Date: 19981009
Docket: IMM-3189-97
BETWEEN:
HAMID ELLASVRAND RAHBARI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS, J.:
[1] This is an application for judicial review of a decision of a post-claim determination officer (PCDO) made on July 14th, 1997 wherein the said PCDO determined that the applicant was not a member of the post-determination refugee claimants class (PDRCC) in Canada.
[2] It is submitted by the applicant that the PCDO erred in law by unduly fettering his or her discretion by relying completely on the reasoning and the decision of the CRDD.
[3] The applicant's counsel mentioned that a person making a PDRCC application for landing is entitled to full and fair review of its case by a PCDO.
[4] The applicant's counsel also mentioned that the PDRCC process is a safety net that is designed to provide a final risk assessment after a refugee claim has been conducted.
[5] Finally, the applicant's counsel mentioned that in the instant case the notes and record decision of the PCDO responsible for reviewing the application indicated that no independent risk assessment of the application occurred and that the officer did not review the objective evidence of human rights abuses in Iran put before him or her by the applicant.
[6] The respondent's counsel indicated to the Court that although the PCDO considered the reasons of the CRDD, he came to his own independent conclusion that the applicant was not a member of the PRDCC.
[7] Referring to Madame Justice Tremblay-Lamer's decision in Lishchenko v. M.C.I. (F.C.T.D., January 9, 1996, IMM-803-95) at page 5, the respondent's counsel submitted that the mere fact that the PCDO came to the same conclusion as the CRDD does not mean that he fettered his discretion.
[8] We could rely on what Madame Justice Tremblay-Lamer indicated:
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The Applicants finally submit that the Officer should not have relied on the CRDD reasons and by doing so he fettered his discretion. Again, I disagree. Reasons for Decision are part of the material to be reviewed by the Officer. In fact, the notice sent to the Applicants enumerates the documents to be considered by the Officer when reviewing a PDRCC case and the Applicant is asked to send a copy of the CRDD reasons. The mere fact that the Officer came to the same conclusion as the CRDD does not mean that she fettered her discretion. |
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[9] As the respondent's counsel correctly mentioned, the document annexed to the decision by the PCDO, is a four page document with an inscription in the top right corner of the page "Notes on File" and is a personal document of the PCDO that helped him in taking notes and making his final decision, i.e. the letter that was sent to the applicant on July 14, 1997. |
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[10] This document makes four references to documents relied upon and indicates as well, the conclusion reached at the end of the review process. |
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[11] I have not seen in that document nor in the decision, i.e. the July 14, 1997' letter anything that represents an error by the officer. |
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[12] It is clear that the PCDO referred to documentary evidence in relation to the applicant's alleged fear of persecution in Iran due to his failure to perform military service. |
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[13] It is also clear that the PCDO referred to documentation evidence in relation to the applicant's fear that his illegal exit from Iran would place him in the category of political opponent. |
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[14] It is also clear that the PCDO found that he had not been presented with any credible evidence that the applicant's group still operates in Iran. He concluded that it was credible that the applicant was wanted by the authorities. |
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[15] The PCDO also concluded that he found that the applicant would not be at risk due to his political opinion or activities. |
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[16] I have read the decision rendered by the Immigration and Refugee Board and the two parties agreed that it was a long and detailed decision. |
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[17] I disagree with the argument that the fact that the PCDO relied on the CRDD decision to arrive to his or her own decision is an error in law. |
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[18] The PCDO never mentioned that he was forced or obliged to render a decision that would follow the decision made by the CRDD. If he had felt obliged to follow the same decision, it would have been an error but, it is not the case, as was clearly expressed by the Honourable Mr. Justice Hugessen in Shah v. M.E.I. (1995) 170 N.R. 240: |
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To succeed in his attack here the applicant must show that the decision-maker |
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erred in law, proceeded on some wrong or improper principle or acted in bad faith (...) It is a heavy burden and the applicant has not met it. The application was properly dismissed. |
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[19] The respondent's counsel also quoted the Honourable Mr. Justice Richard in Nadarajah v. Canada (Minister of Citizenship and Immigration) (1996) 122 F.T.R. 299: |
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Counsel indicated that the current practice of Post-claim Determination Officers is to inform applicants of the documentary evidence of country conditions that is being considered. That appears to be a reasonable approach to take such cases. However, given the minimal standard of fairness applicable to such proceedings according to Shah, the failure to do so, unless the country conditions information is not public and is material to the decision, does not, in my opinion, amount to a breach of the rules of procedural fairness applicable to these cases. |
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[20] The respondent's counsel also raised the question of credibility. The PCDO relied on the CRDD decision and on the evidence that was filed to assess the credibility of the applicant. |
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[21] The Honourable Mr. Justice McGuigan in Sheikh v. Minister of Employment & Immigration, [1990]11 Imm. L.R. (2d) 86 (F.C.A.) mentioned: |
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It is the first-level tribunal which must base its decision on evidence which in the circumstances of the case, is considered credible or trustworthy, evidently by it. |
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The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim. |
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[22] For all these reasons, this application for judicial review is dismissed. |
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[23] No question will be certified. |
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