Date: 20120626
Docket: IMM-6990-11
Citation: 2012 FC 812
Ottawa, Ontario, June 26,
2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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HAMID REZA AHMADI
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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
[1]
This
is an application for judicial review under section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 of a decision made on September
20, 2010 by a Pre-Removal Risk Assessment Officer that the applicant would not
be at risk of persecution or harm if returned to his country of origin, Iran.
[2]
For
the reasons that follow, the application is dismissed.
BACKGROUND
[3]
The
applicant, Mr. Hamid Reza Ahmadi, claims to have been a supporter of the monarchist
group “the Guardians of Eternal Iran”.
[4]
During
his military service in the Iranian Navy, he was asked to provide information
at a meeting with the Navy’s counter-intelligence department. He refused to
attend the meeting and went underground. He fled to Belgium in 1992. His
family joined him there as they tried to obtain refugee status. The refugee
claim was denied by Belgium.
[5]
On
15 August 1996, the applicant arrived in Canada with his
wife and children. They again claimed refugee status but their claim was denied
in 1997. Leave for judicial review of that decision was denied. An application for
an exemption from the in-Canada visa requirements was denied in May 1999.
[6]
While
living in Canada, the
applicant says he has been an active opponent of the Iranian regime. He claims
he fears for his safety if returned in Iran due to his
pro-monarchist views, his history with the navy, his long absence from Iran and his
involvement in public protests.
[7]
The
applicant submitted his application for a pre-removal risk assessment (“PRRA”) on
7 December 2010.
DECISION UNDER REVIEW
[8]
The
officer noted that in support of his application, the applicant submitted two
photographs of himself in 2003 and 2009 demonstrations, his birth certificate,
a criminal records check, submissions by his counsel and country condition
documentation.
[9]
The
officer determined that the documents submitted constituted new evidence. The
officer considered the applicant’s pre-arrival to Canada experience. He found
that the evidence did not demonstrate that the Guardians of Eternal
Iran were still active in Iran, as the Refugee Protection Division had
found in 1997. He also noted that the applicant made no written submissions of
his own and that the evidence did not support his counsel’s submissions. They
were given little weight.
[10]
The
officer then looked at the applicant’s post-arrival to Canada experiences.
He found that counsel’s submissions were imprecise as to the nature of the applicant’s
political opinion, that the applicant did not have the visibility most
repressed protesters do in Iran as shown by the documentary evidence, that no
evidence was provided to support his involvement in the anti-Iranian regime
movement beside the two photograps, and that the evidence showed that his
involvement in demonstrations was sporadic: two demonstrations 6 years apart.
[11]
Finally,
the officer found that the applicant did not establish that the Iranian
authorities could be aware of his refugee claims in Belgium and Canada and that the
documentary evidence showed that the applicant did not have the profile of
usual targets of the Iranian regime. The officer found that the applicant was
not at risk and his application was denied.
ISSUES
[12]
This
application raises two issues:
a. Did the officer consider
all of the evidence?
b. Did procedural fairness
require that the officer grant the applicant a hearing?
RELEVANT LEGISLATION
[13]
Paragraph
113(b)
of the Immigration
and Refugee Protection Act, SC 2001, c 27 reads as follows:
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113.
Consideration of an application for protection shall be as follows:
[…]
(b)
a hearing may be held if the Minister, on the basis of prescribed factors, is
of the opinion that a hearing is required;
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113.
Il est disposé de la demande comme il suit :
[…]
b) une audience peut être tenue si le
ministre l’estime requis compte tenu des facteurs réglementaires;
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[14]
Section
167 of the Immigration and Refugee Protection Regulations, SOR/2002-227
states:
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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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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.
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STANDARD OF REVIEW
[15]
The
evaluation of the evidence by a PRRA officer, a question of fact, attracts the
standard of review of reasonableness: Matute Andrade v (Minister of Citizenship
and Immigration),
2010 FC 1074 at para 23.
[16]
The
applicable standard of review to questions involving s.167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (hereafter the
Regulations) is reasonableness as “whether the PRRA officer made findings on
the applicant's credibility and, if so, whether he was required to hold a
hearing based on the factors prescribed in section 167 of the Regulations are
questions of mixed fact and law”: Matute Andrade, above, at para 22; and
Adeoye v Canada (Minister of Citizenship and Immigration), 2012 FC 680
at para 7.
[17]
The
applicant here did not ask for a hearing. Had he done so, the PRRA officer would
have been obliged to evaluate whether a hearing was warranted: Montesinos Hidalgo v Canada (Citizenship
and Immigration), 2011 FC 1334.
ANALYSIS
Did the officer consider
all of the evidence?
[18]
The
applicant alleges that the officer disregarded some of the evidence. That is
not apparent on the face of the decision. The applicant’s complaint, it would
seem, is that the officer did not give sufficient weight to the evidence said
to have been disregarded. Deference is due to the decision maker’s assessment
of the facts and it is not the role of this Court to reassess the evidence: Ferguson v Canada (Minister of
Citizenship and Immigration), 2008 FC 1067 at para 33; and Augusto
v Canada (Solicitor General), 2005 FC 673 at para 9.
[19]
The
officer considered the photographs submitted by the applicant in support of his
claim to have participated in public demonstrations in Canada against the
Iranian regime. The officer considered this evidence to evaluate how involved
the applicant was in the opposition movement in order to determine risk. He
also analysed the country conditions documents and arrived at the conclusion
that only certain persons were targeted by the Iranian regime, and that the
applicant did not have the profile of such a person: US Department of State, 2009
Human Rights Report: Iran, 11 March 2010; Human Rights Watch, Remembering
Iran’s Rights Abuses, 4 May 2010; various Amnesty International documents
on Iran, CTR at pages 134-145 of the Certified Tribunal Record. The
applicant alleges that the US Department of State, 2009 Human Rights Report: Iran, indicates that any
form of protest is repressed in Iran. While this is true, the document speaks of protests
in Iran. The applicant
protested outside of Iran and thus he had to
demonstrate that the Iranian government would be aware of his political
involvement. The officer found he had not done so. That was a finding open to
the officer on the evidence.
[20]
As
indicated by the respondent, the present situation is distinguishable from the
case of Win
v Canada (Citizenship and
Immigration),
2008 FC 398,
cited by the applicant, as the officer in that case disregarded material
evidence. In this instance, the evidence did not demonstrate that the applicant
had the profile of a typical target of the Iranian government: Nejad v Canada (Minister of
Citizenship and Immigration), 2006 FC 1444 at
paras 24-26.
The officer reasonably concluded that the applicant had not demonstrated that
he would be at risk if returned to Iran. Contrary to the
applicant’s contention, the decision is based on all of the evidence before the
officer and not on abstract possible evidence not before him as claimed.
[21]
It
was open to the officer to require more evidence than that which was submitted
and to note the lack of a personal statement by the applicant: SK v Canada (Minister
of Citizenship and Immigration), 2011 FC 788 at
para 11; and
Ferguson, above, at paras 26-32. The officer’s
conclusion fell within the range of acceptable outcomes as it was based on the
facts and the law, and was justifiable, intelligible and transparent.
Did procedural fairness
require that the officer grant the applicant a hearing?
[22]
Section
167 of the Regulations establishes criteria to consider when granting an oral
hearing: (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.
[23]
This
Court must first look at the decision to evaluate if a credibility finding was
made. If so, it must determine what was at the heart of the decision to
determine if the credibility finding was central and could have possibly
changed the outcome of the decision: Matute Andrade, above, at
paras 30-35; Adeoye, above, at para 7; and Ahmad v Canada (Minister
of Citizenship and Immigration), 2012 FC 89 at
paras 37-39.
[24]
In
the present case, the officer did not make any explicit credibility findings.
Credibility findings, however, may be implicit in the decision and thus the
Court must look beyond the words of the officer: Matute Andrade, above,
at para 31.
[25]
Here,
it is possible that the officer doubted the applicant’s credibility with
regards to his political opinion. The officer’s comments about the vagueness of
the applicant’s political opinion and the extent of his involvement in the
protests are clues that he might not have entirely believed the applicant.
[26]
Nevertheless,
the officer’s decision is based on the lack of evidence and the low probative
value of the submissions made on the application (see Ferguson, above, at paras 26-32;
and Pulaku v Canada (Minister of
Citizenship and Immigration), 2011 FC 1048 at paras 29-30). Since the
decision was based on the insufficiency of the evidence, credibility was not a
central element of the decision: Ahmad, above, at para 39; and Yousef
v Canada (Minister of
Citizenship and Immigration),
2006 FC 864
at para 36. If the officer had accepted that the applicant was as politically
involved as his counsel had claimed, the insufficiency of the evidence regarding
the applicant’s risk would have still remained the central issue of the
application. In the circumstances, the decision to not interview the applicant
was reasonable.
[27]
The
parties did not submit a question for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application is denied. No
question is certified.
“Richard
G. Mosley”
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