Ottawa, Ontario, June 26, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision rendered by N. Chan (the officer) on September 16, 2005, which rejected Mr. Mohammad Bagher Sedarat's (the applicant) pre-removal risk assessment (PRRA) application.
FACTS
[2] The applicant is a citizen of Iran. He arrived in Canada on April 12, 1996 with his brother Noushzad Sedarat. They claimed Convention refugee status in Canada on the grounds of perceived political opinion and membership in a particular social group because of their involvement in the publication in Iran of Joseph Heller's book, Catch 22 in Farsi through their father's publishing company.
[3] A decision of the Convention Refugee Determination Division (the Board), dated January 23, 1998, determined that the applicant was not a Convention refugee. The Board found that the applicant was not credible and that there was insufficient credible evidence to support his claim. The applicant's application for leave and judicial review of the Board's decision was dismissed on June 2, 1998.
[4] The applicant applied to be considered as a member of the Post-Determination Refugee Claimant class but his application was denied by the Post Claim Determination Officer on December 14, 1999.
[5] On May 27, 1999, the applicant applied for an exemption on humanitarian and compassionate (H & C) grounds from the requirement to apply for permanent residence from within Canada. This application was refused on January 18, 2000.
[6] The applicant applied for spousal sponsored H & C on July 20, 2004. His application was refused on January 25, 2005.
[7] On February 24, 2005, the applicant submitted a PRRA application. By decision dated September 16, 2005, the PRRA application was refused.
DECISION OF THE OFFICER
[8] After reviewing the country condition documents with respect to censorship in Iran and the applicant's submissions, the officer concluded that the applicant had provided insufficient information to demonstrate that he would be at risk due to his involvement in the publication of the Farsi translation of Catch 22.
ISSUE
[9] Did the officer err in her interpretation of the documentary evidence?
ANALYSIS
[10] Portions of the applicant's affidavit contain new evidence which was not presented to the officer. The said evidence is found in paragraphs 9, 25, and Exhibit B (2004 Human Rights Watch excerpt).
[11] In Wood v. Canada(Attorney General) [2001] F.C.J. No. 52, Justice W. Andrew MacKay, at paragraph 34, reiterated that evidence is not admissible in this Court if it has not been presented previously to the administrative decision-maker:
On judicial review, a Court can consider only evidence that was before the administrative decision-maker whose decision is being reviewed and not new evidence (see Brychka v. Canada (Attorney General), supra; Franz v. Canada (Minister of Employment and Immigration) (1994), 80 F.T.R. 79; Via Rail Canada Inc. v. Canada (Canadian Human Rights Commission) (re Mills) (August 19, 1997), Court file T-1399-96, [1997] F.C.J. No. 1089; Lemiecha v. Canada (Minister of Employment & Immigration) (1993), 72 F.T.R. 49, 24 IMM L.R. (2d) 95; Ismaili v. Canada (Minister of Citizenship and Immigration), (1995) 100 F.T.R. 139, 29 Imm L.R. (2d) 1).
[12] In light of the above, paragraphs 9, 25, and Exhibit B found in the applicant's affidavit will not be considered by this Court.
[13] In Figurado v. Canada(Solicitor General), 2005 FC 347, [2005] F.C.J. No. 458, Justice Luc Martineau outlines the criteria to be used when assessing the standard of review for matters relating to PRRA decisions: He states at paragraph 51:
In my opinion, in applying the pragmatic and functional approach, where the impugned PRRA decision is considered globally and as a whole, the applicable standard of review should be reasonableness simpliciter (Shahi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1826 at para. 13 (F.C.T.D.) (QL); Zolotareva v. Canada (Minister of Citizenship and Immigration), 2003 FC 1274, [2003] F.C.J. No. 1596 (F.C.) (QL) at para. 24; Sidhu v. Canada (Minister of Citizenship and Immigration), 2004 FC 39, [2004] F.C.J. No. 30 (F.C.) (QL) at para. 7). That being said, where a particular finding of fact is made by the PRRA officer, the Court should not substitute its decision to that of the PRRA officer unless it is demonstrated by the applicant that such finding of fact was made in a perverse or capricious manner or without regard to the material before the PRRA officer (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended; Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No. 108 (F.C.A.) (QL) at para. 14).
[14] The applicant argues that the officer based her decision on irrelevant considerations by citing evidence with respect to trends in Iranian publishing and government support for publication, as well as increased sales of books in Iran. However, as mentioned by the respondent, the central issue raised by the applicant in his allegation of risk relates to his involvement in the publication of material considered anti-regime by the Iranian authorities. Therefore, I find that the officer was justified in considering current documentary evidence relating to censorship and the attitude of Iranian authorities towards the treatment of those who publish information in Iran.
[15] While focusing on the situation of journalists and others in the media and publishing industry, the applicant submits that the officer neglected to fully consider the reality of risk to life, risk of torture, or risk of cruel and unusual punishment faced by individuals identified by Iranian authorities as "objectionable" for reasons of appearance, ideology, or behaviour. The applicant claims that due to being perceived as too western, the Iranian authorities consider him objectionable.
[16] I disagree with the assertion that the officer did not fully consider the applicant's claim of being at risk upon return to Irandue to being too westernized. The officer clearly addressed this issue by writing the following:
I have considered the applicant's evidence that he previously suffered other forms and degrees of harassment because the authorities suspect him of being anti-regime and too Western. I find no objectively identifiable evidence to indicate that the applicant would be viewed as overtly political, a political activist or dissenter, or that his situation is akin to journalists and others in the media or publishing industry who find their human rights curtailed and their freedoms diminished as a result of their work.
(Officer's decision dated September 16, 2005, page 10 of the Record)
[17] There was no new evidence to support the applicant's claim that he would personally face discrimination because Iranian authorities perceive him as being too western and therefore objectionable. In Al-Shammari v. Canada(Minister of Citizenship and Immigration [2002] F.C.J. No. 478, Justice Edmond P. Blanchard stated the following at paragraph 24:
This Court has repeatedly held that a claimant must establish a credible link between his claim and the objective situation prevailing in a country in order to be granted Convention refugee status (Canada (Secretary of State) v. Jules, (1994), 84 F.T.R. 161). Accordingly, it will not suffice for an applicant to present evidence showing problems encountered by some of his fellow-citizens. He must also establish a connection between his claim and the objective situation in his country.
[18] The applicant was deemed not to be credible. The officer also noted in her evaluation that her analysis of the case at bar was based in part on the same facts as those submitted before the Board, which were found not to have been credible. The officer was entitled to consider that the applicant's past claims were not credible. In the PRRA application, the onus lies on the applicant, with the use of new evidence, to illustrate a personalized risk upon return to Iran. The officer did not err in determining that there was insufficient evidence with respect to the applicant's alleged personalized risk. A review of the decision demonstrates that the officer relied on the documents submitted as evidence which were appropriate and relevant to the matter.
[19] The applicant claims that the officer erred in choosing only certain documentary evidence in which to base her findings regarding the assessment of risk he would face if returned to Iran. I am satisfied; however, that in this case, the officer's extensive reasons demonstrate that she carefully considered all the evidence submitted by the applicant before arriving at her decision. There is nothing on the face of the record to suggest that the decision was made without regard to the evidence. In the decision, the officer considered several country condition documents. It is the prerogative of the officer to determine which documents are to receive more consideration than others. This Court will not reweigh the documentary evidence as long as the officer's findings are not patently unreasonable. The officer's factual findings are not patently unreasonable. Overall, the decision is reasonable.
JUDGMENT
- The application for judicial review is dismissed;
- No question for certification.
"Pierre Blais"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6337-05
STYLE OF CAUSE: Mohammad Bagher Sedarat v. MCI
PLACE OF HEARING: Vancouver, B.C.
REASONS FOR JUDGMENT AND JUDGMENT: Mr. Justice Blais
APPEARANCES:
| Mohammad Bagher Sedarat
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| Helen Park
|
SOLICITORS OF RECORD:
| Mohammad Bagher Sedarat 215 - 312 Carnarvon St. New Westminster, BC V3L 5H6 Tel.: (604)540-2647
|
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| John H. Sims, Q.C. Deputy Attorney General
|