Date:
20080307
Dockets: IMM-2922-07
IMM
2923-07
Citation: 2008 FC 324
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
BETWEEN
ARASH
ASLANI
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON
J.
[1]
Mr.
Aslani is a citizen of Iran. He arrived in Montréal in November 2004 and
claimed refugee status. Because his identity was in doubt, he was detained by
immigration authorities and was the subject of many detention review hearings
over three months. This is complicated by the fact that he presented two
different versions of his reasons for why he came to Canada.
[2]
Canadians
would have to be truly naive to believe the story Mr. Aslani told in two
components.
[3]
If
we were to believe Mr. Aslani's story, we would have to accept that he
a. was accused of having
committed an act of treason against the State of Iran and was sentenced to
death on June 28, 2003, by a military tribunal.
b. succeeded in escaping
with the help of his father who allegedly bribed the judge.
c. returned to work as an
associate in a computer company, instead of immediately hiding after he escaped
from prison. And in the following days, Mr. Aslani and his co-worker Mr. Kashani
were questioned by AMAKEN officers, a State-run control office, regarding a
fraud. Mr. Aslani was detained, interrogated and tortured for at least a week.
d. he was released and
then left Iran on July 19, 2003.
[4]
The
story in his first Personal Information Form (PIF) focuses mainly on the claim
he was persecuted because of his employment. Mr. Aslani neglected to mention
that he had been sentenced to death by the military tribunal. According to this
version of the story, he only left Iran in October 2004. However, he was uncovered
by the Canadian authorities who confronted him with the fact he had very likely
left Iran in July 2003, and stayed in Europe for a long time before coming to
Canada. As a result, Mr. Aslani filed a new PIF in which he explained that he
had lied further to advice from his counsel or the interpreter, to hide the
fact he had claimed refugee status in Holland in 2004 and was denied, then
travelled to the United Kingdom, Germany, France and Turkey.
[5]
He
never recanted his first story, but the important facts in it are not included
in his second FIP. He is now attempting to combine the two stories to create a
single narrative, perhaps relying on his claims regarding the problems with his
job, but not mentioning anything related to the conviction sentencing him to
death.
[6]
Mr.
Aslani asks this Court for a judicial review of the two negative decisions,
namely the pre-removal risk assessment (PRRA) decision, docket IMM-2922-07, and
a decision on humanitarian and compassionate grounds (H&C), docket
IMM-2923-07. To make a decision in these cases, the Court had to become
familiar with Mr. Aslani's convoluted story.
[7]
Considered
a flight risk upon his arrival in Canada in November 2004, Mr. Aslani was
detained for many months. The transcript of the revision hearing of his
detention conditions shows that he has at least four identities, he does not
distinguish between fact and fiction, and he lied to his lawyer and to the
authorities.
[8]
In
a decision rendered in June 2005, the Refugee Protection Division (RPD) denied
Mr. Aslani's refugee claim. The RPD ruled on the risks Mr. Aslani raised
based on the requirements of sections 96 and 97 of the Immigration and
Refugee Protection Act (IRPA), and found that he was not a Convention
refugee or a person in need of protection. The RPD also found that
Mr. Aslani's credibility was seriously compromised based on the many
contradictions in his various narratives, his inability to explain them or to
produce evidence in support of his claims.
[9]
The
application for judicial review of this decision was dismissed by Mr. Justice
Simon Noël (Aslani v. Canada (Minister of Citizenship and Immigration),
2006 FC 351, [2006] F.C.J. No. 422). He stated that the RPD did not err in fact
or in law when it rendered its decision. Mr. Justice Noël even considered
the applicant's claim that the RPD ignored certain elements of evidence,
specifically Mr. Kashani's affidavit. He decided that this argument could not
be valid because the RPD is presumed to have taken into consideration all the
evidence before it, unless there is proof of the contrary. Moreover, he stated
that according to the transcript of the hearing, Mr. Kashani's situation
and his connections to the applicant were discussed during the hearing (see para.
41 of his decision).
[10]
Then,
Mr. Aslani asked for a PRRA and permission to submit an application for
permanent residence while in Canada, based on humanitarian and compassionate
grounds, instead of following the usual rule by which the application is filed
outside Canada. The two applications were filed, assessed, and dismissed based
on the written reasons stating the justification for each of the negative
decisions. Mr. Aslani asks this Court for a judicial review of the two
decisions.
[11]
Until yesterday, the standard of review that applied to questions
of fact was patent unreasonableness; the standard that applied to questions of
mixed fact and law was reasonableness; and the standard that applied to
questions of law was correctness. See for example Kim v. Canada (Minister of
Citizenship and Immigration), 2005 FC 437, [2005] F.C.J. No. 540. The
standard that applied when a PRRA decision was under review in its entirety was
reasonableness (Figurado v. Canada (Solicitor General),
2005 FC 347, [2005] 4 F.C.R. 387). The case law has established that the
standard of review applicable to H&C applications is reasonableness (Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817).
[12]
But, in light of Dunsmuir v. New Brunswick, 2008 SCC 9, in
which the Supreme Court of Canada just abolished the patent unreasonableness
standard, everything must be reviewed again. After a more thorough analysis, I
cannot find anything unreasonable about the two decisions the officer rendered,
for the PRRA or the H&C claim.
[13]
For
the PRRA (docket IMM-2922-07), Mr. Aslani restated the same facts and fears as
those previously reviewed by the RPD. We must note that he also filed Mr. Kashani's
affidavit and he claims the officer in charge of the PRRA did not consider it.
According to the reasons in the PRRA decision, the officer found that the
content of the affidavit had already been submitted to the RPD and was
therefore not considered "new evidence". According to the officer,
although the affidavit had a new date, the overall content had already been
considered by the RPD.
[14]
The
PRRA program was implemented to allow eligible persons to claim protection from
Canada because of new risks to which they might be exposed upon returning to
their country of nationality. However, it must be noted that even if the PRRA
takes the RPD decision into consideration, the PRRA officer is not bound by the
findings in that decision and must not revise it. Under section 113, of the
IRPA, the officer must consider only "new evidence" that arose after
the rejection of the refugee protection claim and that was not reasonably
available or could not have been reasonably expected to be presented to the
Board (Kaybaki v. Canada (Solicitor General), 2004 FC 32, [2004]
F.C.J. No. 27). The IRPA limits the acceptable new evidence to review risks to
elements that arose since the RPD decision based on the requirements under
sections 96 and 97. Mr. Aslani's submissions do not meet these criteria.
[15]
I
do not find any reviewable error in the PRRA decision. The applicant is
attempting to present the same arguments as in his application for judicial
review of the negative RPD decision from June 2005. The extent to which the RPD
considered the affidavit, its content and the fact its author could not testify
at the RPD hearing has already been ruled on by this Court (Aslani, supra).
In his reasons, the officer in charge of the PRRA indicates that he took the
affidavit into consideration but found its content was not new evidence.
Moreover, the content of the two affidavits is not relevant to the officer's
findings, because Mr. Kashani's narrative supports Mr. Aslani's story
from his first PIF, before he made amendments and submitted a second PIF to
support his PRRA application. The content was of no assistance but rather
reinforced the contradictions in his story and further undermined his
credibility. There are currently three affidavits by Mr. Kashani in the
file, with few differences except, in particular, a clarification of the date,
which is more of a hindrance to his story since Mr. Kashani allegedly left
Iran before the events described even happened.
[16]
In
Mr. Aslani's application for permanent residence (docket IMM-2923-07), the
officer found that there were no humanitarian considerations that would justify
granting an exemption from the requirement to obtain a permanent resident visa
before coming to Canada. In the present case, I see no reviewable error: the
officer's finding is irrefutable.
[17]
The case law has established that it is the applicant's
responsibility to provide evidence in support of an H&C claim (Owusu v. Canada (Minister of Citizenship and Immigration),
[2004] F.C.J. No. 158, [2004] 2 F.C.J. 635), which Mr. Aslani did not do. He
produced letters to show he had ties to Canada including a job and friends, but
did not submit any evidence or judgment by the military court or arrest warrant
to support his claims that he had been detained or sentenced to death in Iran
or even to justify his fears of returning based on Iranian authorities' looking
for him.
[18]
Although the officer's decision cannot be based purely on
conjecture, he can still consider many factors when assessing an H&C application,
including the manner in which the applicant came to Canada, the extent to which
the humanitarian reasons a person claims are the result of his own actions and
the possibility of employment or presence of family in his country of origin.
[19]
The
officer noted that all of Mr. Aslani's family is in Iran. The fact the officer
then suggested that his family could support him threw things off track. It had
to then be determined whether Mr. Aslani could provide for himself in
Iran, for example, by finding a job. As a fit young man with good training, the
answer is undoubtedly affirmative.
[20]
The
officer consulted many information documents on Iran, for both files, the PRRA
and the H&C claims, including
the UNHCR/ACCORD. In his further memorandum, the applicant claims that the
officer did not make any mention of the document, "Iran: European Country
of Origin Information Network" and the fact the respondent submitted a
copy of it with an additional affidavit constitutes new evidence, which is
prohibited by the rules of this Court. The applicant is incorrect, however. The
document was indeed considered and explicitly mentioned by the officer in his
reasons, in both cases. Moreover, the applicant was the one who first raised
the argument, in his principal memorandum, that this document constituted
extrinsic evidence since it had not been disclosed by the officer and was not
accessible to the public through the Website indicated in the reasons for the
decision. The applicant takes it one step further, supporting this claim with
an affidavit by his counsel's secretary. The respondent proved the contrary,
providing a copy of the document, taken from the Internet, which did not
constitute new evidence.
[21]
From
the above, it is clear that the PRRA officer assessed the risk to which the
applicant would be exposed should he return to Iran thoroughly and in detail. His decision is absolutely consistent
with both the information available on the conditions in Iran even if the
documentation the applicant challenged is not taken into consideration, and with
Mr. Aslani's particular situation, namely his lack of credibility and the
fact he did not provide any evidence to support his claims.
[22]
I
feel it is relevant to quote from Legault
v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358, [2002] F.C.J. No. 457, in
which the Federal Court stated the following at paragraph 19:
In short, the Immigration
Act and the Canadian immigration policy are founded on the idea that
whoever comes to Canada with the intention of settling must be of good faith
and comply to the letter with the requirements both in form and substance of
the Act. Whoever enters Canada illegally contributes to falsifying the
immigration plan and policy and gives himself priority over those who do
respect the requirements of the Act. The Minister, who is responsible for the
application of the policy and the Act, is definitely authorized to refuse the
exception requested by a person who has established the existence of humanitarian
and compassionate grounds, if he believes, for example, that the circumstances
surrounding his entry and stay in Canada discredit him or create a precedent
susceptible of encouraging illegal entry in Canada. In this sense, the Minister
is at liberty to take into consideration the fact that the humanitarian and
compassionate grounds that a person claims are the result of his own actions.
[23]
Mr. Aslani will have until Tuesday, March 18, 2008, to propose any
serious questions of general importance to be certified. The Minister shall
have until Tuesday, March 25, 2008, to reply.
"Sean Harrington"
Ottawa,
Ontario
March
7, 2008
Certified true
translation
Elizabeth Tan,
translator
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