Date: 20100611
Docket: IMM-5165-09
Citation: 2010 FC 637
Ottawa, Ontario, June11,
2010
BETWEEN:
BANOU DINARIAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON D. J.
Introduction
[1]
These
reasons follow the hearing at Toronto on the 19th of May, 2010 of an
application for judicial review of a decision of a Member (the “Member”) of the
Refugee Protection Division (the “RPD”) of the Immigration and Refugee Board
determining that the Applicant is not a Convention refugee and not a person in
need of like protection in Canada. The decision under review is dated the 30th
of September, 2009.
Background
[2]
The
Applicant is a citizen of Iran from the municipality of Yazd in
that country. She is a Zoroastrian. The rights of Zoroastrians and, generally
speaking, other religious minorities, had been respected in Iran under the
reign of Mohamed Reza Shah. That situation changed with the ascendancy of the
Khomeini regime for Zoroastrians in general and for the Applicant and her
family members in particular.
[3]
The
Applicant’s husband was a successful businessman. He owned several
businesses. The Applicant herself was a teacher. On the 14th of
September, 1992, the Applicant was advised by authorities that her husband had
died of a heart attack while he was on a business trip. The Applicant’s
husband was only 48 years of age at that time.
[4]
The
Applicant’s husband was buried in a Zoroastrian cemetery, in accordance with Zoroastrian
tradition, the next day. The day after the burial, the Applicant received a
telephone call advising her that soldiers were digging up her husband’s grave.
She rushed to the cemetery. Soldiers advised her that her husband was Muslim
and had to be re-buried in a Muslim cemetery. She was assaulted when she
attempted too prevent the soldiers from removing her husband’s body from his
grave. The same day, Iranian authorities seized two of the Applicant’s
husband’s businesses. Under Iranian law, no one but a Muslim was entitled to
succeed to a Muslim’s estate.
[5]
The
Applicant complained to authorities without success. Some two weeks later she
went back to authorities to follow-up on her complaint. She was arrested,
imprisoned and questioned about her late husband’s properties. She was told to
hand over the deeds to the properties. With the help of a relative, she was
released the next day.
[6]
The
Applicant was frightened and upset by her experiences following her husband’s
death and decided to leave her home in Yazd. She moved
to Malat where she stayed with friends for a brief interval. There, she
noticed that she was being watched by regime officials. She was approached by
the Revolutionary Guard four or five times. The Revolutionary Guards demanded
that she hand over the deeds to her late husband’s properties. The
Revolutionary Guards threatened to sexually assault her and her daughter if she
did not comply.
[7]
The
Applicant quit her job and fled to Tehran with the aid of her
brother-in-law, a prominent businessman in Iran who was also a Zoroastrian and
who, sometime later, was forced to leave Iran. At one
time when he returned to Iran, he was scheduled to be executed but he
was able to escape. Despite her brother-in-law’s difficulties, the Applicant
and her daughter were able to live in Tehran in a property that he
owned there.
[8]
For
a period of time, the Applicant was able to live in relative peace in Tehran. She
travelled out of Iran periodically to spend time with her sister and
her sister’s family. She also travelled to Spain to stay with
her brother-in-law who had aided her and who was by this time a citizen of the
United Kingdom and a resident of Spain who had business
interests in both countries.
[9]
On
a visit to Spain in 2000 that
lasted over a number of months, the Applicant was issued a residency card valid
until November 2003. On a later visit to Spain, the
validity of her residency card was extended to the 10th of October,
2008.
[10]
Following
the Applicant’s return to Iran in October, 2003, her brother-in-law was
murdered. The Applicant suspected that he died at the hands of Iranian
agents. Thereafter, she returned to Spain only for one day, in
November of 2005, to be interviewed by the police. Following that very short
visit, she travelled to the United Kingdom. The Applicant no
longer had any interest in returning to Spain. She either
cancelled her residency card for Spain, or allowed it to
expire.
[11]
Shortly
after the murder of the Applicant’s brother-in-law, Iranian officials began
again to harass the Applicant in Tehran, once again seeking
property deeds. She received threatening phone calls demanding property
deeds. She continuously observed suspicious people either at her door or
observing the building in which she lived. In September of 2004, the Applicant
undertook a visit to her sister, now the widow of her late brother-in-law, in Canada who had
status in this country as well as in England. Concerned about her
children who remained in Iran, she returned to Iran in November 2004.
Harassment recommenced.
[12]
In
March of 2006, while walking home after picking up her grandson at school, she
was followed by two men, one of whom she recognized as one of the soldiers who
had dug up her husband’s grave many years before. She started to run with her
grandson. She and her grandson were chased. The Applicant fell and broke her
wrist and sustained bruises to her face and shoulders. A crowd gathered. The
two men who had been pursuing the Applicant and her grandson disappeared.
Harassment continued.
[13]
In
July of 2006, the Applicant travelled to meet her sister in the United
Kingdom.
She learned that in her absence things were getting worse in Iran. She
received a summons to appear in court at her residence in Iran. Her son
and daughter were attempting to make arrangements to leave Iran.
[14]
In
all of the circumstances, the Applicant came to Canada with her
sister rather than return to Iran. Her Convention refugee claim in Canada followed.
The Decision Under
Review
[15]
The
RPD acknowledged that the Applicant’s claim to protection was based on her
religion, her family affiliation and her perceived political opinion. It
determined that the outcome of her claim turned on what it described as her
lack of subjective fear and her engagement in “country” or “asylum” shopping.
It noted that the Applicant had ... “left and returned to Iran at least 10
times after the constant harassment began.” It discounted her explanation that
the presence of her surviving adult children, and at least one grandchild, in Iran outweighed
her fear, particularly when combined with the periods when the harassment that
she experienced abated. It dismissed her unwillingness to rely on her
residency card for Spain despite the fact that her brother-in-law, her sole
family connection in Spain, had been murdered there. It dismissed
the Applicant’s reliance on the encounter that she alleged she and her grandson
had on the streets of Tehran, that led to her fall and her injury, an event
that the RPD described as the “precipitating event that caused the [Applicant]
to leave Iran”, as a story lacking credibility.
[16]
The
RPD made no mention in its reasons of the service at her home of a summons
requiring her to appear in court. It made no reference to the cumulative
impact over a number of years of the harassment that the Applicant suffered and
with respect to which her credibility was questioned only regarding the
“precipitating event”. Finally, it gave no consideration whatsoever to the
Applicant’s increasing age, she was born in 1945, and the impact that this
might have had on her resilience to the continuing harassment that she endured.
[17]
The
Member concluded:
I have found the claimant [here the
Applicant] to be country shopping, to lack subjective fear and to lack
credibility. Therefore, I find there is not a serious possibility or
reasonable chance that the claimant would face persecution for a Convention
ground, if she returns to Iran. Therefore, the claimant is
not a Convention refugee.
The Panel then turned its mind to whether
the claimant would be subject personally to a risk to her life, or to cruel and
unusual treatment or punishment, or whether there are substantial grounds to
believe that she would be subject personally to a danger of torture, if she
returns to Iran. Based on the above
analysis, on a balance of probabilities, I find there is no such risk.
[18]
The
RPD’s reference in the foregoing quotation to a lack of credibility on the part
of the Applicant related only to the incident that it described as the “precipitating
event”.
The
Issues
[19]
Counsel
for the Applicant described the issues on this application for judicial review
in the following terms in the Memorandum of Fact and Law filed on behalf of the
Applicant:
a. Did the [RPD] breach the
principles of natural justice by telling the Applicant Spain was not an issue,
and then finding that the Applicant should have claimed refugee status in Spain?
b. Did the
[RPD] make unreasonable findings of fact by ignoring and misconstruing
evidence?
c.
Did the [RPD] err in law because, having made no adverse finding of
credibility with respect to virtually all the key aspects of the claim save the
2006 incident, it erred by rejecting the claim based upon subjective fear?
d. Did the
[RPD] err in law because it failed to consider when assessing the delay in
making the claim the fact that the Applicant received information that the
authorities were still pursuing her and that there was a summons for her, which
caused her to make the claim?
[20]
There
is, of course, in addition to the foregoing issues, as on any application for
judicial review such as this, the issue of standard of review. In what follows
I will turn to that issue first.
Analysis
a) Standard of
Review
[21]
The
standard of review of a decision such as that here under review, absent a pure
question of law or a breach of procedural fairness or natural justice, is
“reasonableness”. Where the reasonableness standard applies, the analysis will
be concerned with:
... the existence of justification,
transparency and intelligibility within the decision-making process [and also
with] whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law ... (Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190 at paragraph [47]).
The standard of review
on a pure question of law, particularly such a question that involves a law not
within the particular expertise of the decision-maker, or of a breach of
procedural fairness or natural justice, is “correctness”.
[22] Counsel for
the Applicant urged that there was here a breach of procedural fairness or
natural justice in that, at a pre-hearing conference that preceded the actual
hearing of the Applicant’s claim, the RPD assured the Applicant and counsel
that they did not need to address the question of the Applicant failing to make
a claim for Convention refugee status or like protection in Spain when she had
the opportunity to do so and nonetheless went on to include the Applicant’s
status in Spain at one stage following her brother-in-law’s murder in reaching
its conclusion regarding country or asylum shopping. For two reasons, I reject
this submission. First, the position of the RPD at the pre-hearing conference,
particularly relating to the issue of a claim in Spain, was not
entirely clear. Indeed, I regard it as not having been so clear as to entitle
the Applicant and her counsel to refrain at hearing from making submissions on
that subject. Further, since the RPD’s references in its reasons to a claim in
Spain were both misguided and vague, particularly having regard to its more
extensive comments on country or asylum shopping regarding the Applicant’s
sojourns in the United Kingdom and in Canada, I am satisfied that they were not
central to the RPD’s decision. In the circumstances, in what follows, I will
analyze the decision against a standard of reasonableness.
b)
Ignoring or Misconstruing Evidence and the Adverse Credibility Finding
[23] In Bobrik v. Canada (Minister of
Citizenship and Immigration) 85 F.T.R. 13, Justice Tremblay-Lamer wrote
at paragraphs 23 and 24 of her Reasons:
The Board [then the predecessor to the
RPD] clearly stated that it was not considering evidence of persecution that
occurred before the female Applicant returned from her trip to Canada. While the Applicants may
not have had a well-founded fear of persecution at that point, the cumulative
nature of the attacks and racial slurs should have been taken into account when
assessing the well-foundedness of their fear following the trip. The following
episodes display a pattern of discrimination and harassment: [there follows a
list of 9 forms of “discrimination and harassment”].
These incidents occurred systematically
over a period of two and one half years. The aggregate of these hostile acts was
enough, in my view, to create a well-founded fear of persecution.
[24] On the facts of this matter, the
Applicant, even leaving aside the single act of harassment that the RPD
determined to be not credible, experienced a pattern of harassment extending
from 1992 to 2006, albeit with some periods of relative calm and peace. In the
years following the murder of her brother-in-law, the intensity of the
harassment increased to the point of service by mail on the Applicant, in her
absence, of a summons to appear in court, an element of the pattern of
harassment not even mentioned by the RPD in its reasons.
[25] The RPD simply failed to consider
the impact that the aggregate of these hostile acts might have had on the
Applicant and, in particular, whether that impact might have been sufficient to
create a subjectively well-founded fear of persecution leading ultimately to a
breaking-point for the Applicant and to her ultimate decision to claim
Convention refugee status or like protection in Canada at a time when she had
the opportunity to do so and notwithstanding the fact that she had earlier had
similar opportunities and had failed to avail herself of them. I earlier
referred to the Applicant’s increasing age and potential provided by that
reality for a loss of resilience. Any such loss of resilience, when combined
with knowledge of the summons to appear, might well have been sufficient to
justify the claim under consideration.
Conclusion
[26] For the foregoing brief reasons,
against a standard of review of reasonableness, I am satisfied that the RPD
erred in a reviewable manner in deciding as it did. In the result, this
application for judicial review will be allowed.
Certification of a
Question
[27] At the close of hearing, I
reserved my decision. Counsel for the Applicant advised the Court that this
matter raised no question for certification. I am inclined to agree. This
matter would appear to turn almost entirely on its unique facts. That being
said, counsel for the Respondent requested an opportunity to review my reasons
before taking a position on certification of a question. I agreed to provide
such an opportunity.
[28] These reasons will issue without
an accompanying order. Counsel for the Respondent will have five (5) working
days from the date of the reasons to file and serve any submissions on
certification of a question. Thereafter, if counsel for the Respondent
proposes a question, counsel for the Applicant will have three (3) working days
to serve and file any response. Once again thereafter, the Court will consider
any submissions received and issue an order giving effect to these reasons.
“Frederick
E. Gibson”
Ottawa,
Ontario
June 11,
2010
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