[1] Mr. Donboli is a 63-year-old citizen of Iran who claimed status as a Convention refugee. He brings this application for judicial review from the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (ACRDD@) which found that he is not a Convention refugee.

[2] The basis of Mr. Donboli=s claim to status as a Convention refugee is that he fears persecution in Iran on the basis of his political opinion. He testified that he was on a regime blacklist of persons to be Adestroyed@. Mr. Donboli also alleges that he left Iran illegally. He says that, should he be returned to Iran, this will be discovered, and he will be subject to persecutory punishment as a result of his alleged exit and having made a failed refugee claim.

[3] While Mr. Donboli asserts a number of the errors in the decision of the CRDD, in my view one issue is determinative of this application. The reasons of the CRDD with respect to Mr. Donboli=s fear of persecution as a result of his illegal departure from Iran and failed refugee claim are as follows:

While the claimant alleges that he would suffer persecutory punishment because he left his country, if he were to return as a failed refugee claimant, the panel finds that Iran=s exit laws of general application would only be held to be persecutory by the panel, if the claimant had left for a credible Convention reason, which he did not. The claimant, as an English language tutor, has a good cover to tell Iranian border police in his wanting to be away from Iran to improve and perfect his mastery of English. Canadian authorities do not advise Iranian authorities that a returnee from Canada is a failed refugee applicant and there is no evidence that anybody in Iran even knows the claimant is away. Whatever consequences he might incur on return are as a result of his own decision making, and his alleged record of being targeted by the regime does not offer in the panel=s mind a persuasive impediment to his peaceful return.

[4] In Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 the Federal Court of Appeal held that punishment for an illegal exit from a country is not in itself a basis for a well-founded fear of persecution, when the punishment arises out of a law of general application. However, where a proper evidentiary basis exists it is necessary to consider whether excessive or extra-judicial punishment for an illegal exit could constitute a reasonable basis for a well-founded fear of persecution. See: Castaneda v. Canada (Minister of Employment and Immigration) (1993), 69 F.T.R. 133 (T.D.); Moslim v. Canada (Secretary of State), [1994] F.C.J. No. 184 (T.D.).

[5] In the present case, the CRDD accepted that Mr. Donboli left Iran illegally. The United States Department of State Report in evidence before the CRDD documented the poor human rights record of Iran. Specifically the report observed:

- ASystematic abuses include extrajudicial killings and summary executions; disappearances; widespread use of torture and other degrading treatment, reportedly including rape; harsh prison conditions; arbitrary arrest and detention; and prolonged and incommunicado detention.@

- APrison conditions are harsh. Some prisoners are held in solitary confinement or denied adequate food or medical care in order to force confessions. Female prisoners reportedly have been raped or otherwise tortured while in detention. Prison guards reportedly intimidate family members of detainees and torture detainees in the presence of family members. The U.N. Special Representative reported receiving numerous reports of prisoner overcrowding and unrest. He cited a reported figure of only 8.2 square feet (2.5 square) of space available for each prisoner.@

- ACitizens returning from abroad sometimes are subject to search and extensive questioning by government authorities for evidence of antigovernment activities abroad.@

[6] On the basis of this evidence, the CRDD erred in law in failing to consider whether Mr. Donboli would risk severe or extra-judicial treatment at the hands of a repressive regime as a result of his illegal exit from the country and a failed refugee claim. This error is underscored by the panel=s questionable observation that Mr. Donboli Ahas a good cover [story] to tell Iranian border police@. Such suggestion, in my view, demonstrates the failure of the CRDD to properly consider the risk Mr. Donboli would be exposed to on his return to Iran. As a result of his illegal exit either Mr. Donboli would face a risk of persecution, or he would not. It is not an answer to suggest that he could avoid any risk of persecution by dissembling to the Iranian authorities. The need to lie is more consistent with a fear of persecution than the consequence of application of a law of general application.

[7] In concluding that the CRDD failed to consider the risk of severe or extra-judicial treatment, I have considered whether the CRDD did, as the Minister submits, consider such risk in the last sentence of the paragraph of its reasons quoted above. In my view it did not. The reference to an Aalleged record of being targeted@ refers to the first asserted basis of his fear of persecution, and not to a fear of persecution on his return as result of his illegal exit and failed refugee claim. Therefore, I am not persuaded that the CRDD did assess the risk of extra-judicial punishment.

[8] Counsel for Mr. Donboli argued that it is always an error to deny protection to a refugee claimant on the ground that a claimant can avoid persecution if he or she lies or provides a cover story. In view of my previous finding, it is unnecessary for me to consider this argument. It is sufficient to observe that it is, at the least, unseemly for the CRDD to advocate the making of the misrepresentation, particularly when both the former and current immigration acts of Canada expressly proscribe the making of misrepresentations to immigration authorities. (See: subsections 12(4) and 69.2(2) of the former Act and subsections 16(1), 40(1), 64(3) and 109(1) of the current Act.)

[9] Counsel for Mr. Donboli posed certification of a question on this point. As I have not found the issue determinative of the outcome of this application no question will be certified. Counsel for the Minister posed no question and I am satisfied that no certified question arises on this record.

ORDER

[10] IT IS HEREBY ORDERED THAT:

1. The application for judicial review is allowed and the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated May 22, 2002 is hereby set aside.

2. The matter is remitted to the Refugee Protection Division for redetermination by a differently constituted panel.

AEleanor R. Dawson@

Judge

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-3013-02

STYLE OF CAUSE: Khosrow Donboli v. The Minister of Citizenship and Immigration

PLACE OF HEARING: Toronto, Ontario

DATE OF HEARING: July 3, 2003

REASONS FOR ORDER:

AND ORDER: Hon. Madam Justice Dawson

DATED: July 16, 2003

APPEARANCES:

Mr. Michael Crane FOR THE APPLICANT

Ms. David Tyndale FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Michael Crane

Barrister and Solicitor

Toronto, Ontario FOR THE APPLICANT

Morris Rosenberg

Deputy Attorney General FOR THE RESPONDENT

of Canada

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Donboli v. Canada (Minister of Citizenship and Immigration), 2003 FC 883

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2003 FC 883