Date: 20081105
Docket: IMM-848-08
Citation: 2008 FC 1235
Ottawa, Ontario, November 5,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ALI
FARROKHI TAMEH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is a judicial review of a refusal for permanent residence on humanitarian and
compassionate (H&C) grounds. The Officer determining the H&C
application was also the officer responsible for the pre-removal risk assessment
(PRRA).
II. FACTS
[2]
The
Applicant, a citizen of Iran, arrived in Canada in 2001 and
was denied his refugee claim in 2002.
[3]
In
November 2001, the Applicant was baptized into the Mormon Church and in January
2003, began to attend an Anglican Church.
[4]
In
2004, the Applicant submitted both an H&C application and a PRRA
application. While those applications were pending, he was convicted of a Criminal
Code offence of uttering a forged document and received a conditional
discharge.
[5]
Following
the Officer’s request for updated H&C material, the Applicant provided
further submissions in June of 2007 at which time he disclosed his intent to
marry. In fact, the Applicant did marry on July 21, 2007, but evidence of that
marriage was never forwarded to the Officer. This information was allegedly provided
to his counsel and his counsel failed to forward the information on. A
complaint to the Law Society has been filed.
[6]
In
the Officer’s decision, she reviewed all the grounds of the H&C, including
family and personal relationships in Canada and Iran, the degree of
establishment in Canada, whether the decision would impact the best interests
of his wife’s child, and finally the hardship and risks the Applicant would
face upon returning to Iran.
[7]
In
particular, the Officer reviewed the issue of persecution of Christians in Iran, the failure
of the Applicant at the refugee hearing to adduce evidence of his conversion,
and the Applicant’s stated preference of keeping his religious conversion
private.
[8]
The
Officer also considered evidence of the Applicant’s participation in a single
protest against the Iranian government and the evidence, as it then existed, in
respect of the intention to marry.
[9]
Based
on all of these considerations, the Officer concluded that the Applicant would
not suffer undue, undeserved, or disproportionate hardship if he was not
granted an exemption from the requirements under the Immigration and Refugee
Protection Act.
III. ANALYSIS
[10]
I
concur with the Respondent that the principal issue in this case is whether the
Officer, in assessing both the H&C and PRRA, committed an error by applying
the wrong test or alternatively, conflating the tests of an H&C and PRRA.
(See Youkhanna v. Canada (Minister of
Citizenship and Immigration), 2008 FC 187)
[11]
The
standard of review applicable to an H&C decision had been established
previously in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817. As indicated in Dunsmuir
v. New
Brunswick,
2008 SCC 9 at paragraph 62, the Court must take the standard of review
established in earlier cases where that analysis is satisfactory. Since the
standard established under Baker is consistent with the conclusion in Dunsmuir
that the standard of review is reasonableness, nothing more need be said on
this issue.
[12]
The
basis upon which the Applicant contends that the Officer applied the wrong law
in considering the H&C application or otherwise conflated the tests of an
H&C and a PRRA is the following:
I do not find that the applicant is at a personalised
risk in Iran such that would make the
hardship of his return there to obtain a permanent resident visa unusual and
undeserved or disproportionate.
[Emphasis added by the Court]
[13]
The
Court has on several occasions expressed concern for the administrative
practice of having the same officer conduct an H&C and a PRRA where the
element of risk is relevant in both but from very different perspectives. The
potential for an officer to conflate the test or to otherwise mix the
considerations of an H&C with those of a PRRA are painfully obvious. The
Respondent does so at his peril.
[14]
The
above quote is problematic in that it speaks to an issue more relevant to a
PRRA than to an H&C. It invites a submission that the Officer has applied
the wrong test or conflated the test.
[15]
However,
what saves this case from a successful judicial review is that this decision,
when read as a whole, is reasonable. It would be an error to microscopically
examine each word in a decision as it would be a triumph of form over substance
to grant the review on this basis. See, for example, Pannu v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1356 at paragraph 37, which
reads:
I do not think that the reference in the last sentence to the risk
to life of [sic] personal security is proof that the officer applied the
wrong test. First of all, the officer could certainly adopt the factual
conclusions in her PRRA decision to the analysis she was making in the H&C
application (Liyanage v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1293, 2005 FC 1045 at
paragraph 41). Second, it is clear from a contextual reading of this paragraph
that she was coming to the conclusion that the Applicant would not suffer
unusual and undeserving, or disproportionate hardship since there was no objective
evidence of personal risk. Not only did the officer correctly set out the
H&C test at the very beginning of her reasons, but she also concluded her
discussion of the Applicant's allegations of risk and hardship in the following
way:
With the evidence before me, I find that the
applicant has not provided sufficient persuasive evidence to establish that she
faces a personalized risk to her life or a risk to the security of the person
from her ex-husband if returned to India. Similarly, I find that the applicant has not
provided sufficient probative evidence to establish the hardships associated
with returning to India amounts to unusual and undeserved or
disproportionate hardship.
[16]
The
essence of the Officer’s decision in this case is that the Applicant’s “story”
does not make sense. That is a reasonable conclusion. It is also clear from a
reading of the case as a whole that the Officer was aware of the different
elements of risk to be assessed and that the Officer kept in mind, when dealing
with the H&C application, those matters which were germane to that
application.
[17]
Having
concluded that the principal basis for this judicial review cannot succeed, the
Court will deal briefly with the other elements raised by the Applicant for the
purpose of completeness.
[18]
The
Applicant’s submission that he was denied the right to an oral hearing is
likewise not sustainable. The issue before the Officer was not so much that of
credibility as sufficiency of evidence. The Applicant’s reliance on Singh v.
Canada (Minister of
Employment and Immigration), [1985] 1 S.C.R. 177, is misplaced. Justice
Evans outlined in Owusu v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, that there is no legitimate
expectation or requirement for a hearing, except in very limited circumstances,
none of which apply here.
[19]
The
Applicant’s submissions that the Officer ignored or misconstrued evidence are
primarily a request that the Court re-weigh the evidence and substitute its
judgment for that of the Officer. Given my finding that the Officer’s decision
is, on the whole, reasonable, this grounds for judicial review must also be
dismissed.
[20]
The
Court likewise dismisses the contention that the reasons are vague and unclear.
It is trite law that an officer need not refer to each and every piece of
evidence. There is no operating presumption in this case that the absence of
reference to evidence means that the evidence has been ignored. The reasons
given by the Officer adequately explain the basis for her decision and there is
no support for the inference that she failed to consider material evidence
before her.
[21]
Lastly,
the Applicant cannot make out a case that he was denied the right to counsel.
The allegation made is that either the counsel was incompetent or
alternatively, the Applicant was under-represented in this case. This Court, on
the facts before it, is in no position to make that assessment of professional
conduct. There is no indication from the Officer’s decision that but for the
absence of information regarding the marriage, the Applicant would have been
successful. The Applicant has been unable to substantiate that had this
evidence been before the Officer, it would have made a material difference.
IV. CONCLUSION
[22]
For
all these reasons, the application for judicial review will be dismissed. There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review will be dismissed.
“Michael
L. Phelan”
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