Docket:
IMM-160-15
Citation: 2016 FC 202
Montréal, Quebec, February 15, 2016
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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AHMAD OMID
(a.k.a OMID
AHMAD)
(a.k.a. FARHAD
AHMAD SULTANI)
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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
[1]
Mr. Ahmad Omid a.k.a. Omid Ahmad a.k.a. Farhad
Ahmad Sultani (the “Applicant”) seeks judicial review of a decision of
the Immigration and Refugee Board, Refugee Protection Division (the “Board”).
In that decision, dated December 17, 2014, the Board determined that the
Applicant is neither a Convention Refugee nor a person in need of protection
pursuant to section 96 and subsection 97(1), respectively, of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
[2]
The Applicant is a citizen of Afghanistan. He
sought protection in Canada on the basis of membership in a particular social
group, risk to life or of cruel and usual treatment or punishment and danger of
torture. The Board rejected his claims because it did not find the basis of his
claim to be credible, and it found that the Applicant had an Internal Flight
Alternative (“IFA”). The Board also found that the Applicant had failed to
rebut the presumption of state protection.
[3]
These three findings are reviewable on the
standard of reasonableness; see Tsyhanko v. Canada (Minister of
Citizenship & Immigration), 2008 FC 819 at paragraphs 12-14. According
to the decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, that
standard requires that a decision be transparent, justifiable and intelligible.
Application of the standard of reasonableness means that a range of possible,
acceptable decisions is available to the decision maker, as long as the
result meets the criteria of transparency, justification and intelligibility.
[4]
Issues of procedural fairness are reviewable on
the standard of correctness; see the decision in Canada (Citizenship and
Immigration) v. Khosa, [2009] 1 S.C.R. 339 at paragraph 43.
[5]
I have reviewed the transcript of the hearing
held before the Board on October 22, 2014. I have also considered
the submissions of the parties, and agree with the argument of the Minister of
Citizenship and Immigration (the “Respondent”) that essentially, the
Applicant is challenging the weight given to the evidence by the Board.
[6]
I am not persuaded that the Board’s credibility
findings are unreasonable, when measured against the standard of reasonableness
referred to above.
[7]
Likewise, I see no reviewable error in the
manner in which the Board made its findings about an IFA and state protection.
In each case, the Board considered the relevant principles and the relevant
jurisprudence. The Board weighed the evidence before it, as it is authorized to
do.
[8]
Considering the evidence that the Applicant put
forward, including country condition documents, I am satisfied that the Board’s
ultimate conclusions were reasonable and there is no basis for judicial
intervention.
[9]
The Applicant submits that the Board breached
his rights to procedural fairness by failing to consider the further post-hearing
submissions and documents that were submitted on December 9, 2014. Although the
Board had accepted the first post-hearing submissions filed by the Applicant,
it did not consider the second set of post-hearing materials, on the ground
that it was functus.
[10]
The Applicant in making his post-hearing
submissions, including the presentation of further documents, did not comply
with Rule 43 of the Refugee Protection Division Rules,
SOR/2012-256.
[11]
The Board was not obliged to consider the second
set of non-compliant submissions and evidence. It did not breach the procedural
fairness rights owing to the Applicant. There is no reviewable error in this
regard.
[12]
In the result, this application for judicial
review was dismissed, no question for certification arising.
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