IMM-1282-06
Ottawa, Ontario, October 18, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
REASONS FOR JUDGMENT AND JUDGMENT
[1] Fatemah Aivani seeks judicial review of a negative Pre-removal Risk Assessment and of a refusal to allow her to apply for permanent residence from within Canada based on humanitarian and compassionate grounds.
I. Background
[2] Ms. Aivani is an elderly widow, who is a citizen of both Iraq and Iran. After coming to Canada on a visitor’s visa, Ms. Aivani sought refugee protection in this country, claiming to fear for her life in both Iraq and Iran. The basis for this fear was Ms. Aivani’s claimed inability to support herself, and her lack of any family members in either country who were willing to assist her.
[3] Ms. Aivani’s refugee claim was rejected by the Refugee Protection Division of the Immigration and Refugee Board which found that her claim was essentially economic in nature. The Board further found that the poverty that Ms. Aivani says she would face in Iran confronted many people in that country and was not personal to her.
[4] While the Board accepted that Ms. Aivani would likely face discrimination as a single woman in Iran, the Board found that this did not amount to persecution.
[5] Finally, the Board was satisfied that Ms. Aivani could in fact support herself in Iran, and that she had family members who were willing to assist her.
[6] Ms. Aivani sought judicial review of the Board’s decision, but leave was denied. She then applied for both a Pre-removal Risk Assessment and for permanent residence from within Canada on humanitarian and compassionate grounds. The bases for both claims were essentially the same as that underlying her refugee claim, although additional documentary evidence was provided in support of each of these applications.
[7] Both applications were dealt with by the same officer and both were unsuccessful. Ms. Aivani’s applications for judicial review of these two decisions were heard together. Given that there is substantial overlap between the parties’ submissions with respect to each of the applications, I have prepared one set of reasons, a copy of which should be placed on each file.
[8] I will deal first with the PRRA decision.
II. Ms. Aivani’s PRRA Application
[9] The PRRA officer concluded that while Ms. Aivani faced discrimination in Iran by virtue of her status as an elderly widow, such discrimination did not amount to persecution.
[10] Having found that Ms. Aivani had not established that she faced a risk to her life or a risk to the security of her person in Iran, the PRRA officer did not find it necessary to examine the situation in Iraq.
[11] Ms. Aivani submits that the PRRA officer erred in ignoring evidence and in finding that she faced amounted to discrimination, as opposed to persecution, in Iran. Moreover, Ms. Aivani says that she was denied procedural fairness in the PRRA process, as the PRRA officer did not properly consider her request for an oral hearing.
III. Standard of Review
[12] Before turning to consider the substance of Ms. Aivani’s submissions, it is first necessary to address the issue of the appropriate standard of review.
[13] In numerous cases, this Court has found that the overall standard of review to be applied to decisions of PRRA officers is that of reasonableness: see, for example Covarrubias v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1470, 2005 FC 1193; Kim v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 540, 2005 FC 437, Liyanage v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1293, 2005 FC 1045, and Figurado v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 458, 2005 FC 347.
[14] That said, where findings of fact are made by a PRRA officer, the Court should not substitute its decision for that of the PRRA officer unless it has been shown that these findings of fact were made in a perverse or capricious manner or without regard to the evidence: see, for example, Harb v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 108, 2003 FCA 39, at &14.
[15] However, to the extent that the arguments advanced by Ms. Aivani raise issues of procedural fairness, the task for the Court is to isolate any act or omission relevant to the question of procedural fairness, and to determine whether the process followed by the officer satisfied the level of fairness required in all of the circumstances: see Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404.
[16] With this understanding of the appropriate standard of review, I turn now to consider Ms. Aivani’s submissions.
A. Did the PRRA officer ignore evidence?
[17] Ms. Aivani argues that in coming to the conclusion that she was able to support herself in Iran, the PRRA officer ignored material evidence, namely a letter signed by a cousin and several other acquaintances attesting to the fact that she does not own any property in Iran and could not afford medical care in that country.
[18] Neither this letter, nor a second, similar, letter produced by Ms. Aivani, appear in the Certified Tribunal Record, and the PRRA officer has sworn an affidavit stating that the letter in question was not before her when she made her decision.
[19] Although Ms. Aivani stated under oath that the letter was provided to the PRRA officer, on cross-examination she acknowledged that she had no direct knowledge as to whether the letter had indeed been provided to the officer as she knew only that she had given it to her counsel. Moreover, Ms. Aivani could not say with any certainty whether she provided the letter in question to her counsel before the PRRA decision was rendered or after the fact.
[20] In these circumstances, I am not satisfied that the letter in question was before the PRRA officer at the time that she made her decision. As a result, the failure of the officer to address the letter in her analysis does not amount to a reviewable error.
B. Should the extrinsic evidence be admitted?
[21] Ms. Aivani asks that in the event that I find that the letter in question was not before the PRRA officer when she made her decision, I should nevertheless admit and consider the letter on this application for judicial review. In support of this submission, counsel refers to the decision of this Court in Omar v. Canada (Solicitor General), [2004] F.C.J. No. 2136, 2004 FC 1740, where the Court found there to be very exceptional circumstances justifying the admission of new evidence on judicial review.
[22] The decision in Omar is very brief and it is not clear precisely what the circumstances were that the Court found to be sufficiently exceptional as to justify the admission of extrinsic evidence on judicial review. However, it is well-settled law that an application for judicial review should ordinarily be determined on the basis of the evidence that was before the decision-maker.
[23] While there are exceptions to this rule, Ms. Aivani has not persuaded me that grounds exist in this case that would warrant the admission of new evidence on judicial review.
[24] It should also be noted that the letter in question does not amount to “new” evidence, as it relates to precisely the same risk that was alleged by Ms. Aivani in her claim before the Immigration and Refugee Board. As Justice Barnes noted in Yousef v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1101, 2006 FC 864, it is not the role of a PRRA officer to re-examine evidence assessed by the Immigration and Refugee Board, or to consider evidence that could have been put before the Board, but was not.
[25] Rather, the role of the PRRA officer is to examine only new evidence that arose after the rejection of an applicant’s refugee claim, or evidence that was not reasonably available, or that the applicant could not reasonably have been expected to have presented. In this case, there is nothing in the record to indicate why the letter from Iran could not have been provided earlier.
[26] Ms. Aivani has also filed a doctor’s letter documenting her various ailments in support of her application for judicial review. There is no suggestion that this letter was before the PRRA officer when she made her decision, nor has any reason been given as to why such letter could not have been provided at that time.
[27] An application for judicial review is not an opportunity for a party to try to make up the deficiencies in his or her original application, nor is it a chance for the party to adduce new evidence in an effort to rebut the findings made by the decision-maker. As a consequence, I am not prepared to consider the doctor’s letter on this application.
C. Did Ms. Aivani face discrimination or persecution in Iran?
[28] Ms. Aivani contends that the PRRA officer also erred in concluding that what she faced in Iran amounted to discrimination rather than persecution. In this regard, Ms. Aivani says that she will be destitute should she be forced to return to Iran, and that the PRRA officer had a duty to consider the cumulative effects of the discrimination that she will face as an elderly widow in that country with no means of support.
[29] In support of this submission, Ms. Aivani relies on the United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status: United Nations, Office of the United Nations High Commissioner for Refugees; Geneva, 1988. This provides that an applicant may be subject to various measures which, taken in isolation may not amount to persecution but, when considered cumulatively may justify a finding of persecution.
[30] The characterization of behaviour as discrimination or persecution involves a question of mixed fact and law. In this case, the documentary evidence indicates that women do face significant discrimination in Iran and that the situation which Ms. Aivani would face in that country would be extremely difficult. Indeed, the officer’s decision clearly identifies these difficulties, and does so with specific reference to the relevant documentary evidence.
[31] However, the officer found that Ms. Aivani would be able to continue to reside with her own mother, as she had done prior to coming to Canada, and that she would be able to work as a seamstress, as she had done for many years, and would thus be able to support herself in Iran.
[32] Ms. Aivani has not persuaded me that the officer’s findings in this regard were unreasonable or that the officer misconstrued or misunderstood the distinction between discrimination and persecution.
D. Did the PRRA officer fail to properly consider Ms. Aivani’s request for an oral hearing?
[33] Finally, Ms. Aivani submits that the PRRA officer erred in failing to properly consider her request for an oral hearing. In this regard, Ms. Aivani points to the fact that, in her PRRA submissions, her counsel concluded by stating “It is also submitted to [sic] provide an oral hearing to the applicant because she was not represented by counsel at the hearing of her refugee claim”.
[34] Ms. Aivani was not given an oral hearing in relation to her PRRA application and the only reference to an oral hearing in the PRRA decision itself was the officer’s marking of the box indicating “no” as to whether an oral hearing had been held.
[35] In support of her contention that an oral hearing should have been held in her case, Ms. Aivani relies on the decision in Zokai v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1359, 2005 FC 1103, which found that the failure to grant an oral hearing amounted to a breach of procedural fairness. However, in Zokai, the applicant had made a detailed request explaining why an oral hearing was necessary with reference to the relevant factors as set out in section 167 of the Immigration and Refugee Regulations. Moreover, the essence of the officer’s decision was that the applicant’s story was not credible.
[36] In this regard, it should be noted that subsection 113(b) of the Immigration and Refugee Protection Act provides that an oral hearing may be held on a PRRA application. Section 167 of the Immigration and Refugee Protection Regulations gives the PRRA Officer direction as to when such a hearing should be held, providing that:
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167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:
(a) whether there is evidence that raises a serious issue of the applicant's credibility and is related to the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to the decision with respect to the application for protection; and
(c) whether the evidence, if accepted, would justify allowing the application for protection.
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167. Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci-après servent à décider si la tenue d’une audience est requise:
a) l’existence d’éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui concerne la crédibilité du demandeur;
b) l’importance de ces éléments de preuve pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces éléments de preuve, à supposer qu’ils soient admis, justifieraient que soit accordée la protection. |
[37] In this case, Ms. Aivani’s request for an oral hearing was cursory in nature, and did not refer to any of the relevant considerations. Moreover, none of the circumstances identified in the Regulation exist in this case. Not only did the PRRA officer not make any findings of credibility in her assessment, in addition, there was no new evidence before the PRRA officer that would have justified allowing the application for protection.
[38] Given Ms. Aivani’s failure to identify any circumstances that could have justified the holding of an oral hearing, I am not persuaded that the PRRA officer had any obligation to do anything more with respect to Ms. Aivani’s request: see Malhi v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 993, 2004 FC 802, at ¶ 9.
[39] For these reasons, I have not been persuaded that the PRRA officer erred as alleged by Ms. Aivani. As a consequence, this application for judicial review will be dismissed.
III. Ms. Aivani’s H&C Application
[40] Ms. Aivani’s H&C application was turned down as the officer was of the view that the grounds that Ms. Aivani had put forward did not constitute unusual, undeserved or disproportionate hardship. As a consequence, the officer concluded that insufficient humanitarian and compassionate grounds existed as to warrant approving her application.
[41] It was not entirely clear from counsel’s submissions whether reliance was being placed on arguments advanced with respect to the PRRA decision in relation to Ms. Aivani’s H&C application. To the extent that Ms. Aivani does rely on some of the same arguments, I adopt the reasons given in relation to the PRRA decision for rejecting these arguments.
[42] That said, in the submissions directed specifically to the H&C decision, Ms. Aivani did not identify any specific error in that decision, seemingly taking issue with the weight that the officer ascribed to the factors militating in her favour, and to those operating against her.
[43] The general standard of review governing decisions of immigration officers in relation to H&C applications is reasonableness simpliciter: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[44] That is, the decision must be able to withstand a “somewhat probing examination”: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.
[45] In this case, the officer properly identified all of the relevant positive and negative considerations relating to Ms. Aivani’s situation. The weight to be ascribed to these factors is a matter to be determined by the officer. This is undoubtedly a sympathetic case, and another officer may well have weighed these factors differently. However, I cannot say that the officer’s decision was unreasonable.
IV. Conclusion
[46] For these reasons, both applications for judicial review are dismissed.
V. Certification
[47] Neither party has suggested a question for certification, and none arises here in either case.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. These applications for judicial review are dismissed; and
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1282-06 and IMM-1283-06
STYLE OF CAUSE: FATEMAH AIVANI v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 10, 2006
APPEARANCES:
Baldev S. Sandhu FOR THE APPLICANT
Banafsheh Sokhansanj FOR THE RESPONDENT
SOLICITORS OF RECORD:
Baldev S. Sandhu FOR THE APPLICANT
Barrister and Solicitor
Sandhu Law Office
Vancouver, British Columbia
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Vancouver, British Columbia