Date: 20041015
Docket: IMM-2155-04
Citation: 2004 FC 1430
BETWEEN:
IRAJ KHODADOOST
Applicant
- and -
SOLICITOR GENERAL
OF CANADA
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review of a negative decision of the Pre-Removal Risk Assessment Officer of the Canada Border Services Agency, dated January 27, 2004, wherein she determined that the Applicant was not at risk if returned to Iran.
Facts
[2] The Applicant is a citizen of Iran. He worked in Iran as a lab technician and was the owner of a substantial farming operation.
[3] In 1980, he was transferred to a desolate part of Iran because his father and two uncles were in the army; as well, the family was accused of being pro-monarchy. In 1981, he had contact with a prisoner who was hospitalized where he worked. He was asked to contact the prisoner's family; two days later, the Applicant was arrested because he had called them. He was taken blindfolded and kept in a cell for one month, where he was beaten. His left eye was badly injured.
[4] In 1989, while visiting a friend, he was arrested and taken to an interrogation room and asked if he knew anything about Major General Ganjei, who was suspected of being a spy. He had met him three times but he barely knew him. The Applicant was again detained and tortured. They released him after 22 days. To this day his left hand remains affected.
[5] In July 1999, while in Canada, the Applicant participated in a demonstration with other Iranians. When he returned to Iran, he was arrested and sent to jail for two months. He was tortured and lashed. He was released after friends paid a substantial bribe.
[6] On October 5, 2000, with a visitor visa, he came to Canada "as fast as I could and applied for refugee status." His second wife came with him and also applied for refugee status.
[7] In Canada, he has worked as a teacher and for the Persian Community Radio in Vancouver which reports on issues against the Iranian regime.
[8] On July 23, 2002, the RPD determined that the Applicant was not a Convention refugee and in December 2002, the application for leave and judicial review at the Federal Court was dismissed.
[9] The Applicant applied for a Pre-Removal Risk Assessment (PRRA) on March 20, 2003. The Officer rendered a negative decision on January 27, 2004. On March 9, 2004, an interim injunction staying the Applicant's removal from Canada was granted.
[10] His wife returned to Iran. During her trip, she was detained by German authorities in transit and upon her arrival was again detained by the Iranian authorities. She was questioned about her husband's activities.
[11] Initially, the Officer referred to the reasons why the Applicant was denied refugee status by the RPD. She then added that she was not bound by these findings "and credibility does not form a part of this decision."
[12] Various issues were reflected upon by the PRRA Officer but, dealing more specifically with the Iranian radio station, she determined that he was not speaking on air, that the reception of the station is limited to a small geographical area and that it is not clear if that station continues to operate; she concluded that he did not demonstrate that he was of interest to Iranian authorities.
[13] Counsel submitted that the Applicant is at risk of ill treatment if he returns to Iran; that the Officer misconstrued the facts surrounding this Applicant. She concluded that failed claimants, generally who have illegally exited Iran or deportees, do not face any significant problem. The evidence indicates that questions will be asked and a search may be conducted, and that this is in accord with the Applicant's previous return as well as his wife's return. The evidence does not support a finding that there is a risk to those who return to Iran. For the treatment of some detainees, there is evidence which indicates some ill treatment in Iran; however, the Applicant did not demonstrate that he was at risk of arrest upon return to Iran.
[14] The Applicant submits that the Officer erred by making an erroneous finding of fact without regard to the material before her; that she misstated the documentary evidence, failed to place the evidence in context, or failed to consider or ignored relevant pertinent facts; that she overlooked, or failed to consider, or set aside a letter from his son who provided specific evidence that the Applicant was "of interest to the authorities" contrary to the statement of the Officer. Further, she failed to take into account the wife's letter in which she refers to her detention by Iranian forces who considered holding her to compel his return; also in the letter she states that she was questioned about his activities relating to the radio station and this clearly indicated that the Applicant was "of interest to the authorities" contrary to the statement of the Officer.
[15] From the outset, the Applicant puts before the Court the fact that the Officer made no adverse credibility finding with respect to the Applicant. He accepts that the failure of a Tribunal to mention all of the evidence is not necessary to vitiate a decision. However, the more important the evidence that is not mentioned and analysed in the decision, the more willing a Court may be to infer that silence from the agency could support an erroneous finding of fact.
[16] The Applicant argues that the Officer did not address the claimant specific evidence of his wife's letter nor did she refer to the son's letter. The Officer misstated the risk by applying a general standard or criteria to returning Iranians generally, but failed to analyse the particular risk the Applicant is facing.
[17] In the wife's letter, it is specified that she was questioned about the Applicant's activities and that the authorities were considering keeping her in custody as a way to force the Applicant's return. The letter from his son confirms that the family lands, equipment and bank account were seized by order of the government and that he is required to solve those problems personally.
[18] The Officer was requested to place those letters in the context of her assessment and as to whether the Applicant had come to the attention of the authorities, or at least address the contradictory evidence. It is submitted that by ignoring this evidence the Officer committed a reviewable error.
[19] The Respondent argues that the decision of the Officer was reasonable, that she considered all the information provided by the Applicant and that she was not required to refer to all the evidence in her reasons.
[20] The Respondent maintains that the Applicant is asking this Court to re-weigh the evidence, which is not our function; that if I wished to vary the findings and ultimate determination, I must be satisfied that the findings of fact are patently unreasonable.
[21] There is evidence that the Applicant's wife advised that Iranian authorities were aware of his involvement with the radio station in Vancouver and the propaganda was considered to be against the Iranian regime. The Officer mentioned it but concluded that the evidence did "not demonstrate that the Applicant is personally watched, identified and targeted by the Iranian authorities." The Officer was not sure if the station was still in operation or of the geographical areas in which it was operating. She did not seem to consider the consequences of the Iranian authorities knowing of the Applicant's involvement.
[22] It appears that having concluded on one issue, the lack of evidence of the Iranian authorities seeking a warrant raised in the son's letter, the Officer was not required to address the evidence; she erred.
[23] Further, in his letter, the son advised that the house and agricultural equipment were confiscated, that he was not allowed to harvest the crops because they now belonged to the government, that the Applicant's bank accounts were frozen by government order and that "he must solve this problem with Tehran Judiciary Department in person."
[24] It is clear from that letter that the Iranian authorities seized assets in retaliation and were attempting to force his return. The evidence of the failure to produce a warrant is not in itself sufficient to conclude that the Applicant is not wanted by the Iranian authorities when the letter of his son was clear and unequivocal.
[25] The wife's letter provided details of her return trip to Iran. While in transit in Germany, the police questioned her and kept her passport. The German police then delivered it to the plane's captain. Upon arrival in Tehran, two agents from Security and Intelligence Unit were waiting for her. She was escorted to a room where she was interrogated about how she and her husband reached Canada, what were their activities other than co-operating with the Voice of Iran Radio and advised her about their assets being confiscated. They further suggested keeping her detained and that this may force the Applicant to return. Finally she was released after signing an undertaking to show up when requested.
[26] This letter clearly indicates the risk for the Applicant if he were to return to Iran. He is targeted by the authorities. And, as the Officer wrote, a detention in Iran can result in ill treatment and torture.
[27] This application appears to mirror the general principles outlined by Evans J. (as he then was) in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration). At page 40, in paragraph 14 he wrote:
... in order to attract judicial intervention under s. 18.1(4)(d), the applicant must satisfy the court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made "without regard to the evidence."
At paragraph 15:
The court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determination in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
He continued at paragraph 17:
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Minister of Employment and Immigration (1993), 63 F.T.R. 312 (T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[28] The Officer did not address the contradictory evidence before her and "was silent on the evidence pointing to the opposite conclusion." The two letters are crucial evidence and the Officer should have taken them into consideration while assessing the risk for the Applicant. Her decision is not reasonable and is inconsistent with the evidence.
[29] The application for judicial review will be granted, the Officer's decision will be quashed and the matter will be returned to a different officer for redetermination.
(Sgd.) "Paul Rouleau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2155-04
STYLE OF CAUSE: IRAJ KHODADOOST
v. SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 14, 2004
REASONS FOR ORDER: ROULEAU J.
DATED: October 15, 2004
APPEARANCES:
Mr. Robert J. Kincaid FOR APPLICANT
Mr. Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Robert J. Kincaid Law Corporation FOR APPLICANT
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Hassan v. Canada (Minister of Employment & Immigration) (1992) 147 N.R. 317 (Fed. C.A.)
Bains v. Minister of Employment & Immigration, (1993) 63 F.T.R. 312 (T.D.), Cepeda-Gutierrez v. Canada (Minister of Employment & Immigration) (1998) 157 F.T.R. 35
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