Date: 20110606
Docket: IMM-6385-10
Citation: 2011
FC 647
Vancouver, British
Columbia, June 6, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
|
|
MASOUD MOSAVAT
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
|
|
|
|
Respondents
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
The
Applicant, Masoud Mosavat, is a citizen of Iran who came to Canada in December
2008. He immediately sought refugee protection on the grounds of his alleged
homosexuality. The Applicant claimed to have been in a long-term
relationship with a man (S). In a decision dated December 4, 2009, a panel of
the Immigration and Refugee Board, Refugee Protection Division (the RPD),
rejected the Applicant’s claim for protection on the basis that the RPD did not
find the Applicant to be credible.
[2]
On
May 12, 2010, the Applicant applied for a pre-removal risk assessment (PRRA).
In a decision dated August 6, 2010, a PRRA Officer (the Officer)
rejected his PRRA application. The Officer accepted the evidence that
homosexuals face persecution in Iran and that consenting gay
sex is a crime punishable by death. However, the Officer concluded that the
evidence provided by the Applicant was insufficient to establish that he was
homosexual.
[3]
The
Applicant now seeks to overturn the PRRA decision.
II. Issue
[4]
There
is one issue only raised by this application:
Did the Officer err by failing to hold a
hearing, on the basis that the Applicant’s new evidence raised a serious issue
of his credibility?
III. Analysis
A. Statutory Scheme
[5]
PRRA
applications are generally assessed on the basis of an applicant's written
submissions and documentary evidence. Section 113(b) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA or the Act) provides that
a hearing may be held if the Minister, "on the basis of prescribed
factors, is of the opinion that a hearing is required".
[6]
Section
167 of the Immigration and Refugee Protection Regulations, SOR/2002-227
(the Regulations) sets out the factors to be considered when determining
whether a hearing is required:
|
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.
|
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.
|
B. Standard of Review
[7]
The
first question to be addressed is which standard of review to apply to the
Officer’s decision not to convoke an oral hearing. The Applicant argues that
this is a question of statutory interpretation, to which the correctness
standard applies. The Respondent asserts that the issue is one of procedural
fairness which attracts the correctness standard.
[8]
There
is differing jurisprudence in the Federal Court on the proper standard of
review. See, for example: Sen v Canada (Minister of Citizenship and
Immigration), 2006 FC 1435; Hurtado Prieto v Canada (Citizenship and
Immigration),
2010 FC 253 (correctness); and Puerta v Canada (Citizenship and Immigration),
2010 FC 464; and Marte v Canada (Minister of Public
Safety and Emergency Preparedness) 2010 FC 930 (reasonableness).
[9]
In
my view, the applicable standard of review is reasonableness. The Officer’s
task is to analyze the appropriateness of holding a hearing in light of the
particular context of a file and to apply the facts at issue to the factors set
out in s.167 of the Regulations. Thus, the question is one of mixed fact
and law. As the Supreme Court held at paragraph 53 of Dunsmuir v New Brunswick, 2008 SCC 9, questions
of mixed fact and law attract deference and are reviewable on the
reasonableness standard.
[10]
On
this standard, this Court can only intervene if the Officer’s decision does not
fall “within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, at para 47).
C. The Need for an Oral Hearing
[11]
An
oral hearing is only required if all of the factors set out in s. 167 of
the Regulations are met (Bhallu v Canada (Solicitor
General),
2004 FC
1324). In this case, the Applicant submits that all of the factors are
satisfied.
[12]
The
evidence of the Applicant’s homosexuality is central to the decision. Further,
the Officer acknowledged the risk to homosexuals in Iran. It follows
that, had the Officer accepted the evidence of the Applicant’s homosexuality,
the evidence would have justified allowing the PRRA application. The only
question is whether the evidence raises a serious issue of the Applicant’s
credibility.
[13]
As
discussed by Justice Zinn in Ferguson v Canada (Minister of
Citizenship and Immigration), 2008 FC 1067, when a claimant offers
evidence, the PRRA officer must assess whether the evidence is credible
(see paragraph 25). Evidence may lack credibility for a variety of reasons;
it may be vague, unreliable or self-serving. Even where the evidence can be
said to be reliable, the PRRA officer may determine that the evidence is of
little weight or probative value. Where the PRRA officer is simply saying that
the evidence that has been tendered does not have sufficient probative value,
the officer is not making a determination about the credibility of the person
providing the evidence and, therefore, no interview is required.
[14]
Within
this legal context, as so capably outlined by Justice Zinn, there have been
cases where the Court has concluded that a PRRA officer has made a “veiled”
credibility finding (see, for example, Begashaw v. Canada
(Minister of Citizenship and Immigration), 2009 FC 1167 at para 20).
In each case, the Court must look beyond the words of a decision and determine
whether it is based on the sufficiency of evidence or if it is in fact a
credibility determination.
[15]
In
his PRRA application, the Applicant made lengthy submissions declaring his
homosexuality. With his application, the Applicant also submitted several
pieces of evidence that were accepted by the Officer as “new evidence”. I
question whether this evidence was indeed “new” as contemplated by s. 113(a) of
IRPA, as it is the type of documentary evidence that could have and should have
been submitted as part of the Applicant’s hearing before the RPD. However, I need
not make any finding on this question since the Officer accepted and considered
all of the submitted documentation as “new”.
[16]
In
assessing the Officer’s decision, I make two key observations:
1. The
Applicant bears the burden of proof in PRRA applications (see, for example, Ferguson at para 21);
2. The
RPD found that the Applicant’s claim of being homosexual was not credible. As stated
by the RPD at paragraph 18 of its decision:
Because of testimony that changed in
several aspects with no satisfactory explanation, I find that this key incident
did not happen. This, along with lack of corroborative evidence and vague
testimony about his lifestyle, lead me to conclude that the claimant is not
a homosexual person. [Emphasis added.]
[17]
In
essence, the Applicant was attempting to show that the RPD was wrong. To
satisfy his burden, the Applicant was required to submit evidence of sufficient
probative value to demonstrate that, had this evidence been before the RPD, it
would have affected the outcome of that hearing.
[18]
Viewed
in this light, mere statements by the Applicant that he was homosexual are
insufficient to discharge his burden; he had already made such statements to
the RPD. It was not unreasonable for the Officer to find that the Applicant’s
self-serving statements of attendance at a Pride Parade or membership in
the “Vancouver Gay Community on Dave [sic] Street” were insufficient to
demonstrate that the Applicant is a homosexual.
[19]
That
leaves the various documents submitted by the Applicant. It appears to me that,
where a claimant is attempting to demonstrate that the RPD was wrong in
its conclusion, the “new” evidence must be clear and compelling. In my view,
the Officer reasonably concluded that none of this evidence was sufficient to
meet that threshold. Specifically:
- A membership card
that consisted of nothing but a bar code and a signature, with no name of
any organization, is not persuasive evidence of membership in a gay club.
In any event, there was no evidence that the group identified by the
Applicant as “the Gay Group” even existed.
- Photographs of the
Applicant and another man – allegedly a “well-known gay man Iranian
national” – wearing towels were submitted with no context and are
therefore not persuasive evidence of the Applicant’s sexual orientation.
- An undated letter
allegedly from S, the tone of which the Officer acknowledged “suggests an
intimate relationship”, was provided with no evidence that it was sent
from South
Korea,
where the Applicant claimed that S was living. Further, the translation of
the letter was not certified. The Officer was not unreasonable in giving
this letter little weight.
- Similarly, a
cellular phone bill showing “three short calls” to South Korea, where S is
allegedly living, was not found by the Officer to be evidence of the
Applicant’s sexual orientation.
- A letter from the
Executive Director of an organization located in Toronto called
“Iranian Railroad for Queer Refugees” states that the Applicant has been a
member since 2009. As reasonably noted by the Officer, “it is
probable that his information came from the applicant himself and not from
personal knowledge,” and as such, this was not persuasive evidence that
the Applicant was homosexual.
[20]
The
only other evidence was the result of an internet search performed by the
Officer of the Applicant’s name. The Officer found profiles on two social
networking sites which appeared to belong to the Applicant and which indicated
that he was seeking women, contrary to his assertion that he is a homosexual.
They were disclosed to the Applicant on July 26, 2010. The Applicant did not
dispute that the profiles were his and explained that he is bisexual.
[21]
In
his decision, the Officer considered the response of the Applicant in some
detail. The responding comments of the Officer, if considered on their own,
seem to impugn the credibility of the Applicant. However, in my view,
these remarks are quite irrelevant to the overall decision. The website
profiles did not portray the Applicant as either homosexual or bisexual. In
other words, they were not evidence that supported the Applicant’s claim.
Although the profiles could be seen to contradict the Applicant’s claim,
the Officer did not reject his application on this basis. The Applicant’s
explanation, being a further unsupported claim as to his sexual orientation,
was also insufficient to discharge his burden. The internet profiles and the
Applicant’s explanation for them do not raise a serious issue of the
Applicant’s credibility with respect to his PRRA application.
IV. Conclusion
[22]
In
sum, I am satisfied that the Officer’s assessment of the evidence and whether
it met the requirements of s. 167(a) of the Regulations was reasonable. In
other words, it was reasonable for the Officer to conclude that there was no
“new” evidence that raised a serious issue of credibility as provided for
in s. 167(a) of the Regulations. No oral hearing was necessary. The application
for judicial review will be dismissed.
[23]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. The application for
judicial review is dismissed; and
2. No question
of general importance is certified.
“Judith A. Snider”
Email this Content