Date: 20111027
Docket:
IMM-191-11
Citation:
2011 FC 1192
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, October 27,
2011
Present: The Honourable
Mr. Justice Pinard
BETWEEN:
Roghieh
KHOSRAVI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision of
Anna Brychcy of the Refugee Protection Division of the Immigration and Refugee
Board of Canada (the panel). This application is submitted under subsection
72(1) of the Immigration and Refugee Protection Act, S.C. (2001), c. 27
(the Act) by Roghieh Khosravi (the applicant), a 62-year-old Iranian woman. The panel
found that the applicant was not a refugee or a person in need of protection
and therefore rejected her refugee claim.
[2]
Considering herself to be a sur place refugee, the
applicant says that she fears returning to Iran because of her children’s and
her participation in demonstrations in Montréal against the Iranian government. She said that she also fears being persecuted because of
false accusations made against her by the Iranian authorities.
[3]
The panel found that several important aspects of the applicant’s
refugee claim were not credible and that, as a result, her allegations of being
a sur place refugee and of subjective fear within the meaning of the Act
had not been proven. In so concluding, the panel based
its findings in part on the following elements explained in its decision:
·
After
her initial examination in July 2004, only the applicant’s daughter filed
a refugee claim, not the applicant herself.
·
Despite
her children’s difficulties, which caused them to leave Iran, the applicant had
never before filed a refugee claim and continued to travel.
·
After
having said that her previous examination related to her son’s activities had
taken place in 2004, she now states that it was actually in 2005.
·
There
is a contradiction in the applicant’s testimony about her passport.
·
It
is unlikely that the Iranian authorities searched the applicant’s house looking
for evidence during her detention, since she was out of the country for six
months without returning to her home.
·
After
she left Iran in 2009, the applicant did not file a refugee claim in England
and she also failed to file one immediately after she arrived in Canada.
·
The
applicant has been able to leave Iran several times since 2004.
·
The
applicant was unable to tell whom she allegedly bribed to allow her to leave
Iran.
·
The
applicant never took an active part in the demonstrations she attended.
·
There
is no evidence that the Iranian authorities are aware of the applicant’s
presence at these demonstrations.
·
On
the basis of documentary evidence from 2005 contained in the National
Documentation Package, it is unlikely that the Iranian government is aware of
the applicant’s participation in the demonstrations.
* * * * * * * *
[4]
This
application for judicial review raises the following fundamental issues:
i.
Did the
panel breach the principles of natural justice and its duty of procedural fairness by depriving the applicant of the opportunity to
be heard and to present her evidence?
ii.
Did
the panel err in its assessment of the facts and the applicant’s credibility
with respect to her allegations of being a sur place refugee and her
subjective fear?
[5]
The applicable standard of review in any question of law,
procedural fairness and breach of natural justice is correctness (Dunsmuir
v. Nouveau-Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir]).
[6]
Furthermore, the
standard of reasonableness applies with respect to the second question on the
panel’s findings of fact.
[7]
On the first question, the applicant alleged that the panel acted
in an unfair manner, in breach of the principles of natural justice, by failing
to inform her of the evidence against her and failing to give her the
opportunity to be heard. The applicant stated
that a party must be informed of the panel’s concerns and the evidence against it
and be able to comment on this evidence (see Skripnikov v. Minister of
Citizenship and Immigration, 2007 FC 369, at para. 22; Sheikh v.
Minister of Citizenship and Immigration, 2008 FC 176, at para. 10; and Tamber
v. Minister of Citizenship and Immigration, 2008 FC 951, at para.16).
The panel allegedly erred by failing to inform the
applicant of its concerns about her credibility during the hearing.
[8]
However, on the face of the decision, it appears that the panel
did give the applicant the opportunity to explain her contradictory testimony. The applicant indeed had the opportunity to fully share her
point of view and present her evidence, as required by procedural fairness (Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817 at para. 22). As noted by the
respondent, the burden of proof in a refugee claim is on the applicant: she had
to establish a subjective fear and a serious possibility of persecution on the
basis of credible evidence. It is not for the
panel to seek additional evidence.
[9]
The applicant further criticizes the panel for failing to draw her
attention to the documentary evidence in her country of nationality’s package,
specifically the document by the “director for the consular office in the
Iranian Foreign Language Ministry.” This documentary
evidence is used, in the panel’s decision, as evidence establishing the
unlikelihood that the Iranian government knew of the applicant’s actions and
that she would be persecuted. Since she was
not offered the opportunity to contradict this document, the applicant alleges
that her right to procedural fairness was breached.
[10] The
respondent refers to paragraph 170(h) of the Act to emphasize the
discretion granted to the panel in terms of credibility and assessment of the
evidence.
The respondent notes that the document “director for
the consular office in the Iranian Foreign Language Ministry” was part of the
package and that it was specifically brought to the applicant’s attention
before the hearing.
[11] It
should be noted that under the Act, the panel has the discretion to consider
everything that is found in the package. Further, the panel is presumed to have considered all of the evidence
before it (see Florea v. Canada (Minister of Employment and
Immigration) (1993) F.C.J. No. 598 (F.C.A.), at para. 1). The panel certainly was not obligated to comment on each of
the exhibits placed in evidence (Cepeda-Gutierrez et al. v.
Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R.
35, at para. 16).
[12] Therefore,
in light of the record, I find that the applicant had the full opportunity to
be heard and that the panel in no way breached its duty of procedural fairness.
[13] On
the second issue, with respect to the assessment of the facts and the applicant’s
credibility, with respect to her claims of being a sur place refugee and
of her subjective fear, I am not persuaded, after reviewing the evidence and
hearing the counsel for the parties, that the Court’s intervention is
warranted.
[14] It does not
appear to me that the panel based its decision on an erroneous finding of fact
that it made in a perverse or capricious manner or without regard for the
material before it (see paragraph 18.1(4)(d) of the Federal
Courts Act, R.S.C. (1985), c. F-7). Although some
documents supporting the applicant’s claims were not analyzed in the decision
and the panel’s determination that the temporary absence stamp in the applicant’s
passport could be an error, I do not think that this would be sufficient to invalidate
this decision. In this matter, this Court
cannot substitute itself for the panel. In
summary, I am of the view that it was not unreasonable for the panel to have
weighed all the facts as it did in its finding of the applicant’s lack of
credibility and the lack of sufficient evidence to show that she is a sur
place refugee and that she has a subjective fear consistent with the Act.
Having considered all relevant circumstances, the
panel’s decision and its findings of fact are warranted in essence and fall
within the range of possible, acceptable outcomes which are defensible in
respect of the facts and law. In my opinion,
the decision appears to me to be justified, transparent and the hearing is
intelligible (see Dunsmuir at para. 47).
* * * * * * *
*
[15] For all these
reasons, the application for judicial review is dismissed.
[16] I agree with
counsel for the parties that this is not a case for certification.
JUDGMENT
The
application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board that the applicant was not a
refugee or a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
Certified true translation
Catherine Jones, Translator
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