Date: 20090731
Docket: IMM-685-09
Citation: 2009 FC
790
Ottawa, Ontario, July 31, 2009
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
SHAHRAM
ALVANDI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
The Applicant, Mr.
Shahram Alvandi, is a citizen of Iran who first came to Canada in 1996. He applied for refugee status, which claim was
declared to be abandoned on March 12, 2001.He was deported to Iran where, according
to the Applicant, he was immediately arrested and incarcerated at the Evin’s
prison facility in Tehran. Following eight months of detention,
the Applicant was released for one week after his family bribed prison
officials. He immediately went into hiding and returned to Canada illegally in August 2005. After being issued with a deportation order on May 25, 2007,
the Applicant applied for a pre-removal risk assessment (PRRA) on July 25,
2007.
[2]
In a decision dated
January 8, 2009, a PRRA Officer concluded that the Applicant would not be
subject to risk of persecution, danger of torture, risk to life or risk of of
cruel and unusual treatment or punishment if returned to Iran. The Applicant seeks judicial review of that decision.
II. Issues
[3]
This application
raises the following issues:
1)
Did the PRRA Officer
err by giving low weight to the Applicant’s uncorroborated allegations
regarding the risks he will face if returned to Iran?
2)
Did the PRRA Officer
err by concluding that the Applicant failed to rebut the presumption of state
protection?
III. The
PRRA Officer’s Decision
[4]
The PRRA Officer’s
decision was based on the following findings:
·
The basis of the
claim was found in the Applicant’s personal narrative from 1996 and was not
corroborated or supported by any independent authority, such as a government
agency, police or the press. It was therefore afforded low weight;
·
Though the reports
concerning country conditions show that Iran had a poor record with human
rights abuses, corruption, political impunity and religious discrimination, the
Applicant failed to link this evidence to his personalized forward-looking
risks; and
·
In spite of problems
with corruption and human rights violations, the country documents show that Iran has an established police and military and makes reasonable
efforts to protect its citizens. The Applicant did not provide clear and
convincing evidence to refute the presumption of adequate state protection. The
objective evidence showed that he had different avenues of redress within the
Iranian legal system if he contends unjust treatment by the authorities.
IV. Analysis
A. Issue
#1: Lack of Corroboration
[5]
The question of
whether the PRRA Officer erred by giving little weight to the Applicant’s
allegations of risk turns on the sufficiency of the evidence that was before
the PRRA Officer.
[6]
The Applicant
submitted very little to support his application. He provided an undated
Personal Information Form (likely from 1996) and a statement in his PRRA
application that “I spent 3 years in prison, had harassed, arrested, detained,
beat to death interrogated several times.” Beyond this, the Applicant submitted
only the letter of his then-counsel providing a few further details on the
Applicant’s incarceration in Iran.
[7]
In dealing with this
evidence, the Officer wrote:
The
Applicant has submitted his undated Personal Information Form narrative as well
as objective evidence including IRB’s Standardized Country Profile of Iran, and
the US Country Report on Iran dated 06 March 2007.
The
narrative describes the events that occurred in Iran
that caused the applicant to flee Iran in 1996 and eventually apply for refugee
protection in Canada in December 1996. This narrative is
supplied by the applicant and is not corroborated or supported by an
independent authority such as a government agency, police or the press and is
consequently afforded low weight.
[8]
The Applicant submits
that, given that his evidence was not contradicted, the Officer erred by giving
low weight to his narrative and effectively finding him to be not credible
merely because there was no corroborating evidence. Given that the Officer made
no adverse credibility findings with respect to the evidence, the Applicant
argues that his story should have been accepted as credible and true (Gutierrez
v. Canada (Minister of Citizenship and Immigration), 2008 FC 971). It
should not have been given little weight.
[9]
In Ferguson v.
Canada (Minister of Citizenship and Immigration), 2008 FC 1067, Justice
Zinn dealt with substantially the same issue in his review the case of a
Jamaican woman who claimed to be subject to risk as a lesbian. At paragraphs 25
and 26, Justice Zinn set out the
distinction
between credibility and the amount of weight to be given to a piece of evidence
in an officer’s assessment of whether an Applicant has met the legal burden of
proof:
25
When
a PRRA applicant offers evidence, in either oral or documentary form, the
officer may engage in two separate assessments of that evidence. First, he may
assess whether the evidence is credible. When there is a finding that the
evidence is not credible, it is in truth a finding that the source of the
evidence is not reliable…
…
26
If
the trier of fact finds that the evidence is credible, then an assessment must
be made as to the weight that is to be given to it. It is not only evidence
that has passed the test of reliability that may be assessed for weight. 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. Invariably this occurs when the trier of fact is of the view that the
answer to the first question is irrelevant because the evidence is to be given
little or no weight, even if it is found to be reliable evidence. For example,
evidence of third parties who have no means of independently verifying the
facts to which they testify is likely to be ascribed little weight, whether it
is credible or not.
[10]
In Ferguson, above, Justice Zinn found that it was
reasonable for the PRRA officer to have given limited weight to the submissions
made by Ms. Ferguson’s counsel because there was no supporting evidence to
support those submissions.
[11]
The same reasoning
applies to the present case. The Applicant is seeking to rely on submissions
made by his then-counsel and an undated personal narrative to support his
claim. None of these documents were sworn and there was no other corroborate
evidence, such as even a sworn affidavit from the Applicant or his family
members who would have had knowledge of the incidents claimed. Therefore, it
was reasonably open to the PRRA Officer to afford low weight to the evidence
before her.
[12]
Even though I have
found that the Officer was not unreasonable in giving little weight to the
evidence, I note that the Officer did not dismiss, as not credible, the
Applicant’s complete story of being imprisoned in Erin prison and escaping from the authorities.
B. Issue
#2: State Protection
[13]
The Applicant submits
that the PRRA Officer erred by requiring the Applicant to provide clear and
convincing evidence to refute the presumption of adequate state protection
since the members of the State are the alleged source of persecution in this
case. Depending on the facts of each case, the jurisprudence indicates that,
where agents of the state are the source of the persecution and the applicant’s
credibility is not undermined, an applicant may successfully rebut the
presumption of state protection without exhausting every conceivable recourse
in the country (Chaves v. Minister of Citizenship and Immigration), 2005
FC 193 at para. 15, Gallo Farias v. Minister of Citizenship and Immigration,
2008 FC 1035 at para. 19).
[14]
The Officer, in her
decision, made extensive references to the problems in Iran, including its poor record with human rights abuses,
corruption, political impunity and religious discrimination. The Officer
specifically commented on problems with the Iranian law enforcement. The
Officer appears to have relied heavily on the objective evidence that referred
to agencies that deal with complaints concerning corruption and abuse.
Specifically, the PRRA Officer concluded that, “The objective evidence shows
that the applicant has different avenues of redress within the Iranian legal
system if he contends unjust treatment be the authorities”. The problem with
this conclusion is that the Officer does not identify the “avenues of redress”
that are available to the Applicant who alleges that state officers are his
persecutors or explain how these “avenues of redress” could provide any
assistance to him.
[15]
It is abundantly
clear from the jurisprudence that claimants must rebut the presumption of state
protection with clear and convincing evidence (Flores Carillo v. Canada
(Minister of Citizenship and Immigration), 2008 FCA 94,
[2008] 4 F.C.R. 636, Canada (Attorney General) v.
Ward, [1993] 2 S.C.R. 689). However, in a
country such as Iran, where the concept of democracy is
faint, it appears to me that an applicant may have an easier task in rebutting
the presumption. In this case, the Applicant poses an additional layer of
complexity by alleging that his fears stem from police actions. In this case,
while holding that the Applicant had not provided sufficient evidence to fully
support his claim, there is no explicit finding that the Officer found the
Applicant’s story to be fabricated. Further, the Applicant’s claim has never
been assessed in a refugee hearing. In such circumstances, I would expect the
Officer to be very careful to analyze the country condition documents in light
of the particular circumstances of the Applicant. This is not a case where a
“cookie cutter” state protection analysis will suffice. That is not to say that
the PRRA Officer ought to have found that state protection did not exist for
this Applicant. It is always open for the Officer to reject the application,
provided that the elements of the Applicant’s fears are considered.
[16]
In short, the PRRA
Officer simply does not analyze the documentary evidence in light of the
particular circumstances faced by the Applicant. In my view, the PRRA Officer’s
conclusion that the Applicant had not provided clear and convincing evidence to
refute the presumption of adequate state protection does not fall within the
range of possible, acceptable outcomes which are defensible in respect of the
facts and law (Dunsmuir v. New
Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, at para. 47).
VI. Conclusion
[17]
For these reasons,
the Application will be allowed. Neither party proposes a question for
certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
this application for
judicial review is allowed, the decision of the PRRA Officer is quashed and the
matter remitted to the Respondent for re-consideration by a different PRRA
Officer; and
2.
no question of
general importance is certified.
“Judith
A. Snider”
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