Date: 20061011
Docket: IMM-7613-05
Citation: 2006 FC 1207
OTTAWA, Ontario, October 11, 2006
PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
AMIR
ESMAILZADEH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
And
MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a Pre-Removal Risk Assessment (PRRA)
decision dated October 20, 2005 in which it was determined that the Applicant
would not be at risk pf persecution if returned to Iran.
[2]
The
Applicant, Amir Esmailzadeh, is a 42 year old man. He was born in Iran in 1964 and
remains a citizen of that country. His daughter and estranged wife returned to Iran in 1998
following a temporary stay in Canada.
[3]
The
Applicant came to Canada in November 1996. He claimed refugee status on
the ground of his perceived political opinion as a Mujahedin supporter. In
August 1998, under the previous Immigration Act, the Immigration and
Refugee Board of Canada rejected the Applicant’s claim on the basis that his
lack of knowledge of the Mujahedin was inconsistent with his alleged level of
involvement. The Board did not find the Applicant credible. Leave to apply for
judicial review of the refugee determination was denied in January 1999.
[4]
The
PRRA officer noted that the Applicant identified significantly the same risks
in his PRRA submissions as he had eight years earlier at his refugee hearing in
July 1998.
[5]
The
Applicant is not a member of the Mujahedin. Nevertheless, the Applicant claims
he requires protection because the Iranian authorities perceive him to be
actively involved in the Mujahedin and, therefore, would likely execute or
indefinitely detain him if Canada returned him to Iran.
[6]
The
officer found that while authorities may have treated Mujahedin supports
extremely harshly in the past, Iranian authorities have relaxed their policy
with regard to deportees who left Iran illegally. On the
whole, the officer was persuaded that returned asylum seekers did not fact any undue
problems upon returning to Iran. (Application Record, p. 12)
[7]
Although
the officer acknowledged that some high profile returnees had faced detention
upon their return to Iran, he found that the Applicant did not have
a profile which would engage the interest of Iranian authorities upon his
return. The officer based this particular
finding entirely on the Applicant’s own submissions: Mr. Esmailzadeh was a not
a Mujahedin member; he had been out of the country for nine years; his family
members remain in Iran; he completed his compulsory military service; and he
does not engage in opposition activities in Canada.
[8]
The officer concluded that there
was not more than a mere possibility that the Applicant would face a risk of
persecution on any of the Convention grounds and that it was unlikely he would
face a risk of torture, of cruel and unusual treatment or punishment, or a risk
to his life from Iranian authorities.
[9]
The
Applicant raises the following three issues on judicial review of the PRRA
decision:
1.
Did the Minister err
in law or exceed jurisdiction in relation to failing to conduct a separate
analysis under s. 97 of the Immigration and Refugee Protection Act?
2.
Did the Minister err
in law or exceed jurisdiction in relation to the test for the threshold of risk
for s. 96 of the Immigration and Refugee Protection Act (the Convention refugee
definition)?
3.
Did the Minister err
in law or exceed jurisdiction or err in fact in determining that the Applicant
is not a person meriting protection under ss. 96 and 97?
[10]
The
nature of the Applicant’s questions would seem to require the Court to consider
the officer’s PRRA decision “globally and on the whole”. Recent jurisprudence
stipulates that under these circumstances the appropriate standard of review is
reasonableness.
[11]
Although
the Applicant’s submissions in respect to this issue are not easy to follow, he
appears to make three broad arguments: 1) the officer’s s. 97 findings are
patently unreasonable; 2) the officer was obligated to conduct a separate
s. 97 analysis, but failed to do so; and 3) the officer’s reasons are
inadequate.
[12]
First,
the Applicant makes the general assertion that the officer’s finding that
returned asylum seekers do not face significant difficulty is patently
unreasonable. In particular, the Applicant expresses concern that the officer
based this finding on unreliable assurances from the Iranian authorities;
failed to give more weight to reports that the UNHCR is barred from accessing
Iranian returnees; failed to appreciate the documentary evidence that the
Iranian regime practices torture.
[13]
The
Respondent contends that the officer’s analysis was adequate to sustain his
conclusions. The officer carefully considered the totality of the evidence and
his decision is supported by the evidence. The officer was entitled to rely on
the Board’s findings that the Applicant had not credibly established membership
or active involvement in the Mujahedin. Other than the Applicant’s claims,
there was no new evidence presented which suggested the Applicant would now be
perceived as a counter-revolutionary upon his return to Iran.
[14]
The
Applicant’s second broad assertion is that since his original refugee hearing
was conducted under the former Immigration Act, the PRRA officer was
under an absolute obligation to conduct a separate s. 97 analysis. Implicit in
the Applicant’s argument is that unlike a Board member hearing refugee claims
under the current IRPA, the CRDD tribunal under the prior Act was not
required to consider factors similar to those set out in s. 97.
[15]
The
Applicant equates the s. 97 analytical requirements for PRRA officers facing
applicants whose refugee claims were rejected under the former Act with those
of IRB members under the current IRPA. The Applicant then relies on
jurisprudence stipulating s. 97 requirements for IRB members.
[16]
Assuming
the officer failed to conduct a separate s. 97 analysis, quashing an otherwise
sustainable decision on this ground would go against precedent and common
sense. The Respondent points to Bouaoui v. Canada (M.C.I.), 2004 FC
1211, at para. 42, where Justice Blanchard decided that the failure to
specifically analyze the s. 97 claim, although an error, was immaterial where
there was no evidence that could have led the Board to conclude that the
applicant required protection.
[17]
The
Applicant contends that the officer applied the wrong legal test when analyzing
whether the Applicant was a Convention refugee, and in so doing the officer
committed a reviewable error. The Applicant takes exception to the use of the
word “would” in a passage near the end of the officer’s reasons:
…
I do not find that the applicant has a profile which would engage the
interest of Iranian authorities upon his return there. I do not find that
authorities would perceive him to be an active supporter of the
Mujahedin. While acknowledging the evidence indicating that high profile
returnees have faced detention upon their return to Iran, I do not find that the applicant is such a high profile
returnee.
[18]
The
Applicant argues that use of the word “would” in the above passage is an error
because it indicates that the officer applied the higher threshold of a balance
of probabilities, rather than the established mere possibility test for s. 96
claims.
[19]
The
Respondent asserts that the proper formulation is that the Applicant must first
demonstrate that there is more than a mere possibility that he will be at risk
of harm; and in order to do this, he must establish facts of his claim (e.g.
that he would be of interest to authorities) on a balance of probabilities.
[20]
The
officer’s core finding is that the Applicant’s profile is not such that the
Iranian regime would perceive him as a threat. Given that the Applicant’s
entire PRRA claim is premised on Iranian authorities perceiving him as an
active member of the Mujahedin, his claim for protection fails with the finding
that the Iranian authorities would not likely perceive him in this light.
[21]
Second,
the officer appears to have carefully considered all the evidence placed before
him, including all the Applicant’s submissions and reports on the conditions in
Iran. He specifically
acknowledged the documentary evidence that supported the Applicant’s position,
such as Iran’s poor human right’s record, the articles concerning the
deportation of Iranians and Australia’s decision not to deport failed refugee claimants to Iran.
[22]
Having considered the
totality of the evidence, the officer properly linked the documentary evidence
to the Applicant’s personal circumstances: see Kandiah v. Canada (M.C.I.),
[2005] F.C.J. No. 275, 2005 FC 181, at paras.17-18. He then found that the
Applicant’s profile would not engage the interests of the Iranian regime if he
was returned to that country. On the basis of this finding, the officer
determined that the Applicant had failed to establish that on a balance of
probabilities he would be subjected to the risks and dangers referred to in
paragraphs 97(1)(a) and (b).
[23]
There
was no absolute obligation to conduct a separation s. 97 analysis.
JUDGMENT
This application for judicial
review is dismissed.
"Paul
U.C. Rouleau"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7613-05
STYLE OF CAUSE: AMIR EASMAILZADEH v. MCI, ET AL.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 4, 2006
REASONS FOR JUDGMENT BY: Rouleau, D.J.
DATED: October 11, 2006
APPEARANCES
BY:
Micheal Crane
(416) 351-8600,
ext. 221 for the
Applicant
Matina
Karvellas
(416) 973-0430 for
the Respondent
SOLICITORS
OF RECORD
Micheal Crane
Barrister &
Solicitor
166 Pearl
Street, Suite 100
Toronto, Ontario
M5H 1L3 for
the Applicant
Department of
Justice
130 King Street
West, Suite 3400
Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6 for
the Respondent
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