Docket:
IMM-5981-11
Citation:
2012 FC 433
Ottawa, Ontario, April
16, 2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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FARSHID MC VANDIFAR
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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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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application by Farshid Mc Vandifar (the Applicant) for judicial review of
a decision of the Pre-Removal Risk Assessment [PRRA] Officer, Véronique Roy,
dated June 14, 2011, where she concluded that the applicant “did not
demonstrate more than a mere possibility of being subjected to persecution as
per section 96 of IRPA, nor did he establish that there are substantial grounds
to believe he would face a danger of torture, risk to life or risk of cruel and
unusual treatment or punishment in Iran as per section 97 of the IRPA”.
[2]
For
the following reasons, this application for judicial review is allowed.
II. Facts
[3]
The
Applicant is a citizen of Iran. He was a political activist in Iran and has remained politically active since his arrival in Canada, participating in meetings and
rallies in Toronto and Ottawa to protest against the Iranian regime. He is also
involved in the promotion of human rights.
[4]
The
Applicant claims that Iranian diplomats take pictures of protestors to collect
evidence and imprison them under false and unfounded charges upon their return
to Iran. He therefore fears that upon his return to Iran, he will be charged,
incarcerated, tortured and possibly killed.
[5]
He
came to Canada in 1995 and applied for refugee status. In 1996, his refugee claim
was rejected by the Immigration and Refugee Board.
[6]
In
1998, the Applicant received a negative decision following the review of his
case under the Post-Determination Refugee Claimants in Canada Class.
[7]
In
1999, the Applicant filed his first application under Humanitarian and
Compassionate grounds [H&C]. He subsequently received a negative decision
in 2000.
[8]
He
filed a second H&C application in January 24, 2005 and received a negative
decision on October 3, 2005.
[9]
He
submitted his application for a Pre-removal Risk Assessment on December 7,
2010. He was not represented .The PRRA Officer determined that the Applicant failed
to submit sufficient evidence for the Officer to reasonably conclude that he
faces a personalized risk should he return to Iran. Consequently, the Officer
concluded in her decision dated June 14, 2011, which was communicated to the
Applicant on July 19, 2011, that the Applicant had not demonstrated more than a
mere possibility of being subject to persecution as per section 96 of the Immigration
and Refugee Protection Act, SC 2001, c27 [IRPA]. The PRRA officer
also found that the Applicant had failed to establish that there exist
substantial grounds to believe that he would face a danger of torture, risk to
life or risk of cruel and unusual treatment or punishment in Iran under section 97 of the IRPA.
III. Legislation
[10]
The
applicable legislation is appended to this judgment.
IV. Issues
and standard of review
A. Issues
[11]
The
Applicant framed the issues as follows:
1. Did
the Officer err in failing to hold an oral hearing?
2. Did
the Officer breach the principles of natural justice by ignoring evidence?
3. Did
the Officer err in mischaracterizing the Applicant’s risk?
B. Standard
of review
[12]
The
first issue is a question of procedural fairness and must be determined on a
standard of correctness (see Lai v Canada (Minister of Citizenship and
Immigration), 2007 FC 361, [2008] 2 FCR 3 at
para 55; and Sketchley v Canada (Attorney General), 2005 FCA 404, [2006]
3 FCR 392).
[13]
As
for the second and third issues, it is well established by the jurisprudence of
this Court that PRRA officers'
determinations are accorded significant deference and their decisions are
reviewable on a standard of reasonableness (see James
v Canada (Minister of
Citizenship and Immigration), 2010 FC 318, [2010] FCJ No 368
(QL) at para 16). The appropriate standard of review for decisions of PRRA
Officers involving an exercise of discretion for questions of mixed fact and
law is reasonableness (Li v Canada (Minister of Citizenship and Immigration),
2009 FC 623, [2010] 2 FCR 467 at para 32).
V. Analysis
1. Did
the Officer err in failing to hold an oral hearing?
A. Applicant’s
submissions
[14]
The
Applicant submits that, “for a hearing to be required, the applicant’s
credibility must be called into question and must be a determinative factor in
the issue that the PRRA officer is to decide” (see Andrade v Canada (Minister of Citizenship and Immigration), 2010 FC 1074 at para 30). He affirms that
these requirements are met.
[15]
In
her decision, the Officer concluded that the Applicant failed to provide
sufficient evidence to demonstrate that he faces personalized risks should he
return to Iran. The Applicant alleges that this finding is a veiled credibility
determination (see Zokai v Canada (Minister of Citizenship and Immigration),
2004 FC 1581 at para 13). He further affirms that the Court has recognized that
where the PRRA officer finds that there is insufficient objective evidence it
“really means the PRRA officer did not believe the applicant” (see Yakut v Canada (Minister of Citizenship and Immigration), 2009 FC 1190 at para 13 [Yakut]).
[16]
The
Applicant underlines that the Officer’s decision did not turn on the basis of a
lack of objective evidence. Rather, the decision turned on the evidence
establishing the Applicant’s personal risk. Further, in Lewis v Canada (Minister of Citizenship and Immigration), 2007 FC 778 at para 22, the Court
determined that credibility was not an issue because “on all occasions the
Officer operated on the assumption that the Applicant’s story was true”.
However, the Applicant claims that in this instance, a critical piece of
evidence is the Applicant’s statement that he participated in hundreds of
protests and demonstrations against the Iranian regime and that, during these
protests and demonstrations, Iranian diplomats photographed him. If the Officer
accepted the Applicant’s statement as true, her conclusion would not have been
the same. The Applicant argues that this amounts to a veiled credibility
finding.
[17]
Moreover,
the Applicant submits that his statement and photographs are not evidence which
can be discarded lightly, nor without sound reasons. This evidence is central
to the Applicant’s claim. Thus, the primary issue with respect to this evidence
is whether it is credible or not.
[18]
As
for the other factors of section 167 of the IRPR, the Applicant alleges
that the evidence adduced was central to his application and if accepted as
true, it would have justified allowing his PRRA application. The wording of the
decision reveals the Officer had concerns about the Applicant’s evidence. The
Applicant contends that in such instances the Officer should have held a hearing,
thereby affording the Applicant the opportunity to address these concerns.
B. Respondent’s
submissions
[19]
The
Respondent notes that a hearing may only be held if the Minister, on the basis
of prescribed factors, is of the opinion that a hearing is required. The
legislation and the preponderance of the case-law hold that oral hearings are
exceptional and only granted in the prescribed circumstances and where an
applicant satisfies all the factors set out in section 167 of the IRPR.
Applicants must present evidence to support their PRRA application and indicate
how that evidence relates to them. PRRA applicants cannot assume that a hearing
will be held.
[20]
The
Respondent alleges that in the present case, the Officer did not determine that
the Applicant lacked credibility. She found the Applicant had failed to
establish that he was subject to a personalized risk in light of the
documentary evidence submitted. In other words, the evidence adduced had little
or no probative value and did not establish the facts and concomitant risks
asserted by the Applicant according to the Respondent, who relies on the
following cases (see Ferguson v Canada (Minister of Citizenship and
Immigration), 2008 FC 1067 at para 26 [Ferguson]; Iboude v Canada
(Minister of Citizenship and Immigration), 2005 FC 1316 at paras 5, 12-14).
[21]
The
Respondent further contends that the Court has held that a hearing is not
required where the officer denies the PRRA application on the basis of
objective evidence. According to the Respondent, this issue is different from
credibility findings (Al Mansuri v Canada (Minister of Public Safety and
Emergency Preparedness), 2007 FC 22 at para 43; Tran v Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 175 at para 28).
[22]
The
Respondent submits that “it is open to the trier of fact, in considering the
evidence, to move immediately to an assessment of weight or probative value
without considering whether it is credible” (Ferguson cited above at
paras 25-26). In this instance, according to the Respondent, the Applicant’s allegations
of risk were given little probative value due to the deficiencies identified in
relation to the supporting documentation. It was unnecessary to assess the
Applicant’s credibility as the weight assigned to his evidence did not meet the
legal burden of proving that he was at risk from the Iranian government.
[23]
At
the hearing the Respondent’s counsel pointed specifically to the country
documentation indicating that when protesters were being photographed, they or
their relatives back in Iran often received threats, which was not the case in
this instance.
C. Analysis
[24]
The
Applicant alleges that the Officer made veiled credibility findings. He relies
on Yakut cited above where Justice Lemieux held that when a PRRA Officer
finds that there is insufficient objective evidence, the Officer really means
that he or she disbelieves the applicant. In Yakut, Justice Lemieux
relied on Latifi v Canada (Minister of Citizenship and Immigration),
[2006] FCJ No 1738 at para 48 [Latifi]. In that case, Justice Russell
had to make a distinction between “sufficiency” of evidence and “credibility”.
[25]
Justice
Tremblay-Lamer, in Cho v Canada (Minister of Citizenship and Immigration), 2010
FC 1299, recalled the principle that, in the absence of a determination as to
credibility, an Applicant’s evidence is presumed to be true. This does not bar
an officer from assessing the probative value of the evidence adduced without
making a credibility finding. Rather this principle entails that an officer
properly distinguishes insufficient or unreliable evidence from a lack of
credibility.
[26]
In
Latifi cited above, Justice Russell analyzed the wording of the decision
and determined that “the context in which this is said, and the way the Officer
approached the evidence adduced by the Applicant, suggests to me that by
"reliable" the Officer means more than just "sufficiently
probative" of the risks identified by the Applicant” (see para 57). He also
writes “As regards the new evidence of the Applicant's activities in Iran the
words "vague" and "contradictory" in my view give rise to
credibility concerns rather than merely dealing with sufficiency” (see para
62).
[27]
In
Liban v Canada (Minister of Citizenship and Immigration), 2008 FC 1252,
[2008] FCJ No 1608 at para 13, Justice O’Reilly wrote:
[13] The officer's reasons persuade me that a hearing was required
here. First, the officer seemed to place considerable emphasis on the
credibility findings of the Immigration Appeal Division. Second, the officer
found that there was insufficient objective evidence to support Mr. Liban's
claim that he had a relationship with Jimmy. Third, the officer found that
there was insufficient objective evidence to support Mr. Liban's claim to be an
alcoholic. Fourth, the officer seemed to accept that homosexuals and alcoholics
would be subjected to mistreatment in Ethiopia. Therefore, if Mr. Liban's
evidence relating to his sexuality and alcoholism had been accepted, the
officer would likely have allowed the application.
[28]
The
aforementioned decisions suggest that the context and the wording of the
decision are crucial in distinguishing the sufficiency of evidence from
credibility issues. In the present case, the Officer wrote, at page 11 of the
Applicant’s record:
. . . However, the applicant does not submit
evidence to demonstrate that he is a member of a human rights organization, nor
does he establish with information and evidence that he participated in
hundreds of meetings and protests. In fact, he does not specifically identify
and elaborate on a single one of those events or meetings. While he submits
photographs of himself holding flags and states they were taken at
demonstrations in front of the Iranian embassy in Ottawa, he fails to provide
specific information regarding the context in which these photographs were
taken, by whom, what were the demonstrations for and what was his role in the
events. The Applicant adds that Iranian diplomats took his pictures and have
enough evidence to imprison him on forged charges. However, he does not say
what leads him to believe that individuals took pictures of him and that these
individuals are Iranian diplomats. He does not explain where and in which
circumstances he believes he was photographed by them, nor does he provide
documentary evidence in order to substantiate the allegation.
[29]
The
decision as worded does not suggest that a low probative value was given to the
evidence. Rather, it states there are too many questions left unanswered. The
Officer had several interrogations regarding the Applicant’s evidence. She
determined there was a lack of objective evidence to prove the basis of the
Applicant’s claim. Such a determination, in the present context, constitutes a veiled
credibility finding because it is obviously the Applicant’s statement which is
disbelieved.
[30]
The
Officer’s interrogation dealt with evidence central to the Applicant’s claim.
If the Officer would have believed the Applicant, in light of the evidence
adduced, she would have possibly found the Applicant to be at risk.
[31]
In
the Court’s view, the Officer had to conduct a hearing under paragraph 113(b)
of the IRPA. The three factors set out in section 167 of the IRPR,
that is (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; and (c) whether the evidence, if
accepted, would justify allowing the application for protection. In the present
case, as a result, the Officer breached his duty of procedural fairness.
[32]
“Here the remedy being sought by the Applicant is precisely the
remedy affected by the lack of natural justice and procedural fairness” (see Persaud
v Canada (Minister of Citizenship and Immigration), 2011 FC 31 at para 20).
Having determined a breach of the Officer’s duty of procedural fairness, there
is no need to look at the other issues. The Officer’s decision cannot stand.
VI. Conclusion
[33]
The
PRRA Officer had to conduct a hearing under paragraph 113(b) of the IRPA.
All three factors set-out in section 167 of the IRPR are met. As a
result, the Officer breached his duty of procedural fairness. The Applicant’s
application for judicial review is hereby allowed and
a reassessment of the Applicant’s risk should be conducted by another PRRA Officer.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is allowed and a
reassessment of the Applicant’s risk should be conducted by another PRRA
Officer; and
2.
There
is no question of general importance to certify.
"André
F.J. Scott"
ANNEX
Sections
96, 97 and 113 of the Immigration and Refugee Protection Act, SC 2001, c
27 [IRPA] read as follows:
Convention refugee
96. A Convention
refugee is a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social group
or political opinion,
•
(a) is outside each of their countries of
nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
•
(b) not having a country of nationality, is outside
the country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
Person in need of protection
•
97. (1) A person
in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
o
(a) to a danger, believed on substantial grounds to
exist, of torture within the meaning of Article 1 of the Convention Against
Torture; or
o
(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
▪
(i) the person is unable or, because of that risk, unwilling
to avail themself of the protection of that country,
▪
(ii) the risk would be faced by the person in every part of
that country and is not faced generally by other individuals in or from that
country,
▪
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards, and
▪
(iv) the risk is not caused by the inability of that country
to provide adequate health or medical care.
•
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need
of protection is also a person in need of protection.
Consideration of application
113. Consideration
of an application for protection shall be as follows:
•
(a) an applicant whose claim to refugee protection
has been rejected may present only new evidence that arose after the rejection
or was not reasonably available, or that the applicant could not reasonably
have been expected in the circumstances to have presented, at the time of the
rejection;
•
(b) a hearing may be held if the Minister, on the
basis of prescribed factors, is of the opinion that a hearing is required;
•
(c) in the case of an applicant not described in
subsection 112(3), consideration shall be on the basis of sections 96 to 98;
•
(d) in the case of an applicant described in
subsection 112(3), consideration shall be on the basis of the factors set out
in section 97 and
o
(i) in the case of an applicant for protection who is
inadmissible on grounds of serious criminality, whether they are a danger to
the public in Canada, or
o
(ii) in the case of any other applicant, whether the
application should be refused because of the nature and severity of acts
committed by the applicant or because of the danger that the applicant
constitutes to the security of Canada.
Section
167 of the Immigration and Refugee Protection Regulations, SOR/200-227 [IRPR]
read ad follows:
Hearing — prescribed factors
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.
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