of assessing their
legality. The reviewing court (absent exceptional circumstances not applicable
here) is bound by the record that was before the board. Fairness to the
parties and the tribunal under review dictates such a limitation: Bekker v.
Canada (2004), 323 N.R. 195 (F.C.A.). The reviewing court must proceed on
the record as it exists, confining itself to the criteria for judicial review: Canada (Attorney General) v. McKenna, [1999] 1 F.C. 401 (C.A.).
[16] Although it is evident that
the noted principles apply to preclude the court, on judicial review, from
receiving evidence that was not before the decision-maker, Mr. Justice MacKay’s
comments in Wood v. Canada (Attorney General) (2001), 199 F.T.R. 133
also provide insight. At paragraph 34, he stated:
34 […] On judicial review, a Court can
consider only evidence that was before the administrative decision-maker whose
decision is being reviewed and not new evidence (see Brychka v. Canada
(Attorney General), supra; Franz v. Canada (Minister of Employment and
Immigration) (1994), 80 F.T.R. 79; Via Rail Canada Inc. v. Canada
(Canadian Human Rights Commission) (re Mills) (August 19, 1997),
Court file T-1399-96, [1997] F.C.J. No. 1089; Lemiecha v. Canada (Minister
of Employment & Immigration) (1993), 72 F.T.R. 49, 24 Imm. L.R. (2d)
95; Ismaili v. Canada (Minister of Citizenship and
Immigration),
(1995) 100 F.T.R. 139, 29 Imm.L.R. (2d) 1). […]
[17] Consequently, as I informed
counsel at the outset of the hearing, evidence that post-dates the decision of
the PRRA officer is not admissible. I am cognizant of Ms. Nejad’s concern in
this respect given the increase in her activism since her refugee hearing. The
increase has been incremental and has seemingly escalated further since her
PRRA application. While her present level of activity may give rise to a new
PRRA application, it does not augment the court’s jurisdiction on judicial
review.
Alleged Failure to Consider Evidence
[18] Ms.
Nejad contends that the country conditions documentation submitted in support
of her application was not considered by the officer. Instead, the PRRA
officer relied on a single out-dated document, the 2004 U.S. DOS Report.
Further, she argues that no regard was had to the deterioration in country
conditions following the change of government. Indeed, the DOS Report
pre-dated the change. Relying on Kaybaki v. Canada (Solicitor General) 2004 FC 32, F.C.J. No. 27,
she asserts that the presumption that the decision-maker has considered all of
the evidence is a rebuttable one. Where the evidence is of significant value,
the court can make a negative inference from the failure to mention it.
Additionally, Ms. Nejad claims that the PRRA officer engaged in a selective
reading of the document that was considered.
[19] The chronology of events in
this matter is worthy of mention. Ms. Nejad’s refugee claim was dismissed on
July 15, 2004. The election in Iran
was conducted in June 2005, and the change of government occurred in August of
that year. Ms. Nejad’s PRRA application was completed on October 4, 2005 and
was received by Canada Border Services Agency (CBSA) at the Greater Toronto
Enforcement Centre on October 6th. The PRRA decision is dated
December 29, 2005. The U.S. DOS Report is dated February 28, 2005 and
canvasses the human rights situation in Iran for the preceding year.
[20] Regarding Ms. Nejad’s
allegation that the officer failed to consider the deterioration in human
rights after the change in government, I have carefully reviewed the contents
of the tribunal record. Of the documents submitted by Ms. Nejad, only three
post-date the change of government (tabs H, I and J). Only one of the
documents refers to the new government (tab J). That particular document is a
Canada Department of Foreign Affairs and International Trade news release dated
August 5, 2005, No. 141, in which then Minister of Foreign Affairs, Pierre
Pettigrew, expressed concern over Iran’s
human rights situation and called on the new government to “turn words into
action and honour its commitments to both its people and the international
community”. The PRRA officer did not err in failing to assess Ms. Nejad’s
evidence regarding the deterioration in human rights following the change in
government because no such evidence was submitted.
[21] Regarding the allegation that
the PRRA officer failed to consider any of the documentation that Ms. Nejad
submitted in support of her application, at page 3 of the PRRA, the officer
states:
The applicant, assisted by her legal
counsel submitted her Pre-Removal Risk Application on September 21, 2005. In
additional submissions the applicant indicated that she has become active in
the cause of Iranian women’s rights in Canada and as she alleges this activity is
closely monitored by Iranian secret police in Canada, she would be subjected to
arrest, detainment, rape, torture, and murder on her return to Iran. In an effort to illustrate the
applicant’s involvement in Iranian human rights issues in Canada the applicant has provided a
number of undated photographs of her and others at various events supporting
this cause. I note that she is not wearing a name tag or is otherwise
identified in the photographs. Also provided as supporting new evidence is a
statutory declaration from the applicant dated in October 2005 attesting to her
involvement in these issues indicating that her primary involvement is
conducted via email or over the telephone, although she has joined in at conferences
and celebrations, and even indicated that the photographs provided were taken
in support of her PRRA application. However, she has not provided any evidence
to support her and her counsel’s contention that Iranian secret police in Canada would have knowledge of her
activities. My research into these allegations has also not revealed any
documents specifically referring to any personal risk relating to the
applicant.
Also included in the evidence supporting
this application are reports from the Department of Foreign Affairs and
International Trade outlining various issues within Canada/Iran relations
including the treatment of women, similar reports on human rights abuses from
Human Rights Watch and Amnesty International, and a similar news article. None
of the documents provided refer to the applicant personally; however they speak
to human rights issues in Iran that have largely remained unchanged since the
applicant’s refugee claim was refused in July 2004.
[22] Additionally,
at page 5 of the assessment, the PRRA officer indicates that the sources
consulted were:
- PRRA application, submissions and supporting
evidence
- U.S. Department of State Country Report on
Human Rights Practices 2004 – Iran
http://www.state.gov/g/drl/rls/2004/41721.htm
[23] In
relation to the U.S. DOS Report, as noted earlier, it is dated February 28,
2005. It is a single-spaced, 22-page document containing a comprehensive
exposition of the country conditions in Iran. It incorporates the substance of the
Human Rights Watch and Amnesty International documents tendered by Ms. Nejad.
The report was timely to Ms. Nejad’s application and situation. Moreover,
there is nothing in the record that demonstrates that the alleged change in the
human rights conditions, during the ten months between the date of the report
and the date of the assessment, was such that the information in the DOS Report
was an inaccurate assessment of the situation in Iran.
[24] Ms.
Nejad’s identity or profile is at the heart of the PRRA officer’s
determination. Ms. Nejad asserts that she is at risk by pointing to general
country conditions. That is not sufficient. In Sedarat v. Canada (Minister
of Citizenship and Immigration) 2006 FC 805, F.C.J. No. 1021, Mr. Justice
Blais summarized the requirement to establish a connection between the personal
circumstances of a claimant and the documentary evidence with respect to human
rights abuses in Iran. At paragraph 17, he stated:
17 There was no new evidence to support the applicant's claim
that he would personally face discrimination because Iranian authorities
perceive him as being too western and therefore objectionable. In Al-Shammari
v. Canada (Minister of Citizenship and
Immigration
[2002] F.C.J. No. 478, Justice Edmond P. Blanchard stated the following at
paragraph 24:
This Court has repeatedly held that a claimant must
establish a credible link between his claim and the objective situation
prevailing in a country in order to be granted Convention refugee status (Canada
(Secretary of State) v. Jules, (1994), 84 F.T.R. 161). Accordingly, it will
not suffice for an applicant to present evidence showing problems encountered
by some of his fellow-citizens. He must also establish a connection between his
claim and the objective situation in his country.
[25] Ms. Nejad, at the time of the
assessment, could not establish her identity as someone who would be of
interest to the authorities in Iran and therefore at risk. The
officer found that the nature of her activities in Canada would not bring her to the attention of
the Iranian authorities. That is, she was not a person whom the Iranian
government would perceive as a threat. Ms. Nejad claimed that the activities
of those involved in the cause of Iranian women’s rights in Canada are closely
monitored by Iranian secret police in Canada.
No evidentiary basis was provided for that assertion. Ms. Nejad maintains that
requiring proof in this respect results in a “Catch 22 situation” because it
cannot be proved. However, Ms. Nejad was not required to prove the existence
of Iranian secret police in Canada. She was required to
establish the basis upon which she made such a statement. There is a
distinction between the two.
[26] Because the PRRA officer
determined that Ms. Nejad did not share the identity or profile of Iranian
human rights activists, as described in the documentary evidence, the officer
canvassed the evidence and highlighted the excerpt in the U.S. DOS Report that the
officer considered relevant to Ms. Nejad’s personal circumstances. The officer
assessed the risk faced by Ms. Nejad as an Iranian citizen who was returning to
Iran from travel abroad. In view
of the evidence before the PRRA officer, at the time of the assessment, that
approach was not unreasonable, nor did it constitute a selective reading of the
country conditions documents.
Oral Hearing
[27] Although no request for a
hearing was made, Ms. Nejad argues that the officer ought to have conducted an
interview. A PRRA application is generally determined on the basis of written
submissions. Paragraph 113(b) of the IRPA provides for an oral hearing where
the Minister, on the basis of prescribed factors, is of the opinion that a
hearing is required. The prescribed factors are set out in section 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations).
|
167. For the
purpose of determining whether a hearing is required under paragraph 113(b)
of the Act, the factors are the following:
(a) whether
there is evidence that raises a serious issue of the applicant's credibility
and is related to the factors set out in sections 96 and 97 of the Act;
(b) whether
the evidence is central to the decision with respect to the application for
protection; and
(c) whether
the evidence, if accepted, would justify allowing the application for
protection.
|
167.
Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci-après
servent à décider si la tenue d’une audience est requise :
a)
l’existence d’éléments de preuve relatifs aux éléments mentionnés aux
articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui
concerne la crédibilité du demandeur;
b)
l’importance de ces éléments de preuve pour la prise de la décision relative
à la demande de protection;
c)
la question de savoir si ces éléments de preuve, à supposer qu’ils soient
admis, justifieraient que soit accordée la protection
|
[28] In Demirovic
v. Canada (Minister of Citizenship and
Immigration)
2005 FC 1284, F.C.J. No. 1560, Madam Justice Dawson held that the factors in
section 167 are cumulative. At paragraphs 9 and 10, she stated as follows:
9 This
Court has treated the criteria contained in section 167 to be cumulative. See: Kim
v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 452
(T.D.) at paragraph 6 and Selliah v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No.
1134 (T.D.) at paragraphs 25 through 27.
10 In
my opinion, this view is correct. This interpretation flows from the use of the
word "and" in paragraph (b) and is supported by the use of the phrase
"the evidence" in paragraphs (b) and (c). If paragraphs (b) and (c)
were independent of paragraph (a) the words "the evidence" would be
of vague and uncertain meaning. When read conjunctively, the section makes
sense in that "the evidence" referred to in paragraphs (b) and (c) is
the evidence which raises a serious issue of the applicant's credibility.
[29] I agree with my colleague’s
reasoning and adopt it. The PRRA officer in this matter did not disbelieve Ms.
Nejad. Since credibility was not in issue, a hearing was not required. This
matter was not about credibility; it was about the sufficiency of evidence.
[30] It is
to be noted that a PRRA does not constitute an appeal of the RPD decision. It
is an assessment that is based on new facts or evidence as that term
is defined in paragraph 113(a) of the IRPA that demonstrates that the
person is now at risk of persecution, risk of torture, risk to life or risk of
cruel and unusual treatment or punishment. The risk is a personalized one.
The PRRA officer concluded that Ms. Nejad did not establish, at the time of the
PRRA, that her activities were such that her situation placed her in the
position of those who would be of interest to the Iranian authorities.
[31] The
reasonableness standard of review is described in Law Society of New
Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraphs 55 and 56 as follows:
55 A decision will be unreasonable
only if there is no line of analysis within the given reasons that could
reasonably lead the tribunal from the evidence before it to the conclusion at
which it arrived. If any of the reasons that are sufficient to support the
conclusion are tenable in the sense that they can stand up to a somewhat
probing examination, then the decision will not be unreasonable and a reviewing
court must not interfere (see Southam, at para. 56). This means that a
decision may satisfy the reasonableness standard if it is supported by a
tenable explanation even if this explanation is not one that the reviewing
court finds compelling (see Southam, at para. 79).
56 This does not mean that every
element of the reasoning given must independently pass a test for
reasonableness. The question is rather whether the reasons, taken as a whole,
are tenable as support for the decision. At all times, a court applying a
standard of reasonableness must assess the basic adequacy of a reasoned
decision remembering that the issue under review does not compel one specific
result. Moreover, a reviewing court should not seize on one or more mistakes or
elements of the decision which do not affect the decision as a whole.
[32] Having subjected the PRRA
officer’s reasons to the scrutiny of a somewhat probing examination, I find
that the officer’s reasons are tenable and are grounded in the evidence. In
sum, I am satisfied that the evidence submitted by Ms. Nejad was properly
considered, that the officer did not selectively refer to evidence, and that
the PRRA officer’s conclusion that the evidence was insufficient to establish
that Ms. Nejad would be at risk, at the time of the assessment, was reasonable.
[33] It is open to Ms. Nejad to submit another PRRA
application (Regulations, section 165) although she will not be entitled, on a
second application, to the benefit of the statutory stay of removal. She can
also apply under section 25 of the IRPA for an exemption, based on humanitarian
and compassionate grounds, from the criteria of the Act.
[34] Counsel did not suggest a
question for certification and none arises.
ORDER
THIS COURT ORDERS THAT the application for judicial
review is dismissed.
“Carolyn
Layden-Stevenson”
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