Date: 20070920
Docket: IMM-892-07
Citation: 2007 FC 939
Ottawa, Ontario, September 20th
2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
ASHRAF
EBADI GHAVIDEL
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is a
judicial review of the February 22, 2007 decision of the Pre-Removal Risk
Assessment Officer (the Officer) A. Bremner, wherein the Officer refused the
applicant’s application for a Pre-Removal Risk Assessment (PRRA). The applicant
applied for a stay of her removal on March 6, 2007, but her application was
dismissed on April 17, 2007. As a result, the applicant was removed from Canada on April 29, 2007.
[2]
Having
carefully reviewed the records submitted by the parties and considered their
written and oral submissions, I conclude that this application for judicial
review should be dismissed for the following reasons.
FACTS
[3]
Ms.
Ghavidel is a citizen of Iran who came to Canada on a visitor visa in
September of 2002 to visit her son. She made a refugee claim on February 14,
2003, approximately one month before her visitor visa expired, alleging that
she was at risk in Iran because of her son’s
political activities and on the basis that she was a woman who owned a hair
salon. The Refugee Protection Division (the RPD) rejected her claim in January
of 2005, and her application for leave and judicial review of that decision was
dismissed by the Federal Court on April 15, 2005. The RPD found that Ms.
Ghavidel was not credible and did not belong to a particular social group. The
RPD also noted that there were no allegations of domestic abuse and that her
husband had assisted her in coming to Canada.
[4]
Ms.
Ghavidel then applied for her first PRRA on June 14, 2005, based on the same
reasons she had raised before the RPD, and also because of her involvement with
a Christian church during her time in Canada.
On December 28, 2006, the applicant’s PRRA was rejected, on the ground that the
risks alleged by the applicant had already been assessed by the RPD. As to her
involvement with a Christian church, the PRRA Officer dismissed her application
since it was found she did not have more than a general interest in that
religion. The applicant had, in fact, been baptized on November 26, 2006, but
had not made further submissions to the PRRA Officer in that respect because of
erroneous information she received from Citizenship and Immigration Canada.
[5]
The
applicant then filed a second PRRA application on February 13, 2007, based on
her conversion to Christianity and her fear of her abusive husband. In a
decision dated February 22, 2007, the Officer rejected her application.
THE IMPUGNED DECISION
[6]
Regarding
the allegation of domestic abuse, the Officer found that the issue had been
considered by the RPD, and that no new evidence had been presented in the
context of the PRRA application. He, therefore, found that there was no basis
to come to a conclusion different from that of the RPD. This finding has not
been challenged by the applicant.
[7]
As to the
alleged risk faced by the applicant as a result of her conversion to
Christianity, the Officer made two findings: first, that the degree of risk to
Christian converts in Iran extends only to those who are public about their
conversion, and second, that the applicant does not fall into such a category
of individuals as she will not be public about her faith.
[8]
On the
first point, the Officer conducted a lengthy and detailed review of objective
country condition documentation to support her conclusion that only Christian
converts who proselytize, are leaders or engage in evangelical outreach would
be at risk in Iran. Having conducted an
eight-page review of the documentary evidence submitted by the applicant, the Officer
reviewed the objective country condition documentation with a focus on the
situation faced by Christians in Iran.
It is on the basis of this extensive review that the Officer found that the
main risk factors were the following: 1) Apostate who converted to Christianity
from a Muslim background and who is public about conversion especially if is
also a Pastor; 2) Leader of House Church Movement; 3) Evangelical church
membership; and 4) Proselytizer.
[9]
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. She summed up her assessment
in the following paragraph:
The Applicant has been converted by a
Church that is a member of an evangelical alliance. The Church has been
successful in achieving its goal of converting her. The Applicant herself has
not put before me evidence that would cause me to find that she is personally
evangelical and has taken on the role in her Church that would cause her to go
out and find others in a public and zealous way, in order to convert them to
her new religion. There is nothing before me to demonstrate that she has been
identified as a godly leader by her Church. Her Pastor did not state that she
is required to proselytize upon her return to Iran, or even in Canada. Everything here is personal
to this Applicant, who was given the opportunity to make the case that she is
at risk if she returns to Iran. I have read her statement
that she has spoken to her neighbour and would speak about her faith in Iran. The evidence before me is that this
Applicant is a quiet woman with a quiet faith. I do not find that this
Applicant would make a public display in Iran of her religious conversion,
demonstrating crusading zeal that would cause her to come to the attention of
the authorities in the event that she was to return to Iran. With respect to the fact of being a
Muslim convert, the evidence shows that such people are at risk if they are
public about their conversion. This Applicant has not provided evidence that
demonstrates that she will make a public display of her conversion.
THE ISSUES
[10]
The
applicant has raised four issues, which I have rephrased in the following way:
·
Did the
Officer err in his assessment of the objective evidence with respect to the
situation of Christian converts in Iran?
·
Did the
Officer misinterpret the evidence in concluding that the applicant will not
come to the attention of the Iranian authorities as she does not fall within
the categories of converts at risk?
·
Did the
Officer err in not granting the applicant an interview?
·
Did the
Officer err in not providing reasons with respect to the applicant’s request
for an interview?
ANALYSIS
[11]
It is well
established in the jurisprudence that a PRRA Officer’s decision must be
assessed, on the whole, on a standard of reasonableness simpliciter:
see, for example, Figurado v. Canada (Solicitor General), 2005 FC 347; Covarrubias
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1193; Aivani
v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1231. That being said, each particular finding must be distinguished
and will be subject to the relevant standard depending on whether it raises questions
of facts, law or mixed questions of fact and law: see Kim v. Canada
(Minister of Citizenship and Immigration), 2005 FC 437. When an applicant
disagrees with the factual findings and conclusions of the PRRA Officer, this
Court will not substitute its own assessment for that of the PRRA Officer
unless it has been shown that these findings of fact were made in a perverse or
capricious manner or without regard to the evidence. Accordingly, the two first
issues outlined above must be reviewed against a standard of patent
unreasonableness.
[12]
On the
other hand, the remaining two arguments raised by the applicant do not call for
a pragmatic and functional analysis, as they relate to procedural fairness. When
such issues are raised, the task of this Court is to determine whether the
process followed satisfies the requirements of procedural fairness, taking into
consideration the relevant factors outlined by the Supreme Court of Canada in Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817: see Sketchley v. Canada (Attorney General), 2005 FCA 404. As my
colleague Justice Dawson said, commenting on the standard of review to be used
when an applicant contends that a hearing should have been held by a PRRA
Officer:
[5] With respect to these arguments, the
content of the duty of fairness is a matter for this Court to decide. No
standard of review determined by a pragmatic and functional analysis is
applicable. See: Ha v. Canada (Minister of Citizenship and
Immigration),
[2004] 3 F.C.R. 195 (F.C.A.) at paragraphs 42 through 44. The proper
interpretation and application of section 167 of the Regulations is a question
of law, reviewable on the standard of correctness.
See: Demirovic
v. Canada (Minister of Citizenship and
Immigration), 2005 FC
1284 [Demirovic].
A) The situation of Christian
converts in Iran and the personal situation of
the applicant
[13]
The
Officer’s decision rests on two separate findings: first, she concludes that
the degree of risk to Christian converts in Iran extends only to those who are public
about their conversion, and second, she determines that the applicant would not
be at risk as she would not be public about her faith if returned to Iran.
[14]
There is
not much disagreement between the parties on the first point. The analysis
conducted by the Officer is thorough, and she was entitled to place the
greatest weight on objective country condition documentation: see Sedarat
v. Canada (Minister of Citizenship and
Immigration),
2006 FC 805. Indeed, this Court has recently found that the risk of being
punished for apostasy in Iran extends only to Christian converts who
proselytize or engage in activities that will bring them to the attention of
the Iranian authorities: see, for example, Saiedy v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1367; Kazemian v. Canada (Solicitor General), 2004
FC 874.
[15]
The focus
of the disagreement between the parties is the Officer’s finding that the
applicant would not be at risk because she would not be public about her
conversion and would not proselytize. In coming to that conclusion, the Officer
considered the following factors: a) the applicant stated that she has spoken
about her faith to a neighbour who is now attending some Christian services and
that she will continue to share her faith; b) the applicant had not adduced any
evidence that she proselytizes; c) the applicant had not indicated that she has
attempted to proselytize to those closest to her in Canada: her son and brother;
d) her pastor, in his affidavit, stated that he fears for the applicant’s
safety in Iran due to “persecution of Christians presently in motion in Iran,
especially those from a Muslim background”, not due to her proselytizing
activities; e) her pastor, in his affidavit, did not state that the applicant
is required to proselytize her faith and ahs not stated that she will do so
upon her return to Iran.
[16]
The
applicant challenges this finding as being insensitive to the larger human
rights situation in Iran, and claims that the Officer
erred in relying on the dictionary definitions of “proselytization” and
“evangelism” to determine that the applicant’s activities could not be
considered to put her at risk in Iran.
She also disagrees with the Officer’s assessment that she is a “quiet woman”,
arguing that this finding is baseless and in disregard to the fact that she has
been publicly baptised and that she would be sharing her faith with others.
[17]
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”.
[18]
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 prosetilyzing 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.
B) The requirements of
procedural fairness and the absence of an oral hearing
[19]
The
decision to hold an oral interview under section 113 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 is left to the discretion of the Minister.
Subparagraph (b) of that section provides:
|
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.
|
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;
|
[20]
The
factors to be taken into consideration by the PRRA Officer when making such a
determination are found in section 167 of the Immigration and Refugee
Protection Regulations, SOR/2002-227
(the IRPR):
|
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.
|
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.
|
[21]
I agree with the
respondent that the Officer’s conclusion, that the applicant has not
established that she will be at risk if she returns to Iran, does not turn on an adverse credibility finding. Indeed,
the Officer accepts both the genuineness of the applicant’s conversion and her
evidence as to how she expresses her faith. But she refuses to infer from these
findings of fact that the applicant would be at risk in Iran. This conclusion is not based on credibility. While it may
be true, as the applicant argued, that she would have been accepted had the
Officer believed that she would practice her faith publicly and would attempt
to convert others upon her return to Iran, this is an assumption that was not supported
out by the evidence before the Officer. The applicant never stated that she
would attempt to convert and recruit others upon her return to Iran, or that she would ostensibly preach her new faith or even
try to play an official role within her church. She only said she would share
her faith with others in Iran. The Officer believed her, but did not
consider this was sufficient to put her at risk on the basis of the objective
documentary evidence.
[22]
The applicant also
suggests that she was entitled to an oral interview since the issues raised on
her PRRA were not issues that were considered by the RPD. In my view, this is
not sufficient to create an entitlement to an oral interview. It is not one of
the criteria listed in section 167 of the IRPR, which is the legislative
codification of the common law duty of fairness: see, by analogy, Demirovic.
[23]
Was the applicant
entitled to an explanation as to why she was not granted an oral interview,
despite her repeated requests to obtain one? The applicant believed she was,
and relied heavily on the decision of my colleague Justice Kelen in Zokai
v. Canada (Minister of Citizenship and
Immigration), 2005 FC
1103 [Zokai], where he stated:
[11]
I agree with the applicant that a breach of procedural fairness arises on the
facts of this case. The applicant made a detailed request in his PRRA
application for an oral hearing, with specific reference to the factors set out
in section 167 of the Regulations. However, the PRRA Officer makes no reference
to these factors, or to any other factors that led to the decision not to hold
an oral hearing, despite the written request for one. In fact, there is no
evidence that the Officer turned his mind to the appropriateness of holding an
oral hearing.
[24]
I believe this case
is distinguishable from Zokai, as Justice Kelen’s finding was predicated
not only on the fact that a request for an oral hearing had been made, but also
on the fact that credibility was central to the outcome of the decision. Such is
not the case here. The applicant herself appears to have requested an oral
hearing out of concern that the Officer would take issue with her credibility. In
her PRRA submissions, she wrote: “If the officer finds that there are concerns
with Ms. Ebadi Ghavidel’s credibility, the applicant is requesting that an oral
interview be scheduled to permit her to be able to respond to any concerns
directly”. Her concerns, contingent as they were on credibility concerns, were
therefore not triggered.
[25]
It would undoubtedly
have been preferable to explain why an oral hearing was not provided, for the
numerous reasons outlined in the decision of the Federal Court of Appeal in Via
Rail Canada Inc. v. Lemonde, [2000] F.C.J. No. 1685 (QL), at
paras. 16-22. However, I hesitate making it compulsory and therefore adding to
the already heavy burden of PRRA Officers, especially when a careful reading of
the reasons makes it clear that credibility was not an issue. In any event, I
do not think the failure to provide reasons in this specific case warrants the
quashing of the decision and its remittance to another PRRA Officer, as the end
result would not be affected by the fulfillment of such a requirement.
[26]
For all of the above
reasons, I would dismiss this application for judicial review. Neither party
has suggested a question for certification, nor does none arise here in any
event.
ORDER
THIS COURT ORDERS that: The application for judicial
review is dismissed.
"Yves
de Montigny"
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