Docket: IMM-5352-16
Citation:
2017 FC 1191
Ottawa, Ontario, December 22, 2017
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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GHULAM HASSAN
HAJI ALIKHANI
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant, who is a citizen of Iran, seeks
judicial review of a decision of a delegate of the Minister of Immigration,
Refugees and Citizenship [the Delegate], dated September 13, 2016, whereby the
Delegate concluded, on redetermination of his pre-removal risk assessment
application [PRRA Application] made in 2009 pursuant to sections 112 and 113 of
the Immigration and Refugee Protection Act, SC 2001 c. 27 [the Act],
that he is not likely to face more than a mere possibility of being personally
subjected to a risk to his life, or to a risk of torture or of cruel and
unusual treatment or punishment if removed to Iran.
II.
Background
[2]
The Applicant is now 57 years old. He has been
in Canada for more than 30 years. He currently has no status in this country
and faces a removal order. His Canadian immigration history leading to the present
PRRA Application can be summarized as follows.
a)
The Applicant entered Canada in October 1986, at
which time he indicated his desire to make a refugee claim fearing reprisals
from the Iranian authorities due to his association with the Mujahideen-e-Khalq,
also known now as the People’s Mojahedin Organization of Iran [MEK or PMOI], a
left-wing Muslim group founded in 1965 which was first involved in the protest
that led to the downfall of the Shah of Iran and the establishment of the
Islamic Republic of Iran in 1979, but which shortly after such establishment launched
an armed struggle to topple the Islamic Republic;
b)
He made his refugee claim on January 1, 1989. In
the meantime, he was issued a ministerial permit enabling him to remain in
Canada. While under ministerial permit, the Applicant travelled twice to a pro-MEK
camp located in Iraq [Camp Ashraf];
c)
In April 1992, the Applicant was present at the
Iranian Embassy in Ottawa when the Embassy was attacked by a group of dissidents
opposed to the Iranian regime. Shortly after the attack, he was intercepted
while attempting to leave Canada for Camp Ashraf using someone else’s passport;
d)
As a result of these incidents, the Applicant
was convicted of a number of offences under the Criminal Code and on September
27, 1995, a deportation order was issued against him due to his criminality;
e)
On June 24, 1997, the Applicant was found to be
a Convention Refugee by the then Convention Refugee Determination Division of
the Immigration and Refugee Board of Canada [the Board]. The Board concluded
that the Applicant’s activities since arriving in Canada had clearly put him at
risk of persecution if he returned to Iran. By the same token, it dismissed the
Respondent’s claim that the Applicant was excluded from refugee protection
under Article 1F(a) of the Refugee Convention on account of his involvement,
both in Iran and in Canada, with an organization – the MEK – found to have
committed crimes against humanity during the time of said involvement. The
Board found that there was no evidence that the Applicant had been personally
involved in the commission of such crimes;
f)
The Respondent successfully challenged the
Board’s decision before this Court. On September 1, 2000, the Board, upon
redetermination, found that although there was a reasonable chance that the
Applicant would face persecution on return to Iran, he was excluded, as claimed
by the Respondent, from refugee protection on the basis of Article 1F(a) of the
Refugee Convention. The Applicant unsuccessfully challenged the Board’s
redetermination;
g)
In August 2001, the Applicant filed an in-Canada
application for permanent residence on the basis of humanitarian and
compassionate considerations [H&C application]. For the purpose of said
application, the Respondent asked the PRRA unit for a risk opinion. On February
24 2003, the PRRA unit found that it was highly likely that the Applicant was
known to the Iranian authorities as a MEK supporter and thus as someone opposed
to the regime in Iran. He concluded that should the Applicant return to Iran, he
could be charged with “acting against state security”
and “membership in a proscribed organization”,
two charges punishable with death in Iran. Finally, the officer determined that
no internal flight alternative was available to the Applicant in Iran;
h)
In August 2004, the Applicant’s H&C
application was denied; his subsequent attempt to have that decision judicially
reviewed was also denied; and
i)
Between 2004 and 2011, the Applicant’s removal
was prevented by his lack of travel document.
[3]
The Applicant’s PRRA Application was submitted
in 2009. It was rejected on April 29, 2011, but that decision was judicially overturned
by consent of the Respondent on October 26, 2011. As a result, said application
was sent back for redetermination. On redetermination, assessments were
conducted pursuant to subsections 172(2)(a) and (b) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 [the Regulations] as the
Applicant was someone described in subsection 112(3)(c) of the Act, that is an
applicant whose refugee claim had been rejected on the basis of Article 1 (F)
of the Refugee Convention.
[4]
These assessments examined, on the one hand, whether
the Applicant’s removal to Iran would put him at risk pursuant to section 97 of
the Act, and, on the other hand, whether the Applicant, if such risks were found,
should nevertheless not be allowed to remain in Canada on the basis of the
nature and severity of the acts he committed in relation to his involvement
with the MEK or of the danger he constitutes to the security of Canada.
[5]
The section 97 assessment was performed in December
2011. The officer conducting the assessment found that while the Applicant’s
activities in Canada were 19 years earlier, it was possible that his name would
still appear on a government list of perceived Iranian dissidents. The officer
was also persuaded that the Applicant’s allegiance to MEK put him at risk as
defined in section 97. Therefore, it was more likely than not, according to the
officer, that the Applicant would face a risk for his life, or of cruel or
unusual treatment or punishment if returned to Iran.
[6]
On March 26, 2014, the danger assessment was
completed by the Canadian Border Services Agency [CBSA]. The Agency found that
the Applicant did not constitute a danger to the security of Canada but that
the acts he had committed were significantly severe. These acts ranged from voluntary
joining the MEK in 1979, supporting it, once in Canada, through the
organization’s Toronto office, travelling on two occasions to a pro-MEK camp in
Iraq and attempting to travel to that camp a third time, being present and
significantly involved in the attack on the Iranian Embassy in Ottawa, and
collecting funds for the MEK from other Iranian nationals in Canada. It
concluded as follows:
“[The Applicant] was a member of the MEK, an
organization that has committed crimes against humanity and acts of terrorism.
He was a member for at least 21 years, from 1979 until at least the time of his
hearing before the [Convention Refugee by the then Convention Refugee
Determination Division] in 2000. [The Applicant] came to Canada in 1986 and
while here, he continued his involvement in the group’s activities over the
next 14 years at least.
While seeking its protection, [The
Applicant] used Canada as an operational base from where he was able to raise
funds for the MEK and travel to Camp Ashraf, their military base, in Irak (sic)
on 2 occasions fully funded by the organization and on another occasion, used
someone else’s travel documents in an attempt to travel to Iraq for a third
time. In addition, [The Applicant] took part in a violent attack on the Iranian
Embassy in Ottawa, in what were internationally coordinated MEK attacks. His
activities on behalf of the MEK indicate a high level of dedication and of involvement
in the furtherance of the organization’s objectives and as such, [The
Applicant] made a voluntary, knowing and significant contribution to the MEK’s
criminal purpose activities with the MEK (sic).
Considering the information available at
this time, the CBSA does not believe that [The Applicant] constitutes a danger
to the security of Canada. However, the CBSA considers based on the above
analysis that “[The Applicant]’s acts reach a significant level of nature and
severity.”
[7]
In April 2014, the Applicant was provided with a
copy of both assessments as well as an opportunity to respond, which he did in
May 2014.
[8]
In July 2016, the Applicant was informed by the
Delegate that his final decision on redetermination would be referring to the
most recent and current country information documentation available at the
Immigration and Refugee Board website and other annually published and publicly
available material. As his most recent submissions dated back to May 2014, the
Applicant was offered the opportunity to update said submissions, which he did on
August 26, 2016.
[9]
As indicated at the outset of these Reasons, the
Delegate issued his decision on redetermination on September 13, 2016,
rejecting the Applicant’s PRRA Application. In a 25-page decision, the Delegate
stated first the task at hand, which was to consider and allow, or reject, the
Applicant’s PRRA Application, and assess whether the Applicant was a person
who, by virtue of the nature and severity of his past acts or the danger he
poses to the security of Canada, should not be permitted to remain in Canada. He
stressed that he was not bound by any of the previous findings holding that the
Applicant would be at risk if returned to Iran, including the section 97
assessment performed in December 2011, which, he said, was “the trigger to the present phase of the PRRA process
pursuant to section 113(d).”
[10]
After establishing the background facts of the
case, the Delegate proceeded to assess the risk for the Applicant of a return
to Iran. He noted that the Applicant had left Canada twice after claiming
refugee status to travel to Camp Ashraf in Iraq, and that his third attempt to
reach the camp aborted when the Applicant was intercepted with someone else’s
passport after the Embassy attack. He noted that all expenses for these trips
were paid by the MEK. The Delegate highlighted that the Applicant’s story that
he had been visiting Iraq to find his brother, whom he believed to be a
prisoner of war, was not credible.
[11]
The Delegate also noted that the Iranian
government may be aware of the Applicant’s involvement with the MEK due to the
publicity surrounding his arrest in Canada in 1992. However, he stressed that
the Applicant had failed to provide any evidence of the threat (phone call) he
allegedly received due to his involvement in the Embassy attack. The Delegate
found that at this time, some 24 years later, there was no remnant of publicity
connecting the Applicant to the Embassy attack and no indication that he had
come to the attention of any Iranian officials since 1992.
[12]
The Delegate also noted that the Applicant’s
family members living in Iran appeared to be living normal lives despite their
past affiliation to the MEK.
[13]
The Delegate then turned his mind to whether or
not a risk of persecution arose from the fact the Applicant may be questioned
upon his return to Iran on his past association with the MEK. After a review of
documentary evidence, the Delegate concluded that the Applicant did not have
the profile of a MEK member who would be persecuted upon his return to Iran as
he did not hold a high rank within the organization. As such, the Applicant was
unlikely to be on any blacklist. Furthermore, the Delegate observed that there were
ways for the Applicant to ensure that his return to Iran is as smooth as
possible.
[14]
Despite noting that there are reports on the
mistreatment of political prisoners in Iran and that a mention of the MEK is
akin to a “enemy of the state” type of
accusation, the Delegate found that the highlighted cases of mistreatment
appeared to be linked to other crimes such as civil servants providing state
secrets to the MEK or fomenting protests, and not to cases of mere membership
or past membership. As such, those reports provided limited value in examining
the Applicant’s case.
[15]
In brief, the Delegate acknowledged that Iran
has a poor human rights record and that several people are executed every year
for various crimes. He noted that the statistics regarding the mistreatment
faced by prisoners is unclear given the lack of monitoring permitted within the
judicial/penitentiary system. However, he also concluded that the MEK is not
currently popular in Iran and, as such, only represent a limited threat to the
regime. Other groups such as the Kurds are of more interest to the authorities.
[16]
The Delegate observed that ex-combatant MEK
members had been repatriated and did not appear to have been persecuted upon
their return to Iran.
[17]
Ultimately, the Delegate concluded that the
Applicant could be questioned upon his return to Iran regarding his MEK
involvement and the embassy attack in 1992 but that given the limited role the
Applicant played, there was nothing to suggest that he would be of interest to
Iranian prosecutors some 24 years later and that there was even less of a
chance that he be persecuted as a result. After noting that the Applicant’s
family members may be able to assist him in minimizing the questioning, the
Delegate held that the Applicant was not likely to face more than the mere
possibility of the risks identified in section 97 of the Act.
[18]
The Applicant essentially claims that the
Delegate fatally erred in considering whether he was at risk, in returning to
Iran, because of his past association with the MEK. He says that in doing so,
the Delegate ignored evidence of his continued involvement and commitment to
that organization and failed therefore to consider the risk he actually faces
in returning to Iran where the MEK is still considered an “enemy of God”.
III.
Issue and Standard of Review
[19]
The sole issue to be determined in this case is
whether the Delegate committed a reviewable error in assessing the risk the
Applicant faces if returned to Iran.
[20]
The standard of review applicable to the Delegate’s
decision is that of reasonableness (Belaroui v Canada (Citizenship and
Immigration), 2015 FC 863 at paras 9-10; Nguyen v Canada (Citizenship
and Immigration), 2015 FC 59, at para 4; Wang v Canada (Citizenship and
Immigration), 2010 FC 799 at para 11). That standard will be met where the
impugned decision fits comfortably with the principles of justification,
transparency and intelligibility and falls within a range of possible, acceptable outcomes which are defensible
in respect of the facts and the law (Dunsmuir v New Brunswick, 2008 SCC 9,
at para 47).
IV.
Analysis
[21]
Having been excluded from refugee protection
under Article 1F(a) of the Refugee Convention, the Applicant, pursuant to
section 112(3)(c) of the Act, cannot obtain such protection through a PRRA. His
PRRA Application, therefore, can only be considered in the manner provided for
in subsection 113(d) of the Act and section 172 of the Regulations, that is on
the basis of the factors set out in section 97 of the Act and in considering
whether said Application should be refused because of the nature and severity
of the acts committed by the Applicant or because of the danger the Applicant
constitutes to the security of Canada.
[22]
A positive PRRA decision in such context would
provide the Applicant with a stay of the removal order he is facing; it would
not, according to subsection 114(1)(b) of the Act, result in refugee
protection.
[23]
In sum, someone in the Applicant’s position may
only be accorded a stay of removal if he is found, on a balance of probabilities,
to be at risk under one of the grounds identified in section 97 of the Act,
that is a danger of torture or a risk to life or of cruel and unusual treatment
or punishment, and when such risk is found, if he is determined not to be a
danger to the security of Canada or if the nature and severity of the acts he
committed are not such that his PRRA application should be refused.
[24]
Here, the Delegate, having found that the
Applicant was not at risk pursuant to section 97 of the Act, did not embark into
the second stage of the analysis. Was his section 97 finding reasonable then? I
do not believe so.
[25]
As previously indicated, the Applicant complains
that the Delegate erroneously based his decision on his past involvement with
the MEK, thereby overlooking evidence of his continued involvement and
commitment to the MEK. In other words, the Applicant claims that the Delegate
failed to consider what mattered the most, that is the risk he faced in
returning to Iran given the fact he is still a MEK supporter and that the MEK
is still considered an enemy of God in that country.
[26]
The Applicant stresses that when asked, at
question 52 of his PRRA Application form, under the heading “Reasons for Applying for a Pre-Removal Risk Assessment
(PRRA)”, to set out all the significant incidents that caused him to
seek protection outside of his country of nationality, he answered this:
I was expled
(sic) from university (political activities)
I did not go for
military service (during war between Iran and Iraq)
I was in jail for
(political activities) – my families (sic) were involved supporting PMOI and
also myself was supporting other group and PMOI (my sister and my brother was
(sic) supporting PMOI)
I am
supporting PMOI (now)
I was involved in
demonstration in Ottawa in 1992. (my name was appeared (sic) in newspaper)
All files are in
immigration department
(My emphasis)
[27]
The next question on the Application form –
question 53 - asked the Applicant to explain why he had not sought protection
from his country of nationality. The Applicant answered: “Same as Box 52”.
[28]
That form was filled out in 2009 but the
Applicant says that these answers have not changed in the intervening eight
years.
[29]
The Respondent claims that the Applicant’s bare
statements that he still supports the MEK, without more, simply cannot be said
to so conclusively establish MEK involvement that the Delegate was unreasonable
in finding otherwise. It adds that besides these answers to questions 52 and 53
of the PRRA Application form and submissions made by the Applicant’s counsel in
2009 through which he stated the current state of his commitment to opposing
the Iranian government, none of the other written submissions he or his counsel
filed in the course of his immigration journey (one by him, four by his counsel)
assert current involvement with or support for the MEK.
[30]
It was therefore reasonably open to the
Delegate, the argument goes, to find that there is no evidence that the
Applicant has been involved with the MEK since the attack on the Iranian
Embassy in 1992 or that he would be considered a leader or high profile member
of that organization and be “black-listed” as a
result. After all, the Respondent says, the onus was on him to submit an
application that was clear, detailed and complete and to provide evidence to
support his allegations (Borbon Marte v Canada (Public Safety and Emergency
Preparedness), 2010 FC 930, at paras 39-40). That onus, according to the
Respondent, has not been met.
[31]
The Respondent’s position would be compelling if
it was not for the outcome of the section 97 assessment conducted in 2011, in
the course of the redetermination of the PRRA Application, where the Applicant
was found to be at risk if removed to Iran. That assessment was very much part
of the Applicant’s PRRA Application redetermination. As the Delegate himself
acknowledged, it was “the trigger to the present phase
of the PRRA process pursuant to section 113(d)”. It was statutorily
mandated. Short of being a meaningless exercise, a result Parliament presumably
did not intend, it could not be ignored. It may be that the Delegate, as he
claims in his decision, was not legally bound by this assessment, but given the
conclusion reached by the officer who conducted that assessment, I am satisfied
that the Delegate had a duty to refer to the Applicant’s evidence regarding his
continued support for the MEK and explain why it was given no weight and why he
was distancing himself from the conclusions of the section 97 assessment.
[32]
The need for some reference to that evidence and
for some explanation as to why it was not retained was all the more important in
the circumstances of this case as there were previous findings on file
concluding in the same manner the section 97 assessment did, as well as a recent
danger opinion concluding that the Applicant’s activities on behalf of the MEK signaled
a high level of dedication and involvement in the furtherance of the
organization’s objectives, and as such, a voluntary, knowing and significant
contribution to the MEK’s criminal purpose.
[33]
In my view, in such context, and upon being
fully aware that the MEK is still considered an enemy of God in Iran, which is
punishable by death, it was incumbent upon the Delegate to explicitly consider
and weigh the Applicant’s evidence of his continued support for the MEK. It was
not an option for him to proceed otherwise and focus on the Applicant’s past
participation in MEK’s activities without fatally affecting the
intelligibility, transparency and justification of his decision. In Newfoundland
Nurses (N.L.N.U. v Newfoundland & Labrador (Treasury Board),
2011 SCC 62 at para 12), the Court noted that when assessing the reasonableness
of a decision, the Court must first seek to supplement the reasons before it
may subvert them. However, in the present case, the Delegate’s failure to
consider evidence of the Applicant’s continued support of MEK is a flaw that
cannot be remedied by the supplementation by this Court. Given that this is the
case, the Respondent cannot circumvent this flaw in the Delegate’s decision by supplementing
the reasons for decision in its written submissions on judicial review.
[34]
The Delegate also found that the Applicant had
shown a lack of objective fear of returning to Iran because he travelled twice
– and intended to travel a third time - to Iraq to attend Camp Ashraf. The
Respondent points out that this finding was of little or no import to the
ultimate decision. I agree. Nevertheless, I also agree with the Applicant that
this finding is illogical, and therefore unreasonable, in the particular circumstances
of this case.
[35]
The Applicant also brought a number of arguments,
based in large part on the interpretation of Citizenship and Immigration
Canada’s operational guidelines, regarding the “jurisdiction”
of the Delegate. These arguments were raised for the first time at the hearing
of this proceeding. Unsurprisingly, counsel for the Respondent objected to
them, claiming that she was not in a position to respond to them adequately. In
all fairness, any debate on those arguments should be left to another day when
the Court has a proper record before it.
[36]
That being said, the Applicant’s judicial review
application will be allowed and the matter remitted to the Respondent for
redetermination by a different delegate.
[37]
At the end of the hearing, counsel for the
Applicant proposed the following five questions for certification:
- If the Minister seeks exclusion of a refugee protection
claimant for membership in a terrorist organization and succeeds, can the
Minister then, in pre-removal risk assessment, find that the claimant is
not a member of a terrorist organization?
- If an applicant described in Act section 112(3) applies for
pre-removal risk assessment and a pre-removal risk assessment officer
determines that an applicant faces risk, is a senior decision maker
limited to determining, under Act section 113(d) whether the nature and
severity of the acts committed or danger to the public or security to
Canada outweigh the risk to the applicant?
- If an applicant for pre-removal risk assessment had been
previously found by the Refugee Protection Division of the Immigration and
Refugee Board or its predecessor Convention Refugee Determination Division
to be at a risk, can a pre-removal risk assessment decision be made on the
basis of change of circumstances without meeting the legal standard for
cessation set out in Act section 108(1)(e)?
- If an applicant for pre-removal risk assessment had been
previously found by the Refugee Protection Division of the Immigration and
Refugee Board or its predecessor Convention Refugee Determination Division
to be at risk, can a pre-removal risk assessment decision be made on the
basis of change of circumstances without notice to the applicant that
change of circumstances would be considered?
- Can a senior decision maker when making a pre-removal risk
assessment decision, after advance disclosure with an opportunity to
respond, then rely on undisclosed country condition information to make
decision?
[38]
The Respondent opposes certification.
[39]
As is well settled, the test for certification
consists in finding whether there is a serious question of general importance
and of broad significance which would be dispositive of the appeal and which
transcends the interests of the parties to the litigation (Canada (Minister
of Citizenship and Immigration) v Zazai, 2004 FCA 89 at para 11; Canada
(Minister of Citizenship and Immigration) v Liyanagamage, 176 NR 4, at para
4, [1994] FCJ No. 1637).
[40]
In assessing whether to certify a question the
Court must be mindful of the fact that the certification process is not to be
used as a tool to obtain from the Court of Appeal declaratory judgments on
questions which need not be decided in order to dispose of the case.
[41]
In the present case, I find that none of these
questions would be dispositive of the appeal. In particular, I note that
proposed questions 2, 3 and 5 concern issues which were raised for the first
time at the hearing and which were not, as a result, fully debated. I note too
that nothing in this case turns on proposed question 4. As to proposed question
1, it turns on the facts of this case and does not amount, as a result, to a
serious question of general importance.
[42]
None of the proposed questions, therefore, will
be certified.
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