Date: 20080418
Docket: IMM-3617-07
Citation: 2008 FC 511
Ottawa, Ontario, April 18,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ALI
REZA GOLESORKHI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant had previously been found not credible in respect of his claim that
he was a convert to Christianity. His claim of conversion was the cornerstone
of his refugee claim, which was based on fear of persecution in Iran due to his
Christian beliefs. The decision under review is a negative PRRA decision. The
issues raised in this review are procedural fairness due to the use of
undisclosed evidence; the legal test of personalized risk; and the
reasonableness of the decision in so far as it is based on the premise that the
Applicant was unlikely to attend church even if he was a Christian.
II. BACKGROUND
[2]
Mr.
Golesorkhi, a citizen of Iran, made his refugee claim under the previous
Immigration Act. He had claimed that he converted to Christianity while
in Canada.
[3]
The
then-CRDD found, based on his testimony, that the Applicant had demonstrated a
lack of knowledge about his faith. The CRDD concluded that there was no
credible or trustworthy evidence that he was a Christian and, even if he was,
he was unlikely to attend church in Iran. Consequently, he would
not be discovered by Iranian authorities and he had nothing to fear.
[4]
In
his PRRA application, the Applicant submitted letters of support from the
International Federation of Iranian Refugees, the Toronto Christian Resource
Centre and his local Member of Parliament. Mr. Golesorkhi also relied on
country reports showing Iran’s poor human rights record, particularly
with respect to freedom of religion.
[5]
The
PRRA Officer (Officer) assumed, because the Applicant failed to identify the
specific risk, that the risk was religious persecution. The Officer concluded
that, having considered the CRDD decision, the Applicant had not established
that his knowledge of Christian tenets of faith had increased or (assuming he
was a true Christian) that he would go to church and thus expose his beliefs to
Iranian authorities.
[6]
The
Officer also found that the letters of support did not confirm the Applicant’s
faith or adherence to Christianity. The Officer, acknowledging Iran’s human
rights record, found that the actuality of religious persecution did not
constitute personalized risk.
[7]
The
Officer also considered the risk attendant to being a returned failed refugee
claimant but considered that such actions by the Iranian authorities depended
on the circumstances and concluded that the information did not establish that
the Applicant would be at risk as a returnee from Canada.
III. ANALYSIS
A. Standard
of Review
[8]
As
a result of the decision in Dunsmuir v. New Brunswick, 2008 SCC 9, it is
now clear that the standard of review is correctness on the issues of the correct
legal test and procedural fairness, and reasonableness in respect of the
findings of facts and overall decision itself.
B. Procedural
Fairness
[9]
In
respect of procedural fairness, the Applicant argued that the use of the 2007
U.K. Home Office Report was unfair because he did not have an opportunity to
respond to it. The Applicant relies upon the decision in Mancia v. Canada (Minister of
Citizenship and Immigration), [1998] 3 F.C. 461 (C.A.).
[10]
However,
the Federal Court of Appeal in Mancia, in dealing with documents which
became available after the time of submissions, held that those documents must
be disclosed to an applicant if they “are novel and significant and where they
evidence changes in general country conditions that may affect the decision”.
[11]
The
2007 UK Home Office Report and, in particular, the parts relied upon by the
Officer was taken from a 2006 US DOS Report which in turn referred to the
information in a 2001 UNCHR Report. The information existed in the public
domain before the Applicant’s submissions, originated from well-known sources
and were general in nature.
[12]
It
was not unfair to take account of these well-known conditions in Iran. The
Applicant was not denied procedural fairness.
C. Legal
Test
[13]
The
Applicant contends that the Officer erred in focusing on the Applicant’s
personalized, rather than a generalized, risk of persecution. The Applicant’s
argument can be distilled to an argument that s. 97 of the Immigration and
Refugee Protection Act uses the words “would subject them personally”
to a risk of torture, etc. whereas s. 96 does not use a term that
individualizes the risk.
[14]
This
is an erroneous interpretation of the law. Under either provision, the individual
must establish that he/she is likely to fall within one of the named
circumstances of the particular provision. The Applicant must show that he, as
an individual, has the well-founded fear under s. 96 or would personally face
the risk named in s. 97.
[15]
The
Applicant contends that the Officer failed to consider the risk to persons
“similarly situated”. The use of the “similarly situated” analysis is relevant
because often the individual’s claim is based on speculation as to what “will”
happen upon return. Since the feared event has not yet happened, an applicant
can point to what has happened to similarly situated persons as a predictor of
what will happen to the applicant. The “similarly situated” analysis is also
relevant to the credibility of a claim that an individual experienced certain
treatment if there is compelling evidence that others in the same position
experienced the same treatment.
[16]
The
difficulty with the Applicant’s position is not that the Officer ignored the
“similarly situated” person analysis but that the Applicant was not similarly
situated with the persons with whom he identified. He did not fall within the
similarly situated - Christians returning to Iran - because of
the factual finding that he was not a Christian.
D. Merits
of Decision
[17]
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.
[18]
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 practising 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 practise
one’s religion or cannot practise it openly (see Fosu v. Canada (Minister of
Employment and Immigration) (1994), 90 F.T.R. 182; Irripugge v. Canada
(Minister of Citizenship and Immigration) (2000), 182 F.T.R. 47).
[19]
The
Officer’s finding, however, must be taken in context. The Officer concluded
that the Applicant had failed to demonstrate that he was a Christian. The
conclusion about not attending church was an alternative finding and, at best, obiter.
The key conclusion is that the Applicant was not at risk because he was not a
Christian, not because he would not attend church.
[20]
The
letters of support tendered to establish the bona fides of the
Applicant’s conversion and practice were devoid of detail. While volunteering
at a church may be an expression of faith, that fact alone does not necessarily
establish bona fide belief. It was open to the Officer in the face of
the CRDD’s conclusion and the paucity of real evidence of adherence and
practice of the Christian faith to conclude that the Applicant had failed to
establish his status as a Christian.
[21]
Given
the reasonableness of the Officer’s finding about Christian conversion, the
Officer’s conclusion of the absence of risk is likewise reasonable.
IV. CONCLUSION
[22]
For
these reasons, this judicial review will be dismissed. There is no question for
certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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