Date: 20000928
Docket: IMM-5328-99
BETWEEN:
MOJTABA GHAMOOSHI RAMANDI
SORAYA VAZIRI
SANAZ GHAMOOSHI RAMANDI
INAZ GHAMOOSHI RAMANDI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
| [1] This judicial review brought by Mojtaba Ghamooshi Ramandi and his family (his wife Soraya Vaziri and their two daughters, Sanaz age 14 and Inaz, age 6) all citizens of Iran, seeks to set aside the October 12, 1999 decision by Citizenship and Immigration Counsellor P.M. Johnson (the "immigration officer") who denied their application, based on humanitarian and compassionate grounds, for an exemption from the requirements of subsection 9(1) of the Immigration Act (the "Act") in order to permit the inland processing of their application for permanent residence to Canada rather than as normally required from abroad. |
THE FACTS
| [2] The applicants came to Canada on or about November 24, 1994 and made refugee claims. The Refugee Division denied their claims on February 10, 1997 and leave of this Court was refused on June 7, 1997. |
| [3] On July 28, 1997, the applicants made an application to be considered members of the post-determination refugee claimants in Canada class (PDRCC). On July 27, 1998, they received a negative risk assessment. Membership in the PDRCC applies to those persons who, if removed (in this case to Iran), would be subjected to an objectively identifiable risk to that person's life or risk of extreme sanction or risk of inhumane treatment. |
| [4] In September 1998, the applicants submitted an application, under section 114(2) of the Act for within Canada processing of their application for permanent residence. |
| [5] On September 22, 1999, the immigration officer interviewed the applicants. Also present at that interview was their legal counsel Benjamin Kranc. |
| [6] On July 19, 2000, the immigration officer swore an affidavit which basically reproduced, confirmed or explained the notes she took during the interview with the applicants. She said the applicants were provided with an opportunity to make submissions and, at the interview, to bring forward any relevant factors they wanted her to consider, including risk and their view, if any, on their previous 1998 risk assessment. |
THE IMMIGRATION OFFICER'S DECISION
| [7] The immigration officer's notes and affidavit revealed she reviewed Mr. Ramandi's employment record in Canada and also the employment record of his wife. |
| [8] Both Mr. Ramandi and Mrs. Vaziri took an SESL course and Mr. Ramandi took a mechanic training course for eight months. The immigration officer noted the family show savings of approximately $8,000. |
| [9] The immigration officer records the family has two young children. The children are presently attending school in Canada and are in Junior High and Senior Kindergarten respectively. Mr. Ramandi has two brothers and one sister in Canada. |
| [10] The immigration officer then reviewed the applicants' claim that in the summer of 1994 there was a demonstration against the Iranian government in which many people were killed; Mr. Ramandi saw the demonstration and was put in jail with other people for a week. The immigration officer noted the submission that Mr. Ramandi's counsel stated Mr. Ramandi took part in the demonstration and was arrested and subsequently released three days later. |
| [11] The immigration officer said Mr. Ramandi and his wife acknowledged that there has been no new risk factor since their risk assessment in 1998 and indicated there was no evidence provided to her that the applicants had sought to overturn the negative 1998 PDRCC assessment in the Federal Court nor was there any evidence that the Federal Court had overturned it. |
| [12] The immigration officer reviewed the applicants' counsel's submission that Mr. Ramandi and his family are established in Canada and would face hardship starting over in Iran. The applicants' counsel also submitted that the children would face severe hardship to reintegrate in Iran and would probably be barred from obtaining a higher education if their parents had a record with the government. |
| [13] The visa officer, in her affidavit, concluded as follows: |
| 8. After considering all of the elements of the case, I was not satisfied that the Applicants were established in Canada to a point where leaving would cause them undue hardship, or convinced that they would face undue or disproportionate hardship should they return to their homeland. The children are young and would readjust to life in Iran just like they did when they came to Canada. No evidence has been presented that would indicate that the children would be barred from getting their education. |
| 9. The emphasis by the Applicants and counsel seemed to be establishment and hardship starting over. Both the Applicants and their counsel have failed to provide sufficient evidence to demonstrate undue hardship or risk. I have noted the fact that a negative risk assessment was rendered in 1998 and that the Applicants acknowledge that no new risk has been identified since 1998. I considered that the risk assessment conducted in 1998 had satisfactorily addressed the issue of risk and that there was presently no undue hardship or risk to the Applicants upon return. [emphasis mine] |
| [14] Based on this analysis, she said she was of the opinion that there are insufficient grounds for humanitarian and compassionate considerations in this case to warrant a section 9(1) waiver. |
ANALYSIS AND CONCLUSION
| [15] I have no difficulty in coming to the conclusion that this judicial review application must be allowed on grounds of breach of procedural fairness and a perverse or capricious finding without regard to the evidence. |
| [16] The Federal Court of Appeal's decision in The Minister of Citizenship and Immigration v. Haghighi (docket: A-587-99, June 12, 2000) building on Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, held there was a breach of the duty of fairness for an immigration officer, prior to making a decision, to have failed to inform the respondent Haghighi of the content of the post-claimant determination officer's ("PCDO") risk assessment, and to give him a reasonable opportunity to attempt to identify errors or omissions in it. |
| [17] I take from Haghighi, supra, two principles which Mr. Justice Evans enunciated on behalf of the Court. |
| [18] The first principle relates to the function of the duty of fairness. Justice Evans said this: |
| (a) Since an important function of the duty of fairness is to minimize the risk of incorrect or ill-considered decisions, one element of the calculus for determining the procedural content of the duty of fairness in a given case is the extent to which the procedural right claimed is likely to avoid the risk of error in making the decision or in resolving the particular issue in dispute. |
| [19] The second principle relates to the seriousness of the impact of an erroneous decision on those affected by it. Mr. Justice Evans developed this point in the context of a risk assessment arising out of a humanitarian and compassionate claim: |
| On the other hand, the rejection of an H & C claim based on an erroneous risk assessment to the effect that the individual was not seriously in danger of persecution if removed from Canada is potentially likely to have a more severe impact on the individual than the refusal of an overseas visa application for admission as an entrepreneur. |
| [20] In Mohamed Kafeel Qazi v. The Minister of Citizenship and Immigration, (Docket: IMM-5317-99, July 26, 2000), Mr. Justice Hugessen addressed the importance of the decision on the content of the duty of procedural fairness on the individual concerned when he set aside a danger opinion for non disclosure of a report material to the decision reached. |
| [21] The facts of the case before me are unlike Haghighi, supra. This is not a non-disclosure case because the applicants had received the PCDO's negative risk assessment in 1998. They knew its content. |
| [22] This case turns on the failure of the immigration officer to consider relevant evidence, namely, the PCDO's 1998 assessment report itself in reaching her conclusion that she "considered that the risk assessment conducted in 1998 had satisfactorily addressed the issue of risk and that there was presently no undue hardship or risk to the applicants upon return". |
| [23] On June 20, 2000, the Acting Manager of the Canada Immigration Centre in Scarborough, Ontario, forwarded to the Registrar of the Court two copies of the "prepared record contained in 220 pages". Rule 317 of the Federal Court Rules, 1998, requires a tribunal to forward to the Registry relevant decision-making material in its possession. |
| [24] A detailed examination of the certified record reveals that it does not contain the PCDO's 1998 risk assessment report. It only contained the submissions by the applicants' then legal counsel to the PCDO citing extensive documentary evidence including a warrant for Mr. Ramandi's arrest. |
| [25] Counsel for the respondent was invited to comment on the absence of the PCDO's risk assessment report in the certified record. Respondent's counsel said the immigration officer's affidavit does not say she had read the PCDO's 1998 risk assessment but only that she believed that assessment had satisfactorily addressed the issue of risk. |
| [26] Moreover, counsel for the respondent added the immigration officer was aware of the submissions made by the applicants' legal counsel to the PCDO in 1997 and knew that the Federal Court had not quashed that risk assessment. She added the Court could infer from the fact the risk assessment report was not in the certified record, that the immigration officer had not read the PCDO's risk assessment. |
| [27] I have no doubt counsel for the respondent had no choice, given the factual circumstances, but to concede that the Court could infer the immigration officer had not read and thereby considered relevant evidence and the Court is pleased that counsel for the respondent did so. |
| [28] However, the concession which had to be given is fatal to the maintenance of the immigration officer's decision. Simply put, it was impossible for the immigration officer to have been satisfied there was no disproportionate hardship to the applicants' return to Iran if she had not analysed the PCDO's 1998 risk assessment and weighed that report against what the applicants had put before her. She simply took that PCDO's report for granted without more and, in my view, she was not entitled to do so. |
DISPOSITION
| [29] For all of these reasons, the decision of the immigration officer is set aside and the applicants' humanitarian and compassionate application is remitted for reconsideration by a different immigration officer. No certified question was proposed and, in the circumstances, none is formulated. |
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
SEPTEMBER 28, 2000