Docket: IMM-5189-14
Citation:
2015 FC 166
Vancouver, British Columbia, February 9, 2015
PRESENT: The
Honourable Mr. Justice S. Noël
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BETWEEN:
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REZA BASAKI
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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.
Introduction
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] of a decision of Citizenship and Immigration Officer
Terri-Lynn Steffler [H&C Officer], dated June 13, 2014, denying Reza Basaki’s
[the Applicant] request for permanent residency based on humanitarian and
compassionate considerations [H&C application] under subsection 25(1) of
IRPA.
II.
Facts
[2]
The Applicant is a 47-year-old Iranian citizen,
born in Aligoodarz, Lorestan, Iran. He lived in Iraq at Camp Ashraf from 1990 to 2008.
[3]
He arrived in Canada on January 9, 2010, and made
a refugee claim upon his arrival. His claim was however suspended as he was
found inadmissible pursuant to paragraph 34(1)(f) of IRPA. The Applicant was
found to be a member of a terrorist organization, the Mujahedeen-e-Khalq e Iran [MEK]. The decision was upheld by this Court. A removal order was issued against the
Applicant in November 2011.
[4]
The Applicant initiated a Pre-Removal Risk Assessment
[PRRA] on August 30, 2012, which was denied on February 22, 2013. An
application for leave and for judicial review to this Court was denied in
November 2013.
[5]
The Applicant made a H&C application on May
1, 2013. The application was denied on June 13, 2014. That is the decision
under review.
III.
Contested Decision
[6]
The H&C Officer states from the outset that
the Applicant bears the onus of satisfying the decision-maker that his personal
circumstances are such that the hardship of having to apply for a permanent
resident visa from outside Canada in the normal manner would cause unusual and
underserved or disproportionate hardships.
[7]
The H&C Officer first notes that although
the Applicant has established a good civil record since his arrival in 2010, his
establishment in Canada is modest. With regard to the Applicant’s relationship
with his common-law partner, the H&C Officer writes that the Applicant entered
this relationship after the CBSA initiated the removal order. The Applicant’s family
in Iran would mitigate the Applicant’s hardship separation from his partner and
friends in Canada.
[8]
In terms of the risk factors evaluation, the H&C
Officer takes into consideration the Amnesty International [AI] opinion
submitted by the Applicant. The H&C Officer does not, however, afford much
weight to the AI opinion because it does not cite the source on which the
opinion is based. The H&C Officer also takes into consideration the
Applicant’s PRRA decision and affords it high weight. Based on the evidence
presented, the H&C Officer is not convinced that the Iranian authorities
have knowledge of the Applicant’s stay at Camp Ashraf or that they perceive him
to be a supporter of MEK. The Applicant would thus not face hardship by
returning to Iran on account of the time he spent at Camp Ashraf.
[9]
Finally, after affording moderate weight to the
psychological report confirming a Post-Traumatic-Stress-Disorder [PTSD] diagnosis
for the Applicant, the H&C Officer concludes that the Applicant would not face
unusual and undeserved, or disproportionate hardship if he was required to
apply for a permanent resident visa from Iran.
IV.
Parties’ Submissions
[10]
The Applicant submits that the H&C Officer breached
procedural fairness by importing a PRRA decision into its H&C decision
because the evidence before the PRRA decision-maker was not before the H&C
Officer. The Respondent retorts by arguing that the PRRA decision is not
extrinsic information unknown to the Applicant. The Applicant could therefore
reasonably expect that the H&C Officer would consider the PRRA decision in
its H&C decision.
[11]
The Applicant also submits that the H&C
Officer’s decision is unreasonable because the H&C Officer did not make a
subjective evaluation of hardship with regard to his relationship with his wife.
In the alternative, it is submitted that the subjective analysis was not
conducted from the Applicant’s perspective and that the H&C Officer’s
decision fails to properly consider the Applicant’s psychological profile. The
Applicant also argues that the H&C Officer’s decision is unreasonable in
its consideration of the AI assessment of the Applicant. The Respondent, on the
other hand, responds by stating that the H&C decision was reasonable because
the Federal Court of Appeal [FCA] rejected the “subjective” view test for
H&C determination in Kanthasamy v Canada (Minister of Citizenship and
Immigration), 2014 FCA 113 at para 60 [Kathasamy]. The Applicant
simply disagrees with the decision and is asking the Court to reweigh the factors.
V.
Applicant’s reply
[12]
In its reply, the Applicant states that the
Respondent did not address the issue of the H&C Officer importing in
its H&C decision a previously held decision of a different officer. By importing
the PRRA decision in its H&C decision, the H&C Officer violated the
Applicant’s right to a fair and impartial decision-making process.
[13]
In reply to the Respondent’s submission that the
Applicant makes “bald assertions but fails to make any
reference to any evidence ignored or not considered”, the Applicant
states that this is illogical since the material in question is not part of the
record considered for the H&C application and the Applicant cannot
introduce new evidence at the present judicial review. The Applicant can
thus not make references to the material ignored and not considered by the H&C
Officer in its decision.
[14]
Moreover, in reply to the Respondent’s argument
that the H&C Officer considered the Applicant’s PRRA submissions along with
the PRRA decision, the Applicant submits that the Officer never states that the
Applicant’s PRRA submissions were considered.
VI.
Issues
[15]
The Applicant submits the following issues:
•
Did the H&C Officer breach the Applicant’s
procedural rights and the rules of natural justice because of importing into
the H&C decision a previous PRRA decision?
•
Is the decision reasonable?
[16]
The Respondent submits that the Applicant does
not have an arguable case for two reasons:
•
There was no breach of procedural fairness in
referring to the PRRA decision;
•
The H&C decision is reasonable as the H&C
Officer properly weighted and considered all of the relevant circumstances and
evidence.
[17]
I have reviewed the parties’ submissions and the
issues submitted and I frame the issues as follows:
•
Is the H&C decision reasonable?
•
Did the H&C Officer breach procedural
fairness in referring to the Applicant’s negative PRRA decision in its H&C
decision?
VII.
Standard of Review
[18]
The question as to whether or not the H&C
Officer’s negative H&C decision is reasonable raises questions of mixed
fact and law. The applicable standard of review is thus that of reasonableness.
“Considerable deference should be given to immigration
officers exercising the powers conferred by legislation, given the fact
specific nature of the inquiry, it’s role [subsection 25(1) of the IRPA] within
the statutory scheme as an exception, the fact that the decision maker is the
Minister, and the considerable discretion evidenced by the statutory language”
(Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817, [1999] SCJ No 39 at para 62). This standard was confirmed by the FCA in Kisana
v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para 18
and more recently in Kanthasamy, supra at paras 82-84 and Lemus
v Canada (Minister of Citizenship and Immigration), 2014 FCA 114 at para
18). More specifically, the FCA, in Kanthasamy, supra, explained
that under subsection 25(1) of IRPA, H&C Officers have a “broad range of acceptable and defensible outcomes available to
them” (para 84). The Court therefore has to be vigilant in making sure
that the outcome the H&C Officer reaches is truly within the range (Ibid;
see also Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at para
47 [Dunsmuir]).
[19]
The question as to whether or not the H&C
Officer breached procedural fairness in referring to the Applicant’s negative
PRRA decision in its H&C decision raises the standard of review of
correctness (Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43; Nadesan v Canada (Minister of Citizenship and
Immigration), 2011 FC 1325 at para 8). As such, the Court will show no
deference “to the decision maker’s reasoning process; it
will rather undertake its own analysis of the question” (Dunsmuir,
supra at para 50).
VIII. Analysis
A.
Is the H&C decision reasonable?
[20]
The test to be applied in a H&C application
is if at the time the H&C application is made, the Applicant’s
personal circumstances are such that the hardship of having to apply for a permanent
resident visa from outside Canada in the normal manner would cause unusual
and undeserved or disproportionate hardship. The onus is on the Applicant
to meet that test (Owusu v Canada (Minister of Citizenship and
Immigration), 2004 FCA 38 at para 8 [Owusu]; Kanthasamy, supra
at para 48).
[21]
In the case at bar, the H&C Officer stated
the appropriate test right at the outset of the decision and recognized that
the H&C application was based on two grounds: the establishment of the
Applicant in Canada and risk factors. In terms of the Applicant’s
establishment, the H&C Officer properly noted the good civil record of the
Applicant in Canada along with all the letters submitted in support of the
Applicant’s H&C application. The H&C Officer also properly noted the
ties the Applicant has in Canada, including his relationship with his partner,
a relationship in which the Applicant entered after the CBSA initiated the
removal process. The H&C Officer also noted the Applicant’s ties in Iran and wrote that those mitigate the hardship of the separation of the Applicant from his
partner and friends in Canada. Moreover, the H&C Officer properly evaluated
the PTSD report provided in support of the Applicant’s H&C application and
properly stated that there is no evidence of follow-up treatment or that
follow-up sessions took place. The H&C Officer’s conclusion regarding
the Applicant’s modest establishment in Canada is thus reasonable. Moreover,
contrary to Applicant’s argument that the H&C Officer is required to make
both an objective and subjective evaluation of hardship in assessing H&C
factors, the FCA held, in Kanthasamy, supra at para 60, that
there is no “subjective view” test in a H&C
determination since doing so would go beyond the role of subsection 25(1) within
the scheme of IRPA. Again, the H&C decision is reasonable.
B.
Did the H&C Officer breach procedural
fairness in referring to the Applicant’s negative PRRA decision in its H&C
decision?
[22]
With regard to the evaluation of the risk
factors, the Applicant submits that the H&C Officer breached procedural
fairness because “instead of exercising his jurisdiction
and fully assessing the evidence before him, the H&C Officer simply adopts
the PRRA decision and fails to conduct and independent assessment of the
material before the PRRA Officer with respect to the issue of risk”
(Applicant’s Record [AR], page 157 at para 30). I disagree with the Applicant’s
submission. First, the jurisprudence the Applicant refers to in its submissions
on this point, Sosi v Canada (Minister of Citizenship and Immigration),
2008 FC 1300 [Sosi] and Giron v Canada (Minister of
Citizenship and Immigration), 2013 FC 114 [Giron], concerns PRRA and
H&C decisions decided jointly, by the same decision-maker. In that context,
the decision-maker is “required to have full knowledge of
all the evidence tendered on both issues, and factual findings across both
applications must be based on knowledge of the complete record” (Sosi,
supra at para 12). It is in that context that the Applicant should
expect that the relevant evidence supplied in support of his PRRA be taken into
account in an H&C application (Giron, supra at para 17).
[23]
In the case at bar, however, the PRRA and the
H&C applications were decided by two different decision-makers at different
points in time. Moreover, in H&C matters, “immigration
officers are likely to give “decisive weight” to the opinions of risk assessment
officers, as a result of their relative expertise in assessing risk”
(Singh v Canada (Minister of Citizenship and Immigration), 2004 FC 187
at paras 34; see also Haghighi v Canada (Minister of Citizenship and
Immigration), [2000] 4 FC 407; [2000] FCJ No 854 at para 36). Here, the
Applicant initiated a PRRA in August 2012 and received a negative PRRA decision
sometime after February 2013. His application for leave and judicial review of
this decision was denied in November 2013. The Applicant became aware of
the PRRA decision and its content before the H&C decision was rendered.
Also noteworthy, the Applicant’s submissions in his H&C application
referred to the PRRA application and the submissions made. Moreover, the
AI opinion upon which the Applicant relies also refers to the PRRA decision (AR
page 145). The H&C Officer therefore properly considered the PRRA decision
in her analysis of the risk factors. If the Applicant wanted the submissions of
the PRRA application before the H&C Officer, he had the burden to do so. To
pretend now that the H&C Officer should have asked for them is not
justified. Also, contrary to the Applicant’s allegations, the H&C
Officer conducted an independent analysis of the Applicant’s risk factors,
where the PRRA decision was one of the elements considered. In its
assessment of the risk factors, the H&C Officer took into account the AI
opinion submitted by the Applicant. It is based on those elements that the H&C
Officer concluded that there was not enough evidence that not all persons at Camp Ashraf are of interest to the Iranian authorities. Thus, the H&C Officer did not
err when she considered the PRRA decision in her analysis of the H&C
application of the Applicant. The intervention of this Court is not warranted.
IX.
Conclusion
[24]
The H&C Officer’s assessment of the Applicant’s
establishment in Canada and of the risk factors in Iran is reasonable. The H&C
Officer properly considered the PRRA decision in her assessment of the risk
factors of the Applicant in returning to Iran in order to apply for a permanent
residence visa in the normal manner. The intervention of this Court is not
warranted.
[25]
The parties were asked to suggest a certified
question but declined.
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