Federal Court Decisions

Date: 20060310

Docket: IMM-3632-05

Citation: 2006 FC 316

Ottawa, Ontario, March 10, 2006

PRESENT:      The Honourable Mr. Justice Russell

BETWEEN:

DAVOUDIFAR, MAHIN

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

BACKGROUND

[1]                This is an application for judicial review under section 72(1) of the Immigration and Refugee Protection Act S.C. 2001 c. 27 (Act), of the decision of a Pre-Removal Risk Assessment Officer (Officer), dated May 5, 2005 (Decision), in which the Officer denied the Applicant's application for a visa exemption on humanitarian and compassionate (H & C) grounds.

[2]                The Applicant, Ms. Davoudifar, is a 62-year-old citizen of Iran. She worked as a teacher in Iran. Ms. Davoudifar entered Canada on a visitor's visa on August 18, 1997, and applied for refugee status on December 29, 1999, on the basis of fear of persecution based on her political opinion. Her claim for refugee status was rejected on September 27, 1999, and her application for judicial review of that decision was dismissed by this Court on January 27, 2000. Her subsequent application under PDRCC was refused, as was her application for a PRRA, on May 4, 2005.

[3]                On September 17, 2004, Ms. Davoudifar was married to Mr. Ali Edalat, a 66-year-old Canadian citizen. Mr. Edalat has not applied to sponsor Ms Davoudifar's application for permanent residence because he is ineligible to become a sponsor due to receipt of social assistance.

DECISION UNDER REVIEW

[4]                As outlined in the Notes to File pertaining to the Decision, the Officer considered a number of factors in coming to her Decision.

            Risk

[5]                With regard to the potential risk to the Applicant should she be required to return to Iran, the Officer accepted the evidence that Iranian security forces perpetrate torture and other human rights violations, but found that the Applicant had not established that she faced a personalized risk to her life or security, or that she would be subjected to undue hardship. The Officer considered the fact that the Applicant had been disciplined and suspended from her employment as a teacher in Iran for her political activities in 1980 and 1984, but noted also that she had been permitted to continue with her employment and she had not alleged any mistreatment by the Iranian authorities since 1984. The Officer further accepted that the Applicant's sister had informed her in 1997 that the authorities were looking for her, but since that time the Applicant had merely "speculated" that she was at risk. The Officer found that the Applicant was not personally harmed and that, although she had vocally dissented from the political regime in Iran, she had not established a sufficiently serious and personalized risk to justify an exemption on the basis of humanitarian and compassionate grounds. The Officer noted that although the security checks at the airport in Tehran are very strict, the Applicant had managed to leave Iran in this manner without difficulty. The Officer further considered the report of Dr. Lydia Kwa, and accepted that the Applicant is experiencing anxiety and stress with regard to the insecurity of her status in Canada, but that this was also insufficient to establish the requisite level of risk or hardship.

            Family Ties and Financial Hardship

[6]                With regard to the Applicant's family ties in Canada, the Officer accepted that there would be hardships to the Applicant and her husband upon separation, but that this is not an unusual consequence in the circumstances. With regard to Mr. Edalat's inability to sponsor the Applicant because of his receipt of social assistance, the Officer found that "financial alternatives" were possible and had not been seriously considered by the Applicant. The Officer noted that, when the couple married, the Applicant was already subject to a removal order. The Officer found that, in terms of emotional hardship, the Applicant has family in Iran, and her husband has family in Canada. With regard to financial hardship, the Officer found that the Applicant's income was $350 per month, and her husband had been "financially supported by the province for several years."

            Degree of Establishment

[7]                With regard to the Applicant's degree of establishment in Canada, the Officer considered the fact that the Applicant provides support to two senior citizens, maintains a part-time job, has completed English courses, and is involved in social and cultural organizations and activities. The Officer held that the part-time job (the Applicant works 20 hours per month) "does not amount to exceptional employment and does not demonstrate the significance of her position to the doctor." The Officer also found that there was little evidence before her that the seniors with whom the Applicant spends time do not have "other alternatives they could explore should the Applicant be removed from Canada." As such, the Officer held that the level of establishment was insufficient to justify an exemption on humanitarian and compassionate grounds.

[8]                In her notes, the Officer listed the following factors:

            Supporting a Positive Decision:

1.       Applicant is married to a Canadian

2.       Demonstrated a level of establishment

            Supporting a Negative Decision:

1.       Found not to be a [Convention Refugee] in 1999

2.       Allegations of risk are the same as those that were heard and assessed by the CRDD and the PRRA

3.       PRRA rejected

4.       Level of establishment found to be as expected and not exceptional

5.       Family residing in Iran

6.       Well-established in Iran

7.       Spouse is not permanently barred from submitting a sponsorship

RELEVANT LEGISLATION

ISSUES

[9]                The Applicant raises the following issues:

1.       Did the Officer breach procedural fairness and the rules of natural justice by not taking into consideration the age of the Applicant and her spouse?

2.       Was the Officer's Decision unreasonable to the extent of warranting judicial intervention?

APPLICANT'S SUBMISSIONS

            Standard of Review

[10]            The Applicant submits that the applicable standard of review in this matter should be reasonableness simpliciter.

            Potential Risk

[11]            Citing the Supreme Court of Canada's decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Applicant argues that H & C decisions should be made with heightened sensitivity in the case of elderly people because such individuals are often more prone to harm if separated from loved ones. The Applicant also relies on the case of Ramprashad-Joseph v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2091, 2004 FC 1715 for the proposition that hardship on the basis of age should be considered by decision-makers, and argues that in the case at bar the Officer failed to consider the age of the Applicant and her husband and as such did not apply the requisite "heightened sensitivity." The Applicant submits that the evidence in Dr. Kwa's report demonstrates that the potential risk of psychological distress is significant and would likely lead to "some irrevocable psychological harm." The Applicant contends that the Officer failed to consider this evidence and that such failure constitutes a reviewable error of law.

[12]            The Applicant submits that the Officer made a number of adverse inferences not supported by the evidence. She submits that it is absurd for the Officer to have relied upon the fact that the Applicant did not experience any difficulty in leaving Iran because, in fact, her refugee claim was made on the basis of threats made after she had left Iran. The Applicant also impugns the finding that she was not personally harmed as a basis for the Decision because this contradicts the forward-looking nature of risk assessments.

            Level of Establishment

[13]            The Applicant submits that the Officer made her Decision using the standard of an "exceptional level of establishment" and asserts that there is no legal basis for this high threshold. Furthermore, the Applicant contends that, given the evidence, it was patently unreasonable for the Officer not to conclude that she has actually exceeded expectations with regard to establishment. With regard to the Applicant's volunteer work with seniors, she argues that the Officer made an erroneous finding of fact when she found that there was no evidence to show that the seniors did not have other avenues of support. The Applicant argues that the evidence of letters from those seniors demonstrates their dependence on her support.

[14]            The Applicant also impugns the Officer's finding that her employment is not exceptional. She argues that, considering her age and that her education, work, and life experience is from a very different culture, her part-time work, community service, and linguistic skills are in fact exceptional.

[15]            Based on these arguments, the Applicant submits that her application for judicial review should be granted.

RESPONDENT'S SUBMISSIONS

            Standard of Review

[16]            The Respondent agrees that the appropriate standard of review is reasonableness simpliciter but emphasizes that the onus of proof is on the Applicant, and that the re-weighing of relevant factors is not the function of this Court in such a review.

            Potential Risk

[17]            With regard to the Applicant's age, the Respondent submits that she cannot be considered elderly or frail, as she has emphasized her energy and involvement with the community, and as such she cannot properly be considered an "elderly dependant." The Respondent says that the Applicant did not specifically request that the age of her spouse be considered, and that Ramprashad is distinguishable because, in that case, the couple was older and relied upon each other for mutual physical assistance.

[18]            With regard to the psychologist's report, the Respondent contends that the Officer did consider the report in her reasons, and the fact that she did not mention it in the section dealing with family ties is not evidence that the report was ignored.

[19]            The Respondent argues that the fact that the Applicant made a refugee claim in 1997 is not evidence of risk, and that her refugee claim and application for judicial review were refused.

[20]            The Respondent submits that it was open to the Officer to consider the problems the Applicant had faced in the past with regard to a risk assessment.

            Level of Establishment

[21]            The Respondent contends that the Officer did not require an exceptional level of establishment but simply held that establishment was an important factor, even though it was not determinative.

[22]            The Respondent submits that the Applicant is effectively arguing that the Officer wrongly weighed the evidence. However, it is not the role of this Court to re-weigh the evidence in its review of a discretionary ministerial decision.

[23]            Based on these arguments, the Respondent submits that the application for judicial review should be dismissed.

ANALYSIS

            General

[24]            Ms. Davoudifar does not wish to return to Iran. Given her history, her personal situation and her political sympathies, that wish is perfectly understandable. But not wishing to return to Iran is not sufficient qualification to allow her to stay in Canada, and those fixed with the responsibility of reviewing her case and making decisions about whether she should stay do not have a free hand. They must exercise their discretion and their judgment in accordance with Canadian law, irrespective of their personal sympathies and irrespective of whether or not Ms. Davoudifar is a thoroughly admirable human being who would be far better off in Canada. I suspect that most Canadians feel that people from anywhere in the world would be better off in Canada. But this is not the issue.

[25]            I am making this trite and unremarkable statement because, when asked to review an H & C decision, the Court is often made aware that the person whose fate is being decided is a deserving human being who has the support of the Canadian community she or he has joined. From the perspective of that community I am sure that any decision that requires the person in question to leave must often seem perverse. But that is because the law of Canada does not say that it is possible to remain in Canada provided you are a deserving individual and a valued member of your community. The facts of the present case are fairly typical in the sense that Ms. Davoudifar has developed personal and community ties and has gained the respect of many people, and it is obvious to anyone that she would be far happier and better off in Canada, and that those she loves and supports would also be happier and better off if she remained in Canada.

[26]            But the Officer in this case, as in all H & C cases, was faced with a specific task. It was her job to decide this matter in accordance with the relevant jurisprudence. Numerous cases have summarized the basic principles involved when the Court is asked to review such a decision. Justice Carolyn Layden-Stevenson, for example, in Agot v. Canada(Minister of Citizenship and Immigration), [2003] F.C.J. No. 607, 2003 FCT 436 has been very helpful in bringing together the basic approach that the Court must take:

8. It is useful to review some of the established principles regarding H & C applications. The decision of the ministerial delegate with respect to an H & C application is a discretionary one: Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The standard of review applicable to such decisions is that of reasonableness simpliciter: Baker. The onus, on an application for an H & C exemption, is on the applicant: Owusu v. Canada (Minister of Citizenship and Immigration), 2003 FCT 94, [2003] F.C.J. No. 139 per Gibson J. citing Prasad v. Canada(Minister of Citizenship and Immigration)(1996), 34 Imm. L.R. (2d) 91 (F.C.T.D.) and Patel v. Canada(Minister of Citizenship and Immigration)(1997), 36 Imm. L.R. (2d) 175 (F.C.T.D.). The weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion: Suresh v. Canada(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 (Suresh); Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) (Legault). The ministerial guidelines are not law and the Minister and her agents are not bound by them, but they are accessible to the public and the Supreme Court has qualified them as being of great assistance to the court: Legault. An H & C decision must be supported by reasons: Baker. It is inappropriate to require administrative officers to give as detailed reasons for their decisions as may be expected of an administrative tribunal that renders its decisions after an adjudicative hearing: Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394 (F.C.A.).

           

[27]            With these basic principles in mind, I will turn to the facts and the issues raised in the present case.

            The Age Factor

[28]            The Applicant makes much of the age factor in this case. She says that the Officer failed to give adequate consideration to the major hardship that would be caused to the Applicant and her spouse if they were separated, or to the fact that the Applicant and her spouse depend upon each other in their old age.

[29]            There was nothing in the evidence to suggest that the Applicant and her spouse are frail or physically dependent upon each other. Even the Applicant's counsel places the reliance no higher than the fact that "Mrs. Davoudifar is now a sixty-one-year-old woman married to a sixty-six-year-old Canadian citizen who now relies on the affection and care of his wife."

[30]            All permanent, committed relationships tend to attract and involve people who rely upon each other for affection and care. So there is nothing particularly compelling about the relationship in this regard.

[31]            Counsel attempted to make it more compelling by emphasising that "The couple are both in their sixties which makes the reliance on each other even more intense than may be the case for a younger couple." But there is no evidence of more intensity, and counsel's reliance upon the age factor (they are both in their sixties) is not a self-evident truth. All relationships have different degrees of intensity. Age may bring dependency but there is no suggestion in this case that either partner is frail. Indeed, according to her own evidence, Mrs. Davoudifar is an energetic member of her community. Those cases cited by the Applicant where age has taken on a special significance for the decision involve older couples and the evidence of some frailty or vulnerability that comes with fairly advanced age. That is not the case here.

[32]            The Applicant then attempts to suggest a particular vulnerability by referring to the Expert Psychological Report of Dr. Lydia Kwa, and alleging that this report was not taken into account by the Officer when she looked at the distress that would be caused by separating the Applicant from her spouse:

With her perception of increased risk from her political involvement in the pro-democracy protests in Canada, and her awareness of her vulnerability as a woman in her sixties, she is now even more terrified of being exposed to harm in Iran. Last but not least, the loss of relationship and separation from Mr. Edalat should she be sent back, would be extremely distressing for them both. That loss of their intimate relationship would contribute towards a significant degree of psychological distress. There would be a great deal of upheaval and distress from losing other important relationships and the established occupational and social ties she has established here in the past 7 years.

All these losses, combined with the experience of being returned to a country where she fears serious repercussions and life-threatening punishment, would likely lead to some irrevocable psychological harm to Ms. Davoudifar.

[33]            Dr. Kwa says that the separation would be "extremely distressing for them both" and "would contribute towards a significant degree of psychological distress." There would be "a great deal of upheaval and distress from losing other important relationships and the established occupational and social ties .... ."

[34]            But when Dr. Kwa concludes that the Applicant would likely suffer "irrevocable psychological harm" if she is returned to Iran, Dr. Kwa is clear that this harm will not just be a function of age and separation. The harm will result form "All these losses, combined with the experience of being returned to a country where she fears serious repercussions and life threatening punishment ... ."

[35]            The Applicant now says that the Officer erred because she did not take Dr. Kwa's Report into account when considering her age and separation from her husband. But the Report itself is clear that it is the whole picture that will likely lead to harm, including "serious repercussions and life-threatening punishment ... ."

[36]            And the Officer acknowledges in the Decision that Dr. Kwa's Report was provided "to support the genuine nature of their marriage and the detrimental psychological effect of forced separation between the applicant and her spouse."

[37]            The Applicant complains that the Officer only considered Dr. Kwa's Report in the context of personalized risk and hardship if she were to return to Iran. But that is not because it was left out of account in the Decision as a whole (the Officer acknowledges the reasons that the report was submitted) but because that is where it makes sense to refer specifically to a Report which speaks of lasting psychological damage on the basis of "all losses," and only if those losses are "combined with the experience of being returned to a country where she fears serious repercussions and life-threatening punishment ... ."

[38]            If the Applicant's fears of returning to Iranhave no objective basis, then the Report does not support a conclusion that the Applicant will suffer "some irrevocable psychological harm" that needs to be specifically addressed in the context of her separation from her husband. The Officer was clear on this in her Decision:

I do not discount the applicant has a subjective fear in returning to Iran, however based on the objective evidence before me and taking into account her personal circumstances she has not established she faces a personalized risk upon return to Iran. I recognize the applicant is experiencing anxiety and distress when reminded of her status in Canada and her potential removal from Canada, however taking into account my findings of her alleged risk and the fact that she has family residing in Iran, I do not find this justifies an exemption under humanitarian and compassionate considerations.

[39]            The Officer also says, when analysing the Applicant's "Family Ties to Canada" that "I have read the doctor's evaluation of the couple's relationship and understand they wish to be together in Canada.":

I recognize the hardships relating to a separation will cause a degree of hardship on this couple; however, the applicant's removal from Canadais not an unusual consequence to someone who has no legal status in Canada and has exhausted their avenues of staying in Canada.

[40]            In other words, if there is no objective basis for the Applicant's fears about returning to Iran, then the Report's talk about "distress" does not really make the circumstances of this case unusual. As the Officer says "While I recognize the applicant is married to a Canadian, I find the hardships associated with a temporary separation between the couple are not in isolation to hardships faced by other couples who apply through existing immigration programs."

[41]            So the Report was considered, both in the context of Risk Assessment and Family Ties, and the Officer makes it clear why it cannot be conclusive and why other factors have to be weighed with it before the Decision is made. There is no reviewable error here.

            Other Grounds

[42]            The Applicant raises a variety of other grounds in an attempt to convince the Court that this Decision contains a reviewable error. I have reviewed each ground in turn against the record. In the end, I cannot find a reviewable error. In each instance, all the Applicant is saying is that she disagrees with the Officer's conclusions and with the way the Officer weighed the various considerations at play in this case. In the end, I might well agree with the Applicant if I were the one making the Decision. But I cannot interfere merely because I sympathize with the Applicant concerning the weighing of factors. I have reviewed the Decision as a whole. In my view, it stands up to a probing examination and cannot be called unreasonable. The results for the Applicant are unfortunate and invite sympathy. But the Officer was doing her job as Canadian law has asked her to do it, and sympathy for the Applicant is not sufficient justification for this Court to interfere.

[43]            As stated by Justice Paul Rouleau in Nazim v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 159, 2005 FC 125, at para. 15:

The humanitarian and compassionate process is designed to provide relief from unusual, undeserved or disproportionate hardship. The test is not whether the applicant would be, or is, a welcome addition to the Canadian community. In determining whether humanitarian and compassionate circumstances exist, immigration officers must examine whether there exists a special situation in the person's home country and whether undue hardship would likely result from removal. The onus is on the applicant to satisfy the officer about a particular situation that exists in their country and that their personal circumstances in relation to that situation make them worthy of positive discretion.

[44]            The Decision made by the Officer is highly fact-based, and as the Officer is in a better position than this Court to assess the facts before her, the exercise of a discretion in assessing the Applicant's case is subject to a high level of deference from this Court. In this case, although the Applicant's situation attracts compassion, the Officer was not unreasonable in making her Decision and, as such, I must decline to intervene.

ORDER

THIS COURT ORDERS that

1.                   The Application for judicial review is denied.

2.                   There is no question for certification.

"James Russell"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-3632-05

STYLE OF CAUSE:                           MAHIN DAVOUDIFAR v. MCI

PLACE OF HEARING:                     Vancouver, B.C.

DATE OF HEARING:                       December 14, 2005

REASONS FOR ORDER:                RUSSELL J.

DATED:                                              March 10, 2006

APPEARANCES:

Ms. Mojdeh Shahriari	FOR THE APPLICANT(S)
Ms. Kim Shane	FOR THE RESPONDENT(S)

SOLICITORS OF RECORD:

Ms. Mojdeh Shahriari Vancouver, B.C.	FOR THE APPLICANT(S)
Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Vancouver Regional Office	FOR THE RESPONDENT(S)