Date: 20070301
Docket: IMM-1270-06
Citation: 2007 FC 227
Ottawa, Ontario, March 1, 2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Applicant
and
SIMA
TAJDINI
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Refugee Protection Division of the Immigration and Refugee Board found that
Sima Tajdini was not excluded from the definition of Convention refugee as the
Board was satisfied, on a balance of probabilities, that she no longer had
permanent resident status in the United States. The Board also found
that because she had a well-founded fear of persecution in Iran, she was
entitled to refugee protection in Canada.
[2]
This
is an application brought by the Minister of Citizenship and Immigration seeking
judicial review of the Board’s decision. The Minister asserts that the Board
erred in finding that Ms. Tajdini had lost her American permanent resident
status, and in failing to find that by seeking refugee protection in Canada,
Ms. Tajdini was ‘asylum shopping’. The Board further erred, the Minister says,
in its assessment of Ms. Tajdini’s credibility.
[3]
For
the reasons that follow, I am not persuaded that the Board erred as alleged by
the Minister, and accordingly, the application for judicial review will be
dismissed.
Background
[4]
Ms.
Tajdini is an Iranian citizen who was granted permanent residency in the United
States
in 1994, as the spouse of an American citizen. In January of 1996, Ms. Tajdini
returned to Iran with her
children. In 1998, Ms. Tajdini divorced her husband, and, in accordance with
Iranian law, her ex-husband received sole custody of her children. By virtue
of a 1999 order of an Iranian Court, Ms. Tajdini was
allowed a brief visit once a week with one of her sons.
[5]
When
she returned to Iran, Ms. Tajdini supported herself by providing
English language translation services, and by selling paintings. She became
involved with a man in Iran to whom she became engaged in 2003. Ms.
Tajdini says that she then discovered that her fiancé, who was involved in the
upper reaches of the Iranian government, was addicted to illegal drugs.
[6]
Ms.
Tajdini states that when she confronted her ex-fiancé about his drug use and
threatened to leave him, he became violent with her. Ms. Tajdini was then arrested
and jailed. During the course of her imprisonment, she was severely beaten.
She believes that her ex-fiancé was able to order her arrest and assault
because of his position in the Iranian government.
[7]
Ms.
Tajdini was also afraid that her ex-fiancé might also use the fact that she had
converted to Christianity to further harm her. As a result, with the help of
her family, Ms. Tajdini decided to leave Iran and seek refuge in Canada.
[8]
Ms.
Tajdini travelled to Canada in September of 2004. She arrived at Pearson International Airport, where she
met with immigration officials. At that time, she did not cooperate with the
immigration officials, refusing to answer any questions about her previous
residence in the United States, or with respect to the location of her
sons.
[9]
Ms.
Tajdini says that because of her recent detention in Iran, she was
extremely fearful of governmental authorities. She says that she was also
taken aback by the hostile treatment she says that she was subjected to on her
arrival in Canada, and was afraid to say anything that could be used against
her.
[10]
A
hearing regarding Ms. Tajdini’s refugee claim was held before the Refugee
Protection Division of the Immigration and Refugee Board. Although the
Minister did not have counsel present at the hearing, the Minister did file a
notice of Intent to Participate raising the issue of whether Ms. Tajdini was
excluded from the definition of Convention refugee by virtue of her allegedly
ongoing permanent resident status in the United States.
[11]
The
Minister provided the Board with a copy of a printout of the computer file of
the United States Immigration and Naturalization Service, which indicated that
Ms. Tajdini had received her American permanent residency in 1994. There is
nothing in the printout to suggest that her status in that country had changed
any time after 1994.
[12]
The
Minister also provided the Board with an extract from an INS website, entitled
“Maintaining Permanent Residency”, which detailed the ways in which permanent
residency in the United States could be lost.
The Board’s Decision
[13]
The
first question that the Board had to address was whether Ms. Tajdini was
excluded as a Convention refugee under Article 1E of the Refugee Convention
because she continued to have permanent resident status in the United
States.
In this regard, the Board found, on a balance of probabilities, that Ms.
Tajdini was no longer a permanent resident of the United States at the time
that she entered Canada.
[14]
The
Board noted that while the INS report indicated that Ms. Tajdini was granted
permanent residency in 1994, it did not disclose her current status. The Board
did not accept that because there was no change in her status noted in the INS
records, it was necessary to conclude that her status in that country had in
fact remained unchanged.
[15]
The
Board observed that the extract from the INS website stated that a person could
lose their permanent resident status if they left the United States to live in
another country where they intend to live permanently, or where they remained
outside the United
States
for more than a year. Further, the Board noted that Ms. Tajdini did not meet
any of the requirements that would have allowed her to maintain her status in
the United
States,
notwithstanding her absence from that country.
[16]
In
this regard, the Board found as a fact that Ms. Tajdini had left the United
States
in 1996, and had lived in Iran from 1996 until she fled to Canada in September
of 2004. In reaching this finding, the Board relied on Ms. Tajdini’s testimony,
which the Board found to be credible, as well as documentary evidence such as
the Iranian Court order providing her with weekly access to her son, and her
personal telephone book, which contained only Iranian telephone numbers.
[17]
The
Board also considered the Air Iran boarding pass used by Ms. Tajdini to come to
Canada, and a 2004 document from the Iranian Ministry of Justice exempting her
from a one month annual service requirement as a nurse as evidence that she did
in fact reside in Iran during the period in question.
[18]
Given
that Ms. Tajdini had left the United States, intending never to
return, and had lived in Iran for eight years before coming to Canada, the Board
was thus satisfied that it was more probable than not that she no longer had
permanent resident status in the United States.
[19]
Moreover,
after reviewing the jurisprudence relating to Article 1E of the refugee
Convention, the Board concluded that there was simply no evidence that Ms.
Tajdini had been “asylum shopping”, as she clearly was no longer a permanent
resident of the United States at the time that she entered Canada. The Board
also accepted Ms. Tajdini’s explanation as to why she did not try to return to
the United
States
as reasonable.
[20]
As
a result, the Board found that Ms. Tajdini was not excluded from the refugee
definition by operation of Article 1E.
[21]
In
relation to the inclusion issue, the Board accepted Ms. Tajdini’s explanation
as to why she fled Iran. The Board also accepted that her conversion to
Christianity was genuine.
[22]
The
Board found that Ms. Tajdini would be subject to severe punishment or
harassment if she were to return to Iran. In coming to this
conclusion, the Board relied on Ms. Tajdini’s past experience at the hands of
her ex-fiancé, and the country condition information before it relating to the
treatment of converts from Islam to Christianity in Iran.
[23]
As
a consequence, the Board determined that Ms. Tajdini had a well-founded fear of
persecution in Iran. The Board further found that there was no
safe internal flight alternative available to her in Iran, and that
she was indeed a Convention refugee.
Issues
[24]
The
Minister contends that the Board erred in finding that Ms. Tajdini had lost her
permanent resident status in the United States, given that she had not
obtained a ruling from an American Immigration Court to that
effect. The Board further erred, the Minister says, in failing to recognize
that in coming to Canada rather than returning to the United States, where she
had permanent resident status, Ms. Tajdini was ‘asylum shopping’. Finally, the
Minister says that the Board erred in its assessment of Ms. Tajdini’s
credibility.
[25]
I
will deal first with the issue of the soundness of the Board’s credibility
findings. This is because it is necessary to know what the factual context of
the case is, and whether the Board’s factual findings can withstand scrutiny before
the Minister’s other arguments can be addressed.
The Board’s Credibility
Findings
[26]
Counsel
for the Minister submits that the Board did not provide a sufficiently thorough
assessment of the evidence before it in coming to the conclusion that Ms.
Tajdini was a credible witness.
[27]
The
Minister did not point to any evidence that was overlooked or misconstrued by
the Board in this regard. Indeed, when questioned by the Court, counsel
acknowledged that she was essentially asking the Court to reweigh the evidence
that was before the Board. That is not the task of the Court on judicial
review, and as a result, I can give no effect to the Minister’s argument that
the Board’s credibility findings were patently unreasonable.
Did
The Board Err in Finding That Ms. Tajdini Had Lost Her Permanent Resident
Status In The United
States?
[28]
A
finding that a claimant should not be excluded pursuant to Article 1E of the Refugee
Convention involves a question of mixed fact and law, and is reviewable on the
standard of reasonableness: see, for example Canada (Minister of Citizenship
and Immigration) v. Choovak, 2002 FCT 573, Canada (Minister of
Citizenship and Immigration) v. Choubak, 2006 FC 521 and Parvanta v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1146.
[29]
Based
upon the extract from the website of the United States Immigration and
Naturalization Service, the Minister says that the only way that Ms. Tajdini
could lose her permanent resident status in the United States was if an
American Immigration Court made a ruling to that effect.
[30]
In
the absence of any such ruling having been obtained by Ms. Tajdini, the
Minister says that it was patently unreasonable for the Board to have found
that she was no longer a permanent resident of the United States.
[31]
In
light of the Minister’s argument, it is helpful to consider precisely what the
INS website says. The relevant provisions of the section entitled “Maintaining
Permanent Residency” state:
Maintaining Permanent
Residency
You may lose your permanent
resident status if you commit an act that makes you removable from the United States under the law in section 237
of the Immigration and Nationality Act. If you commit such an act, you
may be brought before the immigration courts to determine your right to remain
a Permanent Resident.
You may be found to have
abandoned your permanent resident status if you:
• Move
to another country intending to live there permanently.
• Remain
outside the US for more than one year
without obtaining a reentry permit or returning resident visa. However in
determining whether your status has been abandoned any length of absence from
the US may be considered, even if it
is less than one year.
• Remain
outside the US for more than two years after
issuance of a reentry permit without obtaining a returning resident visa.
However in determining whether your status has been abandoned any length of
absence from the US may be considered, even if it
is less than one year.
• Failing
to file income tax returns while living outside the US for any period.
• Declare
yourself to be a “non-resident” on your tax returns.
[32]
I
do not accept the Minister’s reading of the above statement. The Minister
relies on the first paragraph in support of the contention that permanent
residency in the United States could only be lost through a court
ruling. It seems quite clear to me that the first paragraph deals with cases
where permanent residency may be lost through a positive act on the part of an
individual that makes the individual removable from the United
States.
In such cases, a ruling from a US immigration court to this effect is
required.
[33]
The
second section of the extract deals with situations that may give rise to
permanent residency in the United States having been abandoned.
Ms. Tajdini’s case clearly falls into this latter category, and there is
nothing in the evidence to suggest that any kind of court ruling is required in
cases of abandonment.
[34]
The
first, second and fourth bulleted items on the list apply to Ms. Tajdini.
Based upon the facts found by the Board, Ms. Tajdini satisfies all three of the
conditions, any one of which could lead to her having abandoned her US
permanent residency.
[35]
That
is, the Board found as a fact that Ms. Tajdini moved to Iran in 1996,
intending to live there permanently. Moreover, Ms. Tajdini had been outside of
the US for eight years when she came to Canada, and had
never obtained a re-entry permit or returning resident visa. Finally, there
was nothing in the evidence to suggest that Ms. Tajdini had filed American
income tax returns while she was living in Iran.
[36]
The
jurisprudence is clear that once the Minister establishes a prima facie
case that a refugee claimant is excluded by virtue of the claimant’s status in
another country, the burden shifts to the claimant to show that he or she no
longer has that status: see, for example, Shahpari v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. 429.
[37]
That
said, Ms. Tajdini did not have to establish conclusively, beyond any reasonable
doubt, that she had lost her permanent residency status in the US by the time
that she entered Canada. Rather, the
possibility that the American authorities might no longer recognize Ms.
Tajdini’s permanent resident status in the United States had to be taken into
account in deciding whether it had been established on a balance of
probabilities that she still had status in that country: see Mahdi v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 1623 (F.C.A.), at & 12.
[38]
In
this case, the evidence clearly showed that after becoming a permanent resident
of the United States in 1994, Ms. Tajdini had acted in such a way as to create a
very real probability that the American authorities would no longer recognize
her as a permanent resident and would, for that reason, deny her the right to
return to the United States.
[39]
For
these reasons, I am satisfied that the Board’s finding that Ms. Tajdini had
established, on a balance of probabilities, that she was not a permanent
resident of the United States, and was thus not excluded from the definition of
refugee was one that was supported by the evidence, and was entirely
reasonable.
Did The Board Err In
Finding That Ms. Tajdini Was Not “Asylum Shopping”?
[40]
The
Minister’s final argument is that the Board erred in failing to find that in
seeking the protection of Canada rather than returning to the United
States,
Ms. Tajdini was “asylum shopping”.
[41]
According
to the Minister, Ms. Tajdini’s failure to make any enquiry into her permanent
resident status in the United States, choosing instead to
come to Canada and claim
refugee protection in this country, amounts to asylum shopping.
[42]
To
a large extent, this submission is predicated on the assumption that Ms.
Tajdini still had permanent resident status in the United States. I have
already found that the Board’s finding that Ms. Tajdini had demonstrated on a
balance of probabilities that this was not in fact the case was a conclusion
that was reasonably open to it on the evidence.
[43]
Moreover,
the Board considered Ms. Tajdini’s explanation for her failure to try to
re-enter the United States, noting that she had left the United
States
in 1996, intending never to return. In returning to Iran, Ms. Tajdini
had every intention of living there permanently.
[44]
The
events giving rise to Ms. Tajdini’s fear of persecution did not occur until
many years later. The Board accepted as credible Ms. Tajdini’s explanation as
to why she felt it necessary to flee Iran, and why she did not
think that she would be able to re-enter the United States. As a
result, the Board’s finding that Ms. Tajdini was not asylum shopping was one
that was reasonably open to it on the evidence.
[45]
Moreover,
as in the Mahdi decision previously cited, this is not a case where a
refugee claimant has voluntarily renounced the protection of one country in
order to seek refuge elsewhere. As a result, I can give no effect to the
Minister’s argument in this regard.
Conclusion
[46]
For
these reasons, the application for judicial review is dismissed.
Certification
[47]
The
hearing in this matter was held on February 22, 2007. At the close of the
hearing, and in response to the Court’s inquiry, the Minister’s counsel
proposed the following question for certification:
Once there is evidence from a
country where a claimant has status for Article 1E exclusion, is the onus on
the claimant to produce evidence from that same authority to show that the
status does not exist?
[48]
Later
that date, counsel for the Minister wrote the Court to advise that she had
reformulated the proposed question to read:
Once there is evidence from a
country where a claimant has status, consistent with Shamlou, is the
onus on the claimant to produce evidence that the status has not been lost?
[49]
The
Shamlou case referred to by the Minister is the decision of this Court
in Shamlou v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 1537.
[50]
In
Shamlou, the Board’s finding that a refugee claimant could return to Mexico was
challenged by the claimant on judicial review. In this regard, Justice
Teitelbaum identified the issue before the Court as “whether the Board came to
a conclusion that was reasonably open for it to make based on the facts before
it”.
[51]
The
Board had found that there was no credible or reliable evidence before it to
support the clamaint’s assertion that he could not return to Mexico, where he
had previously enjoyed status.
[52]
This
is not the case here, as there was evidence before the Board in the form of the
extract from the INS website, which detailed the circumstances under which a
foreign national would be deemed to have abandoned his or her permanent
residency in the United States. Moreover, there was evidence from Ms.
Tajdini, which was accepted by the Board, as to the circumstances surrounding
her departure form the United States in 1996, and her residency in Iran between 1996
and 2004.
[53]
As
a consequence, I was satisfied that the reformulated question suggested by the
Minister did not arise on the facts of this case, and it was my intention to
refuse to certify it. However, after these reasons were completed, but before
they were actually signed, counsel for the Minister wrote a further letter to
the Court dated February 26, 2007, in which she said:
Subsequent to the hearing in
this matter, and after having had an opportunity to reflect on a proper wording
for a proposed question for certification in this case and to further consult
with my client, the Minister requests the Court’s indulgence in considering the
following questions for certification in lieu of the question I proposed at the
hearing on Thursday.
[54]
I
take counsel to mean that she wanted to substitute her new questions for the
reformulated question that she provided to the Court after the hearing, as
opposed to the question that she suggested at the hearing itself.
[55]
The
two questions suggested by counsel in her February 26 letter were:
1. Once the
Minister has put forward prima facie evidence that Article 1E applies,
does the onus shift to the claimant to demonstrate with evidence that he or she
would not be permitted to return to that country? and
2. If so,
what test must the claimant satisfy? Is the test that there is a possibility
that the claimant would not be permitted to return, or is it one of reasonable
probability?
[56]
I
will comment first on the process followed in this case in relation to the
certification issue, and will then address the questions themselves.
[57]
Subsection
74(d) of the Immigration and Refugee Protection Act provides that no
appeal lies to the Federal Court of Appeal from a decision of this Court in an
immigration matter, unless the judge hearing the application certifies that a
serious question of general importance is involved, and states the question or
questions.
[58]
Subsection
18(1) of the Federal Courts Immigration and Refugee Protection Rules provides
that prior to rendering a judgment in an application for judicial review in an
immigration matter, the judge hearing the case must give the parties the opportunity
to request that the judge certify that a serious question or questions of
general importance is involved in the case.
[59]
As
a consequence, it should come as no surprise to counsel when, at the close of a
judicial review hearing in immigration matters, the presiding judge asks the
parties if either has a question or questions to propose for certification. In
all but the most exceptional cases, counsel should be ready, willing and able
to respond to the judge’s inquiry. If counsel are of the view that the case
does raise one or more serious questions of general importance, then they
should have already obtained the necessary instructions, and should have the
question or questions already formulated for submission to the Court.
[60]
Given
the position taken by the Minister throughout this case, there is nothing that occurred
at the hearing that would or should have caught the Minister by surprise, and
there is no reason why the Minister could not have come to the hearing having
already considered the certification issue.
[61]
Suffice
it to say that the process followed in this case is not appropriate, and should
not be encouraged.
[62]
That
said, I turn now to consider the last two questions proposed by the Minister.
[63]
Insofar
as the Minister’s first question is concerned, I do not understand there to be
any dispute in the jurisprudence about the fact that once the Minister
has put forward prima facie evidence that Article 1E applies, the evidentiary
onus shifts to the claimant to demonstrate that he or she would not be
permitted to return to that country. As a consequence, this is not an
appropriate question for certification.
[64]
With respect to the Minister’s second proposed
question, the Federal Court of Appeal has clearly spoken on this point in the Mahdi
case when it said that the possibility that a foreign authority might no
longer recognize a claimant’s status in that country had to be taken into
account in deciding whether it had been established on a balance of
probabilities that the person still had status in that country.
[65]
Indeed, at page 11 of the decision under review,
the precise language of the Mahdi case was used by the presiding member
in identifying the test that had to be satisfied. On the following page, the
member then went on to conclude, on a balance of probabilities, that Ms.
Tajdini was no longer a permanent resident of the United
States.
[66]
Given that the jurisprudence emanating from the
Federal Court of Appeal is quite clear on this point, I am not prepared to
certify the second question suggested by the Minister.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This application for
judicial review is dismissed; and
2. No serious question
of general importance is certified.
“Anne
L. Mactavish”
Email this Content