Ottawa, Ontario, April 18, 2005
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
and
THE MINISTER OF CITIZENSHIP ANDIMMIGRATION
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
SOLICITOR GENERAL
REASONS FOR ORDER ANDORDER
[1] It is recognized that a Pre-Removal Risk Assessment (PRRA) officer has the delegated authority to decide a properly constituted H & C application; however, when a person applies for a PRRA, and appends a request for H & C consideration without making the H & C application through the appropriate channels, it does not follow that the PRRA officer must consider H & C factors.
Page: 2
JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act[1] (IRPA) of the decision of a PRRA officer which, on January 31, 2004, dismissed the Applicant's PRRA application under section 97 of IRPA, determining that the Applicant would not be subject to risk of torture, risk to life or risk of cruel and unusual treatment if returned to Iran.
BACKGROUND
[3] The Applicant, Sharame Sherzady, was born in Iran and is a citizen of that country. He came to Canada on October 9, 1987 with his mother and brothers. He was landed in Canada on June 4, 1993 under the Refugee Backlog Program.
[4] He was ordered deported from Canada on July 22, 2002 on the basis of criminal convictions registered in November 2001 for unauthorized possession of a prohibited weapon, possession of property obtained by crime and conspiracy to traffic in a controlled substance (12 oz. of cocaine).
He received a three year sentence and was released on parole in November 2003. He has a prior conviction from April 1999 for possession of property obtained by crime of a value exceeding five thousand dollars.
Page: 3
[5] Mr. Sherzady made an application under the PRRA Program, which was rejected. This decision is now under review before the Court.
DECISION UNDER REVIEW
[6] The PRRA officer noted that Mr. Sherzady falls within subparagraph 36(1)(a) of IRPA, which states that a permanent resident is inadmissible on grounds of serious criminality for having been convicted in Canada of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed. The PRRA officer continued by saying that Mr. Sherzady is therefore described in paragraph 112(3) of IRPA, which states that refugee protection may not result from an application for protection if the person is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years.
[7] The PRRA officer considered the risk which Mr. Sherzady claimed, i.e. his fear of returning to Iran as his mother is Kurdish and his father Baha'i. He claimed that his father's cousins were murdered, that many Baha'i temples were burnt down and that conversion was forced.
[8] After referring extensively to Iranian country conditions, in regard to adherents to the Baha'i religion, the PRRA officer reached the following conclusion with respect to Mr. Sherzady's father being Baha'i:
Page: 4
In his application, Mr Sherzady claims that his father is Baha'i. He does not elaborate on this statement. I have no evidence before me as to the current conditions faced by the applicant's father, in particular, whether he has suffered persecution because of his faith. The applicant only states that his father's cousins were murdered although he does not relate the circumstances surrounding this event. Counsel submits that the applicant's "paternal grandfather changed his sons' religion to Muslim in an effort to prevent their being persecuted as followers of the Baha'i faith". I acknowledge this statement that the applicant's father is Muslim. Counsel does not elaborate on this issue. The applicant does not provide evidence as to his own religious beliefs. He does not state whether he is Baha'i. I have insufficient evidence before me to conclude that the applicant would likely be targeted by the authorities in Iranbecause his father is Baha'i.
[9] Subsequently, after referring extensively to country conditions in Iranwith respect to the Kurds, the PRRA officer concluded, based on Mr. Sherzady's fear in regard to his mother's Kurdish origins:
The applicant has not provided evidence that he would be at risk because his mother is Kurd. I have no evidence before me that the applicant would be perceived as being Kurd because of his mother or whether this would likely make him a person of interest to the authorities. The research indicates that it is largely activists within the Democratic Party of Iranian Kurdistan (PDKI) who have been the focus of attention by the authorities. The applicant has not provided evidence that he is politically active within this party or even if he has political interests. I have insufficient evidence before me to conclude that the applicant would likely be targeted by the authorities in Iranbecause his mother is Kurd.
[10] The PRRA officer then analyzed Mr. Sherzady's risk due to his drug conviction in Canada, referring to Information Requests on this issue. The PRRA officer concluded that Mr. Sherzady provided insufficient evidence that he faces a serious possibility of being convicted in Iran for a crime committed in Canada for which he served time and was released.
[11] The PRRA officer concluded that Mr. Sherzady failed to establish that he would personally be subjected to danger, believed on substantial grounds to exist, of torture or to a risk to his life or to
Page: 5
a risk of cruel and unusual treatment or punishment if he were to return to Iran, as required under section 97 of IRPA.
ISSUES
[12] 1. Did the PRRA officer apply the wrong standard to determine that the Applicant was not described in section 97 of IRPA?
2. Did the PRRA officer err in failing to consider the Applicant's child's best interests?
3. Did the PRRA officer err by ignoring evidence and selectively relying on parts of the evidence?
ANALYSIS
- Did the PRRA officer apply the wrong standard to determine that the Applicant was not described in section 97 of IRPA?
[13] Mr. Sherzady acknowledges that the PRRA officer applied a balance of probabilities standard of assessment. The PRRA officer clearly applied the correct threshold of risk, as confirmed by the Federal Court of Appeal in Li v. Canada(Minister of Citizenship and Immigration)[2].
Page: 6
- Did the PRRA officer err in failing to consider the Applicant's child's best interests?
[14] Mr. Sherzady argues that the PRRA officer did not address any humanitarian and compassionate (H & C) considerations and failed to consider the interests of Mr. Sherzady's Canadian son. The Court agrees with the Respondent that the PRRA officer was not obligated to consider the H & C factors raised by Mr. Sherzady.
[15] Mr. Sherzady made an application for a PRRA assessment. The scheme for assessing a PRRA application under IRPA and the related Regulations is clear. A PRRA assessment is designed to assess risk, in this case the risk based on the factors set out in section 97 of IRPA (subparagraph 113(d) of IRPA). There is simply no basis in the clear legislative language to suggest that a PRRA officer, on an applicant's request, is also meant to take on the role of an H & C officer.
[16] 
There is a separate H & C consideration process in place, for which Mr. Sherzady would have been free to apply. The H & C regime is provided for in paragraph 25(1) of IRPA as follows:
Page: 7
[17] In a removal context, Justice Layden-Stevenson in Padda v. Canada(Minister of Citizenship and Immigration)[3] stated the following with regard to H & C considerations:
There is authority holding that the limited discretion of the enforcement officer does not extend to considering the best interests of the child, since that is the purpose of the H & C application: John v. Canada (Minister of Citizenship and Immigration) 2003 FCT 420, [2003] F.C.J. No. 583; Banik v. Canada (Minister of Citizenship and Immigration) IMM-4861-03; Robin v. Canada (Minister of Citizenship and Immigration) IMM-5796-03.
[18] Mr. Sherzady cites Zolotareva v. Canada(Minister of Citizenship and Immigration)[4]for the proposition that the PRRA officer had the authority to consider H & C factors. This decision is clearly distinguishable as the decision at issue in that case was an H & C decision, not a PRRA decision. The applicant in that case had clearly made an H & C application through the proper channels. In that case, the officer who decided the H & C application was a PRRA officer. The issue was whether the PRRA officer had the delegated authority to consider an H & C application. The issue in Zolotareva, supra, was not whether a person applying for a PRRA can "append" a request for H & C consideration to the PRRA application without making an H & C application through the normal channels. Zolotareva, supra, stands for the proposition that a PRRA officer can decide a properly constituted H & C application. It does not follow from this that an officer deciding a PRRA application must consider H & C factors.
[19] Mr. Sherzady also cites Sowkey v. Canada(Minister of Citizenship and Immigration)[5], a decision on a motion for a stay of removal. The applicant in Sowkey, supra, was challenging a
Page: 8
negative PRRA decision and a decision not to defer his removal. The Court found that the issue of a PRRA officer's obligation to consider H & C factors met the serious issue test for the purposes of granting a stay. The Court took the trouble to point out, however, that the issue would not necessarily meet the test for leave. In fact, the issue did not meet the test for leave, as the leave to challenge the PRRA decision was later dismissed[6].
[20] Under a PRRA based on the factors set out in section 97 of IRPA, the officer only assesses the harm that may occur to the person himself or herself - not other people - should he or she be removed.
3. Did the PRRA officer err by ignoring evidence and selectively relying on parts of the evidence?
[21] No matter by what standard of review the factual conclusions of a PRRA officer are evaluated, in the present case, the Court cannot find any fault in the conclusions reached by the PRRA officer. The reasons of the PRRA officer demonstrate a grasp of the pertinent issues and of the relevant evidence. The fact of the matter is that there was simply no evidence provided by Mr. Sherzady to support his allegations of risk if he was returned to Iran.
Page: 9
CONCLUSION
[22] For the above reasons, the Court answers the three questions in the negative. Consequently, this application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that
1. The application for judicial review be dismissed.
Although counsel for the Applicant requested a question for certification, "Is the jurisdiction of H & C consideration obligatory when requested of a PRRA officer?". The Court decided on reflection that this is not a question of general importance to be addressed to the Federal Court of Appeal; it is rather a matter of determined Canadian government policy, reflected in the mandate given, as it currently stands, whether agreed with or not, to PRRA officers.[7]
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2628-04
STYLE OF CAUSE: SHARAME SHERZADY
v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION, THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS, SOICITOR GENERAL
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 14 2005
AND ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
Ms. Barbara Jackman FOR THE APPLICANT
Mr. David Tyndale FOR THE RESPONDENTS
SOLICITORS OF RECORD:
JACKMAN AND ASSOCIATES FOR THE APPLICANT
Toronto, Ontario
JOHN H. SIMS Q.C. FOR THE RESPONDENTS
Deputy Minister of Justice and
Deputy Attorney General