Date: 20070706
Docket: IMM-4221-06
Citation: 2007 FC 727
Vancouver,
British Columbia, July 6, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
MAJID
RAFIEYAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a
decision of an immigration officer (H&C and PRRA officer) dated May 5,
2006, rejecting the applicant’s application for a visa exemption based on
humanitarian and compassionate considerations (the H&C application).
BACKGROUND FACTS
[2]
The
applicant, Majid Rafieyan, was born in 1964 and is a citizen of Iran. He and his
family fled to Canada in 1995 using false passports and immediately
claimed refugee status upon arrival at Vancouver airport. The
family was granted refugee status without a hearing in October 1995, on the
grounds that the applicant had hidden anti-government leaflets in his
restaurant, which were discovered by the Iranian police. Shortly after, the
family applied for permanent residence status under the Exemption for Protected
Persons Class.
[3]
In
April 1996, soon after his arrival in Canada, the applicant was
arrested and convicted of assault on his wife at the time. He received a
suspended sentence and two years probation. While still on probation, the applicant
violently stabbed his pregnant wife fourteen times and was convicted in October
1997 of attempted murder and possession of a dangerous weapon. He was sentenced
to eight years in prison.
[4]
After
a determination that the applicant was inadmissible to Canada for serious
criminality pursuant to s. 19(1)(c) of the Immigration Act, R.S.C. 1985,
c. I-2
(the
former Act) in October 1997, the applicant was given notice that immigration
officials intended to seek the Minister’s opinion that he was a danger to the
public, pursuant to subsection 70(5) and paragraph 53(1)(a) of the
former Act.
[5]
In
May 1998, a danger opinion was issued against the applicant and he was ordered
deported in June 1999 by a decision of the Adjudication Division. This Court
denied Mr. Rafieyan’s application for leave and judicial review of the danger
opinion. In 2002, the applicant and his counsel at the time made a request for reconsideration
of the danger opinion, which was considered by a Minister’s delegate and denied.
[6]
Immigration
authorities had decided that the deportation order against the applicant would
not be enforced until the applicant was released from prison, and until the applicant
was able to provide Iranian identity documents sufficient for obtaining the
required travel documents. The applicant was released from immigration
detention with basic reporting conditions in 2001 after a detention review,
whereby the adjudicator had found that the applicant was neither a danger to
the public nor a flight risk.
[7]
Once
the deportation order became effective, the applicant and his counsel requested
a pre-removal risk assessment (PRRA). However, because of the applicant’s serious
criminal background, immigration officials advised the Applicant that he
was ineligible for a PRRA.
[8]
While
on parole, the applicant began volunteering with several community
organizations, including the YMCA, where he met his second wife. The two were
married on December 1, 2002. The applicant then submitted an application for
permanent residence based on humanitarian and compassionate (H&C)
considerations in May 2003, which included a sponsorship application by his
current spouse. The couple was interviewed on November 12, 2004, and the H&C
application was denied by an immigration officer in a decision dated
November 26, 2004.
[9]
The
applicant applied to have this negative H&C decision judicially reviewed. Upon
consent, an order setting aside the decision and returning it for
re-determination was granted by the Court as the previous officer had failed to
consider the risks amounting to hardship if the Applicant was removed to Iran.
THE
DECISION UNDER REVIEW
[10]
After
the first H&C decision was set aside, the officer invited the applicant to
make further submissions in support of his H&C application. The applicant
requested disclosure of all of the evidence in the officer’s possession and an
interview, both of which were denied by the officer. The applicant filed
additional submissions on March 29, 2006.
[11]
On
May 5, 2006, the officer rendered a negative H&C decision. He was not
satisfied that the humanitarian and compassionate considerations advanced by
the applicant were sufficient to justify the latter’s request for exemption.
[12]
Despite
concluding that there was evidence of establishment in Canada, the officer
was not satisfied that this factor alone should be determinative, and was not
satisfied that the applicant and his family would suffer unusual and
undeserved, or disproportionate hardship from removal. The officer was also not
satisfied that sufficient time had passed since the end of the applicant’s
sentence to conclude that he had been rehabilitated.
[13]
With
regard to the applicant’s risk if he returned to Iran, the officer
considered the latter’s religious and political situation. The officer
concluded that the applicant had verily converted to Christianity while
in prison. However, he was not satisfied that the applicant would, on the
balance of probabilities, suffer serious harm for apostasy if returned to Iran. The officer
also concluded that it was unlikely that the applicant would experience harm on
political or religious grounds.
ISSUES
[14]
This
matter raises the following issues:
1. Are the affidavits filed after
the H&C decision admissible on this application for judicial review?
2. Did the officer fail to
consider substantial evidence?
3. Did the officer violate
principles of procedural fairness?
4. Did the officer err
in concluding that the applicant would not suffer unusual and undeserved or
disproportionate hardship if removed to Iran?
ANALYSIS
The standard of review
[15]
In
Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, the Supreme Court concluded
that the standard of review applicable to H&C decision rendered by
immigration officers is that of reasonableness simpliciter (also see: Khosa
v. Canada (M.C.I.), [2007] F.C.J. No. 139 (C.A.)). The Court will not
substitute its decision for that of the officer, but rather, will determine
whether the decision is supported by any reasons that can stand up to a
somewhat probing examination (Canada (Director of Investigation and
Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at para.
56).
[16]
In
Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of
Labour), [2003] 1 S.C.R. 539, 2003 SCC, the Supreme Court of Canada clearly
articulated that a violation of procedural fairness or natural justice is not
subject to any standard of review, concluding the following:
The content of procedural fairness goes to the manner in
which the Minister went about making his decision, whereas the standard of
review is applied to the end product of his deliberations. (…)
On occasion, a measure of confusion may arise in attempting
to keep separate these different lines of enquiry. Inevitably some of the same
“factors” that are looked at in determining the requirements of
procedural fairness are also looked at considering the “standard of review” of
the discretionary decision itself. (…)
The point is that, while there are some common “factors”,
the object of the court’s inquiry in each case is different.
[emphasis added]
1. Are the affidavits filed
after the H&C decision admissible on this application for judicial review?
[17]
The
applicant argues that new evidence can be submitted on judicial review where an
allegation of reasonable apprehension of bias, infringement of natural justice
or procedural fairness, or a constitutional challenge, is raised. As he
advances such issues in the present application, he submits that the additional
affidavit evidence should be considered by this Court, despite the fact that it
post-dates the decision under review.
[18]
The
respondent argues that the material post-dating the H&C decision was not before
the officer when the decision under review was made, and therefore cannot be
considered by this Court in the present matter. A party should not be permitted
to avoid the rule against adducing new evidence on judicial review by merely recasting
arguments as “constitutional issues” or allegations of bias.
[19]
As
stated by my colleague Justice Pierre Blais in Kim v. Canada (Minister of
Citizenship and Immigration, 2005 FC 1357, [2005] F.C.J. No. 1656
(QL)
at paragraph 5, a judicial review is not the appropriate venue for adducing
information to bolster a failed application. This is precisely what the
applicant is attempting to accomplish in the present case, by simply reformulating
his prior submissions in the further memorandums as constitutional issues or
allegations of bias.
[20]
It
is trite law that only material that was before the original decision-maker may
be considered on judicial review (Smith v. Canada,
2001 FCA 86 at paragraph 7; Lemiecha (Litigation guardian of) v. Canada
(M.E.I.), 1993 F.C.J. No. 1333 (QL) at paras. 3-4). While post-decision
materials may be exceptionally considered where there are validly raised
constitutional, procedural fairness issues or legitimate allegations of
reasonable apprehension of bias, such is not the case here. The applicant
simply advances such issues at a later stage in the judicial review in an
attempt to circumvent the proscription against adducing new evidence. He had
the opportunity to submit the affidavits at issue to the H&C officer before
the decision was rendered, and the present judicial review is not the
appropriate venue to attempt to correct this failure. Thus, the applicant’s further
affidavits post-dating the H&C Decision will not be considered by the
Court.
2. Did
the officer fail to consider substantial evidence?
[21]
It
is trite law that an officer is presumed to have considered all of the evidence
before him or her, and that the assessment of weight to be given is a matter
within his or her discretion and expertise (Hassan v. Canada (Minister of
Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.), [1992] F.C.J.
No. 946 (QL); Shah v. Canada (Minister of Public
Security and Emergency Preparedness, 2007 FC 132, [2007]
F.C.J. No. 185 (QL).
[22]
The
applicant argues that the officer failed to consider expert opinions on his
rehabilitation, and risk in Iran due to his apostasy, instead relying on
his own opinions. He claims that the evidence provided to the officer regarding
his apostasy is substantial and was ignored. The applicant provided documents
on the torture of apostates in Iran, an opinion by a professor, a letter
written by the applicant’s brother stating that the applicant’s actions can be considered
to be “against Islam”, which is considered to be a serious criminal
offence in Iran. The applicant also alleges that by virtue of actions of the
Canadian government, he was successfully rehabilitated by becoming a Christian.
[23]
In
considering the officer’s reasons and the evidence, I am satisfied that in
addition to considering the applicant’s entire immigration file, he duly
considered all of the documents and materials provided by the applicant,
including all the H&C and risk allegation submissions. Not only does the
officer benefit from the presumption that he considered the totality of the
evidence before him (Owusu v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] F.C.J. No. 158 (QL)),
but his reasons make specific reference to all of the evidence put before him
by the applicant. No other extrinsic evidence was considered.
[24]
With
respect to his establishment in Canada, the officer recognized
his employment history, his assets in Canada, his completion of
“English as a Second Language” training and other adult education, volunteer
work and community references, but was not satisfied that this factor should be
determinative of his request.
[25]
In
terms of the officer’s conclusions on criminality and rehabilitation, he
referred to the NPB report qualifying the applicant’s spousal abuse history as
“lengthy and severe” and noting his struggle to take responsibility for his
serious criminal behaviour. He also referred to a report of Dr. Monkhouse, as
well as Parole Officer Cottrell, and acknowledges that the applicant was
categorized as a low-risk to re-offend and as having made progress in
addressing the factors contributing to his criminality. The officer noted the
applicant’s positive strides towards rehabilitation and behavioural adjustment;
but in view of the relatively short period of time since the end of the applicant’s
sentence (including parole) in October 2005, he was not sufficiently persuaded
that the applicant was rehabilitated.
[26]
The
applicant submits that the officer’s emphasis on the elapsed time is not
relevant to his conclusion on the former’s rehabilitation. I do not
agree, as the Act and its associated regulations expressly refer to the time
elapsed since a sentence was completed as a relevant factor when considering rehabilitation
in the immigration context (see subsection 36(1) and regulation 18.1 specifically).
Further, I find that it is not unreasonable that the officer considered the
relatively limited time that had passed since the completion of the applicant’s
sentence, through the lens of the seriousness of the offences, in concluding as
he did with regard to the rehabilitation issue.
[27]
Similarly,
the officer drew reasonable conclusions on the basis of the evidence before him
with regard to the impact of the applicant’s removal on his families, both from
his previous and current marriages.
[28]
The
applicant essentially challenges the weight the officer assigned to all of this
evidence, which is beyond the scope of the present judicial review. There is no
reason to believe that the officer ignored, or improperly considered, any
evidence in making the H&C decision under review.
3. Did
the officer violate principles of procedural fairness?
[29]
As
held by the Supreme Court in Baker, above, at paragraph 21, the concept of
procedural fairness is highly variable and its content must be determined in
the specific context of each case, in view of all of the facts and
circumstances. The content of the duty of procedural fairness depends on a
number of factors, including: the "nature of the decision being made and
the process followed in making it"; the "nature of the statutory
scheme and the 'terms of the statute pursuant to which the body
operates'"; the "importance of the decision to the individual or
individuals affected"; the "legitimate
expectations of the person challenging the decision"; and the requirement
to "respect the choices of procedure made by the agency itself,
particularly when the statute leaves to the decision-maker the ability to
choose its own procedures, or when the agency has an expertise in determining
what procedures are appropriate in the circumstances" (Baker, above, at paras. 22-27).
[30]
The
applicant alleges a breach of procedural fairness as he was not provided with
full disclosure of the evidence against him, and was not interviewed, relying
heavily on Suresh v. Canada, [2002] 1
S.C.R. 3.
[31]
However,
I find that Suresh is to be distinguished from the present matter, as it
dealt with the duty of procedural fairness in the specific context of a danger
opinion. Unlike a danger opinion, in an H&C application there is no
allegation made against an applicant. Rather, the H&C process is
initiated by an applicant seeking an exemption from the normal statutory
requirements, and who bears the onus of adducing evidence to justify his
request. Also, in this context, unlike that of the danger opinion, there is no corresponding
duty on the Minister to disclose and no “case to meet”, as the applicant is
responsible for adducing the evidence to support his request.
[32]
In
Baker, above, the leading case on the requirements of procedural
fairness in the context of H&C application, the Supreme Court of Canada
does not impose a duty on immigration officials to disclose the evidence they
intend to rely on in making their decisions or to inform an applicant of his or
her “case to meet”.
[33]
In
the context of an H&C application, there is no duty to disclose documents
where an officer does not rely on extrinsic evidence prepared by a third party;
correspondingly, there is no obligation to provide the affected individual with
an opportunity to respond (Mancia v. Canada (Minister of Citizenship and
Immigration), [1998] 3 F.C. 461 (C.A.); see also Jayasinghe v. Canada
(M.C.I), 2007 FC 193, [2007] F.C.J. No. 275 (QL) at para. 26; Haghighi v.
Canada (Minister of Citizenship and Immigration), [2000] 4
F.C. 407, [2000] F.C.J. No. 854 (QL) (C.A.) at para. 26).
[34]
In
the present case, the officer relied solely on the applicant’s immigration file
and the evidence he provided. Nowhere in his submissions to the H&C officer
does the applicant qualify, or question the veracity of, the content of the National
Parole Board’s (NPB) pre-release decision describing his history of spousal
abuse as “severe and lengthy”. In addition to providing the officer with this
report, the applicant did not challenge its findings until after the H&C decision
was made. Being presumably aware of the content of the NPB report he submitted,
the applicant had the opportunity to submit affidavits or other evidence to the
H& C officer challenging the report’s qualification of his spousal
abuse history, prior to the rendering of the H&C decision. The time to do so
was at the H&C application stage, not after receiving a negative decision. Therefore,
I find that there was no duty to disclose documents to the applicant prior to
rendering the decision, and the officer did not err in this regard.
[35]
Further,
the right to an interview is not automatic. In Owusu, above, the
Federal Court of Appeal clearly stated the following:
H & C Applicants have no right or
legitimate expectation that they will be interviewed. And, since Applicants have
the onus of establishing the facts on which their claim rests, they omit
pertinent information from their written submissions at their peril. (…)
[See also: Shah, above, at para.
37.)
[36]
Since
Baker, above, courts have repeatedly held that in the context of H&C
applications there is neither a right to, nor a legitimate expectation of, an
interview; it is sufficient that applicants have a meaningful opportunity to
make written submissions and adduce evidence in support of their request for an
exemption.
[37]
The
applicant received two letters in June 2006 from immigration officers stating
that the purpose of any interview was to deliver the H&C decision in
person, and that normally documentation is not provided before an interview,
but rather is provided in person at the time that the decision is delivered. This
is not a case where the applicant could have had a legitimate expectation that
he would be interviewed. A legitimate expectation of an interview in these
circumstances would have to be based on a clear, unambiguous and unqualified
representation. I am satisfied that there was no clear representation to the applicant
that he would be interviewed, only that he might be, depending on the
nature of the case presented.
[38]
The
officer clearly stated in the decision that he relied on all of the materials provided
by the applicant, including the updated materials that he submitted for the
re-determination of his H&C application. In carefully reviewing the
decision and the totality of the evidence before the officer, I am not
convinced that he was unreasonable in his analysis, nor that he showed
grounds that would lead the reasonable informed person, viewing the matter
realistically and practically, to believe that there was bias.
[39]
Therefore,
I find that the applicant has not established an apprehension of bias, or that
the officer breached any principle of procedural fairness or natural justice,
or contravened section 7 of the Charter.
4. Did the officer err
in concluding that the applicant would not suffer unusual or disproportionate
hardship if the applicant was removed to Iran?
[40]
The
role of an officer in an H&C application is to determine if an individual
would experience unusual and undeserved, or disproportionate hardship if required
to return to his country of origin to apply for a permanent resident visa. The
onus rests on the applicant to satisfy the officer that, in his personal and
particular circumstances, the hardship of having to obtain a permanent resident
visa outside of Canada in the normal manner would either be unusual
and undeserved, or disproportionate. (Owusu, above; Pinter v. Canada
(M.C.I.), 2005 FC 296, [2005] F.C.J. No. 366 (QL) at paras. 3-4; Shah,
above, at para. 14).
[41]
Furthermore,
I agree with Justice Shore’s conclusions in Hamzai v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1108, [2006] F.C.J. No. 1408 (QL),
where he stated the following at paragraph 24:
This Court is not to lightly interfere
with the discretion given to an H&C officer. The H&C decision is not a
simple application of legal principles but rather a fact-specific weighing of
many factors. As long as the H&C officer considers the relevant,
appropriate factors from an H&C perspective, the Court cannot interfere
with the weight the H&C officer gives to the different factors, even if it
would have weighed the factors differently…
[42]
The
applicant alleges that he and his family would suffer unusual and undeserved, or
disproportionate hardship if he were to be returned to Iran. While
separation unquestionably imposes hardship, it is well established that family
separation alone is insufficient to justify an H&C exemption (for example,
see: Rettegi v. Canada (M.C.I.), [2002] F.C.J. No. 194 (QL) at para. 16;
Adomako v. Canada (Minister of Public
Safety and Emergency Preparedness), [2006] F.C.J. No. 1384, 2006 FC 1100 at
para. 17). In this case, the officer concluded that as the applicant has no contact
with his former wife and biological children, that his current marital
relationship was unstable and involved at least two periods of separation, that
his wife is financially self-supporting, that the couple were aware
of his uncertain immigration status from the beginning of their relationship,
and that he has only been involved in his step-children’s lives for a
relatively short time, his removal would not cause unusual and undeserved, or
disproportionate hardship.
[43]
With
regard to the applicant’s risks if returned to Iran, the officer
considered both the religious and political factors particular to the applicant.
The officer noted that the applicant was granted refugee status in Canada on
political grounds in 1995, and that he now claims that he is at risk in Iran on religious
grounds as well, as a result of his conversion to Christianity while in Canada.
[44]
With
regard to the appropriate risk analysis of an H&C decision, I adopt the following
conclusions of Justice Johanne Gauthier in Monemi v. Canada (Solicitor
General), 2004
FC 1648,
[2004] F.C.J. No. 2004 (QL) at paragraph 39 that the concept of risk:
(…) encompasses much more than the narrow
requirements relevant to a PRRA application, namely, those set out in sections
96 and 97 of IRPA. Not only does unusual, undeserved, or disproportionate
hardship include non-risk elements but it also includes risk elements that may
not qualify under sections 96 and 97, such as for example, discrimination that
may not amount to persecution
[45]
In
the present matter, the officer did not question the applicant’s positive
refugee claim determination on political grounds in 1995. However, he was not convinced
that the applicant would still be of interest to the Iranian authorities over a
decade later. The officer concluded that the applicant had not provided
sufficient evidence to persuade him that he was currently at risk if returned
to Iran.
[46]
While
the applicant evidently disagrees with the weight the officer gave to his
brother’s letter and a statement reportedly made by Iranian authorities to his
mother in 1999, this does not mean that the officer’s conclusions are
unreasonable. The officer clearly considered the applicant’s evidence but was
not persuaded by it. I am satisfied that the officer’s conclusion with regard
to the risk to the applicant in relation to his political beliefs can stand up
to the somewhat probing examination required by the standard of reasonableness
(Baker, above, para. 63).
[47]
With
regard to the religious grounds, the officer accepted that the applicant had
converted to Christianity while in prison. The officer referred to the
documentary evidence showing that a Muslim who commits apostasy in Iran may face
serious consequences, such as the death sentence or torture. Other documentary
evidence expressly considered by the officer shows that Christians are a
recognized religious minority in Iran, and generally those Christians at risk
of serious harm in Iran belong to evangelical denominations or those
who openly proselytize; in the absence of proselytization or other overt
religious activity, they do not face a serious risk of persecution.
[48]
While
expressly considering the evidence of the professor submitted by the applicant
that he would be at risk of serious harm for apostasy, the officer relied on
the evidence that nobody has been persecuted for the crime of apostasy in Iran since 1994. The
applicant submits that the officer ignored the opinions of experts, replacing
it with his own opinions and speculation. I do not agree; while the officer is
obliged to consider the evidence before him, including that of experts, he is
not bound to necessarily accept these opinions as conclusions of fact. It is
within the competence of the officer to weigh the evidence according to his own
assessment of it, and there is no reason to believe that he did not properly
consider the evidence on this issue.
[49]
I
am satisfied that the officer did not err in a manner justifying the
intervention of this Court in finding that while penalties prescribed by law
may be indicative of risk, they are not determinative of the issue where there
is evidence that these laws are not being enforced. Similarly, in the absence
of evidence that the applicant fell within any of the Christian groups likely
to be targeted for punishment, it was not unreasonable for the officer to
conclude that he had not established a personal risk of serious harm amounting
to hardship.
[50]
For
these reasons, the application for judicial review of the H&C decision is
dismissed.
JUDGMENT
The application for judicial review is
dismissed.
"Danièle
Tremblay-Lamer"
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