Date: 20080528
Docket: IMM-4604-07
Citation: 2008 FC 681
Ottawa, Ontario,
May 28, 2008
PRESENT:
The Honourable Mr. Justice Blanchard
BETWEEN:
MAJID
BARZEGARAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This is an
application for a judicial review of a pre-removal risk assessment (PRRA)
officer’s decision dated August 13, 2007, refusing the applicant’s
request for an exemption from the requirement to obtain a permanent resident
visa from outside Canada, based on humanitarian and compassionate grounds,
filed under subsection 25(1) of the Immigration and Refugee Protection
Act, R.S.C. 1985, c. I-2 (the Act).
II. Factual background
[2]
The
applicant was born in Tehran,
Iran, on May 1, 1983,
and is an Iranian citizen.
[3]
On
February 4, 2001, the applicant’s father died. He was a manager at the National
Iranian Oil Company. The applicant attributes his father’s death to the actions
of the government, which apparently had him poisoned.
[4]
The
applicant openly expresses his disagreement with religious practices in Iran. He claims to have been suspended from
school for a three-week period in 2000 because of his opposition to Islamic
prayers.
[5]
In spring
2002, the applicant allegedly attended a Catholic church. For that reason, he
was apparently arrested, detained and beaten for four (4) days.
[6]
In
December 2002, members of the “sepah” (Islamic Revolution’s Guards Corps)
were searching for the applicant because of his opposition to Islam. To avoid
being imprisoned, the applicant went to stay in the city of Karaj with a friend of his mother. The
applicant’s mother informed him that he was being accused of being
anti-revolutionary and anti-religious and of having distributed anti-Islamic pamphlets.
[7]
With the
assistance of an agent, the applicant left Iran on January 16, 2003. He passed
through Bangkok, Taipei and Hong Kong and arrived in Vancouver on or around February 2,
2003.
[8]
On March
17, 2003, the applicant claimed refugee protection based on a fear of
persecution by reason of his religion (perception of having converted to
Christianity) and his political opinions (perception of being an enemy of the
Iranian regime).
[9]
Following
a hearing held on December 2, 2003, the Immigration and Refugee Board’s
Refugee Protection Division (the RPD) rejected his refugee protection claim on
the same day in an oral decision. The RPD determined that the applicant was not
credible and did not believe his story.
[10]
On May 17,
2004, the applicant requested an exemption from the requirement to submit his
visa application from outside Canada. On August 9, 2007,
he forwarded an update to his file.
[11]
The
request was reviewed and refused on August 13, 2007, on the grounds
that there were insufficient humanitarian and compassionate considerations
surrounding the applicant’s personal situation to grant the request for an
exemption. This application challenging that decision was filed on
November 7, 2007.
III. Impugned decision
[12]
In her
decision dated June 18, 2007, the PRRA officer made the following
findings:
(a)
If the
applicant were to return to Iran to apply for a visa in accordance with the
Act, he would not be separated from any family members living in Canada. The presence of his mother
in Iran would be an advantage for the
applicant, who could benefit from moral and logistical support on his return;
(b)
The
applicant’s presence in Canada for the last four years does
not indicate a clear attachment to Canada.
The officer noted that he spent the first twenty years of his life in Iran;
(c)
The
documentary evidence does not demonstrate that the applicant has worked
steadily since his arrival in Canada. He filed two records of
employment that totalled about four weeks of work over a period of four years
and some evidence demonstrating a bank deposit of $25,000 with all subsequent
transactions being withdrawals and no additional deposits. He also applied for
only one work permit (October 6, 2004) since his arrival in Canada. Consequently, the PRRA
officer concluded that the applicant was unable to demonstrate that he could
provide for his needs;
(d)
Despite
the fact that Professor John Murphy acknowledged that he had given the
applicant $25,000 and that he is ready to support him in his endeavours, the
PRRA officer noted that Professor Murphy is not a Canadian citizen and that
that process does not meet the sponsorship standards of the Canadian
government;
(e)
The PRRA
officer noted that the applicant is 24 years old and in good health. He holds a
secondary school diploma and a subsequent diploma from the Shahid Bahonar Vocational School in Tehran. For these reasons, the
applicant is qualified to continue his studies or to enter the job market in Iran until he can apply for a permanent
resident visa in accordance with the Act;
(f)
Regarding
the risk of persecution, abuse or torture because of his political opinions
attributed to those of his father, who died on February 4, 2001, the
PRRA officer concluded that the facts on the record are insufficient to
determine that the applicant would encounter disproportionate, unusual or undeserved hardship if he had to return to
Iran;
(g)
Regarding
the risk of persecution, abuse or torture because of the applicant’s religious
beliefs, the PRRA officer noted several contradictions on that issue and the
applicant’s failure to establish a conversion and beliefs in a religion other
than Islam that are such as would put him at risk of persecution;
(h)
Concerning
the applicant’s allegation that he arrived in Canada using false documents and
that, on his return to Iran, he would risk being detained, tortured and abused,
the PRRA officer noted that the applicant’s personal profile would not put him
at risk on his return to Iran;
(i)
The fact
that two aunts of the applicant were acknowledged to be refugees does not
confirm the personal risks of persecution, threats to his life or torture
alleged by the applicant.
[13]
For these
reasons, the PRRA officer refused the request for exemption and concluded [Translation] “that the humanitarian and
compassionate considerations surrounding the applicant’s personal situation are
insufficient to grant the request for an exemption from applying for an
immigrant visa through a Canadian embassy abroad before arriving in Canada”.
IV. Issue
[14]
Did the
officer err in her assessment of the evidence when she determined that the
applicant would not encounter disproportionate,
unusual or undeserved hardship if he had to apply for a permanent resident visa
from outside Canada in accordance with the Act?
V. Standard of review
[15]
In Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme
Court of Canada found that
there should be only two standards of review: correctness and reasonableness.
The Court indicated that the standard of correctness must be maintained in
respect of jurisdictional and some other questions of law (see Dunsmuir
at paragraph 50). When applying the correctness
standard, a reviewing court will not show deference to the decision-maker’s
reasoning process; it will rather undertake its own analysis to decide whether
the decision is correct.
[16]
The
Supreme Court also indicated that, in
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law (see Dunsmuir at paragraph 47).
[17]
Guidance with regard to the
questions that will be reviewed on a reasonableness standard can be found in
the existing case law (see Dunsmuir at paragraph 54). The following
factors will determine whether deference ought to be given to a tribunal:
whether there is a privative clause, whether the decision-maker has special
expertise in a discrete and special administrative regime and what the nature
of the question of law is (see Dunsmuir at paragraph 55).
[18]
Using
the pragmatic and functional approach, the Supreme Court of Canada determined
in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817, [1999] S.C.J. No. 39 (QL) at paragraphs 57–62, that the
appropriate standard of review for H&C applications is reasonableness simpliciter.
[19]
In this
case, the Act does not contain a privative clause. Although it does provide a
possible recourse to judicial review, it cannot be done without leave of the
Federal Court. As for the decision‑maker’s expertise, in this case, the
decision‑maker is the Minister of Citizenship and Immigration or her
delegate. The Minister has some expertise relative to
courts in immigration matters, particularly with respect to when exemptions
should be granted from the requirements that normally apply. This is a factor militating in favour of deference. Finally, on the nature of the problem in
question, the decision about whether to grant an H&C
exemption involves a considerable appreciation of the facts of the person’s
case, and is not one which involves the application or interpretation of
definitive legal rules. Given the highly discretionary and fact-based nature of
this decision, this is a factor militating in favour of deference.
[20]
For these reasons, I am of
the opinion that the standard of review applicable in this case is
reasonableness.
VI.
Analysis
[21]
The
applicant’s claims can be summarized as follows:
(a)
First, the
applicant alleges that the PRRA officer made an error in her reasons when she
claimed that the applicant had not submitted any new evidence that would make
it possible to establish that his religious beliefs contrary to Islam are such
that he may be persecuted on his return to Iran. The applicant is relying on paragraph
113(a) of the Act to state that there are very strict requirements for
filing new evidence and that therefore the PRRA officer could not require new
evidence from him.
(b)
Second,
the applicant claims that the PRRA officer refused his request on the basis of
unfounded assumptions and not on the basis of the evidence before her. More
specifically,
(i)
she
refused to consider the applicant’s life to be in danger because of the time
that had elapsed between the death of his father and the applicant’s departure
from Iran. She failed to take into
account the fact that, while he was abroad, the applicant had become a target,
something he was not while he was in Iran because of his youth;
(ii) the PRRA officer failed to
take into account the circumstances of and the explanations concerning the
conspiracy surrounding his father’s death;
(iii)
the PRRA
officer failed to take into account the fact that the applicant would be at
risk if he returned to Iran. The documentary evidence,
including the report IRN29286.E, as well as the applicant’s sworn statement,
demonstrate the danger that the applicant would be in if he returned;
(c)
Third, the
applicant maintains that the PRRA officer failed to properly evaluate the
applicant’s integration into Canada. He is challenging the
finding that he is not properly integrated into Canadian society because he has
not had steady employment in this country. In addition, he claims that a
negative finding was made based on the fact that he had a substantial amount of
money that made it possible for him not to work in Canada.
[23]
I will deal with these claims below.
New evidence
[24]
I cannot accept the applicant’s argument that
subsection 113(a) of the Act provides very strict requirements for
filing new evidence and that, because of this, the PRRA officer could not have
required new evidence from him. The respondent is correct in noting that the
request presented before the PRRA officer concerned an exemption from the requirement
to apply for a visa from outside Canada.
However, paragraph 113(a) of the Act applies only to reviewing PRRA
applications that are applications to the Minister for protection by
individuals who are subject to a removal order. In this case, the applicant
filed a request for an exemption from the requirement to obtain a
permanent resident visa from outside Canada on humanitarian and compassionate
grounds on May 1, 2004. The onus is on the applicant to demonstrate that the
hardship that he would face, if he had to apply for his permanent resident visa
in the usual manner, would be disproportionate, unusual or undeserved. For
these reasons, I am of the opinion that the PRRA officer was not in error when
she noted that the applicant had failed to submit any new evidence that would
establish that his religious beliefs are such that he could be persecuted.
Assessment
of the evidence
[25]
In this case, the applicant alleges that
the PRRA officer made several errors in her assessment of the evidence, especially
concerning the following: (i) the danger to his life because of his religious
beliefs, (ii) his father’s death and the fact that the applicant is now a
target wanted by the Iranian authorities, (iii) the fact that the documentary
evidence favourable to him was ignored, and (iv) the fact that she failed to
properly assess the applicant’s integration into Canada.
[26]
An applicant has a high threshold to
meet when requesting an exemption from the application of subsection 11(1) of
Act. The applicant has the burden of presenting the facts on which his request
is based in order to demonstrate that he would encounter disproportionate,
unusual or undeserved hardship if he had to apply from outside
Canada. In my opinion, the
applicant has failed to discharge this burden in this case. The PRRA officer
weighed all the factors relevant to the applicant’s request, including those
that the applicant relied on.
[27]
The applicant’s allegations concerning the PRRA
officer’s assessment of the evidence are not valid. The applicant was unable to
explain why he had waited for almost two years after the death of his father to
leave Iran. In addition, the
applicant was unable to explain why his family, including his mother and his
brothers, had stayed at their family home in Iran, when they were also targeted by the Iranian authorities, just as
the applicant was. I cannot find that the PRRA officer erred in determining
that such conduct was contrary to establishing the merits of a subjective fear
in favour of the applicant and his family.
[28]
The PRRA officer’s finding that there were some
contradictions in the documentary evidence that undermined the applicant’s
claim that he would be persecuted because he opposed Islam was open to her.
More specifically, the applicant did not address the contradictions in how
frequently he went to church and the discrepancies between the dates that the
anti-Islamic pamphlets were printed and distributed and the length of his
employment at a printing shop. Several of these contradictions had been indicated
by the RPD. The PRRA officer correctly attached weight to the RPD decision and
noted that the applicant had not submitted any new evidence establishing a
conversion to a faith other than Islam which would have put him at risk or in
danger on his return. The officer did not err in her assessment of that
evidence.
[29]
As for the documentary evidence, it is clear
from the reasons that the PRRA officer took into account the documentation on
the objective situation in Iran.
She mentioned in her analysis various pieces of documentary evidence, including
the documentation submitted by the applicant. I am of the opinion that the
officer did not err in her assessment of the documentary evidence.
[30]
Finally, I cannot find errors in the PRRA
officer’s finding concerning the applicant’s degree of integration into
Canadian society. Although the applicant had provided a bank statement showing
a $25,500 deposit on May 11, 2004, it was then followed by several withdrawals
but no new deposits. In addition, the applicant has worked for only a short
period of four weeks over a total of four years. He has no family in Canada and is not married. Because of the
deference this Court owes to the PRRA officer in assessing the facts, I cannot
characterize her decision on this issue as being unreasonable.
VII. Conclusion
[31]
In light of the foregoing, I am of the opinion
that the PRRA officer’s decision refusing the request for exemption on
humanitarian and compassionate grounds is not unreasonable. I am satisfied that
the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law. Consequently, this application for judicial review
will be dismissed.
VIII. Certified
question
[32]
The applicant proposed the following question to
be certified:
[Translation]
When dealing with an
H&C application concerning a religious conversion, must officers
necessarily consider the effects of religious practices on Canadian soil in the
case of removal?
[33]
In this case, the applicant’s allegations that
he has converted to Catholicism and that he has practised that religion here in
Canada were both assessed by
the PRRA officer, who has rejected them. Earlier, I determined that the PRRA
officer had not erred in making this finding. The applicant did not prove his
allegation. I am of the opinion that the question raised cannot be
determinative in an appeal.
[34]
I am also of the opinion that the proposed
question is related and restricted to the facts of the case at bar and does not
transcend the interests of the immediate parties to the litigation.
[35]
For these reasons, the question will not be
certified (see Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4,
at p. 5).
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that
1.
The application for judicial review is
dismissed.
2.
No question is certified.
“Edmond P.
Blanchard”
Certified
true translation
Susan
Deichert, Reviser
ANNEX
Immigration and Refugee Protection Act, R.S.C. 1985, c. I-2
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11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other
document required by the regulations. The visa or document shall be issued
if, following an examination, the officer is satisfied that the foreign
national is not inadmissible and meets the requirements of this Act.
(2) The officer may not issue a visa or other
document to a foreign national whose sponsor does not meet the sponsorship
requirements of this Act.
25. (1) The Minister shall, upon request of a
foreign national who is inadmissible or who does not meet the requirements of
this Act, and may, on the Minister’s own initiative, examine the
circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligation of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to
them, taking into account the best interests of a child directly affected, or
by public policy considerations.
(2) The Minister may not grant permanent
resident status to a foreign national referred to in subsection 9(1) if the
foreign national does not meet the province’s selection criteria applicable
to that foreign national.
113. Consideration of an application for protection shall be
as follows:
(a) an
applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in
the circumstances to have presented, at the time of the rejection;
(b) a
hearing may be held if the Minister, on the basis of prescribed factors, is
of the opinion that a hearing is required;
(c) in
the case of an applicant not described in subsection 112(3), consideration
shall be on the basis of sections 96 to 98;
(d) in
the case of an applicant described in subsection 112(3), consideration shall
be on the basis of the factors set out in section 97 and
(i) in the
case of an applicant for protection who is inadmissible on grounds of serious
criminality, whether they are a danger to the public in Canada, or
(ii) in the
case of any other applicant, whether the application should be refused
because of the nature and severity of acts committed by the applicant or
because of the danger that the applicant constitutes to the security of Canada.
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11. (1) L’étranger doit, préalablement à son entrée
au Canada, demander à l’agent les visa et autres documents requis par
règlement, lesquels sont délivrés sur preuve, à la suite d’un contrôle, qu’il
n’est pas interdit de territoire et se conforme à la présente loi.
(2) Ils ne peuvent être délivrés à l’étranger
dont le répondant ne se conforme pas aux exigences applicables au parrainage.
25. (1)
Le ministre doit, sur demande d’un étranger interdit de territoire ou qui ne
se conforme pas à la présente loi, et peut, de sa propre initiative, étudier
le cas de cet étranger et peut lui octroyer le statut de résident permanent
ou lever tout ou partie des critères et obligations applicables, s’il estime
que des circonstances d’ordre humanitaire relatives à l’étranger — compte
tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt
public le justifient.
(2) Le statut ne peut toutefois être octroyé à
l’étranger visé au paragraphe 9(1) qui ne répond pas aux critères de
sélection de la province en cause qui lui sont applicables.
113. Il est disposé de la demande comme il suit:
a) le demandeur d’asile débouté ne peut présenter
que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors
pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas
raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait
présentés au moment du rejet;
b) une audience peut être tenue si le ministre
l’estime requis compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non visé au paragraphe
112(3), sur la base des articles 96 à 98;
d) s’agissant du demandeur visé au paragraphe
112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part :
(i) soit du fait
que le demandeur interdit de territoire pour grande criminalité constitue un
danger pour le public au Canada,
(ii) soit, dans
le cas de tout autre demandeur, du fait que la demande devrait être rejetée
en raison de la nature et de la gravité de ses actes passés ou du danger
qu’il constitue pour la sécurité du Canada.
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