Date: 20090327
Docket: IMM-3497-08
Citation: 2009 FC 325
Ottawa, Ontario, March 27,
2009
PRESENT: The
Honourable Frederick E. Gibson
BETWEEN:
A.
B.
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER AND ORDER
Introduction
[1]
These
reasons follow the hearing of an application for judicial review of a decision
of a Pre-Removal Risk Assessment Officer (the “Officer”) whereby the Officer
concluded:
I find that the applicant is not
described in section 96 or paragraphs 97(1)(a) or (b) of the Immigration and
Refugee Protection Act . The applicant does not meet the definition of
protected person and his application for protection is therefore not allowed.
The decision under review is dated the 23rd
of June, 2008.
Preliminary
Matter
[2]
At
the hearing of this application, the Court and counsel for the applicant
engaged in a discussion of whether it would be appropriate and in the best
interests of justice to delete from these reasons and the Court’s order flowing
from these reasons all personal identifiers with respect to the applicant given
the time that he or she has been absent from his or her country of citizenship
and given certain of his or her activities during that period. Counsel for the
applicant requested an opportunity following the hearing to consult with his
client and to provide appropriate representations in writing to the Court with
a copy of those representations going to counsel for the respondent. The basis
of the applicant’s concern will become apparent from a review of later
paragraphs of these reasons. In the result, at the close of hearing, decision
was reserved and time was provided for counsel to consult with his client and
to provide representations to the Court. Counsel for the respondent was, of course,
provided with an opportunity to respond to any such representations.
[3]
In
due course, counsel for the applicant provided written representations
requesting that the Court “sanitize” its reasons so as not to disclose the
applicant’s identity. In the same representations, counsel indicated that he
was not seeking to have the Court file sealed. His concern rather was with the
practice of the court to publish reasons such as these on its web site, thus
making them readily accessible and identifiable with the applicant if the
applicant’s name and other personal identifiers appear on the face of the
reasons. Counsel for the respondent advised the Court that he took no position
on the request.
[4]
In
Sierra Club of Canada v. Canada (Minister of
Finance), Justice
Iacobucci, for the Supreme Court of Canada, wrote at paragraph 53 of his reasons:
Applying the rights and interests engaged
in this case to the analytical framework of Dagenais and subsequent
cases discussed above, the test for whether a confidentiality order ought to be
granted in a case such as this one should be framed as follows:
A confidentiality order under Rule 151
should only be granted when:
(a)
such an
order is necessary in order to prevent a serious risk to an important interest,
including a commercial interest, in the context of litigation because
reasonably alternative measures will not prevent the risk; and
(b)
the
salutary effects of the confidentiality order, including the effects on the
right of civil litigants to a fair trial, outweigh its deleterious effects,
including the effects on the right to free expression, which in this context
includes the public interest in open and accessible court proceedings.
[5]
Applying
the foregoing test to the facts of this matter, particularly in light of the position
taken by counsel for the respondent, I am satisfied that the salutary effects
of modifying these reasons to delete personal identifiers of the applicant
outweigh its deleterious effects, including the public interest in open and
accessible court proceedings. In the result, without formal order of the
Court, the applicant is identified in the style of cause on these reasons and
in the order that will reflect the outcome from these reasons simply as “A. B.”
and other consequential changes have been made throughout the reasons and will
be made, if required, in the Court’s order. Masculine pronouns will be used
throughout the balance of these reasons. That use is for convenience and
readability only, and is not intended to reflect the gender of the applicant.
Background
[6]
The
applicant filed only a very brief and non-substantive affidavit on this
application for judicial review. That being said, he annexed to that affidavit
“... a copy of the documents filed on the PRRA application.” He attested that
his fears if he were faced with having to return to his country of nationality,
Iran, remain essentially
the same as those expressed in the documents filed on his PRRA application.
The factual background that follows is essentially not in dispute.
[7]
The
applicant is a national of Iran. He fled Iran and arrived in Canada in July,
1997. He claimed Convention refugee status against Iran based on his
political opinion as demonstrated by his support for the Iranian People’s
Fedayeen (Majority) and his role in harbouring political fugitives. The
Convention Refugee Determination Division (the “CRDD”) of the Immigration and
Refugee Board rejected the applicant’s claim. It found the applicant not to be
credible.
[8]
The
applicant asserted one new risk on his PRRA application. In a solemn
declaration filed on that application, he declared:
...
I have rejected Islam since I came to Canada.
I consider myself to be agnostic at least
although by some definitions I would be atheist.
…
[9]
In
submissions covering the applicant’s PRRA application, the applicant’s then
representative wrote:
The issue of [the applicant’s] abandoning
Islam is more complex. This transformation has taken place gradually over ten
years in Canada. [The applicant] has not
been near a mosque in years. [The applicant] is an apostate or heretic in the
eyes of the fanatic clerics who control Iran. Setting aside the first issue [the
applicant’s fear based on his alleged political opinion and his further
allegation that his testimony in that regard was credible] the question
becomes, what treatment might [the applicant] expect in Iran as someone who has rejected Islam?
The Decision
Under Review
[10]
The
Officer very succinctly disposes of the first issue before him or her, that is
to say the applicant’s fear based upon his alleged political opinion. The
Officer writes:
The Federal Court in Kaybaki has
stated, the PRRA application cannot be allowed to become a second refugee
hearing. The PRRA Process is to assess new risk developments between the
hearing and the removal date.
As the applicant does not provide any
additional information on [the applicant’s] circumstances as they relate to the
above noted risk, nor does [the applicant] submit any additional evidence that [the
applicant] is personally at risk because of [the applicant’s] political
opinion, I find that the applicant does not face more than a mere possibility
of persecution for the above noted risk. With respect to s.97, based on the
evidence submitted I do not find it likely that the applicant would face a risk
of torture, risk to life, or risk of cruel and unusual treatment or punishment
in Iran. [citation omitted]
[11]
The
Officer disposes of the second issue before him or her, that is to say the
applicant’s new risk based upon his rejection of Islam since coming to Canada, almost
equally succinctly. He or she writes:
While I acknowledge the documentary
evidence presented by the applicant indicating that Christian leaders and
activists have been detained and questioned by Iranian authorities, the applicant
does not indicate that [the applicant’s] is a religious activist or a leader.
I have read and considered the
documentary evidence provided by the applicant. The articles are from various
online sources and concern conditions on apostasy in Iran. The applicant also provides
broad-based human rights conditions articles from the Department of State.
While acknowledging that the Government of Iran harasses and sometimes
persecutes apostates, as well as other faith communities such as the Baha’i and
that Iran does not ensure the right of its citizens to change their faith and
that apostasy (conversion from Islam) can be punishable by death, I have
insufficient evidence that the applicant would be brought to the attention of
authorities. While I acknowledge [the applicant’s] statement that [the
applicant] is “for sure agnostic, possibly atheist”, the applicant has not
provided evidence indicating that [the applicant] would be compelled to bring [the
applicant’s] abandonment of Islam to the attention of authorities upon
returning to Iran.
While I do acknowledge documentary
evidence of Iran’s poor human rights record, I
do not find there is more than a mere possibility the applicant would face a
risk of persecution on any of the Convention grounds. I find it unlikely [the
applicant] would face a risk to life, of torture or a risk of cruel and unusual
treatment or punishment from Iranian authorities.
[emphasis added]
As noted, I have added
emphasis in the second paragraph of the foregoing quotation. Of particular
note is the Officer’s approach demonstrated by his or her use of the phrase “[the
applicant] would be compelled to bring …”.
The
Issues
[12]
The
Officer’s summary disposition with regard to the applicant’s claim based upon
political opinion was not in dispute on this application for judicial review.
Counsel for the applicant urges that the Officer misstated the issue before him
or her regarding the applicant’s rejection of Islam when he or she described
the test or issue as whether the applicant and his renunciation of Islam would
be brought to the attention of the authorities and whether he would be
compelled to bring his abandonment of Islam to the attention of authorities in
Iran. Counsel urges that the test or issue is not one of the applicant’s willingness
or capacity to remain discreet but rather is whether or not the applicant’s
abandonment of Islam is likely to come to the attention of Iranian authorities by
whatever means including inquiries or investigations by or on behalf of
those authorities. Counsel urges that decisions of this Court on this test or issue
reflect divided opinion, that the latter statement of the test or issue is
correct and the Officer’s adoption of the first version of the test or issue constitutes
a reviewable error.
[13]
As
a secondary issue, counsel for the applicant urges that the Officer erred in a reviewable
manner in applying, for the purposes of section 96 of the Immigration and
Refugee Protection Act,
a test of whether or not the applicant would be persecuted if his abandonment
of Islam came to the attention of authorities rather than the lower threshold
of whether there is a “serious possibility” that the applicant would be
persecuted.
Analysis
a) Would
Be Brought to the Attention or Compelled versus
Come To Be Known To Iranian Authorities
[14]
Counsel
for the applicant referred me first to Sadeghi v. The Minister of
Citizenship and Immigration
where Justice Rouleau had before him a judicial review of a decision of the
CRDD concerning a 37 year-old citizen of Iran. One of the
issues before Justice Rouleau was framed in the following terms:
Whether the CRDD misconstrued the
foundation of the applicant’s claim by considering that the Applicant’s
religious commitment to Christianity was central to his fear of persecution on
religious grounds rather than the fact of his conversion to Christianity and
how this would be perceived by the authorities in Iran.
Justice Rouleau commented at paragraph 17
of his reasons:
It appears from the CRDD’s reasons that
the panel considered the degree of the applicant’s religious commitment
to Christianity as central to its analysis of whether his fear of persecution
on religious grounds is well founded. …
Justice Rouleau quotes at length from the CRDD’s reasons
concluding the quotation with the
following paragraph:
So for all these reasons, the claimant is
shown not to be a credible witness and to have failed to present a credible
claim of feared persecution from Iran,
a country he left about 19 years ago. The claimant has not shown that he
has taken up the practice of the Christian faith since he has arrived in Canada in such a way as to persuade
me that that is the faith he would follow if he returned to Iran.
...
[emphasis in both of the foregoing quotes
is Justice Rouleau’s]
[15]
Justice
Rouleau concludes with respect to the last-quoted paragraph from the CRDD’s
reasons:
With respect, the panel is mistaken. The
question is not whether the applicant is so deeply committed to Christianity
that he would, if he were to return to Iran, practice that religion there at risk of
receiving the attention of the authorities. Rather, the central issue to the
well-foundedness of the applicant’s fear of persecution on religious grounds is
the fact of his conversion to Christianity and the attitude of the Iranian
government, the putative persecutor, should his conversion come to be known
to the Iranian authorities. Indeed, the consequences for the applicant if his
conversion to the Christian faith were known by the Iranian authorities are
very serious. The documentary evidence tendered at the hearing makes it very
clear that apostasy is a serious crime in Iran and may be punishable by death. The
CRDD panel utterly failed to address this question and does not seem even to
have recognized that the problem existed in Iran. In my view, the panel clearly
exaggerated the import of a few apparent implausibilities which it succeeded in
detecting in a testimony of the applicant, and this caused it to forget the
substance of the facts on which the applicant based his claim. Consequently,
the panel erred in failing to ask itself a question that was crucial to the
decision that it reached. [emphasis added]
[16]
On
this basis alone, Justice Rouleau allowed the application for judicial review
that was before him.
[17]
Counsel
for the applicant took me to the US Department of State Country Reports on
Human Rights Practices dealing with the Islamic Republic of Iran and released
on the 11th of March, 2008. In that document, which was before the
Officer, the following appears:
Citizens returning
from abroad occasionally 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.
Counsel
noted that the applicant had been absent from Iran and in Canada for close to
12 years and urged that it would not be unreasonable to assume that the
applicant might well be closely examined if he were required to return to Iran
after such a protracted absence in Canada. Indeed, counsel acknowledged, given
the openness of this Court and, in particular, the extensive postings on its
web-site, it is not beyond the realm of possibility that independent inquiries
could be pursued to determine, or to confirm, the reason for the applicant’s
return, thus raising the possibility that the applicant’s renunciation of Islam
might conceivably come to the attention of Iranian authorities.
[18]
Justice
Phelan recently arrived at a conclusion similar to that of Justice Rouleau, in Sadeghi,
supra, in Golesorkhi v. Canada (Minister of
Citizenship and Immigration) where he wrote at paragraphs 17 and 18:
Lastly, the applicant
argues that the decision is unreasonable. A critical component of this
argument is the finding of the Officer that the Applicant would not go to
church once he was in Iran and therefore his conversion would not be known and he
would not suffer persecution.
If this was the
principal reason for the decision of absence of risk, I would agree that the
decision is legally infirmed. This “quiet Christian” analysis is flawed
because religious persecution can exist where a claimant is prevented from
practicing his religion due to fear. It is no answer to a claim of risk of
religious persecution to say that there is no risk if one does not practice
one’s religion or cannot practice it openly ...
[citations omitted]
This finding by Justice
Phelan was not determinative on the facts before him because the PRRA Officer
there concluded that the applicant’s evidence simply failed to establish that
the applicant was indeed a Christian. While Christianity is not the issue
here, the applicant’s limited evidence that he had repudiated Islam was
accepted by the Officer.
[19]
Counsel for the applicant urged that Justice Zinn reached a
similar conclusion in Zhu v. Canada (Minister of Citizenship and Immigration),
relying on the same authorities as did Justice Phelan. I
cannot agree. In that case, the Refugee Protection Division had held that the
applicant’s appreciation of Christianity was so limited that her needs could be
satisfied in a state-sanctioned church rather than with the underground
Protestant church she claimed to follow. Justice Zinn rejected this
proposition and concluded at paragraph 17 of his reasons:
This is not to suggest
that the sincerity of a claimant’s religious conviction cannot be tested with
reference to the claimant’s familiarity with the dogma or creed invoked. In my
view, in this case, after accepting the sincerity of the Applicant’s conviction,
the RPD erred when it went on to articulate a rather elaborate conception of
religious freedom which entirely discounts the subjective aspect of religious
belief in holding that the legitimacy of a person’s belief can and should be
measured against his or her level of religious sophistication.
I am
satisfied that this particular authority in no way supports the position urged
on behalf of the applicant here.
[20]
Of greater similarity to the test
or issue enunciated in Sadeghi, supra, and Golesorkhi, supra,
are the following excerpts from the decision of Justice Sharlow, then of the
Trial Division of the Federal Court of Canada, in Irripugge v. Canada (Minister of
Citizenship and Immigration)
where she wrote at paragraphs 50, 52 and 53 of her reasons:
Counsel for Mr. Qiu
interprets the CRDD’s statement as an expression of a general principle that a
person who is forced to worship in secret or risk arrest is not subject to
persecution on the basis of religion. ...
...
Counsel for the Crown
argues that Mr. Qiu’s evidence did not establish, as a matter of fact, that his
right to practice his religion had been interfered with. He notes that Mr. Qiu
had never been arrested or even threatened with arrest, and that Mr. Qiu did
not indicate expressly that he was not content to worship in secret with his
family.
That is an incomplete
description of Mr. Qiu’s evidence. Mr. Qiu said that he has not been arrested
because the authorities are unaware of his religious practices, and that he and
his family have adopted the practice of worshipping in secret in order to avoid
arrest. Mr. Qiu was not asked directly whether he would have worshipped
publicly if he could, but he said that in Canada, he has
attended church. ...
Here,
of course, the issue is not risk of religious persecution flowing from secret
or public practice of religion, but rather risk of persecution should the
Government of Iran become aware of the applicant’s rejection of Islam without
choosing to adopt the practice, whether secretly or publicly, of an alternative
religion.
[21]
Counsel for the applicant cites the following authorities
from this Court which he urges adopt a narrower concept of religious freedom. In
Saiedy
v. Canada (Minister of
Citizenship and Immigration),
Madam Justice Gauthier wrote at paragraph 28 of her reasons:
In effect, the RPD
concluded, based on Mr. Saiedy’s testimony, that if he were to return to Iran
he would be discreet about his conversion and would therefore be of no interest
to the authorities. According to the RPD, although the documentary evidence
indicates that a Muslim who commits apostasy in Iran faces
serious consequences in theory because by law apostasy carries a death
sentence, the evidence with respect to the de facto treatment of Iranians
accused of apostasy is not that clear. The RPD found that it would certainly
be dangerous for a person to carry a baptismal certificate inside Iran as proof
of Christian conversion. It also concluded, however, that ordinary converts to
Christianity who are discreet about their faith, are of no interest to the
authorities. Even if they can expect to experience some social and cultural ostracism.
[22]
Justice Gauthier upheld the RPD decision that was the
subject of the judicial review before her. In essence then, I conclude that
she adopted the “refrains from making known or publicizing” approach or test
rather than the “might become known to Iranian authorities” approach or test as
adopted by Justices Rouleau and Phelan.
[23]
To the same effect as Saiedy, supra, counsel
for the applicant urged, Justice von Finckenstein wrote at paragraph 12 of his
reasons in Kazemian v. Canada (Solicitor General):
In light of the
Applicant’s own description of his approach to religion, his past experience in
Iran and the absence of any evidence that he intends to
proselytise, I don’t see how it can be said that it is probable that he will be
persecuted on the basis of his religion.
[24]
Finally, in Ghavidel v. Canada (Minister of Citizenship and Immigration) Justice De Montigny, after citing Saiedy, supra, and Kazemian,
supra, wrote at paragraphs 9 and 17 and 18 of his reasons:
On the second point,
the Officer considered the evidence particular to the applicant, her own
statements with respect to how she practices her faith, as well as her Pastor’s
sworn statement as to her religious involvement. She found that Ms. Ghavidel
does not fall within the recognized ambit or risk for Christian converts in Iran. …
While it is no doubt
true that the notions of proselytism and of being public about one’s faith may
be differently interpreted in Iran and in Canada, the applicant provided at
best limited evidence of active and overt manifestations of her new faith while
in Canada. The only evidence provided to show that she shares her faith with
others is the fact that she discussed Christianity with a neighbour.
Similarly, she disputes the negative inference drawn by the Officer from the
failure of the pastor to mention that the applicant would proselytize upon her
return, and counters with the assumption that “for a pastor who is a member of
an evangelical church, proselytizing is required to be a committed Christian”.
Nevertheless, the
assumptions upon which the applicant relies are not supported by the evidence.
The Officer’s failure to accept the assumptions of fact proposed by the
applicant does not constitute a reviewable error. Indeed, the pastor says
nothing about proselytizing activities in his affidavit, despite the details he
gives about the applicant. It was not patently unreasonable for the Officer,
on the basis of the evidence that was before her, to conclude that sharing
one’s faith with neighbours does not imply the kind of activities that would
put the applicant at risk in Iran, even when taking into consideration the dire
situation of human rights in that country and the precarious fate of religious
minorities and particularly of Muslim converts to Christianity.
[25]
In general terms, counsel for the respondent simply rejects
the notion that there is any conflict between the lines of authority just
cited. With great respect, I disagree. There can be no question that a
citizen of a country like Iran who rejects Islam, whether or not he or she
adopts another religion, is put at risk if required to return to Iran. The late Justice Rouleau and Justice Phelan and perhaps,
certainly less directly, others cited on behalf of the applicant, expressed a
view that that is not the end of the matter. Even assuming that an individual
who has rejected Islam, if required to return to Iran, will remain discreetly
silent on that rejection, I am satisfied that he or she may well remain at risk
of persecution if the circumstances are such that his or her rejection of Islam
might come to the attention of state authorities. That risk was simply
not addressed by the Officer on the facts of this matter.
[26]
Against whatever standard of review is applicable, whether
it be correctness or reasonableness, I am satisfied that the failure to address
the appropriate test or issue regarding risk of persecution or risk resulting
in the applicant being a person in need of protection as described in section
97 of the Immigration and Refugee Protection Act, results in reviewable
error and this application for judicial review will thus be allowed.
b) The Threshold of Risk Under Section
96 of the Immigration and
Refugee Protection Act
[27]
In light of my conclusion on the first issue on this
application for judicial review, I decline to address the second issue which,
both counsel before me appear to agree, was of a secondary order of
significance. Suffice it to say that, without engaging in any significant
review of the issue, I adopt at the level of principle, the following statements
by Justice Phelan in paragraphs 9 and 10 of his reasons in Mutangadura v. Canada (Minister of Citizenship and
Immigration):
… One cannot become
fixated on these words [“serious doubts”] or engage in matters of semantics
without considering the whole of the decision and the context within which those
words appear. …
As I read these words,
they refer to whether the Applicant has met the legal criterion under s.96 not
a definition of the legal test to be applied under that provision. This view
is reinforced by the fact that the Board refers to the legal test under s.96
later in the judgment. [citation
omitted]
Substituting
a reference to the PRRA Officer for the reference to the Board in the last
sentence of the foregoing quotation, I am satisfied that the same could be said
here.
Conclusion
[28]
For the foregoing reasons, this application or judicial
review will be allowed, the decision under review will be set aside and the
applicant’s application for a pre-removal risk assessment will be referred back
to the respondent for redetermination by a different officer.
Certification
of a Question
[29]
Counsel for the applicant urges certification of the
following question:
In the context of
persecution for reasons of religion under s.96 of the Immigration and Refugee
Protection Act, is [it] relevant that a claimant can or will be discreet
about his or her faith vis-à-vis the agent of persecution?
In support of his
recommendation, counsel cites the inclusion of “freedom of conscience and
religion” among the Fundamental Freedoms enshrined in section 2 of Canadian
Charter of Rights and Freedoms.
Given that primacy of place, it is assumed that counsel urges that the
principal issue raised on this application for judicial review is a serious
question of general importance. The issue of whether or not an answer to the
proposed question would be dispositive on an appeal from the Order herein was
simply not addressed.
[31] By contrast,
counsel for the respondent urges against certification of the proposed question
by reference to Prophéte vs. Canada (Minister of Citizenship and
Immigration)
where Justice Trudel, on behalf of the Court, wrote at paragraphs [8] and [9]
of her reasons:
Taking into
consideration the broader federal scheme of which section 97 is a part,
answering the certified question in a factual vacuum would, depending on
the circumstances of each case, result in unduly narrowing or widening the
scope of subparagraph 97(1)(b)(ii) of the Act.
For these reasons, we
decline to answer this certified question.
[emphasis added]
[32] Counsel
for the respondent urges that the cases relied on at the hearing of this
application, some of which are cited in the foregoing reasons, turned on their
particular facts and that it cannot be said that those particular facts are the
same or very similar to the facts here before the Court. Indeed, in the
Court’s view, there is a complete absence of factual background regarding the
applicant’s rejection of Islam in this matter to support the Officer’s
conclusion that the applicant would not be at risk if he returned, voluntarily
or involuntarily, to Iran.
[33] For
the foregoing reasons, I prefer the position advocated by counsel for the
respondent and decline to certify the question proposed by counsel for the
applicant or, indeed, any question. While I regard this matter as one that
raises a serious question of general importance, in the absence of a supporting
factual background, I am satisfied that the concern expressed by Justice Trudel
in Prophéte, supra, applies equally to this matter.
ORDER
THIS COURT ORDERS that this application for judicial
review is allowed. The decision under review is set aside and the applicant’s
application for a pre-removal risk assessment is referred back to the
respondent for redetermination by a different officer.
No question is certified.
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