OTTAWA, Ontario, October 11, 2006
PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
and
AND IMMIGRATION
And
MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a Pre-Removal Risk Assessment (PRRA) decision dated October 20, 2005 in which it was determined that the Applicant would not be at risk pf persecution if returned to Iran.
[2] The Applicant, Amir Esmailzadeh, is a 42 year old man. He was born in Iran in 1964 and remains a citizen of that country. His daughter and estranged wife returned to Iran in 1998 following a temporary stay in Canada.
[3] The Applicant came to Canada in November 1996. He claimed refugee status on the ground of his perceived political opinion as a Mujahedin supporter. In August 1998, under the previous Immigration Act, the Immigration and Refugee Board of Canada rejected the Applicant’s claim on the basis that his lack of knowledge of the Mujahedin was inconsistent with his alleged level of involvement. The Board did not find the Applicant credible. Leave to apply for judicial review of the refugee determination was denied in January 1999.
[4] The PRRA officer noted that the Applicant identified significantly the same risks in his PRRA submissions as he had eight years earlier at his refugee hearing in July 1998.
[5] The Applicant is not a member of the Mujahedin. Nevertheless, the Applicant claims he requires protection because the Iranian authorities perceive him to be actively involved in the Mujahedin and, therefore, would likely execute or indefinitely detain him if Canada returned him to Iran.
[6] The officer found that while authorities may have treated Mujahedin supports extremely harshly in the past, Iranian authorities have relaxed their policy with regard to deportees who left Iran illegally. On the whole, the officer was persuaded that returned asylum seekers did not fact any undue problems upon returning to Iran. (Application Record, p. 12)
[7] Although the officer acknowledged that some high profile returnees had faced detention upon their return to Iran, he found that the Applicant did not have a profile which would engage the interest of Iranian authorities upon his return. The officer based this particular finding entirely on the Applicant’s own submissions: Mr. Esmailzadeh was a not a Mujahedin member; he had been out of the country for nine years; his family members remain in Iran; he completed his compulsory military service; and he does not engage in opposition activities in Canada.
[8] The officer concluded that there was not more than a mere possibility that the Applicant would face a risk of persecution on any of the Convention grounds and that it was unlikely he would face a risk of torture, of cruel and unusual treatment or punishment, or a risk to his life from Iranian authorities.
[9] The Applicant raises the following three issues on judicial review of the PRRA decision:
1. Did the Minister err in law or exceed jurisdiction in relation to failing to conduct a separate analysis under s. 97 of the Immigration and Refugee Protection Act?
2. Did the Minister err in law or exceed jurisdiction in relation to the test for the threshold of risk for s. 96 of the Immigration and Refugee Protection Act (the Convention refugee definition)?
3. Did the Minister err in law or exceed jurisdiction or err in fact in determining that the Applicant is not a person meriting protection under ss. 96 and 97?
[10] The nature of the Applicant’s questions would seem to require the Court to consider the officer’s PRRA decision “globally and on the whole”. Recent jurisprudence stipulates that under these circumstances the appropriate standard of review is reasonableness.
[11] Although the Applicant’s submissions in respect to this issue are not easy to follow, he appears to make three broad arguments: 1) the officer’s s. 97 findings are patently unreasonable; 2) the officer was obligated to conduct a separate s. 97 analysis, but failed to do so; and 3) the officer’s reasons are inadequate.
[12] First, the Applicant makes the general assertion that the officer’s finding that returned asylum seekers do not face significant difficulty is patently unreasonable. In particular, the Applicant expresses concern that the officer based this finding on unreliable assurances from the Iranian authorities; failed to give more weight to reports that the UNHCR is barred from accessing Iranian returnees; failed to appreciate the documentary evidence that the Iranian regime practices torture.
[13] The Respondent contends that the officer’s analysis was adequate to sustain his conclusions. The officer carefully considered the totality of the evidence and his decision is supported by the evidence. The officer was entitled to rely on the Board’s findings that the Applicant had not credibly established membership or active involvement in the Mujahedin. Other than the Applicant’s claims, there was no new evidence presented which suggested the Applicant would now be perceived as a counter-revolutionary upon his return to Iran.
[14] The Applicant’s second broad assertion is that since his original refugee hearing was conducted under the former Immigration Act, the PRRA officer was under an absolute obligation to conduct a separate s. 97 analysis. Implicit in the Applicant’s argument is that unlike a Board member hearing refugee claims under the current IRPA, the CRDD tribunal under the prior Act was not required to consider factors similar to those set out in s. 97.
[15] The Applicant equates the s. 97 analytical requirements for PRRA officers facing applicants whose refugee claims were rejected under the former Act with those of IRB members under the current IRPA. The Applicant then relies on jurisprudence stipulating s. 97 requirements for IRB members.
[16] Assuming the officer failed to conduct a separate s. 97 analysis, quashing an otherwise sustainable decision on this ground would go against precedent and common sense. The Respondent points to Bouaoui v. Canada (M.C.I.), 2004 FC 1211, at para. 42, where Justice Blanchard decided that the failure to specifically analyze the s. 97 claim, although an error, was immaterial where there was no evidence that could have led the Board to conclude that the applicant required protection.
[17] The Applicant contends that the officer applied the wrong legal test when analyzing whether the Applicant was a Convention refugee, and in so doing the officer committed a reviewable error. The Applicant takes exception to the use of the word “would” in a passage near the end of the officer’s reasons:
… I do not find that the applicant has a profile which would engage the interest of Iranian authorities upon his return there. I do not find that authorities would perceive him to be an active supporter of the Mujahedin. While acknowledging the evidence indicating that high profile returnees have faced detention upon their return to Iran, I do not find that the applicant is such a high profile returnee.
[18] The Applicant argues that use of the word “would” in the above passage is an error because it indicates that the officer applied the higher threshold of a balance of probabilities, rather than the established mere possibility test for s. 96 claims.
[19] The Respondent asserts that the proper formulation is that the Applicant must first demonstrate that there is more than a mere possibility that he will be at risk of harm; and in order to do this, he must establish facts of his claim (e.g. that he would be of interest to authorities) on a balance of probabilities.
[20] The officer’s core finding is that the Applicant’s profile is not such that the Iranian regime would perceive him as a threat. Given that the Applicant’s entire PRRA claim is premised on Iranian authorities perceiving him as an active member of the Mujahedin, his claim for protection fails with the finding that the Iranian authorities would not likely perceive him in this light.
[21] Second, the officer appears to have carefully considered all the evidence placed before him, including all the Applicant’s submissions and reports on the conditions in Iran. He specifically acknowledged the documentary evidence that supported the Applicant’s position, such as Iran’s poor human right’s record, the articles concerning the deportation of Iranians and Australia’s decision not to deport failed refugee claimants to Iran.
[22] Having considered the totality of the evidence, the officer properly linked the documentary evidence to the Applicant’s personal circumstances: see Kandiah v. Canada (M.C.I.), [2005] F.C.J. No. 275, 2005 FC 181, at paras.17-18. He then found that the Applicant’s profile would not engage the interests of the Iranian regime if he was returned to that country. On the basis of this finding, the officer determined that the Applicant had failed to establish that on a balance of probabilities he would be subjected to the risks and dangers referred to in paragraphs 97(1)(a) and (b).
[23] There was no absolute obligation to conduct a separation s. 97 analysis.
JUDGMENT
This application for judicial review is dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7613-05
STYLE OF CAUSE: AMIR EASMAILZADEH v. MCI, ET AL.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 4, 2006
REASONS FOR JUDGMENT BY: Rouleau, D.J.
APPEARANCES BY:
Micheal Crane
(416) 351-8600, ext. 221 for the Applicant
Matina Karvellas
(416) 973-0430 for the Respondent
SOLICITORS OF RECORD
Micheal Crane
Barrister & Solicitor
166 Pearl Street, Suite 100
Toronto, Ontario
Department of Justice
130 King Street West, Suite 3400
Exchange Tower, Box 36
Toronto, Ontario