Zadeh v. Canada (Citizenship and Immigration), docket IMM-1290-96

     IMM-1290-96

BETWEEN:

     MUHAMMED NADIR GHANI ZADEH

     (a.k.a. MUHAMMED NADIR GHANIZADEH)

     GHEZAL GAHEZADA (a.k.a. GHEZAL GHANIZADEH)

     Applicants

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

RICHARD J.:

     This is an application for judicial review of the decision of the Refugee Division dated March 8, 1996, which determined that the applicants are not Convention refugees, as defined in subsection 2(1) of the Immigration Act.

     The claimants base their claims on a well-founded fear of persecution in Afghanistan on the grounds of political opinion and membership in a particular social group, for the male claimant, and membership in a particular social group, for the female claimant. The evidence adduced included the claimants' Personal Information Forms (PIFs), the testimonies of the witnesses, the male and female claimants, and other documentary evidence and documents submitted by the RHO and counsel.

     The Board found that while the male claimant may have suffered persecution while he was in Afghanistan, this alone does not qualify him to be a Convention refugee. The Convention refugee definition is forward-looking rather than backward-reflecting. The question before the panel is whether or not the male claimant faces a reasonable chance, or a serious possibility, of persecution if he is returned to Afghanistan.

     In rejecting the male claimant's claim, the Board asked itself the right question and weighed both the oral evidence of the claimant and the documentary evidence. The Board had evidence before it to support its conclusion. Although conflicting evidence may have been presented to the Board, this Court will not readily interfere with the weight assigned to that evidence, nor is it necessary for the Board to make reference to all of the evidence before it.¹ There is no basis for this Court to interfere with the conclusion of the Board concerning the male claimant. As a result, there is no ground to interfere with the Board's rejection of the female claimant's claim of persecution based on her husband's political beliefs.

     However, the female claimant also alleged persecution on the ground that she was a woman. The Board found that if she is returned to Afghanistan without her husband, there would be more than a mere possibility that she would be persecuted as being a woman without a male protector (as her father is now in Pakistan), given the documentary evidence on women in Afghanistan. However, according to the Board, now that she has reunited with her husband, that is no longer the case. Thus, her claim on this ground failed.

     Apart from one vague reference, there was no documentary evidence before the Board to support the finding concerning a "male protector". Since the question of a "male protector" seems to have been central to the Board's decision to reject her claim of fear of persecution on the ground that she was a woman, this determination is set aside as being patently unreasonable in the circumstances and to this extent, the female applicant's application for judicial review is granted.

     I therefore order that the Board's decision that the female applicant would not be persecuted as being a woman be set aside and that this claim be referred to a differently constituted panel for determination in accordance with law. The female claimant and the Refugee Hearing Officer are, of course, at liberty to introduce further oral or documentary evidence.

     __________________________

     Judge

Ottawa, Ontario

February 17, 1997

¹      Arunachalam v. M.C.I., File No.: IMM-157-96 (August 14, 1996).