Date: 19990630
Docket: IMM-794-98
BETWEEN:
HOSSAIN ATAPOUR, MASTOUREH ELVAN KOUHY
AND
HAMID ATAPOUR AND DELARAM ATAPOUR
(BY THEIR LITIGATION GUARDIAN MASTOUREH ELVAN KOUHY
Applicants
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of a post-claim determination officer (PCDO) dated February 5, 1998, wherein it was determined that the applicants were not members of the Post-Determination Refugee Claimants in Canada Class in accordance to subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The applicants seek an order setting aside the decision of the PCDO and remitting their case to a different officer.
[3] The principal applicant is Hossain Atapour. He is accompanied by his wife, Mastoureh Elvan Kouhy, and their two children, Hamid Atapour and Delaram Atapour. They are all citizens of Iran. They came to Canada and made claims for protection as Convention Refugees. The applicants feared returning to Iran mainly due to Hossain Atapour"s experiences with Iranian authorities. His wife also claimed that she was fired from her teaching job because of her anti-government views. Their claim was refused by the Refugee Division of the Immigration and Refugee Board (the Board) on September 3, 1996 on the basis of non-credibility. The applicants then applied to be considered as members of the Post Determination Refugee Claimant in Canada Class (PDRCC).
[4] The applicant, before the Board, admitted that he joined the People"s Mojahedin Organization of Iran (PMOI) at the beginning of the Islamic Revolution in 1979. He was part of a neighbourhood group of thirty members made up of ten cells of three members. The leader of his cell was Masoud Amirpanahee. The third member was Masoud"s brother, Ali Amirpanahee. They distributed publications, audio and video cassettes, attended secret meetings and collected money to help PMOI families.
[5] They continued their activities until February 1987, when Masoud escaped after 1987. Ali and the applicant did not continue their activities, other than to share PMOI information between themselves. Later in the same year, the applicant ceased all involvement with the PMOI because he did not agree with their recent use violence.
[6] In December 1987, the applicant"s brother, Ali Atapour, deserted the Iranian army because he refused to kill civilians. In September 1991, the applicant was arrested by the Iranian authorities and imprisoned because of his brother"s desertion. The authorities sought information about his brother"s whereabouts, and interrogated him on his political beliefs. They accused him of being involved in armed activities and of killing Revolutionary guards. The applicant was tortured and beaten. He was finally released three months later, on December 12, 1991, after payment of a large bribe.
[7] In January 1994, Ali Amirpanahee"s sister was arrested. In March 1994, the applicant learned that Ali had been arrested in February. The applicant believes they were arrested by reason of their involvement with the PMOI. In fear of exposure and arrest, the applicant moved to his mother in law"s home. On March 27, 1994, the security forces raided his house, broke everything and stole their valuables.
[8] The applicant and his family were in hiding for 14 days. Their bank accounts were seized and they were forbidden to leave the country. With the help of family and friends, they obtained false documents and escaped from Iran. They passed through the Bazargan border into Turkey on April 9, 1994. After their departure, this applicant"s house and contents were confiscated by the government. On April 25, 1994, his father was served with a summons ordering the applicant to appear before the Public Prosecutor"s office on May 16, 1994.
[9] The applicant"s family arrived in Canada in March 1995. He joined them in May 1995.
[10] The Immigration and Refugee Board heard the applicants" claim on March 22 and May 21, 1996. It rendered its decision on September 3, 1996.
[11] The Board accepted that the applicants were citizens of Iran, and that the applicant"s brother deserted from the military. However, it was not satisfied on the balance of probabilities that the applicants" account of fearing persecution was credible or trustworthy, and it did not accept the allegation that the applicant was associated with the PMOI; that he was detained and tortured as a result of his brother"s desertion; that his wife had problems with regards to her employment; and that the family fled Iran illegally. It also found the wife's testimony to be untrustworthy.
[12] Due to the credibility concerns, the Board concluded that the applicants did not have a well-founded fear of persecution should they return to Iran.
[13] After the negative decision of the Board, the applicants became eligible for a risk assessment to determine whether they are members of the PDRCC class. The relevant elements of the PDRCC class definition at section 2 of the Immigration Regulations, 1978 read as follows:
| "member of the post-determination refugee claimants in Canada class" means an immigrant in Canada a) who the Refugee Division has determined on or after February 1, 1993 is not a Convention refugee, (...) 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 sanctions against the immigrant, or iii) of inhumane treatment of the immigrant. |
"demandeur non reconnu du statut de réfugié au Canada" Immigrant au Canada: a) à l'égard duquel la section du statut a décidé, le 1er février 1993 ou après cette date de ne pas reconnaître le statut de réfugié au sens de la Convention, (...) c) dont le renvoi vers un pays dans lequel il peut être renvoyé l'expose personnellement, en tout lieu de ce pays, à l'un des risques suivants, objectivement identifiable, auquel ne sont pas généralement exposés d'autres individus provenant de ce pays ou s'y trouvant: (i) sa vie est menacée pour des raisons autres que l'incapacité de ce pays de fournir des soins médicaux ou de santé adéquats, (ii) des sanctions excessives peuvent être exercées contre lui, (iii) un traitementn inhumain peut lui être infligé. |
[14] A PDRCC determination is a quasi appeal entitling a claimant to show that they would be subject to an objective identifiable risk or inhumane treatment if removed from Canada (Mathiyabaranam v. Canada (M.C.I.), (December 5, 1997), A-223-95 (F.C.A.)). A PCDO must conduct an independent assessment on matters such as the credibility of the applicant, and review all of the documents, including submissions by the applicant (Pakar Singh v. M.C.I. (March 27, 1996, IMM-2764-95 (F.C.T.D.)).
[15] The standard for successful judicial review is very high. The Court will only intervene if the officer exercised his or her discretion pursuant to improper purposes, irrelevant considerations, with bad faith or in a patently unreasonable manner (Garcia v. Canada (M.C.I.) (1996), 3 Imm.L.R. (2d) 114 (F.C.T.D.)).
[16] The officer informed the applicants by a letter dated February 5, 1998 that it had been determined that their lives would not be at risk upon return to Iran.
[17] The applicants argue that the PCDO erred in law in finding that the applicants are not members of the PDRCC class. She fettered her discretion in failing to conduct an independent assessment and failed to consider the totality of the evidence, which, in their view, manifestly required a different finding.
[18] Other than the Board"s decision and counsel's submissions, the PCDO was provided with affidavits from the principal applicant, his brother Ali and Joanne Hawk, Ali"s wife. These were filed in order to rectify the discrepancies found by the Board when entertaining their refugee claim; more particularly to attempt to rectify the lacunas in their PIFs. The applicant further submitted a translation of his handwritten notes, which he intended to use in his PIF. As well, the PCDO was provided with a copy of the summons, a doctor"s report and pictures allegedly depicting the applicant with members of the PMOI.
[19] The affidavits reveal the following: Shortly after her arrival in Canada in March 1995, the applicant"s wife was introduced to counsel J.P. Evans by an interpreter. She was told to complete the PIF and to only write her story, and not her husband"s, because he was not in Canada. Therefore, it was not her fault that her PIF did not refer to her husband"s problems as found by the CRDD.
[20] The applicant"s wife alleges that she wrote her story in Farsi, and it was translated in English by a friend. On April 28, 1995, she was interviewed by Mr. Evans. Later, Mr. Evans mailed her a copy of her PIF. At that point, she communicated with Mr. Evans because she was concerned that her story lacked details. Mr. Evans advised her against including too many details. No further work was done on her PIF; nevertheless, she could not afford to hire an interpreter to add to her recital of events.
[21] On May 5, 1995, the applicant"s wife went to Mr. Evans to sign her PIF. She was accompanied by Ms. Joanne Hawk (Ali Atapour"s wife). Ms. Hawk is an American and does not speak Farsi very well. Mr. Evans" secretary advised them that the PIF was not ready. She then asked Ms. Hawk to sign the interpreter"s declaration. When Ms. Hawk explained that she did not speak Farsi, the secretary told her that it was just a formality. Ms. Hawk signed the declaration. They met briefly with Mr. Evans, who told them that the PIF would be mailed to Mastoureh when it was done.
[22] The male applicant arrived in Canada on May 1, 1995. He too filled the PIF and wrote his story in Farsi. A friend helped him prepare the English version of his PIF. In August 1995, he met with Mr. Evans along with his wife and his brother Ali. There was a general discussion about his claim with Ali acting as an interpreter. Mr. Evans advised the applicant not to give too much details in his affidavit, or he would "hang" himself. The applicant and Ali were then told to sign the last blank page of the PIF. Ali asked whether he should sign, since he hadn"t interpreted the form to the applicant. Mr. Evans told him not to worry about it. Ali then signed the interpreter"s declaration at the end of the PIF. The applicant later received a copy of his PIF in the mail. It was never interpreted to him.
[23] The applicants met Mr. Evans once before their refugee hearing on March 1996. They were concerned with Mr. Evans" lack of preparation. They tried to contact another lawyer, who advised that notice was too short and that they would be taking a risk to ask for a postponement, as Mr. Evans had previously requested adjournments. The applicants proceeded with Mr. Evans. The applicant was very nervous at the hearing. It was especially difficult for him to talk about his detention in 1991.
[24] The applicant points out that his hand-written notes confirm his initial testimony that he was detained until December 1991, and was present for his daughter"s birth. Therefore, there had been an error in his official PIF. He also wrote in his notes that "I had a very hard time in prison". It is argued it wasn"t his fault that his notes were not correctly transcribed in his PIF.
[25] The applicants received a copy of their PIFs several months before the hearing. It is implausible that they never reviewed them with the help of Ali, who speaks both English and Farsi. Nor does it explain how the applicants could make changes to their PIF before the commencement of the refugee hearing, if they were not aware of what they contained. In any case, even if the Court accepts that she was mislead by her counsel, this only accounts for only one of her numerous shortcomings at the refugee hearings. It is therefore without consequence.
[26] The summons shows that it is likely that the government issued a warrant of arrest against the applicant for failing to appear before the Public Prosecutor. However, there is no indication that the applicant"s life is in danger for appearing before the Prosecutor.
[27] In my view, after reviewing the evidence that was before the PCDO, there is no need for the Court to intervene. It was open to the PCDO to hold that there is no objective basis to fear that the applicants" lives are in danger, or that they will be submitted to inhumane treatment. The fact that the PCDO did not exercise her discretion in favour of the applicants is not indicative that she ignored their submissions.
[28] The application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
June 30, 1999