Federal Court Decisions

 

 

 

Date: 20061116

Docket: IMM-224-06

Citation: 2006 FC 1388

Ottawa, Ontario, this 16^th day of November, 2006

PRESENT:     The Honourable Mr. Justice Russell

 

 

BETWEEN:

MEHDI LATIFI

Applicant

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

 

INTRODUCTION

 

[1]               This is an application for judicial review, made pursuant to sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, of a decision of a Pre-Removal Risk Assessment Officer (Officer). In her decision, dated December 6, 2005 (Decision), the Officer denied the Applicant’s Pre-Removal Risk Assessment (PRRA) application.

 

 

BACKGROUND

 

[2]               The Applicant, Mehdi Latifi, is a citizen of Iran. He arrived in Canada on March 7, 2001 and immediately made a claim for refugee protection on the basis of his political opinion. He claims to have been a supporter of a minority faction of the Fedayeen party, a Marxist-Leninist group, since 1980. The Applicant alleges that he was arrested in 1986 while trying to cross the border into Turkey; he was sentenced to two years in prison and given a five-year suspended sentence. He says that, after he was released from prison in 1988, he reported to authorities for six months but then fled to Tehran where he lived and worked under two different aliases for 12 years. The Applicant claims that, during this time, he continued to work for the Fedayeen (Minority) faction distributing pamphlets.

 

[3]               The Applicant further claims that, in July 2000, he learned that a childhood friend, who was also his contact with the Fedayeen (Minority) faction in Tehran, had been arrested. As a result, the Applicant fled to Tabriz but, after determining that it was no longer safe for him to be in Iran, he left the country on September 1, 2000. After transiting through several countries, the Applicant arrived in Toronto on March 7, 2001 and made his claim for refugee protection at the airport. He subsequently moved to Vancouver and his file was transferred there.

 

[4]               The Applicant says that he later learned from family members that the Iranian Revolutionary Guard had gone to his family’s home in March 2001 looking for him.

 

[5]               His refugee claim was heard in 2001. In its decision dated January 7, 2002, the then Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board denied the Applicant’s claim. The CRDD did not believe key points of the Applicant’s evidence and held that he was generally an unreliable witness.

 

[6]               The Applicant did not apply to judicially review the CRDD’s decision.

 

[7]               On January 23, 2002, the Applicant applied for consideration under the Post-Determination Refugees in Canada Class (PDRCC). That application was subsequently converted to a PRRA on June 28, 2002 when the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (IRPA) came into force. In his application, the Applicant identifies the risk he faces as a well-founded fear of persecution on the basis of his political opinion as a supporter of the Fedayeen (Minority) in Iran. In addition, the Applicant states that he faces a risk if returned to Iran as a result of his political activities in Canada opposing the government of Iran.

 

[8]               The Applicant made additional submissions in support of his PRRA application in March and April, 2005.

 

[9]               In March 2005, he also made an application for permanent residence from within Canada on humanitarian and compassionate (H&C) grounds.

 

[10]           On December 6, 2005, the Officer reviewing the Applicant’s PRRA determined that he would not be at risk if he returned to Iran. The same Officer also issued a negative decision in respect of the Applicant’s H&C application. The latter decision is the subject of a separate application for judicial review (IMM-225-06), which was heard concurrently with this application.

 

[11]           On March 7, 2006, Justice Edmond Blanchard issued an order staying the removal of the Applicant pending final disposition of the application for leave and for judicial review in this matter and IMM-225-06. Leave for judicial review was subsequently granted on April 19, 2006 by Justice Dolores Hansen.

 

DECISION UNDER REVIEW

 

[12]           In her Decision, the Officer stated that because the Applicant’s refugee claim was determined before IRPA came into force, she considered all of the evidence before her and not just “new evidence.” This included evidence that arose after the Applicant’s refugee claim was decided as well as evidence that the Applicant could not reasonably have been expected to adduce before the CRDD. The Officer considered the Applicant’s PRRA on the basis of sections 96 and 97 (the consolidated grounds) of IRPA.

 

[13]           The Officer makes reference to the Applicant’s submissions challenging the CRDD’s negative findings in relation to his credibility. The Officer outlines the apparent inconsistencies between his oral testimony and his written accounts, but also notes that the Applicant swore an affidavit accounting for the inconsistencies in the evidence. These explanations include the Applicant’s testimony that he had given a negative response to the question posed on the Notice of Claim to be a Convention Refugee (regarding whether he had ever been arrested or convicted of a crime in any country) because he thought the question only referred to countries other than his own country of nationality. Moreover, the Applicant explained that the inconsistencies in respect of dates provided on his Personal Information Form (PIF) and in his oral testimony were a result of an inaccurate conversion of dates from the Iranian calendar to the Gregorian calendar.

 

[14]           The Officer set out the additional documentary evidence provided in support of the Applicant’s PRRA application. The documents are:

1.                  A letter dated March 7, 2005 attesting that supporters of the Organisation of Fedaian (Minority) in Canada certify that the Applicant is an active supporter of the Organisation, that he was politically active in Iran commencing in 1978, and that he was imprisoned for two years as a result;

2.                  An unsigned letter dated March 6, 2005 stating that supporters of Ettehead-Enghalabi in Canada certify that the Applicant is an active supporter of the Organisation of Ettehad-Enghalabi in Vancouver. The letter contains similar information to the March 7, 2005 letter, but does not reference the Applicant’s arrest, conviction or imprisonment in Iran;

3.                  A document dated March 5, 2005 from another supporter of the Fedaian (Minority) in Vancouver attesting that the writer has worked with the Applicant in Vancouver in support of the Organization and that if sent back to Iran, the Applicant “will probably face torture, or even be executed”;

4.                  A photocopy of a letter dated March 28, 2005 from the Association of Iranian Political Prisoners (in Exile) based in Farsta, Sweden indicating that the Applicant was imprisoned in Iran for his political activities in connection with the organisation of Iranian People Fadaii Guerillas (Minority);

5.                  A petition bearing 30 signatures stating that the Applicant “was a social-political activist in Iran” and that since such a person “would face serious risk of lashes, imprisonment, torture and execution, [the Applicant] had to flee Iran and seek for refuge in order to save his life.”

 

[15]           The Officer noted that the Applicant’s PRRA submissions also included documentary evidence from 1999 to the current year concerning general country conditions in Iran, specifically in relation to Iran’s human rights record.

 

[16]           In her final assessment, the Officer noted that she had considered the credibility findings of the CRDD and found them to be reasonable. Specifically, the Officer stated as follows:

The CRDD panel found the applicant, Mr. Latifi, to be an unreliable witness. I am not bound by their findings but have considered them carefully and found them to be reasonable and well-articulated. In support of the instant application, Mr. Latifi has made submissions specifically addressing that panel’s credibility findings with respect to his evidence on several points. After considering his submissions, I found that he provided insufficient evidence to refute or even cast into doubt the findings of the CRDD panel.

 

 

[17]           The Officer addressed the Applicant’s responses to the CRDD’s inconsistency findings. As regards the Applicant’s stated basis for his refugee claim as recorded in the Port of Entry (POE) notes, the Officer accepts that the POE Officer could have forgotten to record the fact of the Applicant’s work with the Fedayeen (Minority) movement. However, the Officer found it unlikely that the Applicant would tell the POE Officer that the basis of his refugee claim was his participation in student demonstrations, but then would entirely forego any reference to his involvement in those demonstrations in his PIF narrative. Because of this discrepancy, the Officer found that the Applicant had not provided consistent and reliable evidence with respect to the circumstances surrounding his identified risks.

 

[18]           As regards the Applicant’s responses as to whether he had ever been charged or convicted of a crime in any country, the Officer commented that the Applicant gave the same negative response through two different interpreters in relation to the same question on two different forms (the POE form and the Notification of Claim form). Consequently, the Officer found the Applicant’s negative response was informed and accurate and was not given as a result of a misunderstanding.

 

[19]           With respect to the inconsistencies in dates, the Officer noted that the Applicant testified as to the seasons during which the events occurred. She held that while errors in converting dates are plausible, it was unlikely that the Applicant would not be able to accurately recall the season in which he departed Iran. As such, the Officer gave the Applicant’s explanation little weight in terms of demonstrating whether the CRDD erred in its finding in respect of the Applicant’s reliability as a witness.

 

[20]           The Officer noted that the Applicant did not provide any documentary evidence in support of his arrest, trial, conviction, release or subsequent reporting in Iran. She stated that a “reasonable person” would expect the Applicant to produce some form of documentary evidence in support of such allegations.

 

[21]           With respect to the Applicant’s submission that he has become a high-profile activist in Canada, which now places him at risk in Iran, the Officer found there to be a dearth of tangible evidence. The Officer noted that the Applicant’s counsel submitted, in April 2005, that the Applicant had provided him with VCR tapes “clearly showing [the Applicant’s] participation in local very public demonstrations” related to deportations of Iranian nationals from Canada. Counsel requested more time to edit out materials not directly relevant to the Applicant. The Officer commented that, after more than six months, she had still not received any such taped evidence.

 

[22]           As for the letters of support concerning the Applicant’s political activities in Iran and Canada and the petition, the Officer assigned them little weight as probative evidence of the personalized risks identified by the Applicant. In general, the Officer found the letters to be vague and to contribute little in the way of specific or objectively verifiable information. She stated that none of the declarents who attested to the Applicant’s history as an activist and political prisoner in Iran had first-hand knowledge of any of the events. The Officer also noted that the author of the petition was not well acquainted with the Applicant’s history in Iran, as the petition makes no reference to his arrest, conviction and incarceration.

 

[23]           As regards the letters from the Organisation of Fedaian (Minority) and from the Ettehad-Enghelabi, given the absence of any indication that the authors of the letters had first-hand knowledge of the Applicant’s circumstances in Iran, the Officer concluded that it is more likely than not that the writers’ information originated with the Applicant himself. Moreover, the Officer commented that, while each letter describes the Applicant as “one of the most active supporters” of the Canada-based organizations, neither letter provides any specific evidence about what “active support” the Applicant has given to these organizations. The Officer found that similar problems emerged when she considered the letter provided by the Association of Iranian Political Prisoners (in Exile).

 

[24]           Finally, regarding the documentary evidence on country conditions in Iran, the Officer acknowledged that “the current government in Iran is a repressive regime where human rights abuses are not uncommon.” However, the Officer held that a “generalized climate of human rights violations” does not itself establish personalized risk to the Applicant on the grounds set out in sections 96 and 97 of the IRPA.

 

[25]           As a result of her findings, the Officer denied the Applicant’s PRRA application. The Officer concluded, on the evidence before her and her subsequent findings of fact arising from that evidence, that the Applicant is unlikely to face more than a mere possibility of experiencing “a forward-looking and personalized risk of persecution” on a Convention refugee ground. Moreover, the Officer held that there are no probable grounds to believe the Applicant will face torture or a risk to life, or cruel and unusual punishment if he returns to Iran.

 

ISSUES

 

[26]           The Applicant alleges that the Officer made the following reviewable errors:

1.                  She failed to hold a credibility hearing pursuant to section 167 of the Immigration and Refugee Protection Regulations;

2.                  She relied on the findings of the CRDD as a basis for her own credibility finding and her finding with respect to the new evidence adduced by the Applicant;

3.                  She failed to consider the totality of the evidence; and

4.                  She erred in applying the “reasonable person” test to the facts of the Applicant’s case.

 

RELEVANT LAW

 

[27]           The statutory authority for a PRRA application is set out in section 112 of the IRPA. Subsection 112(1) provides the Minister of Citizenship and Immigration or his delegate with the authority to determine that a person is in need of protection:

[28]           An application for PRRA is considered on the protection grounds set out in sections 96 and 97 of the IRPA. Those provisions provide as follows:

 

 

[29]           Section 113 of the IRPA provides the Minister with discretion to hold a hearing in relation to a PRRA application :

 

[30]           The prescribed factors for determining whether a hearing ought to be held pursuant to paragraph 113(b) of the IRPA are found in section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations):

 

 

 

 

 

STANDARD OF REVIEW

 

[31]           The first issue raised by the Applicant is the requirement to hold an oral hearing. This involves principles of procedural fairness and so attracts a standard of correctness: see Fetherston v. Canada (Attorney General), (2005), 332 N.R. 113, 2005 FCA 111.

 

[32]           The remaining issues involve the substantive findings of the Officer. In Figurado v. Canada (Solicitor General), [2005] 4 F.C.R. 387, 2005 FC 347 at paragraph 51, Justice Luc Martineau outlined the criteria to be used when assessing the standard of review for matters relating to PRRA decisions:

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 (T.D.) (QL), at paragraph 13; Zolotareva v. Canada (Minister of Citizenship and Immigration) (2003), 241 F.T.R. 289 (F.C.), at paragraph 24; Sidhu v. Canada (Minister of Citizenship and Immigration), 2004 FC 39, at paragraph 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) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act; Harb v. Canada (Minister of Citizenship and Immigration) (2003), 238 F.T.R. 194 (F.C.A.), at paragraph 14).

 

[33]           In Kim v. Canada (Minister of Citizenship and Immigration), (2005), 272 F.T.R. 62, 2005 FC 437, Justice Richard Mosley conducted a pragmatic and functional analysis in relation to decisions of PRRA officers and also determined that a different standard of review applies depending on the nature of the question. Justice Mosley held that questions of fact in a PRRA decision are generally to be reviewed on a standard of patent unreasonableness, questions of mixed fact and law on a standard of reasonableness and questions of law on a standard of correctness.

 

[34]           I have followed the pragmatic and functional analyses of Justices Martineau and Mosley and, in the circumstances of the case before me, where the substantive issues involve questions of fact, I have applied a standard of patent unreasonableness for the purpose of reviewing the Decision. Where they involve questions of mixed fact and law I have applied a standard of reasonableness.

 

 

ARGUMENTS

 

 

            The Applicant

 

[35]           The Applicant contends that the only issue for the Officer was the Applicant’s credibility and the probative value of the Applicant’s supporting documents. He says that, because his case met all the factors set out in section 167 of the Regulations, the Officer was obliged to hold a credibility hearing. He says that his former counsel alluded to the right to an oral hearing in the submissions that accompanied the Applicant’s PRRA application. Consequently, the Applicant argues that failing to hold a credibility hearing, or to inform the Applicant that no such hearing would be held, constitutes a breach of procedural fairness. In support of his position, the Applicant cites the following decisions: Liyanage v. Canada (Minister of Citizenship and Immigration), 2005 FC 1045; Zokai v. Canada (Minister of Citizenship and Immigration), 2005 FC 1103; Shafi v. Canada (Minister of Citizenship and Immigration), [2006] 1 F.C.R. 129, 2005 FC 714; and Tekie v. Canada (Minister of Citizenship and Immigration), (2005), 50 Imm. L.R. (3d) 306, 2005 FC 27.

 

[36]           The Applicant also argues that the Officer erred by failing to make an independent assessment of his PRRA application. He says that the Officer essentially adopted the findings of the CRDD.

 

[37]           Regarding the Officer’s consideration of the evidence, the Applicant submits that the Officer failed to see the “forest for the trees” and thus committed a reviewable error. Specifically, the Applicant contends that the Officer erred in discounting the reliability of each individual piece of documentary evidence rather than looking at the totality of evidence, which the Applicant submits supports his contention that he was a social activist in Iran and is a social activist in Canada. For example, the Applicant alleges that the Officer erred by finding fault in the documentary evidence because of wording or spelling or a lack of specifics. Further, the Applicant argues that the Officer erred in criticizing the Applicant for not providing a website address for the “Organisation,” even though the Officer was directed to a website in an accompanying letter. Moreover, the Applicant argues that the Officer erred in ignoring the petition attesting to the Applicant’s involvement as a social activist in the Iranian community in Vancouver. The Applicant contends that the petition has probative value in relation to his claim for protection as a refugee sur place.

 

[38]           Finally, the Applicant submits that the Officer erred in stating that a “reasonable person” would expect that the Applicant would have been able to produce some form of documentary evidence related to his arrest, conviction and incarceration. The Applicant argues that there is no basis for the Officer to suggest that such evidence is available in a country such as Iran which, as the Officer acknowledges, fails to observe basic human rights: see Ahmad v. Canada (Minister of Citizenship and Immigration), (2002), 21 Imm. L.R. (3d) 181, 2002 FCT 666.

The Respondent

 

[39]           The Respondent submits that the Officer’s findings of fact were not patently unreasonable and that, on the totality of the evidence, a claim for protection was not established by the Applicant.

 

[40]           Regarding the Officer’s failure to hold a credibility hearing, the Respondent submits that the Applicant was not entitled to an interview as “he did not bring forth sufficient reliable evidence that would permit the PRRA Officer to embark on such an examination.”

 

[41]           With respect to the Applicant’s allegation that he is targeted because of his involvement with the Fedayeen (Minority) faction, the Respondent contends that the Applicant is attempting to address the “errors” he claimed existed in the decision of the CRDD. The Respondent submits that the Federal Court has held that a PRRA officer does not sit in review of a decision of the CRDD: see Singh v. Canada (Minister of Citizenship and Immigration), 2005 FC 145 at paragraph 10. A PRRA officer’s decision is confined to new evidence that was not, or could not have been, adduced before the Board. The Respondent further submits that, in order for the Officer to revisit the CRDD’s decision on credibility, the Applicant had to provide clear and convincing evidence of error: see Weerasinghe v. Canada (Minister of Citizenship and Immigration), unreported, IMM-10240-03 (January 22, 2004).

 

[42]           As for the Officer’s consideration of the evidence, the Respondent argues that the little weight afforded the various letters relating to the Applicant’s past was not unreasonable. Moreover, the Respondent submits that the Officer’s statement that a “reasonable person” would expect the Applicant to be able to provide some evidence of his arrest and conviction was reasonable. Consequently, the Respondent submits that the Officer was not required to interview the Applicant.

 

[43]           Finally, regarding the Applicant’s sur place claim  to be a refugee because of his political activities in Canada, the Respondent submits that the Officer’s assessment of the evidence proffered by the Applicant was reasonable.

 

ANALYSIS

 

[44]           There is a fundamental disagreement between the parties as to whether the Decision raises credibility issues. The Applicant says that the Officer obviously took underlying credibility concerns into account in reaching her conclusions and so, at the very least, should have considered whether a hearing was warranted in accordance with subsection 113(b) of IRPA and section 167 of the Regulations.

 

[45]           The Respondent says, in effect, that the Decision is based upon an insufficiency of probative evidence, so that credibility was not an issue. The Respondent argues that the Applicant simply failed to adduce sufficient evidence to establish the risks he said existed if he was returned to Iran. Hence, says the Respondent “Mr. Latifi was not entitled to an interview as he did not bring forth sufficient reliable evidence that would permit the PRRA Officer to embark upon such an examination. The totality of his evidence was lacking, and the Officer’s findings of fact were not patently unreasonable.”

 

[46]           In fact, the Respondent says it is the Applicant who “attempted to make credibility a central issue vis-à-vis his refugee claim” and this “does not mean that an interview should automatically result.”

 

[47]           As regards the risks raised by the Applicant as a result of his activities in Canada, the Respondent once again asserts that this did not involve the Applicant’s credibility “but whether or not he had provided sufficient evidence of this risk.”

 

[48]           I agree with the Respondent that the distinction between “sufficiency” of evidence and “credibility” is crucial in this case and that the distinction is well recognized in the relevant jurisprudence.

 

[49]           Justice Blanchard was faced with similar issues in Selliah v. Canada (Minister of Citizenship and Immigration), (2004), 256 F.T.R. 53, 2004 FC 872 aff’d (2005), 339 N.R. 233, 2005 FCA 160 and provided very useful guidance at paragraphs 25-27 of his reasons:

The respondent submits that these factors are cumulative due to the use of the conjunctive "and" in section 167 of the Regulations. The applicants’ PRRA submissions consisted of additional arguments to their PDRCC submissions and reiterated the applicant’s story, and are not exceptional. The respondent submits that the Officer based her decision on the lack of evidence demonstrating personalized risk, not the credibility of the applicants. The issue of credibility was not central to the PRRA Officer's decision. The respondent argues that since the decision of the PRRA Officer does not raise a serious issue of credibility, there was no duty on the PRRA Officer to hold an oral hearing. The Court has interpreted a serious issue of credibility as an issue of credibility that is central to the decision in question, which is not the case here.

 

I  find that though the PRRA decision does contain references to the adverse credibility findings made by the CRDD, I am satisfied that the Officer did not import into her decision the credibility findings of the CRDD and that such references in the Officer's reasons were not determinative of her decision. The Officer did not err in considering the CRDD decision, indeed in the context of a PRRA application it was appropriate for the Officer to do so. Section 113(c) of the IRPA provides that the factors set out in sections 96 and 97 of the IRPA shall form the basis for consideration of an application for protection.

 

Upon reviewing the above-noted factors set out in section 167 of the Regulations I am satisfied that the prescribed circumstances were not present in the instant case that would warrant the holding of an oral hearing. The applicants' credibility was not the determining issue of the decision, rather the officer found that the risks to the applicants had not been established on the objective evidence, such as the advances made with the peace process and the existence of an internal flight alternative (IFA) for the applicants. The Officer clearly indicated that even if she had accepted all the evidence adduced by the applicants, it would have been insufficient to warrant a positive finding. As the sufficiency of evidence was the central issue, and no serious issue of credibility was raised, there was no obligation on the part of the officer to hold an oral hearing: Kim v. Canada (MCI), [2003] F.C.J. No. 452, online: QL.

 

The decision of Justice Blanchard was affirmed by Justice Linden of the Federal Court of Appeal, (2005), 339 N.R. 233, 2005 FCA 160.

 

[50]           An important fact about the Selliah decision is that the officer addressed section 167 and, in fact, concluded that, even if she had accepted all the evidence adduced by the applicants in that case, it would not have been sufficient to warrant a positive finding under section 167.

 

[51]           In the present case, even though Applicant’s counsel raised credibility as a central concern and asked the Officer to consider a hearing in accordance with section 167, the matter is not dealt with specifically in the Decision.

 

[52]           Thus, the basic question for me is whether a serious issue of credibility was raised by the Decision in this case that required the Officer to at least consider an oral hearing.

 

[53]           Justice Blanchard in Selliah at paragraph 26 was satisfied that “the Officer did not import into her decision the credibility findings of the CRDD and that such references in the Officer’s reasons were not determinative of her decision.”

 

[54]           The clarity found by Justice Blanchard in Selliah is not present in the case before me. The Officer did not specifically indicate that, even if she had accepted the evidence adduced by the Applicant, it would not have warranted a positive finding. Nor is it obvious that the issue of sufficiency of the evidence constitutes the real basis for the Decision.

 

[55]           If we examine the new evidence of risk that the Applicant placed before the Officer in his affidavit, it is clear that a great deal of the Applicant’s affidavit deals with either after-the-fact rationalizations as to why he made mistakes before the CRDD that counted against his credibility, or evidence that is intended to support the position that he took before the CRDD.

 

[56]           The Officer’s conclusions are as follows:

[…] I find, accordingly, that there is little reliable evidence in support of his submission that he was a political activist in Iran and little reliable evidence that he was imprisoned in his country of nationality or is wanted by authorities in that state. Similarly, there is little reliable evidence that he has engaged in high-profile political activities in Canada that would now place him at risk in Iran.

 

[57]           The context in which this is said, and the way the Officer approached the evidence adduced by the Applicant, suggests to me that by “reliable” the Officer means more than just “sufficiently probative” of the risks identified by the Applicant.

 

[58]           The Applicant says that he did put forward “new” evidence as regards his activities and fears in Iran, as well as “new” evidence about his activities in Canada.

 

[59]           He also says this “new” evidence was not accepted because of on-going credibility concerns that spilled over from the CRDD hearing and decision. My reading of the Decision suggests he is correct in this regard.

 

[60]           It is very difficult to separate “sufficiency” from “credibility” in the context of a PRRA decision that supersedes a negative refugee determination that was based upon credibility. On the present facts I do believe that the Officer was not sufficiently alive to the distinction so that credibility issues became enmeshed with sufficiency issues.

 

[61]           As regards the evidence concerning the Applicant’s activities in Canada, the Decision is quite clear that, as a finding of fact, the Officer concludes that “the applicant has provided insufficient evidence supporting his self-identification as a high-profile activist in Vancouver.” She does not say that she does not believe his evidence. She says that his evidence does not make him into a high-profile activist who would, for that reason, be at risk in Iran.

 

[62]           As regards the new evidence of the Applicant’s activities in Iran the words “vague” and “contradictory” in my view give rise to credibility concerns rather than merely dealing with sufficiency.

 

[63]           All in all, then, I believe the Applicant is correct that credibility issues, at least as regards his activities in Iran, were an aspect of the Decision that the Officer did not address in accordance with subsection 113(b) of IRPA and section 167 of the Regulations. I am not, of course, saying that had the Officer addressed those concerns, a hearing would have been warranted, or that if a hearing were held the result would have been different. But credibility was such a pervasive aspect of the Applicant’s claims that the Officer committed a reviewable error by not addressing this issue.

 

[64]           The Officer describes the process she adopted in paragraph 8 of her Decision:

 

a)                  She reviewed the CRDD decision and found the findings reasonable;

b)                  She examined the evidence provided that the Applicant questioned the CRDD’s credibility findings and found that it was insufficient to “even cast into doubt the findings of the CRDD panel”;

c)                  She found the new evidence on the Applicant’s activities in Iran “to be variously vague, contradictory, or unsupported by objectively verifiable evidence.” In her determination, it did not provide a sufficient evidentiary basis for personalized risk;

d)                  She found that the new evidence about the Applicant’s activities in Canada did not support his claim “to be a high-profile activist.”

 

[65]           The Applicant has drawn my attention to the recent decision of Justice Phelan in Shafi v. Canada (Minister of Citizenship and Immigration), [2006] 1 F.C.R. 129, 2005 FC 714 where a judicial review application was allowed in circumstances where the PRRA officer’s findings of sufficiency could not be divorced from the officer’s credibility findings. I believe that a similar result is necessary in this case. This conclusion effectively deals with the application but I will briefly address the other grounds raised by the Applicant.

 

Other Grounds

 

[66]           In my view, the Applicant’s argument that the Officer did not consider the evidence before her in its totality must fail. I do not find that the Officer inappropriately scrutinized the supporting letters and the petition. I find no fault in her overall conclusion that the documents, in general, lack specifics about the Applicant’s situation and do not represent first-hand accounts of the persecution the Applicant allegedly faced in Iran or of the Applicant’s activities in Canada which gives rise to his sur place claim. In fact, aside from asserting that the documents support the Applicant’s contention that he was a social activist in Iran and is a social activist in Canada, the Applicant does not suggest how they satisfactorily substantiate the basis of his PRRA application. However, once again, it is difficult to separate the Officer’s findings in this regard from the general credibility concerns in the Decision, and these findings cannot stand alone to support the Decision.

 

[67]           Finally, I am of the opinion that the Officer did not err in stating that a “reasonable person” would expect the Applicant to have adduced some form of documentary evidence supporting his claim that he was arrested, convicted and incarcerated in Iran because of his political opinion. I note that the Officer’s comment was not, in and of itself, determinative of her overall finding that the Applicant had not established that he has a well-founded fear of persecution or would be at risk if he returned to Iran. The Officer made this comment following, and in light of, her assessment that the supporting documentary evidence before her was of little probative value. Once again, however, this issue cannot be entirely divorced from the credibility issue and cannot be used to allow the Decision to stand.

 

 

JUDGMENT

 

THIS COURT ORDERS THAT:

 

1.                  This application for judicial review is allowed and the matter is returned for reconsideration by a different officer.

 

2.                  There is no question for certification.

 

    “James Russell”   

              Judge

FEDERAL COURT

 

                      NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

 

DOCKET:                                                                        IMM-224-06 

 

STYLE OF CAUSE:                                                        MEHDI LATIFI v. MINISTER OF

                                      CITIZENSHIP AND IMMIGRATION

 

 

PLACE OF HEARING:                                                  Vancouver, British Columbia

 

DATE OF HEARING:                                                    September 05, 2006

 

 

REASONS FOR JUDGMENT

AND JUDGMENT                                                          Russell, J.

 

DATED:                                                                           NOVEMBER 16, 2006

 

APPEARANCES:

 

Ms. Fiona Begg                                                                  for Applicant       

 

Ms. Helen Park                                                                  for Respondent

 

 

SOLICITORS OF RECORD:

 

Barrister/Solicitor                                                                for Applicant

Vancouver, British Columbia 

 

John H. Sims, Q.C.                                                            for Respondent

Deputy Attorney General of Canada