Date: 20051121
Docket: IMM-1712-05
Citation: 2005 FC 1569
Ottawa, Ontario, Monday, the 21st day of November, 2005
Present: THE HONOURABLE CHIEF JUSTICE LUTFY
BETWEEN:
SINA MOSTAGHIM
FARNOOSH KARIMAGHAEI
FARNAZ KARIMAGHAEI
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In determining that the applicants are not Convention refugees, the member of the Refugee Protection Division concluded that this case invited humanitarian and compassionate consideration:
I want to add one final comment, which is that, as I have said, I found you to be truthful today. I could not help but be moved by the testimony of Farnaz. You are obviously very frightened for your children's welfare. I do not have the mandate to factor into my decision humanitarian and compassionate consideration. However, it is clear that this is a case that cries out for humanitarian and compassionate consideration. It is my hope that the person who has this mandate will look favourably upon your application.
Your lawyer will explain to you the next steps in the process. I do not want you to be concerned that this is the end of the road. It is certainly not and I wish you good luck in the next steps in the process.
[Emphasis added.]
[2] In dismissing this application for judicial review of the decision of the Refugee Protection Division, I agree that this is a sympathetic case which would warrant close attention to its humanitarian and compassionate aspects.
[3] The applicant Sina Mostaghim and her two daughters are citizens of Germany. Ms. Mostaghim was originally from Iran. She is of the Baha'i faith. In 1988, she moved to Germany. In the early 1990's, she married an Iranian Muslim. Her daughters were born in 1995 and 1999. In 2001, the couple divorced. The Refugee Protection Division accepted that she was the victim of a violent and abusive husband.
[4] The first of the applicants' two-pronged challenge to the negative refugee decision is one of procedural fairness. The other concerns the member's analysis of state protection.
[5] On the basis of procedural fairness, the applicants attack the member's finding of insufficient evidence that the former husband would abduct the children. In the applicants' view, the objective basis of the claim was no longer in issue as the result of the member's opening remarks at the refugee hearing. I do not agree.
[6] The member clearly stated that her mandate was to determine whether the applicants had a well-founded fear of persecution in Germany. The member acknowledged that certain facts were not in dispute: the applicants' nationality, their citizenship, their Baha'i faith, the veracity of the second personal information form, the legality of the parents' German divorce, the mother's legal custody of her two daughters and that her former husband was violent and continued to be angry with her.
[7] The member concluded her opening comments by stating: "I understand also from your lawyer that the core of your claim relates to your fear [...] that your husband, your ex-husband will abduct your children to Iran where you would not be able to see them and that you feel the state of Germany can't protect you either from [...] harm to your children."
[8] In my view, none of the member's preliminary observations nor the reference by the refugee hearing officer to state protection as "the primary issue" foreclosed a factual finding as to whether the former husband continued to have an intention to abduct the children. Furthermore, the transcript is replete with questions concerning this very issue, some of them coming from the applicants' own counsel. Even in his closing submissions, counsel for the applicants addressed the issue of whether there existed a serious possibility that the father would abduct the children.
[9] Concerning the second issue raised by the applicants, no reviewable error has been established in the member's analysis of state protection concerning both the spousal abuse and the potential abduction of the children. Counsel for the applicants pointed to German documentary evidence "that measures under criminal law or police action alone only help achieve the desired objective in rare cases". This merely indicates that Germany, like many other countries, cannot "guarantee the protection of all its citizens at all times": Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (QL) (C.A.); N.K. v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1376 (QL) (C.A.). Similarly, the applicants' reliance on Iran's failure to sign the Hague Convention on the Civil Aspects of International Child Abduction does not assist in rebutting with "clear and convincing" evidence the presumption that Germany can provide state protection in the circumstances of this case. Finally, having reviewed the refugee decision reported as CRDD M99-07094 (May 31, 2001), I am satisfied that the facts concerning the objective basis for the spouse's fear in that case can be distinguished from those in this proceeding.
[10] For these reasons, this application for judicial review will be dismissed. Neither party suggested the certification of a serious question.
ORDER
[11] THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Allan Lutfy"
Chief Justice
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1712-05
STYLE OF CAUSE: Sina Mostaghim et al. Applicants
- and -
The Minister of Citizenship and Immigration Respondent
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 8, 2005
REASONS FOR ORDER AND ORDER Chief Justice Lutfy
DATED: November 21, 2005
APPEARANCES:
Mr. Daniel McLeod FOR THE APPLICANTS
Mr. Scott Nesbitt FOR THE RESPONDENT
SOLICITORS OF RECORD:
Preston Clark McLeod FOR THE APPLICANTS
Vancouver, British Columbia
Mr. John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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