Zand-Vakili v. Canada ( Minister of Citizenship and Immigration )
IMM-1612-98
Reed J.
10/8/98
7 pp.
Appeal from immigration officer's decision refusing to allow applicant to make application for landing from within Canada on humanitarian and compassionate grounds-Applicant arguing decision should be set aside because: (1) immigration officer should not have taken into account fact applicant excluded by CRDD from Convention refugee protection in accordance with Convention, Art. 1F(a); (2) if officer entitled to take fact into account, evaluated evidence in perverse manner, ignoring evidence before him, or that should have been before him; (3) decision leading directly to applicant's removal to Iran, thereby violating Charter, s. 12-Applicant, citizen of Iran, had served under Shah as military judge-Left Iran three days before Iranian revolution in 1979-Between 1979 and 1986, lived in several countries, arrived in Canada in 1986 and claimed refugee status-Although applicant had credible basis for refugee claim, found criminally inadmissible to Canada under Immigration Act, s. 19(1)(c) and medically inadmissible under Act, s. 19(1)(a)-Referred to CRDD for full hearing-Although CRDD found applicant would be at risk of persecution if returned to Iran, also found not Convention refugee as excluded from protection under Convention, Art. 1F(a)-CRDD held applicant had, inter alia, participated in sentencing political opponents to death penalties, turned blind eye to torture of witnesses, knowingly participated in persecutorial acts by awarding death sentences to Muslim fundamentalists-Application for leave to seek judicial review of CRDD decision dismissed by FCA in March 1993-Respondent subsequently conducted "back-end" humanitarian and compassionate review to determine whether applicant should be processed for landing from within Canada on humanitarian and compassionate grounds-Essentially similar evaluation to that which takes place under Immigration Act, s. 114(2)-Application dismissed-(1) Immigration officer properly considered Art. 1F(a) CRDD finding when making decision on "back-end" humanitarian and compassionate grounds-Decision making process contemplating weighing of all relevant factors and applicant's past conduct one such relevant factor-(2) Weighing of evidence by immigration officer not perverse-Immigration officer entitled to confine his assessment to material before him-Transcript of 1992 CRDD hearing must be disregarded for purposes of present application as not part of record before immigration officer when made decision-"Perverse weighing of evidence" argument based on false characterization of decision as effecting removal of applicant from Canada-Decision attacked different and distinct from removal order-Therefore, removal order, rather than decision refusing humanitarian and compassionate grounds, properly subject of constitutional challenge: Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315 (T.D.)-As removal order not before Court, Court cannot exercise discretion to convert present application into one that should have been made in order to deal with Charter issue-Noteworthy that applicant has lived elsewhere since fall of Shah and has intransigently refused to avail himself of avenues open to him-Given discretionary nature of "humanitarian and compassionate decision", Court unable to conclude decision based on erroneous finding of fact made in perverse and capricious manner, or without regard to material on record, or based on error of law-Finding serious reasons to believe person has committed crime against humanity relevant to whether such discretionary authority should be exercised-In absence of reason to doubt correctness of CRDD decision, immigration officer entitled to rely upon that decision and subsequent refusal of FCA to grant leave for judicial review-Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 12-United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a)-Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(a) (as am. by S.C. 1992, c. 49, s. 11), (c) (as am. idem), 114(2) (as am. idem, s. 102).