Date: 19980902
Docket: IMM-583-98
BETWEEN:
BADDER DAVARI BOUSHEHR,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
(Delivered orally from the Bench at
Toronto, Ontario on August 4, 1998)
SIMPSON, J.
[1] The Applicant seeks judicial review of a decision of an Immigration Officer (the "Officer") dated January 27, 1998, wherein the Officer decided there were insufficient humanitarian and compassionate ("H & C") considerations to recommend a favourable decision under Section 114(2) of the Immigration Act, R.S.C. 1985, c. F-7 (the "Act"). A favourable decision would have entitled the Applicant to apply for immigrant status from within Canada.
PRIOR PROCEEDINGS
[2] The Applicant arrived in Canada on February 28, 1996. His claim for refugee status and subsequent application to the Federal Court for judicial review were unsuccessful. The Applicant filed his H & C application under Section 114 of the Act in March 1997 (the "Application"). In the Application, he raised the fact that he had recently joined the Salvation Army church. He was interviewed by the Officer on August 11, 1997, and a risk opinion was completed on December 16, 1997. The Application was refused by letter dated January 27, 1998 (the "Decision").
BACKGROUND FACTS
[3] The Applicant was born in Tehran in 1967. He is the only child of a Syrian-born father, who is now deceased, and an Iranian-born mother. During the Applicant's stay in Canada, his mother in Iran apparently received a summons from the police asking about the Applicant's whereabouts. In response, she has gone into hiding. The Applicant was raised in the Christian faith and, before he joined the Salvation Army, was a member of the Catholic church.
[4] The risk opinion provided to the Officer stated that the Iranian authorities tend to persecute evangelical Christian churches. The author of the risk assessment tried, but failed, to determine the status of the Salvation Army in Iran. He said that he did not know what might happen if the Applicant returned to Iran and continued to be a member of the Salvation Army. In his report to the Officer, he stated:
| "I would also verify with the Salvation Army as to his status with them and if the Salvation Army actually exists in Iran or not. The definition of risk is forward-looking". |
The author of the risk opinion concluded that the Applicant was not at risk.
[5] After the Decision, an official of the Salvation Army in Toronto stated in a letter to the Applicant"s counsel, dated March 6, 1998, that the Salvation Army is an evangelical church and is not permitted by the Iranian government to operate in Iran. However, this information was not before the Officer.
ISSUES
[6] Firstly, did the Officer base her decisions on incorrect or incomplete facts, and, secondly, did the Officer breach a duty of fairness or of natural justice?
DISCUSSION AND CONCLUSIONS.
[7] Issue One
| (a) The Application depended in large measure on the Applicant's status as a member of the Salvation Army church, which is a Protestant evangelical church. Unfortunately, nowhere in her notes does the Officer mention the Salvation Army. Indeed, the only reference to the Applicant"s religious affiliation is to his prior affiliation to the Catholic church. In these unusual circumstances, I am satisfied that the Officer erred by failing to reach her decision on correct material facts. For this reason only, the application for judicial review will be granted. |
| (b) The author of the risk assessment noted that his assessment was hampered by a lack of information about whether the Salvation Army operated in Iran and, if so, whether it was a legal organization in Iran. He suggested that the Officer inform herself on this issue, but she did not do so. In my view, this is not a reviewable error. It is for the Applicant to place all pertinent information before the Officer on an H & C review. |
| (c) The Applicant also said that the Officer"s decision about whether or not the Applicant had severed his ties with Iran ignored evidence that his mother was in hiding as a result of receiving a police summons. I have carefully reviewed the file and can find no basis for concluding that relevant evidence on this topic was ignored. |
[8] Issue Two
| (a) The Applicant alleges that, in the circumstances discussed in point (b) under Issue One, the Officer was compelled by a duty of fairness or a principle of natural justice to initiate inquiries about the status of the Salvation Army in Iran. In my view, no such obligation exists in law by reason of decision of the Federal Court of Appeal in Shah v. Canada (Min. of Employment and Immigration) (1994), 170 N.R. 238 (C.A.). |
CONCLUSION
[9] This application for judicial review is allowed. The Application, including a fresh risk assessment, is to be considered by a different officer based only on the material submitted by the Applicant to immigration authorities to date. In addition, the Applicant's counsel is to provide the letter from the Salvation Army dated March 8, 1998. However, the officer in his or her discretion may interview the Applicant again and/or ask for additional material.
(Sgd.) "S. J. Simpson"
Judge
Vancouver, British Columbia
September 2, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: August 4, 1998
COURT NO.: IMM-583-98
STYLE OF CAUSE: BADDER DAVARI BOUSHEHR
v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, ON
REASONS FOR ORDER OF SIMPSON, J.
dated September 2, 1998
APPEARANCES:
Mr. Peter J. Krochak for Applicant
Mr. Brian A. Frimeth for Respondent
SOLICITORS OF RECORD:
Abrams & Krochak
Toronto, ON for Applicant
Morris Rosenberg for Respondent
Deputy Attorney General
of Canada