Date: 20080730
Dockets: IMM-5284-07
IMM-5285-07
Citation: 2008 FC 913
Montréal,
Quebec, July 30, 2008
PRESENT:
The Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
NAVID
SHAHNAZARY SANI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The applicant
filed an application for judicial review against two decisions of a pre‑removal
risk assessment officer (PRRA officer) refusing his application for permanent
residence based on humanitarian and compassionate considerations (HC
application), and also refusing his pre-removal risk assessment application (PRRA
application). Relying on the same facts and joined for the purposes of the
hearing, both applications will be the subject of a single judgment.
[2]
While the PRRA
application in docket IMM-5285-07 contemplates the Minister of Public Safety and
Emergency Preparedness, the Minister of Citizenship and Immigration (the
Minister) should have been named as the only respondent, since the PRRA Unit is
under its jurisdiction.
I. The facts
[3]
The
applicant, a citizen of Iran, left Tehran on July 19, 2001, and
finally arrived in Canada 52 days later after a long and sinuous journey
that raised some questions, claiming refugee protection the same day on the
basis of persecution on religious
and political grounds.
He has lived in Montréal ever since.
[4]
At the
point of entry, he did not indicate on his questionnaire that his fear of
persecution was based on an issue of religion or conversion to Christianity, but
rather that it resulted from a friendship with two Iranian writers who had been
executed for their writings against the Iranian government; he had not personally
contributed to these articles, and he later testified that it was only rumoured
that his friends had died.
[5]
However,
his refugee claim was based only on certain perceived political opinions and
his religion. He contended that his visits to two friends who had converted to
Christianity and his own intention to convert to Christianity made him a target
of the Iranian government.
[6]
On
December 2, 2001, the applicant was baptized as a Christian at the Église
évangélique persane of Montréal, then a second time at Westview Bible Church, on
March 14, 2004. The applicant and his wife, who had remained in Iran,
divorced on July 20, 2005.
[7]
After
noting several other inconsistencies and implausibilities in the applicant’s
story regarding the alleged fear as well as the itinerary of his journey from Iran
to Canada, the Refugee Protection
Division (RPD) determined that his story was not credible and dismissed
his refugee claim. On July 11, 2003, this Court dismissed the
application for leave and for judicial review filed by the applicant against
this decision of the RPD.
[8]
On
May 25, 2004, the applicant filed in docket IMM‑5284‑07 an
application based on humanitarian and compassionate considerations (HC
application), attempting to obtain an exemption from the obligation to file his
visa application from outside Canada.
[9]
In his HC
application, he alleged that he feared the Iranian authorities based on his conversion
to Christianity and his religious activities in Canada. In support of his establishment, he submitted
that he has been in Canada since 2001 and that he is financially independent, and
also that he has established ties with religious communities in Canada.
[10]
Thirty-two
months later, i.e. on February 28, 2007, the applicant filed a pre‑removal
risk assessment application (PRRA) in docket IMM‑5285‑07.
[11]
This PRRA
application relied on the story contained in the Personal Information Form
(PIF) filed with the RPD, as well as the fact that the Iranian authorities were
still looking for him, that his wife wanted a divorce following the visit of
the authorities who came to question her about the applicant, as well as the
fact that he had been baptized twice in Canada and was involved in religious
activities in different churches.
[12]
However,
the applicant did not submit before the PRRA officer that he would be at risk
if he were to return to Iran as a “refugee sur place” because
of his conversion to Christianity and his religious activities in Canada, independently of his former
activities in his native country. To the contrary, in his PRRA application, the
applicant’s risk of return was still based on the one submitted to the RPD.
[13]
Both
applications (HC and PRRA) were heard and refused by the same PRRA officer on
October 24, 2007, and are contemplated by this judicial review
proceeding. The grounds for both decisions are identical, except for additional
particulars with respect to the humanitarian considerations. The PRRA officer justified
this overlap with the HC decision based on the fact that several pieces of
evidence and risk factors submitted in support of the PRRA application were also
relevant to the HC application and vice versa.
II. The impugned decisions
[14]
After
examining the humanitarian considerations, including the degree of the
applicant’s establishment in Canada, his membership in the Christian religion
and his religious community, the PRRA officer determined that these factors did
not indicate how the applicant would face undue hardship if he were to return
to Iran and that the applicant could very well find himself employment in Iran while
counting on the support of the family left behind there. Further, unless he
believed that the applicant had converted to Christianity, the PRRA officer did
not see how or why he would be at risk of reprisals for apostasy if he were to
return to Iran.
[15]
After
considering the risks and the humanitarian and compassionate considerations
raised by the applicant in support of his HC application, the PRRA officer determined
that the applicant would not face any excessive, unwarranted or unusual
hardship if he had to file a visa application with an embassy outside of Canada.
[16]
The PRRA
officer dismissed the applicant’s PRRA application for the same reasons as
those raised in the HC decision, except for those involving the humanitarian
and compassionate considerations. He determined that the risks set out under
sections 96 and 97 of the Act did not apply to the applicant’s case and
that the applicant would not be subject
to a risk of persecution,
torture or cruel and unusual treatment or punishment, or a risk to life if he were to return to Iran.
III. Law applicable to HC
applications
[17]
Persons
seeking to immigrate to Canada must file their applications for permanent
residence before entering Canada, therefore from outside Canada (subsection 11(1) of the
Immigration and Refugee Protection Act (the Act)).
[18]
Subsection
25(1) of the Act provides that, exceptionally (Serda v. Canada (Minister
of Citizenship and Immigration), 2006 FC 356, at paragraph 20),
the Minister has the discretion to facilitate a person’s entry into Canada, or
to grant an exemption from any applicable criteria or obligation of the Act if
the Minister is of the opinion that it is justified by humanitarian and
compassionate considerations (HC).
IV. Standard of review
[19]
There are only two standards of review, i.e. the
standards of correctness and of reasonableness (Dunsmuir v. New Brunswick,
2008 SCC 9). The standard of correctness still applies to jurisdictional
issues and to certain other questions of law.
[20]
In the context of a judicial
review, the assessment “is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process.” Further, it must be determined whether the decision falls within
“a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir,
supra, at paragraph 47).
V. Issues
[21]
This
proceeding raises the following issues:
1.
Did the PRRA
officer make an unreasonable error in refusing the HC application and the PRRA application?
2.
Did the PRRA
officer err in failing to consider the applicant as a “refugee sur place”?
VI. Analysis
[22]
The respondent
has the burden of establishing the unreasonableness of the HC decision. He does
not agree with the PRRA officer’s analysis and the determinations made in
regard to his “establishment.” Unfortunately for him, the Court does not see
how the PRRA officer erred in this case. To the contrary, the PRRA officer
appears to have properly assessed in his decision all of the relevant evidence.
Even though the applicant alleges that the officer erred in counting his wife
as a member of his family, the fact remains that the PRRA officer was entitled
to disbelieve the applicant regarding his divorce for the reasons given.
[23]
The PRRA
officer could refer to the RPD decision regarding the applicant’s lack of credibility
and regarding the fact that there was no credible evidence supporting his
refugee claim. The officer could also verify whether the facts raised by the applicant
in support of his HC application and regarding the allegations of risk took
place before or after the RPD decision.
[24]
The PRRA
officer observed that the risks submitted by the applicant in his HC and PRRA applications
were the same in his refugee claim before the RPD. Given that the RPD had
determined that the applicant lacked credibility, the PRRA officer determined that
the applicant also lacked credibility in regard to the period preceding the RPD’s
decision dated March 21, 2003, and in regard to the evidence filed
during that period, i.e. involving the allegations of threats or unusual treatment
suffered in Iran based on political opinion or religious beliefs.
[25]
The PRRA
officer also examined the applicant’s credibility after the RPD’s decision in
light of a final arrest warrant issued against him on October 16, 2006,
and determined that this warrant was inconsistent with the documentary evidence
to the effect that arrest warrants in Iran are issued only by judges. In fact,
the applicant had initially stated that he thought this warrant had been signed
by a clerk at the chief prosecutor’s office, which is inconsistent with the
documentary evidence on Iran. Further, the document
contains an inconsistency in that, on the one hand, it gives the applicant a final
chance to report to the police to discuss his religious conversion and, on the
other hand, orders the applicant’s arrest. According to the PRRA officer, it
was implausible that a warrant would give the applicant a final chance to
explain himself and at the same time order his arrest. For this reason, the PRRA
officer did not assign any probative value to this document.
[26]
The PRRA
officer also determined that the applicant’s credibility had been undermined by
the implausibility that the Iranian authorities would have waited until 2006 to
issue the final warrant, when an arrest warrant had allegedly been in effect
since 2001.
[27]
Based on
the lack of credibility assigned to the applicant, the PRRA officer also did
not believe him when he stated that his wife had asked for the divorce because
the Iranian authorities were questioning her and had suggested that they would
arrest the applicant for apostasy. Note that the divorce certificate, issued after
the applicant’s two baptisms in Canada,
indicates that the applicant’s religion is Islam and not Christian. We may then
question what reasons the Iranian authorities would have to arrest the applicant
for apostasy and how they could have been aware of the applicant’s religious
activities after he arrived in Canada.
[28]
Based on
the applicant’s total lack of credibility, the PRRA officer determined in regard
to the applicant’s religious conversion that there was insufficient probative
evidence in the record to establish the sincerity and permanence of his
conversion for a purpose other than his desire to remain in Canada.
[29]
Finally, the
PRRA officer examined the conditions of religious converts in Iran, specifically
the risks for apostates, and while acknowledging that the situation in Iran is dangerous for those who renounce
Islam, he found that the applicant was nevertheless not likely to be directly
affected, especially because he did not believe that the applicant had
converted to Christianity.
[30]
The PRRA
officer refused the applicant’s PRRA application (IMM‑5285‑07) on
the same grounds as those set out in the HC decision, except in regard to the
humanitarian and compassionate considerations. He determined that the
circumstances set out in sections 96 and 97 of the IRPA do not apply in
that the applicant would not be subject
to a risk of persecution,
torture or cruel and unusual treatment or punishment or a risk to life if he were to return to Iran.
[31]
The applicant
insisted on the fact that the PRRA officer applied an erroneous test in finding
that he did not believe the conversion was sincere, to the point that the
applicant could again embrace Islam were he to return to Iran. The applicant argued that the test is
not that of the sincerity of the conversion, but rather whether the conversion was
a risk in the country of origin.
[32]
Do not
forget, however, that the application for leave and for judicial review of the RPD’s
decision was dismissed by this Court, which did not find it suitable to
intervene. Therefore, the RPD’s finding stands in regard to the applicant’s
lack of credibility on the facts pre-dating its decision. Accordingly, the PRRA
officer had grounds to doubt the sincerity of the applicant’s conversion, as
the RPD had before it, and to find that the applicant could very well return to
Islam when he returned to Iran, thereby avoiding being considered
as an apostate.
[33]
After
analyzing the evidence in the record, the Court must find that the PRRA officer
could reasonably refuse both the HC and the PRRA applications by taking into account
the applicant’s total lack of credibility noted by the RPD and by relying on
its own analysis of the new evidence submitted by the applicant in support of
the PRRA application.
[34]
A PRRA
application is still an exceptional measure that should not be allowed
unless there is new evidence that was not available at the time of the RPD’s
decision and then only insofar as this new evidence establishes a risk
for the applicant if he were to return to his country of origin.
[35]
The fact
that the applicant left his country without any trouble would entitle the PRRA
officer, like the RPD, to doubt the applicant’s allegations that he fears the
Iranian authorities (Singh v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 1272, paragraph 25).
VII. Did the PRRA officer err
in refusing the applicant’s HC and PRRA applications?
[36]
HC and PRRA
applications have different objectives. The objective of the HC application is
to determine whether there are humanitarian and compassionate considerations
for an applicant to ask for a permanent residence visa without having to obtain
it from outside Canada. The PRRA application,
however, can be used by claimants to file any new evidence regarding the risks
of returning to the country of origin which may have arisen in the time between
the decision dismissing their refugee claim and their deportation from Canada. Both applications have
different requirements.
[37]
The Court
is of the opinion that the PRRA officer did not err in refusing the HC
application. The considerations advanced by the applicant are not sufficient to
exempt him from filing his permanent visa application from outside Canada. Even if we were to assume
that his conversion was sincere, the degree of his establishment in Canada as
well as his ties with the Canadian Christian community are not sufficient to
establish that his return to Iran would cause him undue hardship, all the more
so because all of the applicant’s family, with the exception of one brother,
still resides in Iran.
[38]
The
analysis of the PRRA decision is more complex, since it is settled law that in Iran an apostate is likely to be punished by
death. The issue then becomes whether the applicant did indeed convert to
Christianity or whether it was a conversion that was done with the intention to
remain in Canada. It is therefore a question
of fact requiring a high degree of deference with regard to the PRRA officer’s
decision, particularly because it is not clear from the evidence whether this
conversion took place after rather than before the RPD’s decision, which the applicant
had to establish.
[39]
The applicant
argued that his credibility was not questioned by the RPD in terms of the
sincerity of his conversion, but rather in regard to the alleged events in Iran which prompted his departure from Iran
to Canada. Therefore, according to him,
the PRRA officer could not simply state that the conversion was one of the
factors that the RPD deemed lacking in credibility. A careful review of the RPD
decision does indicate in fact that the panel did not directly focus on the
applicant’s conversion and properly so, since – and it bears repeating – this
was not the ground that he had initially raised in his refugee claim. The RPD nevertheless
determined that the applicant lacked credibility up to the date of the decision
on March 21, 2003, which would include the time of the applicant’s
first baptism in December 2001.
[40]
At the
hearing of the PRRA application, the PRRA officer questioned the applicant specifically
regarding the divorce certificate dated July 20, 2005, the arrest
warrant dated October 16, 2006, and any other fact that occurred
after the RPD’s negative finding on March 21, 2003. Contrary to the applicant’s
claims, it does not appear that the PRRA officer erred in finding that the new
evidence submitted by the applicant did not show that he would be at risk in Iran.
[41]
The RPD’s
finding that the applicant lacked credibility also affects the sincerity and integrity
of the applicant’s conversion. In fact, the applicant’s first baptism was in December 2001,
therefore prior to the RPD’s decision of March 2003. The RPD’s finding to
the effect that the applicant’s story as a whole was not credible taints the
sincerity of the conversion that took place in 2001.
[42]
For these
reasons, the Court determines that the PRRA officer did not err in finding that
the applicant had not offered evidence of any new fact which would place him at
risk if he were to return to Iran.
VIII. Did the PRRA err in failing to consider the applicant
as a “refugee sur place”?
[43]
As for the
argument raised by the applicant that the PRRA officer failed to consider the
possibility that he could be considered as a refugee sur place, case law from
this Court states that the panel is not bound to examine the notion of “refugee
sur place” when, as in this case, the applicant’s story is deemed to lack
credibility (Barry v. Canada (Minister of Citizenship and Immigration),
2002 FCT 203, paragraph 9; Ghribi v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1191, paragraph 28).
[44]
It is not
denied that the applicant never raised the ground of refugee sur place before
the PRRA officer. His PRRA application clearly indicates that indeed he never
alleged that he would be at risk if he were to return to Iran as a refugee sur place based on his
religious conversion and/or his religious activities in Canada, independently of the
activities in his native country on which he founded his original application
for protection before the RPD. In his PRRA application, the applicant’s
allegation about his return was the same, as stated above, as the one submitted
before the RPD.
[45]
The applicant
was wrong to condemn the PRRA officer for not deciding a ground that was not
alleged (Pierre-Louis v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 420 (F.C.A.) (QL); Guajardo-Espinoza
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 797 (F.C.A.) (QL)). Once again, the applicant
not only should have alleged that he was a “refugee sur place,” but also should
have filed evidence supporting a finding by the PRRA officer that he should be
considered as a “refugee sur place,” which he did not do.
[46]
In this
case not only did the PRRA officer not believe that he had converted, but also
there was no evidence filed before him establishing that the applicant’s
conversion to Christianity or his involvement in religious activities in Canada
were in themselves sufficient to place him at risk in Iran; he also failed to
allege or establish that his conversion or his religious activities in Canada
had been or would be brought to the attention of the Iranian authorities.
[47]
The only
general documentary evidence on the situation of Christians in Iran, which has
no connection with the applicant in Canada, could not oblige the PRRA officer to
proceed with a more in-depth review of the issue of “refugee sur place,” which the
applicant never alleged before the PRRA officer and which he alleged for the
first time in this proceeding.
[48]
The applicant
may perhaps criticize the PRRA officer for disbelieving his story or the alleged
risk, but it would be difficult for him to criticize the PRRA officer’s failure
to read his mind. The applicant had to file credible evidence of his claims,
which he was unable to do.
[49]
For all of
these reasons, the Court does not find any error in either of the decisions (HC
and PRRA) which could justify its intervention. These are reasonable decisions
which are within the acceptable possible outcomes and may be justified in regard
to the facts and the law, to which deference must be given.
IX. Question for
certification
[50]
The applicant
proposed the following question for certification:
For the application of
section 97 of the IRPA, in the context of a pre-removal risk assessment, does
the PRRA officer have the obligation to decide the concept or the issue of “refugee
sur place”?
[51]
“[A]n appeal to the Federal Court of Appeal may be
made only if, in rendering judgment, the judge certifies that a serious
question of general importance is involved and states the question” (paragraph 74(d)
of the Act).
[52]
However,
for the Court to agree to certify a question, it is not sufficient to allege
that this question has never been decided; the proposed question must also
be “determinative of the
appeal . . . [and that the
certification is not to be used] as a tool to obtain from the Court of Appeal
declaratory judgments on fine questions which need not be decided in order to
dispose of a particular case” [Emphasis added] (Liyanagamage v. Canada (Minister
of Citizenship and Immigration), [1994] F.C.J. No. 1637 (F.C.A.)
(QL), at paragraph 4).
[53]
The
question for certification cannot be determinative of the appeal as the
question was never submitted to the PRRA officer, just as the applicant never offered
him evidence that could have justified verifying whether the applicant could be
considered a “refugee sur place”.
[54]
For all of
these reasons, the Court would refuse to certify the proposed question.
JUDGMENT
FOR THESE REASONS, THE COURT dismisses the application for judicial
review filed in dockets IMM‑5284‑07 and IMM‑5285‑07
and refuses to certify the question proposed by the applicant.
“Maurice
E. Lagacé”
Certified
true translation
Kelley
Harvey, BCL, LLB
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