Docket: IMM-36-16
Citation:
2016 FC 1210
Toronto, Ontario, October 31, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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SAIED ROSHAN
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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.
Overview
[1]
The applicant, Mr. Roshan, is a citizen of Iran.
He arrived in Canada in May 2012 and made a claim for refugee protection. The
Refugee Protection Division [RPD] of the Immigration and Refugee Board [IRB] of
Canada denied his claim in November 2013. Mr. Roshan was not eligible to appeal
to the Refugee Appeal Division [RAD] and his application for leave and for
judicial review of the RPD decision was denied by this Court.
[2]
Mr. Roshan submitted an application for a
Pre-Removal Risk Assessment [PRRA] in March 2015. In support of his
application, he placed new evidence before the PRRA Officer [Officer]: (1)
affirming that he was at risk in Iran as a result of his participation in
anti-government protests in 2009, contrary to the RPD’s finding; and (2) supporting
a sur-place risk. The Officer did admit some, but not all of Mr.
Roshan’s proposed new evidence, rejecting documentary evidence that predated
the RPD hearing. The PRRA application was refused in November 2015.
[3]
Mr. Roshan now argues that in rendering a
negative decision the Officer erred by: (1) according no weight to new evidence
that corroborated his narrative before the RPD; (2) finding that he would not
be at risk in Iran as an Atheist; and (3) relying on extrinsic evidence that
was not disclosed in dismissing the risk arising from his on-line activity in
Canada.
[4]
Mr. Roshan asks that this Court set aside the
decision and return the matter for redetermination by a different Officer.
[5]
The application raises a number of issues, but
the sole issue I need to address is whether the PRRA Officer misconstrued his
role in addressing Mr. Roshan’s new evidence corroborating his narrative before
the RPD.
[6]
I am of the opinion that the Officer committed a
reviewable error and the intervention of this Court is warranted. The
application will be granted for the reasons that follow.
II.
Standard of Review
[7]
The issue raised in respect of the role of the
PRRA Officer and the assessment of Mr. Roshan’s new evidence raises questions
of mixed fact and law to which a reasonableness standard of review applies (Singh
v Canada (Minister of Citizenship and Immigration), 2014 FC 11 at para 20).
III.
Analysis
A.
Did the PRRA Officer misconstrue his role when
addressing new evidence corroborating Mr. Roshan’s narrative before the RPD?
[8]
Before the RPD, Mr. Roshan submitted that he
feared returning to Iran because of his participation in demonstrations
following the 2009 Iranian Presidential elections. He claimed the authorities
were aware of his identity placing him at risk. The RPD found that the
determinative issues were credibility, failure to claim elsewhere, and
subjective fear.
[9]
The RPD noted that Mr. Roshan spent almost three
years in Cyprus after fleeing Iran. Mr. Roshan testified that he filed a
refugee claim in Cyprus, but he was unable to produce a copy of the claim. He
testified that Cypriot immigration authorities told him he would be called, but
he was never contacted and was never given the opportunity to speak with
Cypriot officials in respect of his claim. On the basis of this evidence, the
RPD found insufficient credible evidence to establish Mr. Roshan had filed a
refugee claim in Cyprus. The RPD then stated:
It is absurd to suggest that the claimant
travelled to Cyprus, a signatory to the United Nations Convention and
Protocol Relating to the Status of Refugees, fearing persecution in Iran,
and not pursue a refugee claim. There is no reason to believe that Cyprus does
not abide by its obligations. It is ludicrous that the claimant remained in
Cyprus for approximately three years, at times under threat of deportation
according to his PIF narrative and testimony, and did not pursue a refugee
claim, in light of his alleged fear of returning to Iran. I find that the
claimant’s failure to claim or pursue his claim in Cyprus undermines his
credibility and reflects a lack of subjective fear.
[10]
In advancing his PRRA application, Mr. Roshan
submitted new documentary evidence that outlined how refugee claimants in
Cyprus, particularly those of a Muslim background, are not afforded the rights
and procedures provided for in Cypriot law. This evidence was admitted by the
Officer but given no weight.
[11]
Specifically, the new evidence provided that:
(1) asylum seekers in Cyprus are often denied rights and procedures provided
for in Cypriot law, (2) printed documentation setting out minimum rights is
often not provided when an application for asylum is made, (3) asylum claimants
are often turned away being told to return at a later date and not provided any
documentation, and (4) valid resident permits are not provided. This evidence
appeared to corroborate Mr. Roshan’s testimony before the RPD relating to his
experiences in making a claim for protection, testimony that the RPD concluded
to be both absurd and ludicrous. He argues that the Officer failed to
appreciate that the new evidence could provide a basis to revisit a prior
negative credibility finding.
[12]
The respondent argues that the Officer did not
err in giving no weight to the documentary evidence. The respondent submits
that while the country conditions evidence “appears
much better” than that which was before the RPD, the evidence does not
demonstrate a change in the handling of asylum seekers or a change in country
conditions. I am not convinced.
[13]
It is well-established that a PRRA is not an appeal
of a prior refugee determination and that a PRRA Officer must respect a prior
negative determination by the RPD. However, it is equally well-established that
where a PRRA Officer admits new evidence and that evidence may have affected
the outcome of the RPD hearing had it been presented to the RPD, the PRRA
Officer may reconsider the same factual or legal issues considered by the RPD (Raza
v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 at paras
12 and 13 [Raza]).
[14]
In this case, the PRRA Officer admitted some of
the proposed new evidence. That evidence was corroborative of Mr. Roshan’s
evidence before the RPD as it related to his experience in attempting to claim
refugee protection in Cyprus. The evidence is arguably contradictory of the RPD’s
negative credibility finding and lack of subjective fear finding. The Officer,
however, did not undertake an analysis of that evidence after finding it was
admissible. Rather, the Officer assigned it no weight on the basis that the RPD
had previously concluded that Mr. Roshan lacked subjective fear, had failed to
pursue a claim in Cyprus and was not being returned to Cyprus.
[15]
This conclusion, in my view, reflects a belief
that despite the new and potentially contradictory evidence, the Officer was
bound by the RPD’s previous findings. This is contrary to the PRRA Officer’s
role as set out in Raza.
[16]
I recognize the evidence in question relates to
conditions in Cyprus, not Iran. However, the evidence was not placed before the
Officer to demonstrate a risk in Cyprus but rather to address the RPD’s adverse
credibility finding and support Mr. Roshan’s allegations of risk in Iran.
Having admitted the evidence, the Officer had an obligation to consider the
materiality of that evidence – could it have impacted on the outcome before the
RPD (Hausleitner v Canada (Minister of Citizenship and Immigration),
2005 FC 641 at para 36 [Hausleitner]). In assigning no weight to the
evidence, the Officer did not consider the question of materiality in the
context of Mr. Roshan’s overall alleged risks.
[17]
It may well have been open to the Officer, after
having considered the evidence, to conclude it did not impact upon the overall
risk assessment as was the case in Hausleitner. However, I am unable to
conclude that this would necessarily have been the case. For this reason the
application is granted.
IV.
Conclusion
[18]
The application is granted. The parties have not
identified a question of general importance, and none arises.
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