Docket: IMM-1130-14
Citation:
2014 FC 1112
Ottawa, Ontario, November 21,
2014
PRESENT: The
Honourable Mr. Justice Annis
|
BETWEEN:
|
|
MARYAM MASOUMALI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a December 31, 2013 decision by a Senior Immigration Officer
[the Officer] rejecting the Applicant’s Pre-Removal Risk Assessment [PRRA]
application. The Applicant is seeking to have the decision quashed and referred
back to a different officer for reconsideration.
[2]
For the reasons that follow, the application is dismissed.
II.
Background
[3]
The Applicant was born on September 1, 1956 in Rasht, Iran. She is married to Mohammad Ebrahim Javadi and has three children. She lived in
Rasht until approximately 1983 and then lived in Tehran until they travelled
to Canada on March 17, 2005. She entered Canada as a permanent resident in the
entrepreneur class as an accompanying dependent of her husband, along with
their children.
[4]
The Applicant states that she is not a religious
person and that she was alarmed by the limitations placed on women in Iran after the Iranian Revolution in 1979. She says that she was harassed by the religious
police, including an incident where someone reported her and some friends to
the authorities for having a small house party on the anniversary of Ayatollah
Khomeini’s death.
[5]
After coming to Canada, the Applicant travelled
back to Iran several times, from September 2006 to March 2007, September 2007
to March 2008 and August 2009 to March 2010.
[6]
The Applicant stated that she began
participating in demonstrations against the Iranian national elections in 2009,
starting with demonstrations in Canada in June 2009. During her last visit to Iran in 2009-2010, the Applicant participated in about five demonstrations against the elections.
Her husband also participated in some of these demonstrations. One occurred on November
4, 2009 in Rasht. The Applicant has filed an undated notarized statement of her
long-time friend, Maryam Zadeh, stating that she attended the Rasht
demonstration with Ms. Tavana, Ms. Ahmadipour, and the Applicant, and that she
and Ms. Ahmadipour were arrested a few days later. Ms. Zadeh was held in jail
for about one month and during the lengthy interrogations gave full particulars
of the Applicant having accompanied her to the authorities.
[7]
On February 11, 2010, the Applicant attended another
demonstration, this time in Tehran, with Maryam Hassanpour Nehzami and some of
Ms. Nehzami’s friends.
[8]
On February 14, 2010, the Applicant received a written
notice from the police forces requesting that she present herself at the Public
Prosecutor’s Office in Tehran within three days of the date of the notice [the
Police Notice]. The reason to attend on the notice is blank.
[9]
The Applicant states that she was afraid and
decided not to comply with the Police Notice. Rather she remained in Iran for a full two weeks after the deadline in the Police notice. She was not visited or
contacted by the police or any other security force during that time. Although
apparently not aware of the arrest of her other friends, her husband encouraged
her to leave as she was scheduled to return to Canada in early March 2010. She
was permitted to leave the country without difficulty, as was her husband, who
left five days after her departure without hindrance.
[10]
When her husband returned to Canada in March 2010, he told her of the arrest and detention of Ms. Zadeh in Rasht and arrest of
Ms. Nehzami in Tehran. The Applicant testified that she was unaware of that Ms.
Zadeh and Ms. Nehzami had both been arrested until informed by her husband and
that that he chose not to tell her before for fear that she would get involved.
She declared that in Iran people do not generally talk about arrests - it is often
the case that only close family knows that someone has been arrested,
questioned, or detained. Her husband advised her to never return to Iran, given what had happened to her friends and that the authorities had also been looking
for her.
[11]
Evidence was later introduced in the form of an
email dated September 7, 2011 from the Applicant’s brother-in-law, Mr. EsHagh
Djavadi, who her husband had asked to help. Mr. Djavadi indicated that he spoke
to Ms. Zadeh and that she had reported that she was subjected to torture,
physical abuse and sexual abuse while in jail for one month. In addition, Ms. Zadeh
told Mr. Djavadi that the other women who protested with her (Ms. Tavana and
Ms. Ahmadipour) were also arrested and had not been fully released. Mr. Djavadi
indicated that Ms. Zadeh had obtained this information regarding the jailed
women from their families.
[12]
On March 3, 2010, while the Applicant was in Tehran, Citizenship and Immigration Canada [CIC] issued a section 44 report (report of
non-conformity of the IRPA) for the Applicant, her husband, and their children
on the grounds that the conditions imposed at the time of landing had not been met.
[13]
On June 25, 2010, a removal order was made
against the Applicant and all members of her family. They appealed the order to
the Immigration Appeal Division [IAD] of the Immigration and Refugee Board
[IRB]. On October 19, 2010, the Applicant’s husband withdrew his appeal and
left Canada voluntarily on November 7, 2010.
[14]
On December 23, 2010, the IAD allowed the
childrens’ appeal, concluding that there was sufficient evidence of humanitarian
and compassionate considerations to warrant equitable relief in their case (IRPA,
s 67(1)(c)). However, the IAD refused the Applicant’s appeal.
[15]
In her appeal, the Applicant requested to be
exempted from the permanent residence requirements on humanitarian and
compassionate grounds. On the issue of hardship upon return to Iran, the Applicant contended that after living abroad, she could no longer accept the
discrimination against women and would not be able to conform to the “conservative values and rules imposed on women in Iran”. The IAD rejected this argument, concluding that the objective evidence does
not support the finding that all Iranian women suffer oppression or
discrimination.
[16]
With respect to risk on return, the IAD panel
indicated that although the Applicant stated that her brother was in prison for
four years for anti-regime activities, no details of the circumstances, actual
activities or charges were provided such that the IAD could draw conclusions about
whether the Applicant would be subject to any risk on this account. There is no
reference in the decision to the Applicant participating in the anti-regime
demonstrations in Iran, the arrest and detention of Ms. Zadeh, or disobeying
the Police Notice to attend at the prosecutor’s office in the IAD’s decision.
There is also no reference to the risk arising from the Applicant participating
in anti-regime demonstrations in Canada, which she says continued after
returning to Canada.
[17]
The IAD pointed out that the Applicant and her
family did not come to the country as refugees or as persons in need of
protection and would suffer no hardship on return. It noted that her husband
had returned to Iran, where he has active business interests and that this was
not the profile of a family in desperate circumstances under a repressive
regime. The IAD noted that while she had become active in the community, the
Applicant had not established a business or career that would be lost if she
were removed (unlike her children) and that her adjustment to life in Iran
would be more natural because her husband and family were there and she had
already lived most of her life within the restrictions of Iranian society.
[18]
Subsequent to the IAD decision, it is alleged
that a further Notice to Appear, dated March 16, 2011, was delivered to her
husband’s home in Tehran directing the Applicant to attend before the General Penal
Court of Tehran “for certain explanations” The
husband provided her with a copy of the Notice. She also learned at this time from
Mr. Djavadi that two of the women she protested with in November 2009 were
still in jail. She states that this information was confirmed by Mr. Djavadi’s
email and that, having read the email, she has no doubt about its truthfulness.
[19]
The Applicant submitted a PRRA application on
August 26, 2011.
[20]
The Applicant has no plans to voluntarily return
to Iran in the future, despite the fact that her husband now resides there. The
Applicant alleges that she does not feel safe or secure in Iran. She says that life is difficult there for women because it is very repressive and
that she is concerned because she can no longer “conform
to the strict requirements of the Iranian regime in terms of [behaviour] of
women”.
[21]
The Applicant has never previously applied for
refugee protection.
III.
Impugned Decision
[22]
In terms of the scope of the PRRA, the Officer
noted that because the Applicant has never applied for refugee protection and therefore
there had been no IRB hearing, the PRRA would be based on all of the evidence
presented by the Applicant and all current and publicly available information
regarding country conditions and human rights in Iran.
A.
Political Opposition
[23]
The Officer considered the affidavits of Ms. Zadeh
and Ms. Nehzami regarding the Rasht and Tehran demonstrations and their
subsequent dealings with the Iranian authorities. These were considered to have
some probative value in the PRRA. However, he pointed out inconsistencies in
Ms. Zadeh’s affidavit. For instance, the affidavit did not mention the arrest
of Ms. Tavana due to participating in the protests, which was referred to in
the Applicant’s declaration and in Mr. Djavadi’s email where he states that Ms.
Tavana was arrested and continued to be detained in prison when he spoke to Ms.
Zadeh.
[24]
The Officer did not give evidentiary weight to Mr.
Djavadi’s email that referred to information from Ms. Zadeh about being
tortured, which was not in her affidavit, or to the information about Ms.
Ahmadipour and Ms. Tavana obtained from their families because of its hearsay nature
and not being corroborated by affidavits. The Officer also noted that there
were some inconsistencies between the Police Notice and the Notice to Appear. The
Officer found that there was a “question of provenance”
of the second notice concerning its details of delivery and receipt.
[25]
The Officer found that the Applicant had not
demonstrated that she was charged or convicted of any crime, or that she was
wanted for arrest. The Officer pointed out that there was no evidence that the Applicant
was wanted for arrest, that she was able to stay in Iran for two weeks beyond
the deadline in the Police Notice without difficulty, and that both she and her
husband were able to leave Iran, departing from the airport unhindered in 2010.
B.
Risk due to Family Opposition
[26]
The Officer did not dispute the Applicant’s
allegations that her brother was tortured in prison in 1982, but found that she
had not established her claim that her brother’s sentence had negatively
affected her family. The Officer found that the Applicant had not provided
information that was consistent with the documentary evidence regarding the
treatment of family members of political opponents in Iran. The Officer considered the fact that, to the contrary, the Applicant had been able to obtain
an Iranian passport and exit visas, to travel to Europe and the United States, and to immigrate to Canada. This issue was not pursued before the Court.
C.
Risk as a Woman
[27]
The Officer considered the Applicant’s
allegations regarding the treatment of women in Iran and confirmed that the
documentary evidence showed that women there face widespread discrimination.
However, the Officer concluded that this did not amount to persecution.
Firstly, the Applicant did not fall into the category of “women
who campaigned for their rights…political activists, journalists or bloggers”
that faced “pressures, intimidation and sometimes
prosecution and imprisonment” according to the
documentary evidence. Further, the Applicant had lived most of her life
within the discriminatory conditions in Iran without any demonstrated
persecution or risk to her life. The Officer found that she had not provided
any information or documentation, personalized or otherwise, that would
establish that she was a Convention refugee or a person in need of protection
under sections 96 and 97 of the IRPA on the basis of her gender.
D.
Situation in Iran
[28]
The Applicant alleged that the international
political situation and deteriorating conditions in Iran constituted a risk to
the Applicant’s life. The Officer found that the Applicant’s supporting
evidence, while indicative of Iran’s poor human rights record, did not
establish a risk of persecution or personalized risk to the Applicant. He noted
that the situation was improving with the improvement of international
relations and the election of the new president which were factors in the
country conditions in Iran.
IV.
Issues
[29]
The Applicant submits that the following issues
arise in this application:
1.
Did the Officer err in law because he failed to
consider the Applicant’s profile cumulatively?
2.
Did the Officer err in law because he failed to
consider the Applicant’s risk due to her participation in demonstrations?
3.
Did the Officer err in law because he failed to
properly consider the Applicant’s risk due to her being a woman who refused to
conform?
4.
Did the Officer make unreasonable findings in
relation to the evidence?
[30]
The Respondent submits that the following issues
arise in this application:
1.
Is the Officer’s decision reasonable?
2.
Did the Officer’s failure to assess the
cumulative impact of the discrimination alleged amount to an error of law?
[31]
I would rephrase these submissions as a single
issue:
1.
Did the Officer err by failing to sufficiently
consider and apply the Applicant's evidence?
V.
Standard of Review
[32]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir] held that a standard
of review analysis does not need to be conducted in every case. Where the
standard of review for a particular question has been well-settled by past jurisprudence,
a reviewing court may adopt that standard of review without further analysis.
[33]
Questions of fact and discretion are reviewable
on the standard for reasonableness (Dunsmuir at paras 51 and 53). This
means that reasonableness is the appropriate standard of review for determining
whether the Officer erred by failing to sufficiently consider all of the Applicant’s
evidence in the PRRA decision (Rana v Canada (Minister of Citizenship and
Immigration), 2010 FC 36, 87 Imm LR (3d) 291).
VI.
Analysis
A.
Political Opposition in Iran
[34]
In her further memorandum, the Applicant
submitted that she would be at great risk by being associated with her brother
who was active against the current regime and was imprisoned for his political
views in 1982. This argument was not pursued during the hearing.
[35]
The Applicant also challenged the reasons of the
Officer because she received information that her friend Ms. Zadeh was
tortured, sexually assaulted and abused during her one-month detention and that
two of the other women who were arrested in November 2009 were still in jail.
[36]
The Officer discounted this evidence because it was
based on an email from her brother-in-law recounting discussions he had with
Ms. Zadeh, which is obviously hearsay of a second-degree. Moreover, the
information on the friends who remained in jail was obtained by Ms. Zadeh from that
woman’s family, which is hearsay of a third-degree. None of this information
was contained in Ms. Zadeh’s affidavit which was limited to being questioned
and detained in prison for one month.
[37]
The Officer cannot be criticized for dismissing
evidence of a second and third degree of hearsay which does not accord with the
sworn notarized statement of Ms. Zadeh. Moreover, the inconsistencies in the
alleged statements of Ms. Zadeh with Mr. Djavadi’s email raise questions about her
affidavit.
[38]
At best, the totality of the evidence relied
upon to show the Applicant’s risk of serious harm was contained in the
affidavit of Ms. Zadeh to the effect that she had been imprisoned and
questioned in 2009 in Rasht for a month, after she was apparently arrested at
random from the millions of persons who participated in these demonstrations
against the 2009 elections. This evidence does not meet the threshold of
sufficient gravity for persecution or being in need of protection.
[39]
The Officer further pointed out inconsistencies
in the affidavit of Ms. Zadeh, in naming the participants with her, as well as
the fact that she did not seem to be overly affected from her arrest by
declaring under oath that she was in sound and complete physical and
psychological health.
[40]
At the hearing, the Applicant’s counsel argued
that the Officer committed a reviewable error by citing passages regarding
practices for issuing summons by courts in Iran suggesting that the Officer
found that the proper procedures had not been followed. In my view, counsel
misapprehends the reasons of the Officer. The Officer’s difficulty was with the
lack of information regarding the provenance of the Notice to Appear for its
lack of details, such as whether the husband signed the notice or was
questioned about his wife’s whereabouts or any other information relating to
the Notice.
[41]
In effect, the Officer was underscoring the
fact that the main corroborating witness to nearly all of the events related in
the Applicant’s affidavit was her husband who was assisting her and that this
evidence was all hearsay. The failure to provide details of these events,
preferably by an affidavit from the principal corroborating witness, who chose
not to contest his removal, is a valid factor to diminish the reliability of
the evidence for its lack of specificity. It was reasonable for the Officer to
be critical of the absence of information regarding receipt of the key document
being relied on by the Applicant to establish that she was wanted by the
Iranian authorities. I find no reviewable issue regarding this evidence and
find that the Applicant’s criticism is not of sufficient significance to
undermine the reasonableness of the decision.
[42]
I am otherwise satisfied that the conclusion
that the Applicant failed to demonstrate that she was wanted by authorities is
sufficiently supported by the evidence and reasonable. The Officer pointed out
that written notices contained no indication that the authorities intended to
arrest or imprison her. The Police Notice was sent in the mail and merely
requested the Applicant to attend at the prosecutor’s office which differs from
the circumstances of Ms. Zadeh and Ms. Nehzami who were actually arrested.
[43]
The Officer was correct in concluding that there
was no evidence to show that the Applicant had been charged or convicted of any
crime, or that she was wanted for arrest for her conduct. In that regard, the Officer
could properly rely upon the fact that the Applicant departed from Tehran without encountering any difficulty at the airport. It was also reasonable for the Officer
to conclude that the Applicant did not appear to be unduly concerned by the
summons by remaining in Tehran for two weeks, after failing to comply with it.
If truly exhibiting fear to the extent described in the statutory declaration,
one would have thought that she would have left Iran before the expiry of the
time to attend at the prosecutor’s office.
[44]
The Officer also referred to the documentation
on country conditions in Iran provided by the Applicant’s counsel. The Officer noted
that the articles related to specific human rights causes, particularly
involving the desecration or insulting of Islam and the economic sanctions
levied on Iran by Canada, the EU, and the United States. The Officer concluded
that they did not however demonstrate a risk of persecution or a personalized
risk to life or cruel or unusual treatment of the Applicant. Rather, they
demonstrated that the situation in Iran had undergone a substantial improvement
since the election of the moderate Hasan Rouhani in respect of improved relations
with the West thereby dampening risks of war and events that might put the Applicant
at risk.
[45]
In the circumstances, I find no reviewable error
that was made by the Officer with respect to the rejection of the Applicant’s
claim based on her political opposition to the former regime.
B.
Refusal to Conform to Restrictions on Women
[46]
The Applicant argues that the Officer did not
assess her claim that she was at risk because she was no longer prepared to
conform to the strict requirements of the Iranian regime in terms of the
behaviour of women, such as conforming to the dress code. Her counsel submitted
that this evidence required some consideration by the Officer, such as being
rejected for lack of credibility or being speculative. The Applicant argued
that the case law supported that persecution could arise from risk of harm to
women by refusing to conform to dress codes imposed on women.
[47]
While I agree that the reasons on this point are
brief, I also agree that they repeat the IAD’s conclusion that the Applicant
had lived most of her life in Iran and lived under these conditions of
discrimination without any difficulty or hardship. It is difficult to conceive
how an Applicant can make an argument on humanitarian and compassionate grounds
which are found not to rise to a level of hardship by compassionate standards,
yet suggest that the same facts pose a risk of harm of persecution.
[48]
I also disagree that the case law on the risk to
women who refuse to conform to dress or other requirements applies to the
situation. The facts in those cases were not similar to those here where the
applicant is attempting to rely upon a recently self-imposed declaration of an
intention to refuse to comply with conditions in Iran after spending most of her
life there without being subject to serious mistreatment. The cases cited
involved persons who had suffered past serious abuse as women for failing to
adhere to requirements imposed on women, thereby providing the evidentiary
foundation for a well-founded fear of persecution.
[49]
I also agree with the Respondent’s submission
that upon examination of the reasons as a whole, the Officer considered the
evidence tendered by the Applicant, but gave little weight to it throughout,
including her declaration of her intention in the future to refuse to comply
with the requirements imposed on women by the Iranian regime.
C.
Failure to Consider Risk from Participation in
Demonstrations in Canada
[50]
The Applicant submits that the Officer committed
a reviewable error in failing to assess the risk to the Applicant due to the
fact that she had attended anti-regime demonstrations in Vancouver, which added
to her risk profile.
[51]
I agree that the Officer’s reasons did not
respond to this argument. However, I am of the view that the Officer was
entitled to ignore this issue for its complete lack of substantiation.
[52]
In a certified tribunal record measuring some 5
inches in thickness, there is one paragraph of evidence (in the Applicant’s
statutory declaration) which describes her attendance at demonstrations in Vancouver on June 14, 2009. Moreover, none of the documentation on country conditions
indicates any Iranian surveillance of or connection with demonstrations in Canada. There is no indication that a person would be at risk by simply participating in
demonstrations abroad without some degree of heightened profile to bring them
to the attention of authorities who might have been reporting on demonstrations
in Canada.
[53]
There is no requirement on PRRA officers, any
more than there is on this Court, to respond to arguments completely lacking in
merit.
VII.
Conclusion
[54]
I conclude that the decision of the Officer
falls within the range of reasonable acceptable outcomes and was justified by
reasons that were intelligible and transparent. The application is dismissed.
No certified question was proposed and none exists.
Email this Content