Date: 19990107
Docket: IMM-1246-98
BETWEEN:
RAHMATOLLAH KHAYAMBASHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.
[1] This is an application for judicial review of a decision by a Post Claim Determination Officer finding that the applicant is not a member of the post-determination refugee claimants in Canada ("PDRCC") class.
[2] The applicant is a citizen of Iran. He arrived in Canada in January 1996 and claimed refugee status. The Convention Refugee Determination Division (the "Refugee Division"), in a decision on November 4, 1996, found that he was not a refugee, primarily on the ground that his story was implausible. The applicant sought judicial review of the Refugee Division's decision, but the application was dismissed for failure to file an application record. It was not dismissed on its merits.
[3] The applicant then applied for consideration as a member of the PDRCC class. He submitted a large amount of evidence to be considered by the Post Claim Determination Officer (the "officer"). This included: 1) the personal information form (PIF) from his refugee application; 2) the decision of the Refugee Division; 3) an affidavit sworn by the applicant for the PDRCC application; 4) an affidavit by Homayoon Sanayei attesting to the fact that in Iran while translations are done by persons licensed by the Department of Justice, this does not signify any government interest in the translation; 5) an affidavit by Manizheh Madadkhani attesting to the accuracy of his translation of the applicant's notes; 6) country documentation on Iran. The three affidavits, of course, had not been evidence before the Refugee Division. In addition, the applicant's solicitor submitted detailed submissions in support of the applicant's PDRCC review.
[4] Subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172 states:
| "member of the post-determination refugee claimants in Canada class" means an immigrant in Canada |
| (a) who the Refugee Division has determined on or after February 1, 1993 is not a Convention refugee, |
| ... |
| (c) who if removed to a country to which the immigrant could be removed would be subject to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country, |
| (i) to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care, |
| (ii) of extreme sanctions against the immigrant, or |
| (iii) of inhumane treatment of the immigrant; |
[5] In a decision dated March 12, 1998, the PDRCC officer rejected the applicant's claim. She held that the claimant would not be subjected to risk if he was required to leave Canada and return to Iran. Attached to her decision letter is a form entitled "Evaluation of Risks of Return". It contains the officer's notes, which describe the evidence the officer considered and her recounting of the facts.
[6] The applicant contends that those notes demonstrate that the officer did not consider all of the evidence before her, in particular, the new evidence that had not been before the Refugee Division. The applicant contends that the visa officer did not apply the correct test when assessing risk. It is argued that the applicant need only demonstrate an objectively identifiable risk to his life, or of extreme sanctions or inhumane treatment, if he is returned to Iran, and the officer applied more stringent requirements.
[7] The officer's notes are not a model of clarity. They are sometimes cryptic and difficult to follow. In many places they refer to "documentary evidence" as having demonstrated some fact, when it was oral evidence given by the applicant that served as the basis for the factual finding. The notes cite the dismissal by the Federal Court of the applicant's application for leave to appeal the Refugee Division's decision as an answer to some of counsel's submissions respecting that decision, without reference to the fact that it was not a decision on the merits of the application.
[8] One aspect of the notes that gave me some concern was that they contain no reference to the applicant's explanation before the Refugee Division, and in his affidavit for the PDRCC review, that he feared to return to Iran because his cousin Hossain had, in 1994, disclosed to the police the applicant's harbouring, in 1988, of political fugitives. The applicant, in his PIF, stated that he feared persecution because he thought the police would think he had known of Hossain's whereabouts when they were looking for him and the applicant had not disclosed it to them. When it was pointed out at the Refugee Division hearing that once Hossain was arrested there would seem to be little continuing basis for this fear, the applicant stated that he feared persecution and had fled because he heard from friends that, under torture, Hossain had disclosed to the police the applicant's 1988 harbouring of political fugitives. The Refugee Division did not accept this explanation. The applicant recounts this story and adds further explanation to rebut some of the findings of the Refugee Division, in the affidavit he filed for the purpose of the PDRCC review. The officer's notes relate the first explanation the applicant gave (that the police would arrest him because they thought he had known where Hossain was hiding) but not the second.
[9] The Sanayei affidavit is not mentioned in the officer's notes. As stated above, it attests to the fact that the government of Iran would not necessarily become aware of the contents of a document merely because it was officially translated by a translator and stamped "Official Translator to Justice Administration of Islamic Republic of Iran". The latter merely means that the person is a certified translator. The Refugee Division had considered that a membership document, submitted to it as evidence by the applicant, that had been officially translated and stamped cast doubt on the credibility of the applicant's expression of fear.
[10] While I found counsel for the applicant's argument, that there were no specific references to the new evidence in the notes and, therefore, that the new evidence had been ignored, initially attractive, on further consideration, and after careful comparison of the PIF, the text of the CRDD decision, and the new evidence, I cannot conclude that the officer ignored the new evidence. I give little weight to her boiler-plate comments that "all applicant's ... submissions have been reviewed and considered in their entirety", and "I have carefully reviewed the complete file", and "after carefully reviewing all the documentary evidence...". She, however, refers in her notes, on two occasions, to "counsel's submissions". Those submissions are based on the new evidence. It would be difficult for the officer to have assessed those submissions without having considered the new affidavits.
[11] One of the submissions that the visa officer reviews, and it is a crucial point for this application, is counsel's submission "that the PIF was not interpreted properly and the applicant was not aware of the inaccurate content before signing". The visa officer rejected that submission, and rightly so. A review of the documents in question reveals the assertion to be false. The PIF and the notes are two separate documents, and not only is one not a translation of the other, no inaccuracies can be identified in the former. Before me, the applicant's counsel took the position that her client was not asserting that the PIF was a mistranslation of the notes, but merely that the notes gave a fuller picture of what had occurred, and had a different tone than the PIF. This is not what the applicant asserted in the affidavit he provided to the PDRCC officer, nor is it the position taken in counsel's submissions to that officer.
[12] In so far as the Sanayei affidavit is concerned, since the officer did not refer to the evidence that it seeks to rebut, I am not prepared to conclude that a failure to refer to the affidavit's contents indicates a failure to consider the affidavit. In addition, the affidavit addresses only one reason among several upon which the Refugee Division based its finding that the applicant's story was not credible.
[13] As noted, the officer referred in her notes to counsel's submissions and some of the wording of her notes appears to track phrases found in those submissions. The submissions in turn reiterate, with the exception of the Sanayei affidavit, extensive passages, largely verbatim, from the new affidavit evidence. I cannot conclude that the new evidence was not considered.
[14] I turn then to the argument that the officer applied the wrong legal test in determining whether the applicant faced an objectively identifiable risk of harm. This argument is largely based on the penultimate "bullet' in her notes. I will set out the concluding portion of the notes, together with the conclusions she checked in the boxes provided on the form for that purpose:
| " Insufficient evidence to indicate the applicant was targeted by the Irainian [sic] authorities. The applicant was detained on two separate occasions, however he was released after both interrogation sessions. |
| " Insufficient evidence to indicate the applicant would face individual targeting by Irainian [sic] officials in the future. Documentary evidence informs the applicant was interviewed and released by Irainian [sic] authorities the same day in 1988. Documentary evidence relates the applicant did not have any further involvement with Irainian [sic] authorities until December 1994. |
| " Documentary evidence informs the applicant's family continue to reside in Iran. |
| " Documentary evidence informs the applicant's fear of being arrested, before fleeing Iran was based on speculation. |
| " After carefully reviewing all the documentary evidence, there is no substantive evidence that the Irainian [sic] authorities consider the applicant a political enemy. Further, there is insufficient evidence to indicate the Iranian authorities would detain the applicant upon return to Iran. |
| " The applicant is not at risk pursuant to the R(2) definition of Post- Determination Refugee claimants in Canada class. |
| YES |
NO |
N/A |
|
| Risk identified in the Regulations (risk to life, extreme sanctions, inhumane treatment) |
X |
||
| Objectively identifiable risk which would not be faced generally by other individuals in or from that country |
X |
||
| If there is risk, would it apply in every part of that country? |
X |
[15] Counsel for the applicant argues that: the officer applied the wrong test; the test requires an applicant to show an objectively identifiable risk, not the providing of the substantive evidence; the officer required the applicant to show that the Iranian regime considered him a political enemy, clearly a different standard from showing an identifiable risk of harm; she required evidence that on return the Iranian authorities would detain the applicant when it is sufficient to demonstrate a less certain probability of detention.
[16] The above-quoted paragraphs from the notes do show a degree of carelessness in framing the reasons: the applicant was targeted by the Iranian authorities in the arrests of 1988; documentary evidence is not the source of most of the conclusions of fact; while the applicant was released on the same day on one occasion in 1988, when he was interrogated, on another occasion he was detained for 15 days (the notes refer to this elsewhere); the officer has checked the third box on the standard form assessment she is required to give when it makes no sense to do so, the two previous questions having been answered in the negative.
[17] The question remains whether considering the decision as a whole the phrases to which counsel has referred demonstrate the application of an improper test. When those phrases are read in the context of the decision as a whole, I cannot conclude that they demonstrate the application of a wrong test. They are, by and large, statements of factual conclusion, rather than the expression of the test that is being applied. This is expressed in the boxes at the end of the document. I should not be taken as saying that in all cases the use of standard form pre-printed boxes will render a decision immune from review. An improper test may still be found to have been applied but this is not such a case.
[18] It is clear that discretionary decisions are to be given a great deal of deference. Mr. Justice Noël summarized the law on this point in Gharib v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm. L.R. (2d) 291 at 297 (F.C.T.D.) citing Chaudry v. Canada (Minister of Employment and Immigration) (1994), 25 Imm. L.R. (2d) 139 at 158 and Vidal v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 123 at 128-129:
| ... this Court will not intervene in discretionary decisions of post-claim determination officers unless such discretion can be shown to have been exercised pursuant to improper purposes, irrelevant considerations, with bad faith, or in a patently unreasonable manner. |
[19] The law is also clear that an officer's failure to mention all the facts on which his or her decision is based is not fatal to the decision (Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 at 318 (F.C.A.), Woolaston v. Canada (Minister of Citizenship and Immigration), [1973] S.C.R. 105 at 108). In Bochnakov v. Canada (Minister of Citizenship and Immigration) (1996), 114 F.T.R. 127, a judicial review of a PDRCC application, Mr. Justice Joyal confirmed that the Court should not substitute its own conclusion for that of the officer. He also stated at page 133 that the Court should not look microscopically or hypercritically at the decision, rather it should review the whole decision to determine if there are errors which merit judicial intervention and if such errors are material to the ultimate decision made.
[20] To accede to the applicant's arguments in this case would be to ignore the principles set out in the above-cited jurisprudence.
[21] For the reasons given the application is dismissed.
"B. Reed"
Judge
TORONTO, ONTARIO
January 7, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1246-98
| STYLE OF CAUSE: RAHMATOLLAH KHAYAMBASHI |
and -
| THE MINISTER OF CITIZENSHIP AND |
IMMIGRATION
DATE OF HEARING: TUESDAY, JANUARY 5, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: THURSDAY, JANUARY 7, 1999
APPEARANCES: Ms. Marie Chen
For the Applicant
Mr. Godwin Friday
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Ave. E.,
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990107
Docket: IMM-1246-98
Between:
RAHMATOLLAH KHAYAMBASHI
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER