Date: 19990812
Docket: IMM-4435-98
BETWEEN:
NAGMEH SHAHLA
REZA SHAHLA,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON J.
[1] The applicants challenge by way of judicial review the decision, dated February 27, 1998, by immigration counsellor B.S. Sidhu, in which it was decided that insufficient humanitarian and compassionate grounds exist to warrant processing the applicants" application for landing from within Canada. On September 2, 1998, Madam Justice Reed ordered a stay of the applicants" removal, pending the outcome of their application for leave and for judicial review. Leave to commence this application for judicial review was granted on May 13, 1999, by MacKay J.
Background
[2] The applicants, Nagmeh and Reza Shahla, are sister and brother, and are Iranian citizens. Nagmeh, who is 21 years old, entered Canada on June 26, 1995, with her younger sister, Sophiya. Her brother Reza, who is 19 years old, entered Canada on May 25, 1995, in the company of their mother, Toktam. The family"s Convention refugee status claim was denied on June 26, 1996. They were determined not to be members of the PDRCC class on August 19, 1997. Leave to commence an application for judicial review of that decision was dismissed.
[3] The applicants" parents separated after they moved from London, Ontario to Vancouver, in 1996, along with the applicants" mother"s sister, Sami Lesani. Their father was removed to Iran, on September 22, 1997, apart from the family due to allegations of spousal abuse.
[4] On October 1, 1997, the applicants" mother applied, pursuant to subsection 114(2) of the Immigration Act , R.S.C. 1985, c. I-2 (the Act), for landing from within Canada on humanitarian and compassionate grounds. An interview was conducted on February 4, 1998, with the applicants, their mother, and counsel in attendance.
[5] The applicants" mother informed immigration authorities on April 27, 1998 at a removal interview that she wished to return to Iran as soon as possible, but that the applicants no longer lived with her and did not wish to leave Canada. On May 22, 1998, the applicants" mother and their sister left for Iran.
Decision under Review
| [6] By letter, dated February 27, 1998, the applicants, who at that time included the present applicants" mother and younger sister, were informed that their application for exemption, on humanitarian and compassionate grounds from the requirement that applications for permanent residence be made outside of Canada, was denied:In making this determination I have considered the written material included in your application, the submissions made by your lawyer (including a statement from your sister submitted on 06 February 1998), and the information presented in your interview of 04 February 1998. I have weighed this information against our policy as it is outlined in Chapter 9 of the Immigration Examination policy manual. I regret to advise you that after a careful and sympathetic review of this information, including consultation with my supervisor, Senior Immigration Officer K. Fleming, I have determined you do not qualify for this exemption. |
(Applicant"s application record, AR, p. 149)
| [7] In a document entitled Report to File, dated February 9, 1998, the immigration officer noted,When asked for submission of evidence of abuse by her husband, she said she did not record or document instances of spousal abuse in Canada because of her cultural upbringing. She did not report to police or have discussed with friends in the community because of her culture and religion beliefs. When asked to describe what kind of physical and mental abuse she had experienced, she said he had argued with and yelled at her and physically pushed her and her older daughter to the ground. She said she was mentally tortured by her husband which created lots of stress to her. |
| (AR, p. 146) |
The report also notes,
| Subject"s claim for spousal abuse is based on her statements without any submissions of evidence. |
| There is no evidence to suggest that subject was ever mistreated or abused by her husband in Iran or in Canada |
| (AR, p. 147). |
[8] A handwritten addendum on the report"s final page, dated February 27, 1998, indicates that the applicants" lawyer submitted a statement from the subject"s [mother"s] sister as evidence of spousal abuse. The notes state that the sister"s letter is not taken as evidence with other support and the negative decision still stands.
Applicant" s Position
[9] The applicants submit that the immigration counsellor erred by requiring too high a standard of proof with regard to their mother"s allegation that she is a victim of spousal abuse. The applicants argue that the immigration counsellor applied the criminal standard, requiring proof beyond a reasonable doubt, instead of the civil standard of proof on a balance of probabilities.
[10] The applicants argue that they established, through documentary evidence, that female victims of spousal abuse in Iran have no avenues of redress or protection, resulting in a state of affairs where domestic violence is simply not reported. The applicants contend it was established on a balance of probabilities that their mother was the victim of spousal abuse. Canadian immigration officials were aware that their parents were separated, and indeed, their father was subject to separate removal arrangements. The issue was discussed at some length during the February 4, 1998 interview, and the applicants" counsel submitted documentary evidence that explained their mother"s reluctance to seek outside help. The applicants" aunt also made submissions, by letter, indicating that she took responsibility for her sister in times of trouble. She stated that she witnessed the abuse on several occasions.
Respondent" s Position
[11] The respondent contends that the immigration counsellor"s notes in the Report to File that the applicants" mother had not provided any evidence of spousal abuse cannot be taken to mean that proof beyond a reasonable doubt was required. The respondent submits that for a tribunal to request corroborating evidence does not constitute error warranting judicial intervention. The respondent maintains that it was open to the tribunal to weigh the absence of corroborating evidence against the applicants" mother"s statements. The respondent maintains that the tribunal did not doubt the situation female victims of spousal abuse face in Iran; rather, it doubted the veracity of the applicants" mother"s claim.
Analysis
[12] The decision under review in this application is a highly discretionary one. Subsection 114(2) provides that a person may be exempted from a requirement of the regulations when the Minister is satisfied that the person should be so exempted on the basis of humanitarian and compassionate grounds. Immigration Canada provides its officers with Guidelines which, while not legally binding, are made to foster consistency and structure in the exercise of discretion under subsection 114(2). Paragraph 2 of chapter IE 9.07 reads as follows:Humanitarian and compassionate grounds exist when unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada.
[13] In Shah v. Canada (MEI) (1994), 170 N.R. 238 (F.C.A.) Hugessen J.A., speaking for the Court, noted that the content of the duty of fairness owed was minimal, the decision is entirely a matter of judgment and discretion, and the law gives the applicant no right to any particular outcome. At pp. 239-240 the Court held,In a case such as this one the applicant does not have a "case to meet" of which he must be given notice; rather it is for him to persuade the decision-maker that he should be given exceptional treatment and exempted from the general requirements of the law. No hearing need be held and no reasons need be given. The officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concern her. Of course, if she is going to rely on extrinsic evidence, not brought forward by the applicant, she must give him a chance to respond to such evidence. In the case of perceived contradictions, however, the failure to draw them specifically to the applicant"s attention may go to weight that should later be attached to them but does not affect the fairness of the decision.
Hugessen J.A. went on to state that for the applicant to impugn the decision successfully, he had to show that the decision maker erred in law, proceeded on some wrong or improper principle, or acted in bad faith.
[14] In Vidal v. Canada (MEI) (1991), 13 Imm.L.R. (2d) 123 (F.C.T.D.), Strayer J.A. commented,There are a few basic propositions which are, in my view, self-evident and which should be kept in mind in dealing with these issues. (1) In s. 114(2) Parliament has authorized the Governor-in-Council to make exceptions to the rules found in the Act and Regulations. There is therefore nothing inconsistent with the Act in the Governor-in-Council creating such exceptions by regulation. (2) The exceptions so made are for the benefit of those in whose favour they are made and do not detract from the normal application of the general rules to all others. Those who complain that they have not been made the beneficiary of a regulation adopted under s. 114(2) are in effect complaining that they have not received a special benefit.
[15] MacKay J. cautioned, in Sema v. Canada (MCI) (1995), 30 Imm.L.R. (2d) 249 at 235, against the reviewing court engaging in its own exercise of weighing the evidence:The weight of evidence in a matter for determination on an H & C application is clearly one for determination by the decision-maker. Under s. 18.1(4)(d) of the Federal Court Act , the Court will not intervene in an application for judicial review where a finding of fact is in question unless it is established that the decision was based on a perverse or capricious finding or made without reference to the material before the decision maker.
| [16] In the instant case, the immigration counsellor"s decision, that there would be no unusual, undeserved, or disproportionate hardship if the applicants were to leave Canada and apply from outside the country, is based on the following review:All of subject"s close family members (husband, parents and two brothers and three sisters) are residing in Iran. She has no Family Class members in Canada who can sponsor her and her children"s application for permanent residence. Subject"s claim for spousal abuse is based on her statements without any submissions of evidence. Her son was only 14 years old when arrived in Canada and did not require to join military service in Iran. Her other statements about her other children do not qualify her to consider her application for permanent residence in Canada. She does not qualify as an immigrant if assessed under an independent immigration category. |
| Subject and her children are not members of the PDRCC class. According to PCDO"s decision made on 19 August 1997, they would not face personal, identifiable risk to life, of extreme sanctions, or of inhumane treatment if returned to Iran. Subject and her lawyer did not submit any additional information which was not previously assessed in regard to severe sanctions against her and her children in Iran in her application for permanent residence under H & C or at the interview. The issue regarding her spousal abuse was fully discussed at the interview, subject or her lawyer did not provide any additional information to warrant a new post-determination risk assessment review. There is no evidence to suggest that subject was ever mistreated or abused by her husband in Iran or in Canada. |
| (AR, p. 147) |
[17] The sister"s letter was received after this review was written up. The letter is characterized as not constituting evidence of abuse in the absence of timely confirmation, presumably in the form of police and hospital reports, and indications of support services being accessed.
[18] The immigration counsellor"s statement, in the addendum, that this letter is not evidence without some confirmatory support is an unexceptional statement of the law in judicial review matters. Last minute or after-thought compositions are inevitably excluded from evidence, because they did not even exist at the material times. At the hearing on August 11, 1999, the respondent"s counsel successfully moved to have such late-composed documents excluded. Specifically excluded was an affidavit sworn by Winnie Chan, counsel"s secretary, sworn as recently as June 14, 1999. Counsel should have known better.
Conclusion
[19] It is not true that the immigration counsellor was holding the applicants to the criminal standard of proof beyond a reasonable doubt, and it is apparent that the letter was not accepted as evidence. This is not a matter of quibbling over weight assigned to evidence, because no weight was assigned to the letter.
[20] During the course of the hearing, the applicants" counsel sought to have their mother Toktam Shahla added as an applicant herein, saying it had always been intended that she should be a party. That is a remarkable statement. On April 27, 1998, Toktam (sometimes spelled Totkam) advised CIC that she wished to leave Canada for Iran as soon as possible with Sophiya. The applicants herein, however, were said not to wish to leave, and indeed, no longer lived with their mother.
[21] The applicants" case was ill prepared. The respondent"s case was well written and well argued. Countries like Iran which evince theocratic tendencies and wretched civil liberties for significant numbers of their populations " women, for example " present snares and delusions for Canada in terms of immigration. Notionally great numbers of married women in Iran could be refugees in Canada. Iran does not send shiploads of affluent invaders to Canada, but notionally Canada could be left to rectify Iran"s deprivations of Iranian women"s civil rights, if such women could pay large sums to obtain passage to Canada"s shores.
[22] In any event the mother"s unhappiness in her own plight in Iran, hardly gives her adult children the right to special consideration under s-s. 114(2) of the Immigration Act in Canada. Their application is dismissed, with no joy on this judge"s part. The applicants are fixed with costs of this proceeding. Counsel unanimously declined to propound any question for certification.
(Sgd.) "F.C. Muldoon"
Judge
Vancouver, British Columbia
12 August 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: August 11, 1999
COURT NO.: IMM-4435-98
STYLE OF CAUSE: Nagmeh Shahla and Reza Shahla
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
REASONS FOR ORDER OF MULDOON J.
dated August 12, 1999
APPEARANCES:
| Timothy Healey for the Applicants |
| Emilia Péch for the Respondent |
SOLICITORS OF RECORD:
| Timothy Healey for the Applicants |
Barrister and Solicitor
| Vancouver, BC |
Morris Rosenberg for the Respondent
Deputy Attorney General
of Canada