Sokhan v. Canada (Citizenship and Immigration), docket IMM-3067-96

     IMM-3067-96

BETWEEN:

     AMIR SHAHIN SOKHAN

     Applicant

AND:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

JOYAL, J.:

     This is an application to review and set aside the decision of Post Claim Determination Officer, James Graham, dated August 1, 1996, wherein the applicant was determined not to be a member of the Post Determination Refugee Claimants in Canada ("PDRCC") class, as defined in section 2(1) of the Immigration Regulations.

I.      FACTS

     The applicant is a citizen of Iran who entered Canada in June 1987 as a Convention refugee claimant. He allegedly fears persecution in Iran on the basis of his political opinion and membership in a particular social group. His claim was denied by the Convention Refugee Determination Division (the "CRDD"). In its decision rendered on May 31, 1994, the CRDD held that the applicant did not satisfy the requirements of the Convention refugee definition as set out in section 2(1) of the Immigration Act (the "Act").

     Following the decision of the CRDD, an immigration officer undertook to review the applicant's circumstances to determine whether he was a member of the PDRCC. It was determined that the applicant was not a member of that class.

II.      CRDD DECISION

     The issue of the applicant's credibility was a pivotal one in the CRDD's decision to reject his claim. Due to the inconsistencies in his testimony, the CRDD found that the applicant was lacking in credibility to the point where they even doubted whether he had a subjective fear of persecution. Obviously, it was also determined that the claim was devoid of any objective basis, i.e. that there was no well-founded fear of persecution.

     The applicant claimed that he had helped his brother, for a period of a year, in distributing flyers and newsletters on behalf of the Cherikhay Fadic Khalq. This group is a resistance movement in Iran which opposes the Islamic regime. It is perceived by the Iranian government to be a terrorist organization. As a result of his activities on behalf of this organization, the applicant's brother was arrested and executed in July 1981. After his brother's death, the applicant says he stopped participating in the movement and went into hiding.

However, the CRDD was not convinced by the applicant's story. It was the panel's belief that there was insufficient evidence to support the applicant's claim that the Iranian government was after him. According to the CRDD, "had the claimant been identified with the group known as Cherikhay Fadic Khalq, efforts would have been made for his apprehension over the period of five years, from 1981 to 1986, when his whereabouts could easily have been ascertained"1. No such efforts appeared to have been made. Here is a summary of the inconsistencies and conflicting evidence noted by the CRDD in the applicant's testimony: a)The applicant was gainfully employed from October 1979 to July 1986. During this period, monies were deducted from his pay for income tax purposes. These monies were remitted to the government in the applicant's name.

b)      After his brother's death, the applicant was drafted into the Iranian army (military service is compulsory in Iran). He reported to the authorities and was later exempted from military duty for medical reasons.

c)      After his brother's execution, the applicant had no difficulty in obtaining valid Iranian passports. In particular, he got one just before he supposedly fled the country in 1986.

     Therefore, given these circumstances, it would have been easy for the Iranian government to track the applicant through his records had they wanted to apprehend him.

     Finally, the CRDD noted that the applicant's behaviour does not indicate a fear of persecution. Most notably, he abandoned claims for asylum in Germany and in Holland (where he made a claim using an alias). Had he a genuine fear of persecution, the applicant would have remained in these countries until a decision had been reached by the proper authorities.

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III.      POST DETERMINATION REVIEW

     The question before the post determination officer was whether the applicant would be subjected to a risk as defined in the definition of a member of the PDRCC class, i.e. an objectively identifiable risk of extreme sanctions or inhumane treatment, which would apply in every part of Iran and which risk would not be faced generally by other individuals in or from that country.

     Two such alleged risks were identified by the applicant in the information he submitted and thus, were examined by the officer: first, the applicant's conversion to Christianity and second, the making of a refugee claim abroad.

     (1)      Conversion to Christianity

     While the documentary evidence confirmed that Christians in Iran do suffer discrimination in a number of areas (housing, employment etc), the officer found that such discrimination did not put the applicant at risk.

     (2)      Refugee Claim

     The applicant alleged that if returned to Iran, he would face imprisonment or a fine as a result of having left Iran illegally and having claimed refugee status in Canada. The officer was not convinced that the applicant's allegation was supported by the evidence, which seemed to indicate that penalties upon return to Iran varied according to the specifics of each case. For example, the severity of the penalty imposed may depend on whether the person left the country illegally or not, or on his or her political activities and opinions. In the case at bar, it was noted that the applicant did not leave Iran illegally: in fact, he had a valid passport and exit visa. Furthermore, the facts in this case led the officer to believe that the applicant's past political activities are of little or no concern to the Iranian government. Although the applicant fears he is wanted because he helped his brother in distributing flyers and newsletter, the minor role and length of time since his involvement, as well as the opportunities available to the authorities to apprehend him, all seem to suggest otherwise. Hence, it was the officer's view that the risk that the applicant would be subjected to sanctions represented "less than a mere possibility"².

    

IV.      ISSUES

     The applicant raises three issues. He argues that the post determination officer's decision is reviewable because the officer committed the following errors:

1.      The officer erred in applying inconsistent principles;

2.      The officer made an erroneous finding of fact when he concluded that the applicant left Iran legally;

3.      The officer erred in making a finding of fact as it related to the applicant's credibility.

V. ANALYSIS

     For purposes of judicial review of PDRCC decisions, the standard of review imposed is very high. Since the post determination review officer's decision to recommend an individual as being eligible for the PDRCC class does not confer on the individual a right but rather a special status or a privilege, the courts are reluctant to intervene in these discretionary decisions unless the discretion was used in an abusive fashion. In Moskvitchev v. Canada (Minister of Citizenship & Immigration)³, the Court noted that the discretion to determine whether a person is a member of the class or not, is subject to judicial review if the officer exercises his discretion pursuant to improper purposes, irrelevant considerations, with bad faith, or in a patently unreasonable manner. In light of this high threshold, it appears that the circumstances of this case do not warrant the Court's intervention. There is nothing that indicates that the officer exercised his discretion in an unlawful way. He appears to have carefully considered the evidence before him.

     (1)      Inconsistent Principles

     First, the applicant argues that the officer committed a reviewable error when he did not consider the formal penalty in Iran for the crime of apostasy (conversion from Islam to Christianity). Under Iranian law, a Muslim who converts to Christianity is subject to the death penalty. The officer only mentioned that the death penalty is not carried out in most cases. However, when evaluating the risk for the crime of making a refugee application abroad, the officer did take into consideration the formal sentence (varies from fine to imprisonment) and ignored the sentence that would likely be applied (the applicant's documentary evidence reveals that persons are often detained for long periods without trial).

     This does not amount to a reviewable error. In fact, the officer simply weighed the evidence before him, which he is entitled to do, and decided to rely on certain pieces of documentary evidence. There is no indication that he abused of his discretion in doing so.

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     (2)      Illegal Departure

     Second, the applicant argues that the officer erred by finding that the applicant legally left Iran with a valid passport. According to the applicant, it was legal for him to use his passport to make a trip to Turkey (he fled Iran by taking a bus to Istanbul), but his actions in travelling from Turkey to East Germany and other countries were not sanctioned by the Iranian government. The applicant argues that the officer did not take this explanation into consideration. He should have considered that the risk of being punished for an illegal departure are very severe, according to documentary evidence.

     The respondent correctly urges the Court not to consider the applicant's explanation. In fact, there is no evidence that the applicant's explanation for his departure from Iran was before the officer for it is contained in an affidavit sworn September 26, 1996. The Court should not take into account evidence which post-dates the decision in order to attack it.

     Similarly, the respondent also objects to the evidence included in the affidavit of Amin Shoukri, sworn April 17, 1997, which contains evidence that was not before the officer. Specifically, the affidavit disputes the findings of the officer that the penalty for illegal departure from Iran and for seeking refugee status abroad vary from the imposition of a fine to imprisonment, depending on the specifics of the each case. The officer's conclusion is based on documentary evidence produced by the Department of Citizenship and Immigration which states the Iranian Association in Toronto as a source⁴. However, Amin Shoukri, who heads the Iranian Community in Association of Toronto - he claims there is no such thing as the Iranian Association - maintains that this is not the position of his organization. They hold the opinion that returnees to Iran are at risk of death for having sought refugee status abroad or leaving Iran illegally. Whether or not it would have been open to the officer to endorse one opinion instead of the other, no fault can be laid at his door on the finding he did make.

     (3)      Credibility

     Finally, the applicant claims that the officer made what amounted to be a finding a credibility when he stated:

Although I cannot determine the credibility of the applicant I am concerned over his unrefuted testimony, before the board, which would appear illogical, inconsistent, and implausible given the risk expressed. This assessment of his testimony limits the weight I can afford subsequent factors advanced5.

     I see no error in this. The officer is entitled to refer to the evidence and to the findings of the Refugee Board in order to better define the weight to be given to the applicant's assertions. On that basis, the officer makes his judgment call. That is what he is appointed to do.

VI.      CONCLUSION

     I am not satisfied that any errors attributable to the officer in his assessment are of a nature to justify this Court's intervention by way of judicial review. The application must therefore be denied.

     L-Marcel Joyal

     _________________________

     J U D G E

O T T A W A, Ontario

July 7, 1997.

__________________

¹      Record at p. 7.

²      Record at p. 7.

³      (December 21, 1995), Doc. IMM-70-95 (Fed. T.D.) "hereinafter Moskvitchev > ; see also Gharib v. Canada (Minister of Citizenship & Immigration) (1995), 30 Imm. L.R. (2d) 291, 99 F.T.R. 208.

⁴      Record at p. 23.

⁵      Record at p. 8.