Docket: IMM-1420-14
Citation:
2014 FC 1038
Ottawa, Ontario, November 4, 2014
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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ROYA BEHROOZNIA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA]. The applicant challenges the decision of a Senior
Immigration Officer (Officer) rejecting her Pre-Removal Risk Assessment (PRRA)
application.
[2]
For the reasons that follow, the application is
granted.
II.
Facts
[3]
The applicant, Ms. Behrooznia, is a 46 year old
Kurdish woman born in Iran. In 2008, she left Iran for Cyprus, where she
applied unsuccessfully for refugee protection. In May 2011, she travelled to
Norway to visit her two adult sons, who live there without status. She did not
make a refugee claim in Norway.
[4]
On 30 July 2011, Ms. Behrooznia arrived in
Canada with fraudulent travel documents. She immediately applied for refuge,
alleging that she had suffered persecution due to her political involvement in
Iran, the political history of her family, her gender, and her Kurdish
ethnicity. On 24 April 2012, the Refugee Protection Division of the Immigration
and Refugee Board (Board) rejected her claim. Leave to obtain judicial review
of that decision was subsequently denied.
[5]
The applicant submitted a completed PRRA
application to the respondent on 5 June 2013. She claimed that she would be
persecuted if returned to Iran because of her religion (Christianity), her
gender, her status as a failed asylum seeker without proper travel documents,
her status as a woman who had committed adultery, and her continuing political
involvement. An Officer rejected Ms. Behrooznia’s application on 22 January
2014 but she was not immediately informed of that decision.
[6]
The applicant’s lawyer sent the respondent an
e-mail with additional evidence in support of the PRRA application on 5
February 2014. This evidence consisted in the following: (1) an affidavit sworn
by the applicant, (2) a copy of the applicant’s baptismal certificate (she was
baptised on 25 January 2014), (3) a letter from the applicant’s pastor, (4) an
affidavit sworn by a volunteer translating a speech the applicant had made at a
political protest on 18 October 2013, and (5) photographs of the applicant’s
baptism and participation in the abovementioned protest. The next day, Ms.
Behrooznia received a letter from the respondent informing her that a decision
had already been reached. Later that day, her lawyer sent hard copies of the
supplemental evidence to the respondent’s Vancouver office by courier, along
with one more submission: a CD recording of Ms. Behrooznia’s speech at the
protest.
[7]
The respondent received this material at its
Vancouver office on 7 February 2014. That same day, the Officer responsible for
the applicant’s file, who was located in Toronto, reviewed the submissions sent
by e-mail – but not those sent by courier. He upheld the negative decision, to
which he joined an addendum. The respondent communicated the decision to the
applicant on 20 February 2014.
[8]
The Officer found that Ms. Behrooznia, if
returned to Iran, would not face risks or dangers that meet the requirements of
sections 96 and 97 of the IRPA. He took notice of the applicant’s past
claim for refugee protection, which the Board had rejected due to negative
findings of credibility. He then stated that the applicant had not rebutted any
of the Board’s findings but rather submitted “entirely
different risk elements” for his consideration.
[9]
The Officer concluded that the applicant’s
Christian religion did not amount to new evidence under paragraph 113(a) of the
IRPA, and so he did not examine whether it grounded a reasonable fear of
persecution. The Officer found that the alleged fear of persecution on the
basis of gender did not establish a forward-looking risk, as there was
insufficient evidence that the applicant’s former boyfriend had travelled to
Iran or would be interested in doing so to harm her. Similarly, the Officer
found that there was insufficient evidence that her relationship with a married
man in Canada would become known in Iran or, if known, would meet the standard
of proof required for an adultery conviction.
[10]
An alleged risk founded on the applicant’s lack
of travel documents was discounted, as it was known to the applicant at the
time of her refugee hearing and there was no evidence that she could not apply
for or obtain an Iranian travel document. The applicant’s concern about
returning to Iran as a failed refugee claimant should have been disclosed to
the Board, as she was already a failed asylum seeker from Cyprus at the time of
her hearing. The evidence of her involvement in political events in Canada,
which post-dated the refugee determination, was found to be not substantially
different from the evidence that was before the Board.
[11]
After reviewing the evidence sent by e-mail on 5
February 2014, the Officer determined that it repeated the same information
provided in the original PRRA application. Although the video of the
applicant’s participation in a political protest at the Iranian Plaza in
Toronto was not before him, the Officer determined that even if it were, its
content would not amount to a written submission within the meaning of section
161 of the Immigration and Refugee Protection Regulations, SOR/2002-227.
Further, he was not provided “a written translation of
said CD video by an official accredited interpreter”.
III.
Analysis
[12]
The applicant has raised a number of issues,
including whether the Officer breached procedural fairness by not reviewing the
submissions sent by courier to Vancouver and by failing to conduct an oral
hearing. Based on my review of the evidence and the submissions, I would not
interfere with the Officer’s decision on those grounds.
[13]
The duty of fairness requires a PRRA Officer to
consider evidence received prior to his decision, not evidence that the
applicant tells him will arrive sometime later. In this instance the Officer
took note of the existence of the material sent by courier, on the basis of the
e-mail statements made by the applicant’s lawyer. He explained that it would
not have had an effect on his decision even if it had been before him. It was
also open to the Officer to decline to assess the video, as it was not
accompanied by a written translation prepared by an accredited interpreter.
Further, it was reasonable for the Officer to give no probative weight to the
photocopies of photographs, as they were “blurred and not
legible” and did not indicate the time, place and circumstances under
which they were taken.
[14]
The Officer did not rely on negative findings of
credibility. Rather he found that the applicant’s evidence did not substantiate
fear as required by sections 96 and 97 of the IRPA. The issue for the
Officer was the probative value of the evidence submitted, not its credibility.
Accepting the evidence as true, it was not sufficient in the Officer’s
estimation to justify allowing the application. Therefore, it was not necessary
for the Officer to conduct an oral hearing, as requested, as it would have
merely provided the applicant an opportunity to address the credibility of her
evidence that, in the Officer’s view, was incapable of justifying her
application: Cosgun v Canada (Citizenship and Immigration), 2010 FC 400
at paras 31-41.
[15]
I am not persuaded that the Officer erred in
excluding evidence pertaining to the applicant’s practice of religion. In most
cases involving paragraph 113(a) of the IRPA, the applicant seeks to add
evidence corroborating a risk allegation that he raised previously. Here, the
applicant altogether omitted to mention her Christian faith in her application
for refuge. The Officer did not conclude that her submissions about religion
were not new because they were similar to what she had already presented.
Rather, he did so because they referred to personal circumstances which
pre-dated the hearing.
[16]
As Justice de Montigny has written, “the case law insisted that new evidence relate to new
developments, either in country conditions or in the applicant’s personal
situation”: Elezi v Canada (Citizenship and Immigration), 2007 FC
240 at para 27. In this instance, the applicant’s baptism did not prove
something that is “materially different” or “significantly different” from her practice of
Christianity, which she should have divulged to the Board: Raza v Canada
(Citizenship and Immigration), 2006 FC 1385 at para 22; aff’d 2007 FCA 385
at para 17.
[17]
In my view, it was reasonable for the Officer to
dismiss the applicant’s explanation for not telling the Board that she
practised Christianity – that she did not trust her lawyer and could not hire
one who was trustworthy. The Officer pointed to the applicant’s subjective
circumstances as a well-educated and well-travelled woman. He determined that a
reasonable person would have expected her to find a suitable lawyer and present
evidence of her religion to the Board. This was not a finding “based on speculation and on a misunderstanding of the evidence”
and deserves deference: Martinez Giron v Canada (Citizenship and
Immigration), 2013 FC 7 at para 24; see also Aguebor v Canada (Minister
of Employment and Immigration), [1993] FCJ No 732.
[18]
I am satisfied, however, that it was
unreasonable for the Officer to conclude that some of the evidence of political
involvement was not new. He limited his analysis to the photographic evidence
and Ms. Bajestani’s affidavit. The Officer did not adequately consider other
evidence submitted in support of the applicant’s sur place claim, in
particular, the affidavit of Mr. Mossallanejad. The Officer concluded that this
was not new evidence because “nothing contained in this
statement is substantially different than the information that was before the
Board” and “this report does not contain new substantive
information”. He made no findings of credibility with respect to this
evidence, nor did he consider whether to accord it any weight.
[19]
The Officer erred by conflating the appellant’s
political activities outside and within Canada. In 2012, the Board rejected
evidence pertaining to her alleged involvement with the “One Million Signatures
Campaign” in Iran and the PKK group in Cyprus. Mr. Mossallanejad’s affidavit
speaks to her attendance at public meetings and book launches in Canada. Ms.
Behrooznia’s affidavit states that she has attended numerous events hosted by
an organisation known as the “Iranian Green Seculars” since arriving in Canada.
This information appears materially and substantially different from that
considered by the Board.
[20]
Moreover, it is not patently clear that the
applicant’s political involvement in Canada began before her Board hearing,
which would have required her to reveal it to the Board. This Court has
accepted that evidence of political activity grounding a “sur
place claim constitutes new evidence as to the applicant’s fear of
persecution”: Mane v Canada (Citizenship and Immigration), 2007
FC 1000 at para 8.
[21]
Given recent events, in particular the
deterioration of relations between Canada and Iran which escalated following the
Board hearing, it is also difficult to understand why the Officer believed that
the evidence pertaining to the applicant’s failed refugee claim specifically
from Canada is not materially different from the evidence respecting the
failure of her claim in Cyprus, which she could have presented to the Board:
see for example Bastamie v Canada (Minister of Citizenship and Immigration),
2014 FC 251, where Justice Roy addressed the risk of a return to Iran following
the denial of a claim for refugee protection in Canada.
[22]
In the result, therefore, I find that the
Officer’s decision is not reasonable. It does not fall within the range of
possible, acceptable outcomes defensible in respect of the facts and the law: Dunsmuir
v New Brunswick, 2008 SCC 9, at para 47.
[23]
The applicant proposed that I certify the
following question:
Where a PRRA applicant raises risks that were
not before the RPD does all evidence about those risks constitute new evidence?
[24]
The respondent opposed certification of this
question as the law is clear on the matter. I agree.
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