Date: 19980130
Docket: IMM-845-97
BETWEEN:
FAROKHLAGHA EFTEKHARI
DENIZ RANDERIA
PEDRAM RANDERIA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.
[1] These reasons arise out of an application for judicial review of a decision of a Post Claim Determination Officer (the "PCD Officer") in which the PCD Officer determined that there was before him insufficient evidence that the applicants would face an objective risk to their lives, of extreme sanction, or of inhumane treatment, if they were removed from Canada and returned to Pakistan. He thus concluded that the applicants are not members of the Post-Determination Refugee Claimants in Canada class (the "PDRCC class"). The PCD Officer's decision is dated the 10th of February, 1997.
[2] Farokhlagha Eftekhari ("the principal applicant") was born in Iran in March of 1953. Pedram Randeria and Deniz Randeria (the "infant applicants") are the children of the principal applicant. They too were born in Iran. All three allege a fear of persecution if they are returned to Iran. All three claim to continue to be nationals of Iran.
[3] The principal applicant married in Iran to a Pakistani who was of the Zoroastrian faith. The principal applicant converted from Islam to the Zoroastrian faith. The principal applicant testified that, sometime after the birth of their two children, she and her husband, together with their children, fled to Pakistan because they feared for their safety in Iran by reason of their religion. The principal applicant's evidence was that she and her children did not become citizens of Pakistan.
[4] The principal applicant's husband died. Following his death, the principal applicant feared that she and her children would be returned to Iran because of their lack of status in Pakistan. In order to avoid that possibility, the three applicants fled to Canada, arriving here in July of 1993. Upon arrival, they made claims to Convention refugee status. In February of 1996, they were determined not to be Convention refugees. An application for leave to seek judicial review of the decision regarding their Convention refugee claims was denied. In the result, the applicants became eligible to be considered for membership in the PDRCC class.
[5] On this application for judicial review of the PCD Officer's decision rejecting them as members of the PDRCC class, the applicants do not question the determination that they would not face an objectively identifiable risk to their lives, of extreme sanction, or of inhumane treatment, if removed from Canada to Pakistan. Rather, they submit that the PCD Officer erred in a reviewable manner in failing to conduct an assessment against Iran as well as Pakistan.
[6] Paragraph (c) of the definition "member of the post-determination refugee claimants in Canada class", which is contained in subsection 2(1) of the Immigration Regulations, 19781, provides that an immigrant in Canada will be a member of that class if, in addition to fulfilling certain other criteria, he or she is an immigrant in Canada:
| (c) who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country, |
| (i) to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care, |
| (ii) of extreme sanction against the immigrant, or |
| (iii) of inhumane treatment of the immigrant; |
| [underlining added by me for emphasis] |
Subsection 52(2) of the Immigration Act2 provides as follows:
| (2) Where a person is not allowed to leave Canada voluntarily and to select the country for which he wishes to depart pursuant to subsection (1), that person shall, subject to subsection (3), be removed from Canada to |
| (a) the country from which that person came to Canada; |
| (b) the country in which that person last permanently resided before he came to Canada; |
| (c) the country of which that person is a national or citizen; or |
| (d) the country of that person's birth. |
For the purposes of this matter, subsection 53(2) is of no consequence.
[7] There is no dispute that the applicants came to Canada from Pakistan, and therefor could be removed to Pakistan pursuant to paragraph 52(2)(a) of the Act. The PCD Officer therefor correctly assessed the applicants against Pakistan. It is fair to say that it is not entirely clear whether the applicants were last permanently resident in Pakistan or Iran and nationals or citizens of Pakistan or, as they allege, Iran. Equally, it is clear that the applicants were all born in Iran and therefor could be removed to Iran under paragraph 52(2)(a) of the Act. Thus, I can see no basis on which it can disputed that Iran is a country to which each of the applicants "...could be removed...", in the words of paragraph (c) of the definition "member the post-determination refugee claimants in Canada class" quoted above. Put another way, no risk assessment was conducted in respect of the applicants by the PCD Officer in respect of Iran, a country to which each of the applicants could be removed because they were each born in that country.
[8] In failing to conduct a risk assessment against Iran in respect of the applicants, did the PCD Officer commit a reviewable error? I conclude that the question must be answer in the affirmative.
[9] In Pakar Singh et al. v. Minister of Citizenship and Immigration3 the Court concluded:
| It is the Court's view that the officer erred in law by refusing to exercise her jurisdiction: she should have considered the possibility that this applicant would be subjected to a risk should she be returned to her country of citizenship, India. |
I reach the same conclusion here. To paraphrase, it is this Court's view that the PCD Officer erred in law, and in a reviewable manner, by refusing to exercise his or her jurisdiction: he or she should have considered the possibility that each of these applicants would be subjected to a risk should she or he be returned to her or his country of birth, Iran, and perhaps also her or his country of citizenship and nationality, Iran.
[10] For the foregoing reasons, this application for judicial review will be allowed, the decision of the PCD Officer will be set aside and the matter will be referred back to the respondent for redetermination of the question of whether or not, the applicants, are individually members of the PDRCC class, in a manner and according to a schedule that provides the applicants, directly or though counsel, a reasonable opportunity to make submissions on the issue.
[11] The following question will be certified:
| In making a risk assessment in a PDRCC class matter, is the Post Claim Determination Officer required to assess risk to the applicant vis a vis each country to which she or he could be deported and to which she or he expresses a fear to return? |
___________________________
Judge
Ottawa, Ontario
January 30, 1998
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