Date: 20061018
Dockets: IMM-1283-06
IMM-1282-06
Citation: 2006
FC 1231
Ottawa, Ontario,
October 18, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
FATEMAH AIVANI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Fatemah Aivani seeks judicial review of a negative
Pre-removal Risk Assessment and of a refusal to allow her to apply for
permanent residence from within Canada
based on humanitarian and compassionate grounds.
I. Background
[2]
Ms. Aivani
is an elderly widow, who is a citizen of both Iraq and Iran. After coming to Canada on a visitor’s
visa, Ms. Aivani sought refugee protection in this country, claiming to fear
for her life in both Iraq and Iran. The basis for this fear was Ms.
Aivani’s claimed inability to support herself, and her lack of any family
members in either country who were willing to assist her.
[3]
Ms.
Aivani’s refugee claim was rejected by the Refugee Protection Division of the
Immigration and Refugee Board which found that her claim was essentially
economic in nature. The Board further found that the poverty that Ms. Aivani
says she would face in Iran confronted many people in
that country and was not personal to her.
[4]
While the
Board accepted that Ms. Aivani would likely face discrimination as a single
woman in Iran, the Board found that this
did not amount to persecution.
[5]
Finally,
the Board was satisfied that Ms. Aivani could in fact support herself in Iran, and that she had family members who
were willing to assist her.
[6]
Ms. Aivani
sought judicial review of the Board’s decision, but leave was denied. She then
applied for both a Pre-removal Risk Assessment and for permanent residence from
within Canada on humanitarian and
compassionate grounds. The bases for both claims were essentially the same as
that underlying her refugee claim, although additional documentary evidence was
provided in support of each of these applications.
[7]
Both
applications were dealt with by the same officer and both were unsuccessful.
Ms. Aivani’s applications for judicial review of these two decisions were heard
together. Given that there is substantial overlap between the parties’
submissions with respect to each of the applications, I have prepared one set
of reasons, a copy of which should be placed on each file.
[8]
I will
deal first with the PRRA decision.
II. Ms. Aivani’s PRRA Application
[9]
The PRRA
officer concluded that while Ms. Aivani faced discrimination in Iran by virtue of her status as an elderly
widow, such discrimination did not amount to persecution.
[10]
Having
found that Ms. Aivani had not established that she faced a risk to her life or
a risk to the security of her person in Iran, the PRRA officer did not find it
necessary to examine the situation in Iraq.
[11]
Ms. Aivani
submits that the PRRA officer erred in ignoring evidence and in finding that
she faced amounted to discrimination, as opposed to persecution, in Iran. Moreover, Ms. Aivani says that she was
denied procedural fairness in the PRRA process, as the PRRA officer did not
properly consider her request for an oral hearing.
III. Standard of Review
[12]
Before
turning to consider the substance of Ms. Aivani’s submissions, it is first
necessary to address the issue of the appropriate standard of review.
[13]
In
numerous cases, this Court has found that the overall standard of review to be applied to
decisions of PRRA officers is that of reasonableness: see, for example Covarrubias
v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No.
1470, 2005 FC 1193; Kim v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 540, 2005 FC 437, Liyanage v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1293, 2005 FC 1045, and Figurado
v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 458,
2005 FC 347.
[14]
That said, where
findings of fact are made by a PRRA officer, the Court should not substitute
its decision for that of the PRRA officer unless it has been shown that these
findings of fact were made in a perverse or capricious manner or without regard
to the evidence: see, for example, Harb v. Canada (Minister of Citizenship
and Immigration) [2003] F.C.J. No. 108, 2003 FCA 39, at &14.
[15]
However, to the
extent that the arguments advanced by Ms. Aivani raise issues of procedural
fairness, the
task for the Court is to isolate any act or omission relevant to the question
of procedural fairness, and to determine whether the process followed by the
officer satisfied the level of fairness required in all of the circumstances:
see Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056, 2005
FCA 404.
[16]
With this
understanding of the appropriate standard of review, I turn now to consider Ms.
Aivani’s submissions.
A.
Did the PRRA officer ignore evidence?
[17]
Ms. Aivani argues that in
coming to the conclusion that she was able to support herself in Iran, the PRRA
officer ignored material evidence, namely a letter signed by a cousin and
several other acquaintances attesting to the fact that she does not own any
property in Iran and could not afford medical care in that country.
[18]
Neither
this letter, nor a second, similar, letter produced by Ms. Aivani, appear in
the Certified Tribunal Record, and the PRRA officer has sworn an affidavit
stating that the letter in question was not before her when she made her
decision.
[19]
Although
Ms. Aivani stated under oath that the letter was provided to the PRRA officer,
on cross-examination she acknowledged that she had no direct knowledge as to
whether the letter had indeed been provided to the officer as she knew only
that she had given it to her counsel. Moreover, Ms. Aivani could not say with
any certainty whether she provided the letter in question to her counsel before
the PRRA decision was rendered or after the fact.
[20]
In these
circumstances, I am not satisfied that the letter in question was before the
PRRA officer at the time that she made her decision. As a result, the failure
of the officer to address the letter in her analysis does not amount to a
reviewable error.
B. Should the extrinsic evidence be admitted?
[21]
Ms. Aivani
asks that in the event that I find that the letter in question was not before
the PRRA officer when she made her decision, I should nevertheless admit and
consider the letter on this application for judicial review. In support of
this submission, counsel refers to the decision of this Court in Omar v.
Canada (Solicitor General), [2004] F.C.J. No. 2136, 2004 FC 1740, where the
Court found there to be very exceptional circumstances justifying the admission
of new evidence on judicial review.
[22]
The
decision in Omar is very brief and it is not clear precisely what the
circumstances were that the Court found to be sufficiently exceptional as to
justify the admission of extrinsic evidence on judicial review. However, it is
well-settled law that an application for judicial review should ordinarily be
determined on the basis of the evidence that was before the decision-maker.
[23]
While
there are exceptions to this rule, Ms. Aivani has not persuaded me that grounds
exist in this case that would warrant the admission of new evidence on judicial
review.
[24]
It should
also be noted that the letter in question does not amount to “new” evidence, as
it relates to precisely the same risk that was alleged by Ms. Aivani in her
claim before the Immigration and Refugee Board. As Justice Barnes noted in Yousef
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No.
1101, 2006 FC 864, it is not
the role of a PRRA officer to re-examine evidence assessed by the Immigration
and Refugee Board, or to consider evidence that could have been put before the
Board, but was not.
[25]
Rather, the role of
the PRRA officer is to examine only new evidence that arose after the rejection
of an applicant’s refugee claim, or evidence that was not reasonably available,
or that the applicant could not reasonably have been expected to have
presented. In this case, there is nothing in the record to indicate why the
letter from Iran could not have been provided earlier.
[26]
Ms. Aivani has also
filed a doctor’s letter documenting her various ailments in support of her
application for judicial review. There is no suggestion that this letter was
before the PRRA officer when she made her decision, nor has any reason been
given as to why such letter could not have been provided at that time.
[27]
An application for
judicial review is not an opportunity for a party to try to make up the
deficiencies in his or her original application, nor is it a chance for the
party to adduce new evidence in an effort to rebut the findings made by the
decision-maker. As a consequence, I am not prepared to consider the doctor’s
letter on this application.
C.
Did Ms. Aivani face discrimination or persecution in Iran?
[28]
Ms. Aivani contends that the
PRRA officer also erred in concluding that what she faced in Iran amounted to discrimination rather than
persecution. In this regard, Ms. Aivani says that she will be destitute should
she be forced to return to Iran, and that the PRRA officer had a duty to
consider the cumulative effects of the discrimination that she will face as an
elderly widow in that country with no means of support.
[29]
In support
of this submission, Ms. Aivani relies on the United Nations High Commission for Refugees Handbook on Procedures
and Criteria for Determining Refugee Status: United Nations, Office of the
United Nations High Commissioner for Refugees; Geneva, 1988. This provides that an applicant may be
subject to various measures which, taken in isolation may not amount to
persecution but, when considered cumulatively may justify a finding of
persecution.
[30]
The characterization of behaviour as
discrimination or persecution involves a question of mixed fact and law. In
this case, the documentary evidence indicates that women do face significant
discrimination in Iran and that the situation which Ms. Aivani
would face in that country would be extremely difficult. Indeed, the officer’s
decision clearly identifies these difficulties, and does so with specific
reference to the relevant documentary evidence.
[31]
However, the officer
found that Ms. Aivani would be able to continue to reside with her own mother,
as she had done prior to coming to Canada, and that she would be able to work
as a seamstress, as she had done for many years, and would thus be able to
support herself in Iran.
[32]
Ms. Aivani has not persuaded me
that the officer’s findings in this regard were unreasonable or that the
officer misconstrued or misunderstood the distinction between discrimination
and persecution.
D. Did the PRRA officer fail to properly consider Ms.
Aivani’s request for an oral hearing?
[33]
Finally,
Ms. Aivani submits that the PRRA officer erred in failing to properly consider
her request for an oral hearing. In this regard, Ms. Aivani points to the fact
that, in her PRRA submissions, her counsel concluded by stating “It is also
submitted to [sic] provide an oral hearing to the applicant because she
was not represented by counsel at the hearing of her refugee claim”.
[34]
Ms. Aivani
was not given an oral hearing in relation to her PRRA application and the only
reference to an oral hearing in the PRRA decision itself was the officer’s
marking of the box indicating “no” as to whether an oral hearing had been held.
[35]
In support
of her contention that an oral hearing should have been held in her case, Ms.
Aivani relies on the decision in Zokai
v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1359, 2005 FC 1103,
which found that the failure to grant an oral hearing amounted to a breach of
procedural fairness. However, in Zokai, the applicant had made a
detailed request explaining why an oral hearing was necessary with reference to
the relevant factors as set out in section 167 of the Immigration and
Refugee Regulations. Moreover, the essence of the officer’s decision was
that the applicant’s story was not credible.
[36]
In this regard, it
should be noted that subsection 113(b) of the Immigration and Refugee Protection Act provides
that an oral hearing may be held on a PRRA application. Section 167 of the Immigration
and Refugee Protection Regulations gives the PRRA Officer direction as to
when such a hearing should be held, providing that:
|
167. For the purpose of
determining whether a hearing is required under paragraph 113(b) of
the Act, the factors are the following:
(a) whether there is evidence that raises a serious issue
of the applicant's credibility and is related to the factors set out in
sections 96 and 97 of the Act;
(b) whether the evidence is central to the decision with
respect to the application for protection; and
(c) whether the evidence, if accepted, would justify
allowing the application for protection.
|
167. Pour l’application de l’alinéa 113b) de la Loi, les
facteurs ci-après servent à décider si la tenue d’une audience est requise:
a) l’existence
d’éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97
de la Loi qui soulèvent une question importante en ce qui concerne la
crédibilité du demandeur;
b) l’importance
de ces éléments de preuve pour la prise de la décision relative à la demande
de protection;
c) la question de savoir si
ces éléments de preuve, à supposer qu’ils soient admis, justifieraient que
soit accordée la protection.
|
[37]
In this case, Ms.
Aivani’s request for an oral hearing was cursory in nature, and did not refer
to any of the relevant considerations. Moreover, none of the circumstances
identified in the Regulation exist in this case. Not only did the PRRA officer
not make any findings of credibility in her assessment, in addition, there was
no new evidence before the PRRA officer that would have justified allowing the
application for protection.
[38]
Given Ms. Aivani’s
failure to identify any circumstances that could have justified the holding of
an oral hearing, I am not persuaded that the PRRA officer had any obligation to
do anything more with respect to Ms. Aivani’s request: see Malhi v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 993, 2004 FC
802, at ¶ 9.
[39]
For these reasons, I have not
been persuaded that the PRRA officer erred as alleged by Ms. Aivani. As a
consequence, this application for judicial review will be dismissed.
III. Ms.
Aivani’s H&C Application
[40]
Ms. Aivani’s H&C application was
turned down as the officer was of the view that the grounds that Ms. Aivani had
put forward did
not constitute unusual, undeserved or disproportionate hardship. As a
consequence, the officer concluded that insufficient humanitarian and
compassionate grounds existed as to warrant approving her application.
[41]
It was not
entirely clear from counsel’s submissions whether reliance was being placed on
arguments advanced with respect to the PRRA decision in relation to Ms.
Aivani’s H&C application. To the extent that Ms. Aivani does rely on some
of the same arguments, I adopt the reasons given in relation to the PRRA
decision for rejecting these arguments.
[42]
That said,
in the submissions directed specifically to the H&C decision, Ms. Aivani
did not identify any specific error in that decision, seemingly taking issue
with the weight that the officer ascribed to the factors militating in her
favour, and to those operating against her.
[43]
The
general standard of review governing decisions of immigration officers in
relation to H&C applications is reasonableness simpliciter: Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[44]
That is,
the decision must be able to withstand a “somewhat probing examination”: Canada (Director of Investigation
and Research) v. Southam Inc., [1997] 1 S.C.R. 748.
[45]
In this
case, the officer properly identified all of the relevant positive and negative
considerations relating to Ms. Aivani’s situation. The weight to be ascribed to
these factors is a matter to be determined by the officer. This is undoubtedly
a sympathetic case, and another officer may well have weighed these factors
differently. However, I cannot say that the officer’s decision was
unreasonable.
IV. Conclusion
[46]
For these reasons, both applications for
judicial review are dismissed.
V.
Certification
[47]
Neither party has suggested
a question for certification, and none arises here in either case.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. These applications for
judicial review are dismissed; and
2. No serious question of general
importance is certified.
“Anne
Mactavish”
Email this Content