Date: 20061116
Docket: IMM-224-06
Citation: 2006 FC 1388
Ottawa, Ontario, this 16th day of November, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
MEHDI
LATIFI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application for judicial review, made pursuant to sections 18 and 18.1 of
the Federal Courts Act, R.S.C. 1985, c. F-7, of a decision of a
Pre-Removal Risk Assessment Officer (Officer). In her decision, dated December
6, 2005 (Decision), the Officer denied the Applicant’s Pre-Removal Risk
Assessment (PRRA) application.
BACKGROUND
[2]
The
Applicant, Mehdi Latifi, is a citizen of Iran. He arrived
in Canada on March 7, 2001 and immediately made a claim for refugee protection
on the basis of his political opinion. He claims to have been a supporter of a
minority faction of the Fedayeen party, a Marxist-Leninist group, since 1980.
The Applicant alleges that he was arrested in 1986 while trying to cross the
border into Turkey; he was
sentenced to two years in prison and given a five-year suspended sentence. He
says that, after he was released from prison in 1988, he reported to
authorities for six months but then fled to Tehran where he
lived and worked under two different aliases for 12 years. The Applicant claims
that, during this time, he continued to work for the Fedayeen (Minority)
faction distributing pamphlets.
[3]
The
Applicant further claims that, in July 2000, he learned that a childhood
friend, who was also his contact with the Fedayeen (Minority) faction in Tehran, had been
arrested. As a result, the Applicant fled to Tabriz but, after
determining that it was no longer safe for him to be in Iran, he left the
country on September 1, 2000. After transiting through several countries, the
Applicant arrived in Toronto on March 7, 2001 and
made his claim for refugee protection at the airport. He subsequently moved to Vancouver and his file
was transferred there.
[4]
The
Applicant says that he later learned from family members that the Iranian
Revolutionary Guard had gone to his family’s home in March 2001 looking for
him.
[5]
His
refugee claim was heard in 2001. In its decision dated January 7, 2002, the
then Convention Refugee Determination Division (CRDD) of the Immigration and
Refugee Board denied the Applicant’s claim. The CRDD did not believe key points
of the Applicant’s evidence and held that he was generally an unreliable
witness.
[6]
The
Applicant did not apply to judicially review the CRDD’s decision.
[7]
On
January 23, 2002, the Applicant applied for consideration under the
Post-Determination Refugees in Canada Class (PDRCC). That application was
subsequently converted to a PRRA on June 28, 2002 when the Immigration and
Refugee Protection Act, S.C. 2001 c. 27 (IRPA) came into force. In his
application, the Applicant identifies the risk he faces as a well-founded fear
of persecution on the basis of his political opinion as a supporter of the
Fedayeen (Minority) in Iran. In addition, the Applicant states that he
faces a risk if returned to Iran as a result of his political activities in Canada opposing the
government of Iran.
[8]
The
Applicant made additional submissions in support of his PRRA application in
March and April, 2005.
[9]
In
March 2005, he also made an application for permanent residence from within
Canada on humanitarian and compassionate (H&C) grounds.
[10]
On
December 6, 2005, the Officer reviewing the Applicant’s PRRA determined that he
would not be at risk if he returned to Iran. The same
Officer also issued a negative decision in respect of the Applicant’s H&C
application. The latter decision is the subject of a separate application for
judicial review (IMM-225-06), which was heard concurrently with this
application.
[11]
On
March 7, 2006, Justice Edmond Blanchard issued an order staying the removal of
the Applicant pending final disposition of the application for leave and for
judicial review in this matter and IMM-225-06. Leave for judicial review was
subsequently granted on April 19, 2006 by Justice Dolores Hansen.
DECISION UNDER REVIEW
[12]
In
her Decision, the Officer stated that because the Applicant’s refugee claim was
determined before IRPA came into force, she considered all of the evidence
before her and not just “new evidence.” This included evidence that arose after
the Applicant’s refugee claim was decided as well as evidence that the
Applicant could not reasonably have been expected to adduce before the CRDD.
The Officer considered the Applicant’s PRRA on the basis of sections 96 and 97
(the consolidated grounds) of IRPA.
[13]
The
Officer makes reference to the Applicant’s submissions challenging the CRDD’s
negative findings in relation to his credibility. The Officer outlines the
apparent inconsistencies between his oral testimony and his written accounts,
but also notes that the Applicant swore an affidavit accounting for the
inconsistencies in the evidence. These explanations include the Applicant’s
testimony that he had given a negative response to the question posed on the
Notice of Claim to be a Convention Refugee (regarding whether he had ever been
arrested or convicted of a crime in any country) because he thought the
question only referred to countries other than his own country of nationality.
Moreover, the Applicant explained that the inconsistencies in respect of dates
provided on his Personal Information Form (PIF) and in his oral testimony were
a result of an inaccurate conversion of dates from the Iranian calendar to the
Gregorian calendar.
[14]
The
Officer set out the additional documentary evidence provided in support of the
Applicant’s PRRA application. The documents are:
1.
A
letter dated March 7, 2005 attesting that supporters of the Organisation of
Fedaian (Minority) in Canada certify that the Applicant is an active supporter
of the Organisation, that he was politically active in Iran commencing in 1978,
and that he was imprisoned for two years as a result;
2.
An
unsigned letter dated March 6, 2005 stating that supporters of Ettehead-Enghalabi
in Canada certify that
the Applicant is an active supporter of the Organisation of Ettehad-Enghalabi
in Vancouver. The letter
contains similar information to the March 7, 2005 letter, but does not
reference the Applicant’s arrest, conviction or imprisonment in Iran;
3.
A
document dated March 5, 2005 from another supporter of the Fedaian (Minority)
in Vancouver attesting that the writer has worked with the Applicant in
Vancouver in support of the Organization and that if sent back to Iran, the
Applicant “will probably face torture, or even be executed”;
4.
A
photocopy of a letter dated March 28, 2005 from the Association of Iranian
Political Prisoners (in Exile) based in Farsta, Sweden indicating that the
Applicant was imprisoned in Iran for his political activities in connection
with the organisation of Iranian People Fadaii Guerillas (Minority);
5.
A
petition bearing 30 signatures stating that the Applicant “was a
social-political activist in Iran” and that since such a person “would face
serious risk of lashes, imprisonment, torture and execution, [the Applicant]
had to flee Iran and seek for
refuge in order to save his life.”
[15]
The
Officer noted that the Applicant’s PRRA submissions also included documentary
evidence from 1999 to the current year concerning general country conditions in
Iran,
specifically in relation to Iran’s human rights record.
[16]
In
her final assessment, the Officer noted that she had considered the credibility
findings of the CRDD and found them to be reasonable. Specifically, the Officer
stated as follows:
The CRDD panel found the applicant, Mr.
Latifi, to be an unreliable witness. I am not bound by their findings but have
considered them carefully and found them to be reasonable and well-articulated.
In support of the instant application, Mr. Latifi has made submissions
specifically addressing that panel’s credibility findings with respect to his
evidence on several points. After considering his submissions, I found that he
provided insufficient evidence to refute or even cast into doubt the findings
of the CRDD panel.
[17]
The
Officer addressed the Applicant’s responses to the CRDD’s inconsistency
findings. As regards the Applicant’s stated basis for his refugee claim as
recorded in the Port of Entry (POE) notes, the Officer accepts that the POE Officer
could have forgotten to record the fact of the Applicant’s work with the
Fedayeen (Minority) movement. However, the Officer found it unlikely that the
Applicant would tell the POE Officer that the basis of his refugee claim was
his participation in student demonstrations, but then would entirely forego any
reference to his involvement in those demonstrations in his PIF narrative.
Because of this discrepancy, the Officer found that the Applicant had not
provided consistent and reliable evidence with respect to the circumstances
surrounding his identified risks.
[18]
As
regards the Applicant’s responses as to whether he had ever been charged or
convicted of a crime in any country, the Officer commented that the Applicant
gave the same negative response through two different interpreters in relation
to the same question on two different forms (the POE form and the Notification
of Claim form). Consequently, the Officer found the Applicant’s negative
response was informed and accurate and was not given as a result of a
misunderstanding.
[19]
With
respect to the inconsistencies in dates, the Officer noted that the Applicant
testified as to the seasons during which the events occurred. She held that while
errors in converting dates are plausible, it was unlikely that the Applicant
would not be able to accurately recall the season in which he departed Iran. As such,
the Officer gave the Applicant’s explanation little weight in terms of
demonstrating whether the CRDD erred in its finding in respect of the
Applicant’s reliability as a witness.
[20]
The
Officer noted that the Applicant did not provide any documentary evidence in
support of his arrest, trial, conviction, release or subsequent reporting in Iran. She stated
that a “reasonable person” would expect the Applicant to produce some form of
documentary evidence in support of such allegations.
[21]
With
respect to the Applicant’s submission that he has become a high-profile
activist in Canada, which now places him at risk in Iran, the Officer
found there to be a dearth of tangible evidence. The Officer noted that the
Applicant’s counsel submitted, in April 2005, that the Applicant had provided
him with VCR tapes “clearly showing [the Applicant’s] participation in local
very public demonstrations” related to deportations of Iranian nationals from Canada. Counsel
requested more time to edit out materials not directly relevant to the
Applicant. The Officer commented that, after more than six months, she had
still not received any such taped evidence.
[22]
As
for the letters of support concerning the Applicant’s political activities in
Iran and Canada and the
petition, the Officer assigned them little weight as probative evidence of the
personalized risks identified by the Applicant. In general, the Officer found
the letters to be vague and to contribute little in the way of specific or
objectively verifiable information. She stated that none of the declarents who
attested to the Applicant’s history as an activist and political prisoner in Iran had
first-hand knowledge of any of the events. The Officer also noted that the
author of the petition was not well acquainted with the Applicant’s history in Iran, as the
petition makes no reference to his arrest, conviction and incarceration.
[23]
As
regards the letters from the Organisation of Fedaian (Minority) and from the
Ettehad-Enghelabi, given the absence of any indication that the authors of the
letters had first-hand knowledge of the Applicant’s circumstances in Iran, the
Officer concluded that it is more likely than not that the writers’ information
originated with the Applicant himself. Moreover, the Officer commented that,
while each letter describes the Applicant as “one of the most active
supporters” of the Canada-based organizations, neither letter provides any
specific evidence about what “active support” the Applicant has given to these
organizations. The Officer found that similar problems emerged when she
considered the letter provided by the Association of Iranian Political
Prisoners (in Exile).
[24]
Finally,
regarding the documentary evidence on country conditions in Iran, the Officer
acknowledged that “the current government in Iran is a
repressive regime where human rights abuses are not uncommon.” However, the
Officer held that a “generalized climate of human rights violations” does not
itself establish personalized risk to the Applicant on the grounds set out in
sections 96 and 97 of the IRPA.
[25]
As
a result of her findings, the Officer denied the Applicant’s PRRA application.
The Officer concluded, on the evidence before her and her subsequent findings
of fact arising from that evidence, that the Applicant is unlikely to face more
than a mere possibility of experiencing “a forward-looking and personalized
risk of persecution” on a Convention refugee ground. Moreover, the Officer held
that there are no probable grounds to believe the Applicant will face torture
or a risk to life, or cruel and unusual punishment if he returns to Iran.
ISSUES
[26]
The
Applicant alleges that the Officer made the following reviewable errors:
1.
She
failed to hold a credibility hearing pursuant to section 167 of the Immigration
and Refugee Protection Regulations;
2.
She
relied on the findings of the CRDD as a basis for her own credibility finding
and her finding with respect to the new evidence adduced by the Applicant;
3.
She
failed to consider the totality of the evidence; and
4.
She
erred in applying the “reasonable person” test to the facts of the Applicant’s
case.
RELEVANT LAW
[27]
The
statutory authority for a PRRA application is set out in section 112 of the
IRPA. Subsection 112(1) provides the Minister of Citizenship and Immigration or
his delegate with the authority to determine that a person is in need of
protection:
|
112. (1) A person in Canada, other than a person referred to in subsection
115(1), may, in accordance with the regulations, apply to the Minister for
protection if they are subject to a removal order that is in force or are
named in a certificate described in subsection 77(1).
|
112. (1) La personne se trouvant au Canada et qui n’est pas
visée au paragraphe 115(1) peut, conformément aux règlements, demander la
protection au ministre si elle est visée par une mesure de renvoi ayant pris
effet ou nommée au certificat visé au paragraphe 77(1).
|
[28]
An application
for PRRA is considered on the protection grounds set out in sections 96 and 97
of the IRPA. Those provisions provide as follows:
|
96. A Convention refugee is a person who, by reason of a well-founded fear
of persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to
their country or countries of nationality or, if they do not have a country
of nationality, their country of former habitual residence, would subject
them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
(2) A person in Canada who is a member of a class of
persons prescribed by the regulations as being in need of protection is also
a person in need of protection.
|
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se
trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également
qualité de personne à protéger la personne qui se trouve au Canada et fait
partie d’une catégorie de personnes auxquelles est reconnu par règlement le
besoin de protection.
|
[29]
Section
113 of the IRPA provides the Minister with discretion to hold a hearing in
relation to a PRRA application :
|
113. Consideration of an application for protection shall be as follows:
[…]
(b) a hearing may be held if the Minister, on the basis of
prescribed factors, is of the opinion that a hearing is required;
[…]
|
113. Il est disposé de la demande comme il suit :
[…]
b) une audience peut être tenue si le ministre l’estime
requis compte tenu des facteurs réglementaires;
[…]
|
[30]
The
prescribed factors for determining whether a hearing ought to be held pursuant
to paragraph 113(b) of the IRPA are found in section 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations):
|
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.
|
STANDARD OF REVIEW
[31]
The
first issue raised by the Applicant is the requirement to hold an oral hearing.
This involves principles of procedural fairness and so attracts a standard of
correctness: see Fetherston v. Canada (Attorney General), (2005), 332 N.R. 113, 2005
FCA 111.
[32]
The
remaining issues involve the substantive findings of the Officer. In Figurado
v. Canada (Solicitor General), [2005] 4 F.C.R. 387, 2005 FC 347 at
paragraph 51, Justice Luc Martineau outlined the criteria to be used when
assessing the standard of review for matters relating to PRRA decisions:
In my opinion, in applying the pragmatic and functional
approach, where the impugned PRRA decision is considered globally and as a
whole, the applicable standard of review should be reasonableness simpliciter
(Shahi v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 1826 (T.D.) (QL), at paragraph 13; Zolotareva v. Canada (Minister
of Citizenship and Immigration) (2003), 241 F.T.R. 289 (F.C.), at paragraph
24; Sidhu v. Canada (Minister of Citizenship and Immigration), 2004 FC
39, at paragraph 7). That being said, where a particular finding of fact is
made by the PRRA officer, the Court should not substitute its decision to that
of the PRRA officer unless it is demonstrated by the applicant that such
finding of fact was made in a perverse or capricious manner or without regard
to the material before the PRRA officer (paragraph 18.1(4)(d) [as
enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts
Act; Harb v. Canada (Minister of Citizenship and Immigration) (2003),
238 F.T.R. 194 (F.C.A.), at paragraph 14).
[33]
In Kim
v. Canada (Minister of Citizenship and Immigration), (2005), 272 F.T.R. 62,
2005 FC 437, Justice Richard Mosley conducted a pragmatic and functional
analysis in relation to decisions of PRRA officers and also determined that a
different standard of review applies depending on the nature of the question.
Justice Mosley held that questions of fact in a PRRA decision are generally to
be reviewed on a standard of patent unreasonableness, questions of mixed fact
and law on a standard of reasonableness and questions of law on a standard of
correctness.
[34]
I
have followed the pragmatic and functional analyses of Justices Martineau and
Mosley and, in the circumstances of the case before me, where the substantive
issues involve questions of fact, I have applied a standard of patent
unreasonableness for the purpose of reviewing the Decision. Where they involve
questions of mixed fact and law I have applied a standard of reasonableness.
ARGUMENTS
The
Applicant
[35]
The
Applicant contends that the only issue for the Officer was the Applicant’s
credibility and the probative value of the Applicant’s supporting documents. He
says that, because his case met all the factors set out in section 167 of the
Regulations, the Officer was obliged to hold a credibility hearing. He says
that his former counsel alluded to the right to an oral hearing in the
submissions that accompanied the Applicant’s PRRA application. Consequently,
the Applicant argues that failing to hold a credibility hearing, or to inform
the Applicant that no such hearing would be held, constitutes a breach of
procedural fairness. In support of his position, the Applicant cites the
following decisions: Liyanage v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1045; Zokai v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1103; Shafi v. Canada (Minister of
Citizenship and Immigration), [2006] 1 F.C.R. 129, 2005 FC 714; and Tekie
v. Canada (Minister of Citizenship and Immigration), (2005), 50 Imm. L.R.
(3d) 306, 2005 FC 27.
[36]
The
Applicant also argues that the Officer erred by failing to make an independent
assessment of his PRRA application. He says that the Officer essentially
adopted the findings of the CRDD.
[37]
Regarding
the Officer’s consideration of the evidence, the Applicant submits that the
Officer failed to see the “forest for the trees” and thus committed a
reviewable error. Specifically, the Applicant contends that the Officer erred
in discounting the reliability of each individual piece of documentary evidence
rather than looking at the totality of evidence, which the Applicant submits
supports his contention that he was a social activist in Iran and is a social
activist in Canada. For example, the Applicant alleges that the Officer erred
by finding fault in the documentary evidence because of wording or spelling or a
lack of specifics. Further, the Applicant argues that the Officer erred in
criticizing the Applicant for not providing a website address for the “Organisation,”
even though the Officer was directed to a website in an accompanying letter.
Moreover, the Applicant argues that the Officer erred in ignoring the petition
attesting to the Applicant’s involvement as a social activist in the Iranian
community in Vancouver. The Applicant contends
that the petition has probative value in relation to his claim for protection
as a refugee sur place.
[38]
Finally,
the Applicant submits that the Officer erred in stating that a “reasonable
person” would expect that the Applicant would have been able to produce some
form of documentary evidence related to his arrest, conviction and
incarceration. The Applicant argues that there is no basis for the Officer to
suggest that such evidence is available in a country such as Iran which, as the Officer acknowledges,
fails to observe basic human rights: see Ahmad v. Canada (Minister of
Citizenship and Immigration), (2002), 21 Imm. L.R. (3d) 181, 2002 FCT 666.
The Respondent
[39]
The
Respondent submits that the Officer’s findings of fact were not patently unreasonable
and that, on the totality of the evidence, a claim for protection was not
established by the Applicant.
[40]
Regarding
the Officer’s failure to hold a credibility hearing, the Respondent submits
that the Applicant was not entitled to an interview as “he did not bring forth
sufficient reliable evidence that would permit the PRRA Officer to embark on
such an examination.”
[41]
With
respect to the Applicant’s allegation that he is targeted because of his
involvement with the Fedayeen (Minority) faction, the Respondent contends that
the Applicant is attempting to address the “errors” he claimed existed in the
decision of the CRDD. The Respondent submits that the Federal Court has held
that a PRRA officer does not sit in review of a decision of the CRDD: see Singh
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 145 at paragraph 10. A PRRA officer’s
decision is confined to new evidence that was not, or could not have been,
adduced before the Board. The Respondent further submits that, in order for the
Officer to revisit the CRDD’s decision on credibility, the Applicant had to
provide clear and convincing evidence of error: see Weerasinghe v. Canada
(Minister of Citizenship and Immigration), unreported, IMM-10240-03
(January 22, 2004).
[42]
As
for the Officer’s consideration of the evidence, the Respondent argues that the
little weight afforded the various letters relating to the Applicant’s past was
not unreasonable. Moreover, the Respondent submits that the Officer’s statement
that a “reasonable person” would expect the Applicant to be able to provide
some evidence of his arrest and conviction was reasonable. Consequently, the
Respondent submits that the Officer was not required to interview the
Applicant.
[43]
Finally,
regarding the Applicant’s sur place claim to be a refugee because of
his political activities in Canada, the Respondent submits that the Officer’s
assessment of the evidence proffered by the Applicant was reasonable.
ANALYSIS
[44]
There
is a fundamental disagreement between the parties as to whether the Decision
raises credibility issues. The Applicant says that the Officer obviously took
underlying credibility concerns into account in reaching her conclusions and
so, at the very least, should have considered whether a hearing was warranted
in accordance with subsection 113(b) of IRPA and section 167 of the Regulations.
[45]
The
Respondent says, in effect, that the Decision is based upon an insufficiency of
probative evidence, so that credibility was not an issue. The Respondent argues
that the Applicant simply failed to adduce sufficient evidence to establish the
risks he said existed if he was returned to Iran. Hence, says the Respondent “Mr. Latifi was not
entitled to an interview as he did not bring forth sufficient reliable evidence
that would permit the PRRA Officer to embark upon such an examination. The
totality of his evidence was lacking, and the Officer’s findings of fact were
not patently unreasonable.”
[46]
In
fact, the Respondent says it is the Applicant who “attempted to make
credibility a central issue vis-à-vis his refugee claim” and this “does
not mean that an interview should automatically result.”
[47]
As
regards the risks raised by the Applicant as a result of his activities in
Canada, the Respondent once again asserts that this did not involve the
Applicant’s credibility “but whether or not he had provided sufficient evidence
of this risk.”
[48]
I
agree with the Respondent that the distinction between “sufficiency” of
evidence and “credibility” is crucial in this case and that the distinction is
well recognized in the relevant jurisprudence.
[49]
Justice
Blanchard was faced with similar issues in Selliah v. Canada (Minister of
Citizenship and Immigration), (2004), 256 F.T.R. 53, 2004 FC 872 aff’d
(2005), 339 N.R. 233, 2005 FCA 160 and provided very useful guidance at paragraphs
25-27 of his reasons:
The respondent submits that these factors are cumulative
due to the use of the conjunctive "and" in section 167 of the
Regulations. The applicants’ PRRA submissions consisted of additional arguments
to their PDRCC submissions and reiterated the applicant’s story, and are not
exceptional. The respondent submits that the Officer based her decision on the
lack of evidence demonstrating personalized risk, not the credibility of the
applicants. The issue of credibility was not central to the PRRA Officer's
decision. The respondent argues that since the decision of the PRRA Officer
does not raise a serious issue of credibility, there was no duty on the PRRA
Officer to hold an oral hearing. The Court has interpreted a serious issue of
credibility as an issue of credibility that is central to the decision in
question, which is not the case here.
I find that though the PRRA decision does
contain references to the adverse credibility findings made by the CRDD, I am
satisfied that the Officer did not import into her decision the credibility
findings of the CRDD and that such references in the Officer's reasons were not
determinative of her decision. The Officer did not err in considering the CRDD
decision, indeed in the context of a PRRA application it was appropriate for
the Officer to do so. Section 113(c) of the IRPA provides that the factors set
out in sections 96 and 97 of the IRPA shall form the basis for consideration of
an application for protection.
Upon reviewing the above-noted factors set out in section
167 of the Regulations I am satisfied that the prescribed circumstances were
not present in the instant case that would warrant the holding of an oral
hearing. The applicants' credibility was not the determining issue of the
decision, rather the officer found that the risks to the applicants had not
been established on the objective evidence, such as the advances made with the
peace process and the existence of an internal flight alternative (IFA) for the
applicants. The Officer clearly indicated that even if she had accepted all the
evidence adduced by the applicants, it would have been insufficient to warrant
a positive finding. As the sufficiency of evidence was the central issue, and
no serious issue of credibility was raised, there was no obligation on the part
of the officer to hold an oral hearing: Kim v. Canada (MCI), [2003] F.C.J. No.
452, online: QL.
The decision of Justice Blanchard was affirmed
by Justice Linden of the Federal Court of Appeal, (2005), 339 N.R. 233, 2005
FCA 160.
[50]
An
important fact about the Selliah decision is that the officer addressed
section 167 and, in fact, concluded that, even if she had accepted all the
evidence adduced by the applicants in that case, it would not have been sufficient
to warrant a positive finding under section 167.
[51]
In
the present case, even though Applicant’s counsel raised credibility as a
central concern and asked the Officer to consider a hearing in accordance with
section 167, the matter is not dealt with specifically in the Decision.
[52]
Thus,
the basic question for me is whether a serious issue of credibility was raised
by the Decision in this case that required the Officer to at least consider an
oral hearing.
[53]
Justice
Blanchard in Selliah at paragraph 26 was satisfied that “the Officer did
not import into her decision the credibility findings of the CRDD and that such
references in the Officer’s reasons were not determinative of her decision.”
[54]
The
clarity found by Justice Blanchard in Selliah is not present in the case
before me. The Officer did not specifically indicate that, even if she had
accepted the evidence adduced by the Applicant, it would not have warranted a
positive finding. Nor is it obvious that the issue of sufficiency of the
evidence constitutes the real basis for the Decision.
[55]
If
we examine the new evidence of risk that the Applicant placed before the
Officer in his affidavit, it is clear that a great deal of the Applicant’s
affidavit deals with either after-the-fact rationalizations as to why he made
mistakes before the CRDD that counted against his credibility, or evidence that
is intended to support the position that he took before the CRDD.
[56]
The
Officer’s conclusions are as follows:
[…]
I find, accordingly, that there is little reliable evidence in support of his
submission that he was a political activist in Iran and little reliable
evidence that he was imprisoned in his country of nationality or is wanted by
authorities in that state. Similarly, there is little reliable evidence that he
has engaged in high-profile political activities in Canada that would now place him at risk in Iran.
[57]
The
context in which this is said, and the way the Officer approached the evidence
adduced by the Applicant, suggests to me that by “reliable” the Officer means
more than just “sufficiently probative” of the risks identified by the
Applicant.
[58]
The Applicant
says that he did put forward “new” evidence as regards his activities and fears
in Iran, as well as “new” evidence about his activities in Canada.
[59]
He
also says this “new” evidence was not accepted because of on-going credibility
concerns that spilled over from the CRDD hearing and decision. My reading of
the Decision suggests he is correct in this regard.
[60]
It is
very difficult to separate “sufficiency” from “credibility” in the context of a
PRRA decision that supersedes a negative refugee determination that was based
upon credibility. On the present facts I do believe that the Officer was not
sufficiently alive to the distinction so that credibility issues became
enmeshed with sufficiency issues.
[61]
As
regards the evidence concerning the Applicant’s activities in Canada, the
Decision is quite clear that, as a finding of fact, the Officer concludes that
“the applicant has provided insufficient evidence supporting his
self-identification as a high-profile activist in Vancouver.” She does not say that
she does not believe his evidence. She says that his evidence does not make him
into a high-profile activist who would, for that reason, be at risk in Iran.
[62]
As
regards the new evidence of the Applicant’s activities in Iran the words “vague” and
“contradictory” in my view give rise to credibility concerns rather than merely
dealing with sufficiency.
[63]
All
in all, then, I believe the Applicant is correct that credibility issues, at
least as regards his activities in Iran, were an aspect of the Decision that
the Officer did not address in accordance with subsection 113(b) of IRPA and
section 167 of the Regulations. I am not, of course, saying that had the
Officer addressed those concerns, a hearing would have been warranted, or that
if a hearing were held the result would have been different. But credibility
was such a pervasive aspect of the Applicant’s claims that the Officer
committed a reviewable error by not addressing this issue.
[64]
The
Officer describes the process she adopted in paragraph 8 of her Decision:
a)
She
reviewed the CRDD decision and found the findings reasonable;
b)
She
examined the evidence provided that the Applicant questioned the CRDD’s
credibility findings and found that it was insufficient to “even cast into
doubt the findings of the CRDD panel”;
c)
She
found the new evidence on the Applicant’s activities in Iran “to be variously vague,
contradictory, or unsupported by objectively verifiable evidence.” In her
determination, it did not provide a sufficient evidentiary basis for
personalized risk;
d)
She
found that the new evidence about the Applicant’s activities in Canada did not support his
claim “to be a high-profile activist.”
[65]
The
Applicant has drawn my attention to the recent decision of Justice Phelan in Shafi
v. Canada (Minister of Citizenship and Immigration), [2006] 1 F.C.R. 129,
2005 FC 714 where a judicial review application was allowed in circumstances where
the PRRA officer’s findings of sufficiency could not be divorced from the
officer’s credibility findings. I believe that a similar result is necessary in
this case. This conclusion effectively deals with the application but I will
briefly address the other grounds raised by the Applicant.
Other Grounds
[66]
In
my view, the Applicant’s argument that the Officer did not consider the
evidence before her in its totality must fail. I do not find that the Officer
inappropriately scrutinized the supporting letters and the petition. I find no
fault in her overall conclusion that the documents, in general, lack specifics
about the Applicant’s situation and do not represent first-hand accounts of the
persecution the Applicant allegedly faced in Iran or of the Applicant’s
activities in Canada which gives rise to his
sur place claim. In fact, aside from asserting that the documents
support the Applicant’s contention that he was a social activist in Iran and is
a social activist in Canada, the Applicant does not
suggest how they satisfactorily substantiate the basis of his PRRA application.
However, once again, it is difficult to separate the Officer’s findings in this
regard from the general credibility concerns in the Decision, and these
findings cannot stand alone to support the Decision.
[67]
Finally,
I am of the opinion that the Officer did not err in stating that a “reasonable
person” would expect the Applicant to have adduced some form of documentary
evidence supporting his claim that he was arrested, convicted and incarcerated
in Iran because of his
political opinion. I note that the Officer’s comment was not, in and of itself,
determinative of her overall finding that the Applicant had not established
that he has a well-founded fear of persecution or would be at risk if he
returned to Iran. The Officer made this
comment following, and in light of, her assessment that the supporting
documentary evidence before her was of little probative value. Once again,
however, this issue cannot be entirely divorced from the credibility issue and
cannot be used to allow the Decision to stand.
JUDGMENT
THIS COURT ORDERS THAT:
1.
This
application for judicial review is allowed and the matter is returned for
reconsideration by a different officer.
2.
There
is no question for certification.
“James Russell”
Judge
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