Date: 20080229
Docket: IMM-5403-06
Citation: 2008
FC 277
Ottawa, Ontario, February 29, 2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
SOMAYEH
MOHAMMADY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
Ms.
Somayeh Mohammady (the “Applicant”) seeks judicial review of the decision of
the Immigration and Refugee Board, Immigration Appeal Division (the “IAD”),
dated September 19, 2006. In that decision, the Board dismissed the Applicant’s
appeal from the decision of a Visa Officer refusing the issuance of a travel
document on the grounds that the Applicant had failed to comply with the
residence requirements set out in section 28 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”) and further, that there were
insufficient grounds for the exercise of discretion on humanitarian and
compassionate grounds to overcome the breach of the residency requirements.
[2]
The
Applicant does not challenge the legal validity of the Visa Officer’s decision
that she did not comply with the residency requirements set out in section 28
of the Act. The subject of this application is the failure of the Visa Officer
to positively exercise the discretion to make a decision on humanitarian and
compassionate grounds.
II. Background
[3]
The
Applicant, an Iranian citizen, entered Canada in 1994, as a Convention refugee,
together with her family.
[4]
In the
summer of 1997, the Applicant left Canada
and after travelling to the United States, arrived at Ashraf City in Iraq where she took up residence at Camp Ashraf. Camp Ashraf was a military camp for the Mujahedin e
Khalq (People’s Mujahedin) (the “MEK”).
[5]
The
Applicant’s parents contacted Canadian authorities in 2004, seeking assistance in
order to communicate with their daughter. The Applicant had initially come in
contact with the MEK while living in Toronto
with her family. According to the testimony of her father before the IAD, the
family had attended at the Mujahedin center and participated in its activities.
The Applicant’s father testified that he thought that Camp Ashraf in Iraq offered a one-month seminar program for
students and that he thought the Applicant would return after that period. He
did not contact Canadian authorities when she did not return after one month
and indeed, sent the Applicant’s brother to the camp in 1999.
[6]
One of the
Applicant’s fraternal aunts had been a member of the MEK at Camp Ashraf; she was killed in combat in
1988.
[7]
The
Applicant’s brother testified before the IAD and said that he had been detained
at the camp. He defected from the MEK to the American Military Camp at Ashraf
and returned to Canada in December 2004.
[8]
The
Applicant’s father did not seek assistance from the Canadian authorities,
concerning communication with his daughter until 2004.
[9]
The IAD
found the father’s evidence, that he was unaware of human rights abuses at the
Camp before that time, to be credible. The IAD also accepted evidence that the
Applicant’s parents made visits overseas beginning in 2002 and efforts from
2003 onward to visit the children at Camp
Ashraf, in order to facilitate their return to Canada.
[10]
The
Applicant testified before the IAD via teleconference. She testified that she
had voluntarily joined the MEK and that she wished to remain with them.
[11]
The
Applicant argues that the IAD erred, in assessing her appeal on humanitarian
and compassionate grounds, by ignoring the evidence as to her intentions with respect
to her sojourn at Camp Ashraf and further, by ignoring specific documentation
that supported the evidence of witnesses before the IAD that she failed to then
return to Canada within the required period because she was held against her
will at Camp Ashraf.
[12]
The Respondent
submits that the IAD properly considered the evidence before it, including the
evidence of the Applicant. He argues that there is no evidence that the
Applicant was subject to mind control or was unable to exercise free will in deciding
to leave the Camp. He submits that the Applicant’s own evidence is the best
indicator of her intentions and in her evidence before the IAD, she said that
she wished to stay in the Camp.
[13]
Furthermore,
the Respondent notes that insofar as a psychological assessment of the
Applicant is concerned, there is no evidence that this could not be conducted
at the Camp.
III. Discussion and Disposition
[14]
The first matter
to be addressed is the applicable standard of review to be established
following a pragmatic and functional analysis. The factors to be considered in
that regard are the presence or absence of a privative clause; the expertise of
the tribunal; the purpose of the legislation; and the nature of the question.
[15]
The Act does
not contain a privative clause and judicial review is available if leave is
granted pursuant to subsection 72(1) of the Act. The first factor is neutral.
[16]
The IAD is
a specialized tribunal, authorized under the Act to decide questions of fact
and law. Its decisions attract a high degree of deference.
[17]
The
purpose of the Act is to regulate the admission into Canada of immigrants and persons in need of
protection, as well as to maintain the security of Canadian society. This
involves consideration and balancing of many interests that may conflict with
each other. Decisions made in a polycentric context tend to attract judicial
deference.
[18]
Finally,
there is the nature of the question in issue. Here, the Applicant is
challenging the IAD’s refusal to positively exercise its discretion on
humanitarian and compassionate grounds. A decision involving the exercise of a
statutory discretion, on humanitarian and compassionate grounds, often attracts
greater deference.
[19]
Upon
balancing the four factors, I conclude that the applicable standard of review
in this case is reasonableness simpliciter. The test for meeting this
standard is whether the decision of the IAD can withstand a somewhat probing
examination; see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R.
247 at paragraph 46.
[20]
Upon
weighing the evidence submitted, including the evidence of the Applicant, her
father and her brother, the IAD found that the Applicant failed to establish an
evidentiary basis to justify the positive exercise of discretion on
humanitarian and compassionate grounds. In particular, the IAD noted that,
according to her own evidence, the Applicant wished to remain at Camp Ashraf. The Applicant was 17 years old when
she went to Camp Ashraf. She was 25 at the
time that she testified before the IAD. In my opinion, she was of an age to
express her intentions and she did so.
[21]
Contrary
to the Applicant’s submissions, the IAD did not ignore the evidence that was
presented. It was open to the IAD to put greater weight on the evidence of the
Applicant herself than on the documentary evidence that was tendered. I see no
basis for judicial intervention in this case and the application for judicial
review is dismissed. There is no question for certification arising.
JUDGMENT
The application for judicial
view is dismissed. There is no question for certification arising.
“E. Heneghan”
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