Docket:
IMM-7032-10
Citation:
2011 FC 1130
BETWEEN:
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AHAD VALAEI-BAKHSHAYESH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Mr.
Valaei-Bakhshayesh, an Iranian citizen, came to Canada in 2004 to seek refugee
status; not that he feared persecution should he be returned to Iran, but rather
that he feared persecution should he be returned to Denmark. Thus became
a blatant attempt to asylum shop, an attempt which is not yet over.
[2]
As
an Iranian, he was declared ineligible by the Immigration and Refugee
Protection Board of Canada [IRB] to claim refugee status because he had already
been accorded that status in Denmark. He then applied for a
pre-removal risk assessment [PRRA] on the basis he should not be returned to Denmark because of
then current conditions. That decision was negative, and his application for
leave and judicial review thereof was dismissed.
[3]
He
then claimed to have lost status in Denmark due to prolonged
absence from that country. He applied for and was given a second PRRA, this
time in relation to Iran. That assessment was also negative. He applied
for and obtained leave to have that decision judicially reviewed. This is that review.
[4]
Although
I shall grant judicial review, there are many disturbing elements and gaps in
the record. The matter shall be referred back for re-determination in
accordance with the directions set out herein. To put this matter in context, a
timeline would be helpful.
TIMELINE
1979-1984
[5]
Mr.
Valaei-Bakhshayesh served in the Iranian Air Force.
1979
[6]
The
Shah of Iran was deposed.
1984
[7]
Mr.
Valaei-Bakhshayesh left Iran for Turkey, allegedly because he
could no longer accept the policies of the new regime. Unable to obtain status
in Turkey, he was
directed to Denmark by the
United Nations High Commissioner for Refugees. He was found to be a Convention
refugee and eventually became a permanent resident of Denmark.
24 March 2004
[8]
Mr.
Valaei-Bakhshayesh arrived in Canada and sought refugee status.
22 November 2006
[9]
Two-and-a-half
years later, he was found ineligible to claim refugee protection in accordance
with section 101(1)(d) of the Immigration and Refugee Protection Act
[IRPA]. That section provides that a claimant is ineligible to be referred to
the Refugee Protection Division of the IRB if he has been recognized as a
Convention refugee by another country “and can be sent or returned to that
country”. [My emphasis.]
[10]
The
record does not indicate that he applied for leave and judicial review of that
decision.
27 April 2009
[11]
Another
two-and-a-half years later, a negative PRRA decision was issued with respect to
Denmark.
27 November 2009
[12]
Mr.
Valaei-Bakhshayesh’s application for leave and judicial review of the negative
PRRA was dismissed.
16 October 2010
[13]
He
sought and obtained a second PRRA based on a potential return to Iran. That
assessment was also negative and is the subject of this judicial review.
THE NEGATIVE PRRA
[14]
As
a stand-alone decision, I hold the assessment to be unreasonable. The basis of
the application was Mr. Valaei-Bakhshayesh’s bold assertion in an affidavit
that he has lost permanent resident status in Denmark, and that he would be at
risk in Iran. The officer
stated: “the evidence before me does not support that the applicant has
attempted to determine whether avenues of recourse are available to him
regarding the re-instatement of his Danish permanent residency.” With respect,
there is no hard evidence that Mr. Valaei-Bakhshayesh lost his permanent resident
status in Denmark in the first place or even if so, that he has lost his status
there as a Convention refugee.
[15]
Nevertheless,
the officer went on to assess the risks facing Mr. Valaei-Bakhshayesh should he
be returned to Iran.
[16]
At
the heart of the officer’s decision was her finding that there is no evidence
that Mr. Valaei-Bakhshayesh is being sought by the Iranian authorities. While
that finding is reasonable (the standard of review being reasonableness – Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190), it is not the question
which should have been asked. No doubt he has been out of sight and out of mind
of the Iranian authorities for more than 25 years. The question is how would
Mr. Valaei-Bakhshayesh, a successful refugee, be treated on return? That
analysis was not really done. He claims that he would be persecuted because he
joined the Air Force while the Shah of Iran was still in power. Assuming he was
at risk in 1984, he may or may not have been at risk when the PRRA decision was
rendered in 2010. It seems to me that the Iranian regime of 1984 should have
been compared with the regime of 2010.
[17]
As
a result, I find the decision unreasonable.
DISCUSSION
[18]
In
November 2006, the IRB held that Mr. Valaei-Bakhshayesh was ineligible for
consideration in Canada as a Convention refugee because he had been
recognized as such in Denmark and could be returned
to that country. He asserts that this is no longer the case due to his
prolonged absence from Denmark. If that assertion is
true, the situation is of his own making. In any event, all Mr.
Valaei-Bakhshayesh says is that he lost his status as a permanent resident. He
does not state one way or another whether he lost his status as a Convention
refugee.
[19]
Unfortunately,
the 2006 decision of the IRB is not in the record before me. However, it is
common ground between the parties that the ineligibility decision was based on
section 101(1)(d) of IRPA, rather than section 98 which provides that a person
referred to in Article 1E of the U.N. Convention is neither a Convention
refugee nor a person in need of protection. Article 1E thereof provides that the
Convention does not apply to a person recognized in the country in which he has
taken residence as having the rights and obligations which are attached to the
possession of the nationality of that country. The focus in section 101, unlike
section 98, is on refugee status, not permanent residency, or nationality,
status.
[20]
Mr.
Valaei-Bakhshayesh should not have been allowed a second PRRA without his
status in Denmark being
clarified. The questions which should be put to the Danish authorities are both
whether he has lost his permanent status there, and whether he has lost his
status as a Convention refugee and would not be permitted to return.
[21]
It
may well be that the PRRA with respect to Iran, and the
judicial review thereof, is moot. For instance, in the case of a refugee claim
by someone with dual nationality if it is found that the applicant is not at
risk in one country, it is not necessary to assess the second country.
[22]
If
due diligence was carried out by the authorities, there is no indication
thereof in the record. I see a potential for great mischief. Suppose it had
been held in the PRRA under review, or may be held in the new PRRA I have
ordered, that Mr. Valaei-Bakhshayesh would be at risk of persecution were he to
be returned to Iran. Would that mean that he would be entitled to remain in
Canada even though it may well be that he is entitled to return to Denmark? What if a
new PRRA, like the current PRRA, determines that he would not be at risk in Iran? If he is
entitled to return to Denmark, there has been a
considerable waste of time, resources and money. Consequently, the second PRRA
must begin with an analysis of his right, if any, to return to Denmark. If he can
return, that is the end of the matter.
[23]
There
are a number of cases which are not precisely on point, but which nevertheless
underscore the rationale behind IRPA.
[24]
In
Canada (Minister of
Citizenship and Immigration) v Zeng, 2010 FCA 118, 402 NR
154, the Court of Appeal wrestled with a decision based on section 98 of IRPA and
the Article 1E exclusion clause. The applicants, Chinese citizens, enjoyed
permanent resident status in Chile, a status which they alleged they lost.
[25]
In
speaking for the Court, Madam Justice Layden-Stevenson pointed out at paragraph
19 that “asylum shopping is incompatible with the surrogate dimension of
international refugee protection.” The Minister had argued that the refugee
claim process is not intended to provide a route to better protection when
there is existing and available protection elsewhere. One concern in that case
was that if Article 1E was applied to asylum shoppers who could not return to
the third country, the potential for removal from Canada to the home
country without the benefit of a PRRA would exist. If this were to occur, Canada might run
afoul of its international obligations.
[26]
However,
in this particular case, Mr. Valaei-Bakhshayesh was provided not with just one,
but with two PRRAs.
[27]
Mindful
that the case dealt with Article 1E of the U.N. Convention, rather than section
101 of IRPA, the decision of Mr. Justice Rothstein, as he then was, in Mohamed
v Canada (Minister of Citizenship and Immigration), 127 FTR 241, [1997] FCJ
No 400 (QL), illustrates the underlying philosophy of international protection.
In that case, the applicant’s refugee claim in Sweden had been
rejected but nevertheless she had been granted permanent resident status there on
humanitarian grounds. Even so, she sought protection in Canada because she
claimed to have abandoned Sweden as her domicile and lost her permanent
resident status. Mr. Justice Rothstein said at paragraphs 8 and 9:
[8] Applicants'
counsel makes the argument that the applicants' status in Sweden is subject to
expiry. Therefore they do not have the right of a national envisaged by section
E of Article 1 of the Convention. However, the evidence is that having been
granted permanent residence status in Sweden, it is only the certificate that must be periodically renewed.
There is no evidence that permanent residence status in Sweden is subject to some
form of arbitrary cancellation.
[9] This
case raises the disturbing question of asylum shopping. If applicants' counsel
were correct in his domicile argument, applicants could, at their own will,
reject the protection of one country by unilaterally abandoning that country
for another. Indeed, that is what has occurred here. The Geneva Convention
exists for persons who require protection and not to assist persons who simply
prefer asylum in one country over another. The Convention and the Immigration
Act should be interpreted with the correct purpose in mind.
[28]
Mohamed was relied
upon by Mr. Justice Mosley in Wangden v Canada (Minister of
Citizenship and Immigration), 2008 FC 1230, [2008] FCJ No 1541 (QL),
appeal on a certified question dismissed, 2009 FCA 344, [2009] FCJ No 1540 (QL).
It was held that the applicant was ineligible to make her refugee claim in Canada pursuant to section
101(1)(d) of IRPA, the same section which is in play in the case at hand.
[29]
Another
instructive decision is that of Wassiq v Canada (Minister of
Citizenship and Immigration), 112 FTR 143, [1996] FCJ No 468 (QL). That
case dealt with Afghani applicants who had been granted refugee status in Germany. Ten years
later they came to Canada and argued that their German residency permits
had expired. As Mr. Justice Rothstein stated:
[10] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, La
Forest, J. notes at page 726:
Refugee claims were never meant to allow a
claimant to seek out better protection than that from which he or she benefits
already.
I would observe that if, by reason of their
absence from Germany and sojourn in Canada, the applicants are, in effect, entitled to
renounce the protection they received from Germany and claim protection from Canada, such a
result is anomalous. In substance, it gives persons who have Convention refugee
status in one country the right to emigrate to another country without
complying with the usual requirements, solely by reason of their unilateral
renunciation of the protection initially given to them by the first country. In
effect, this means that they can "asylum shop" amongst countries who
are signatories to the Geneva Convention and "queue jump" normal
immigration waiting lists to the country of their choice. If this is the case,
the applicants, who resided in Germany for ten years, may simply abandon Germany for Canada. They
would have greater rights to emigrate to Canada than persons of German nationality. That is
neither fair nor logical.
CERTIFIED QUESTION
[30]
A
draft of these reasons was circulated to the parties so as to give the Minister
the opportunity to propose a serious question of general importance for
certification. Counsel has informed the Court that the Minister does not
propose a certified question, and none shall be certified.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
application for judicial review is granted.
2.
The
decision rendered by the pre-removal risk assessment officer is set aside and
the matter is referred back to another pre-removal risk assessment officer for
redetermination.
3.
There
is no serious question of general importance to certify.
“Sean Harrington”
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