Date:
20140314
Docket:
IMM-4100-13
Citation:
2014 FC 251
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
March 14, 2014
PRESENT: The
Honourable Mr. Justice Roy
BETWEEN:
MILAD MOHAJEER
BASTAMIE
Applicant
and
THE MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
AND
MINISTER OF
PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondents
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The Court must dispose of an application for judicial
review of a decision of a pre-removal risk assessment (PRRA) officer. The PRRA
officer issued his decision on April 11, 2013. The application for judicial
review was brought under section 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act).
[2]
The issue raised by the applicant is narrow in scope. He is
a 27-year old Iranian citizen who fled Iran clandestinely in November
2009. It is not necessary to describe the events that led the applicant to make
his way to Canada, where he arrived on December 26, 2009. Suffice it to say
that his claim for refugee protection by reason of his political involvement in
Iran was denied by the Refugee Protection Division (RPD). That decision was
subject to a judicial review that was also unsuccessful.
[3]
Essentially, the RPD determined the applicant’s claim on
the basis of his credibility. It established right away in its decision that
the crucial issue was whether he was credible and then set about demonstrating
that he lacked sufficient credibility to warrant a favourable decision. This
Court takes no issue with that decision.
[4]
A second issue arose when, after the hearing before the RPD,
the applicant submitted an article claiming that Iranians who are refused
refugee status are subject to sanctions by their government upon their return
to Iran. It would appear that allegations of persecution in Iran that are made
in order to be granted refugee status in another country are, according to this
article, held against the citizen upon their return to Iran.
[5]
In its sole response to this allegation, the RPD in its
decision at paragraph 31 refers to a paragraph taken from a letter we are told
was dated November 16, 2005, from an official at the Canada Border Services
Agency. It is necessary to reproduce that paragraph from the letter that had
already been written over six years before the decision of the RPD:
The CBSA removes foreign
nationals of their valid passports or travel documents issued by their embassy
officials. However, in cases where this is not possible, Enforcement Manual 10,
Section 20.3 states that the CBSA may remove individuals using other
identity documents, including a birth certificate or national identity card. At
no point during the removal process are Iranian authorities or other receiving
authorities advised that an individual has made a refugee claim in Canada. As a
further safeguard to ensure the safety of an individual who is being removed
from Canada, any person may submit an application for a Pre-Removal Risk Assessment
to the Department of Citizenship and Immigration Canada prior to removal.
[6]
Solely on that basis, the RPD stated in its June 1, 2011,
decision that:
[32] The
panel concludes that the claimant would not face a risk because of a failed
refugee claim.
[7]
The applicant explained to the PRRA officer the risk faced
by failed refugee claimants upon their return by means of three arguments.
First, he stated that he would be at risk returning to Iran because he fled
clandestinely in 2009, without a passport in his possession. Second, he feared
that he would be easily identified as someone returning to Iran after failing
to obtain refugee status because he could only travel to Iran using Canadian
travel documents, which were described at the hearing as consisting of a
“single flight journey document”. Lastly, access to the Federal Court judgment
upholding the refusal to grant him refugee status added to his fears. The
applicant tells us that these factors must be considered together in order to
understand their effect and scope.
[8]
The PRRA officer refused to consider the first two arguments.
In so doing, he stated:
I find the first two issues that
deal with his lack of identity documents and Iranian passport, as well as a
potential return to Iran under such circumstances, was previously presented to
the RPD. The applicant in fact submitted this information in his PIF and the
panel considered it in its decision. As well, counsel did not adequately
explain how this information was not reasonably available to the RPD.
Therefore, I do not find the first two submissions amount to “new evidence” as
per 113(a) of the IRPA and did not consider them in my decision.
Nevertheless, I accept that the
publication of the applicant’s identity and details of his failed refugee claim
through the federal court public information system is a change in the
applicant’s circumstance that arose since the RPD decision.
[9]
Herein lies the problem. The RPD’s decision in no way
addresses the first two concerns raised by the applicant. While it is possible
that these were referred to in the fairly abundant amount of documentation that
had been adduced up to that point, there is nothing to indicate that both
arguments were taken into consideration. The RPD’s decision was based on the
applicant’s credibility, which, incidentally, has nothing to do with the
potential risks the applicant would face were he to be deported to Iran because
his claim for refugee protection had been denied. What creates the risk is the
dismissal of the refugee claim and the circumstances in which this occurred. That
was the issue before the PRRA officer. Instead, he concluded that these two
aspects had been dealt with in the RPD’s decision when the well articulated
question about the consequences of a dismissed refugee claim could not possibly
have been before the RPD at that time.
[10]
Counsel for the respondents tried, on more than one
occasion, to argue that the PRRA officer’s decision could not be overturned
because the RPD’s decision had disposed of the two questions and thus the PRRA
officer was not obliged to consider them, unless there existed new evidence
within the meaning of section 113 of the Act.
[11]
I do not believe that this argument can survive. The RPD’s
decision would need to be ambiguous to sustain such an argument. It is not.
There is no indication to be found that the particular circumstances of a
person who arrived in Canada clandestinely, whose refugee claim was denied and
who is to be deported on the basis of Canadian travel documents could even have
been considered by the RPD. As I noted earlier, I fail to see how this could be
the case, given that the PRRA application is founded on the fact that refugee
status had been denied. The RPD determined that the applicant was not a
refugee. It did not deal with whether a person without refugee status would be
at risk because of their failed refugee claim. One cannot say that the RPD
disposed of the argument which is not frivolous when it had not—and could not— have
commented on it. Furthermore, new evidence, which could not have existed in
June 2011, had been submitted to the PRRA officer, while other evidence that
had not been available to the RPD was made available to the PRRA officer. Indeed,
the passage taken from the correspondence of the Canada Border Services officer
from November 16, 2005, reproduced above, appears to acknowledge that it is
best for those deported to Iran to remain anonymous. The question should have
been examined in full. In my view, paragraph 18 of D.P. v The Minister of
Citizenship and Immigration, 2010 FC 533, fully applies to this case:
[18] The Officer’s
rejection of the Committee’s letter as “new evidence” ignores the ratio in Raza
v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. The
letter was relevant because it was “capable of proving or disproving a fact
that is relevant to the claim of protection”. The letter was new evidence in
that it was “capable of … contradicting a finding of fact by the RPD (including
a credibility finding)”. Therefore, the rejection of the letter was an error of
law. There was no analysis of the “new evidence” criteria.
[12]
The valiant attempts made by the respondents’ counsel to
show that the RPD had disposed of the two initial arguments presented before
the PRRA officer were confronted at every turn by the text of the decision
itself.
[13]
Similarly, the PRRA officer’s decision is unambiguous. He
refused to consider the possible risks associated with a clandestine departure
from Iran, even when using a smugger, or the fact that the applicant would be
returning to Iran using Canadian travel documents. The only question considered
by the PRRA officer was the publication of the Federal Court decision. The
other elements were excluded. At page 4 of his decision, we can see how the
officer phrased the question that was before him:
The test to meet in this
application, however, is to determine if his evidence establishes, more likely
than not, that Iranian authorities continue their pursuit of the applicant, and
thus, would likely access the Federal Court of Canada information to persecute
him upon his return.
Moreover, the PRRA
officer, after having disposed of these two arguments by claiming that they had
been dealt with in the RPD’s decision, adds “[I]n the absence of new evidence
or new risk factors, I am unable to conduct a meaningful assessment of the
applicant’s risks”. Those risks were before him and had been alleged before him.
And there was new evidence. As for whether those risks were sufficient, it is
not for this Court to determine. As I repeated on numerous occasions during the
hearing, the jurisdiction of this Court is limited to reviewing the legality of
a tribunal’s decision.
[14]
Counsel for the respondents further argued that the RPD’s
decision, because it disposed of the claim on the basis of the applicant’s
credibility, meant that there was no need to address the questions proposed by
the applicant. But the applicant’s credibility had only been an obstacle to his
refugee claim. The risk that is at issue here is that of a failed refugee
claimant. It is the fact of not having succeeded, we are told, that can be held
against him. The question of credibility as a refugee was not relevant at that
stage.
[15]
It is a paradox that the PRRA officer states that the
applicant provided information which the RPD considered, and in the same breath
complains that the applicant failed to adequately explain why that information
had not been available to the RPD. The paradox is fully achieved when it is
noted that the evidence that was introduced after the RPD’s decision was before
the PRRA officer. The Court readily agrees that adequacy of reasons is not a
stand-alone basis for quashing a tribunal’s decision (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC
62, [2011] 3 S.C.R. 708, paragraph 14). I also agree that reasons may have their
own limitations. Thus, in Newfoundland and Labrador Nurses’ Union,
paragraph 16 reads as follows:
[16] Reasons may not include
all the arguments, statutory provisions, jurisprudence or other details the
reviewing judge would have preferred, but that does not impugn the validity of
either the reasons or the result under a reasonableness analysis. A
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion …
[16]
However, in this case, what the PRRA officer in fact
disregarded was all of the arguments because he erroneously concluded that they
had already been disposed of. It is not a question of adequacy of reasons, but
of the decision not to consider certain elements. I fail to see how, in these
circumstances, a decision would be able to meet the test of reasonableness set
out in paragraph 47 of Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190:
[47] Reasonableness is a deferential standard
animated by the principle that underlies the development of the two previous
standards of reasonableness: certain questions that come before administrative
tribunals do not lend themselves to one specific, particular result. Instead,
they may give rise to a number of possible, reasonable conclusions. Tribunals
have a margin of appreciation within the range of acceptable and rational
solutions. A court conducting a review for reasonableness inquires into the
qualities that make a decision reasonable, referring both to the process of articulating
the reasons and to outcomes. In judicial review, reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[17]
In this case, with respect, the PRRA officer’s decision
cannot lend itself to such an exercise.
[18]
I would like to reprise the words of the Federal Court of Appeal
in Raza v The Minister of Citizenship and Immigration, 2007 FCA 385.
Paragraph 12 reads as follows:
An application by a failed
refugee claimant is not an appeal or reconsideration of the decision of the RPD
to reject a claim for refugee protection. Nevertheless, it may require
consideration of some or all of the same factual and legal issues as a claim
for refugee protection. In such cases there is an obvious risk of wasteful and
potentially abusive relitigation. The IRPA mitigates that risk by limiting the
evidence that may be presented to the officer. The limitation is found in
paragraph 113(a) of the IRPA.
In the case at
bar, the PRRA officer never made it so far as to analyze the evidence that was
before him.
[19]
In light of the Court’s lack of enthusiasm for following
the argument of the respondent’s counsel that the RPD had, either implicitly or
explicitly, disposed of the applicant’s arguments before the PRRA officer, she
then attempted to justify the PRRA officer’s decision on the merits. The
respondents’ argument consisted of claiming that the decision to dismiss the PRRA
was justified when one examined the new evidence. As the Court has repeatedly
held, that is not its role (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 (Khosa)). That was for the PRRA officer to
determine, which he failed to do.
[20]
The issue is whether a claimant whose refugee claim was
denied by the RPD can use circumstances that he himself helped create as a
basis for a PRRA application, thereby in a certain manner invoking his own
actions that created the conditions to prevent him from his own return. In this
case, the applicant is the one who clandestinely left his country of origin,
which would constitute a risk if he were to return. That risk, he argues, is
increased by the fact that he would be returned with Canadian travel documents.
Having sought refugee status in Canada, the decision dismissing his application
for judicial review is now accessible on the Internet. As we can see, these are
all circumstances created by the applicant. How can he now invoke them, after
the RPD had declared him not to be credible and thus denied him refugee status?
The question was vaguely raised by the respondent’s counsel, who even had Toora
v The minister of Citizenship and Immigration, 2006 FC 828, in her Book of
Authorities (see in particular, paragraph 51 of the decision).
[21]
The difficulty does not arise at that stage because the PRRA
officer found that two of those circumstances should not be examined. It will
be for a new PRRA officer to dispose of that question and it would not be
appropriate for the Court to discuss the matter further.
[22]
There are two observations, in my view that deserve
mention. First, this matter was reviewed on a reasonableness standard because
both parties agreed to this. However, I did indicate at the hearing that I was
not convinced that the issue in this case might not be a matter of procedural
fairness, which would then be reviewable on a correctness standard (Khosa,
above). Nonetheless, given the conclusion I have arrived at using the highest
standard for the applicant, namely, reasonableness, there is no need for me to
pursue the matter further, all the more so given that the parties were not
prepared to engage in an enlightened debate on it. Second, my conclusion on the
PRRA officer’s decision is in no way a judgment on the merits. The merits of
the arguments put forth by the applicant will have to be assessed by a new PRRA
officer without him or her being encumbered by what might come to be considered
as determinations on the merits be this Court. Such is not the case.
JUDGMENT
The
application for judicial review is allowed. The decision, dated April 11, 2013,
by the pre-removal risk assessment (PRRA) officer is set aside and the matter
returned for redetermination before a different PRRA officer. The parties were
of the view that there were no questions of importance for certification and I
share their view.
“Yvan Roy”
Certified
true translation
Sebastian
Desbarats, Translator
Email this Content