Date: 20070430
Docket: IMM-3669-06
Citation: 2007 FC 459
Toronto, Ontario, April
30, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MOHAMMAD
SADEGH SIAMI ASL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision by a visa officer, dated May 4, 2006, which denied the applicant
permanent residence as a member of the “Convention refugees abroad” class.
[2]
The
applicant seeks an order quashing the decision and remitting the matter for
redetermination by a different officer.
Background
[3]
The
applicant, Mohammad Sadegh Siami Asl, is a citizen of Iran who is currently
residing in Japan. He alleged
a fear of persecution in Iran on the basis of his political opinion and
religion. The circumstances leading to the applicant’s claim were set out in
his application for permanent residence as a Convention refugee abroad. While
still in Iran, the
applicant converted from Islam to the Baha’i faith in 1977, and was involved in
the democracy movement. He was arrested in 1979 and sentenced to death for his
political activities. However, he was released from prison upon the fall of the
monarchy.
[4]
The
applicant continued his political activities and the Iranian authorities issued
an indictment against him in 1981. He went into hiding and was employed as a
truck driver. He transported democratic magazines in his truck, and was
arrested in 1984 while visiting his parents. He was imprisoned for six months
and was allegedly tortured. The applicant was released on bail in 1985 and was
ordered not to leave Iran. His father’s home was put up as surety.
He obtained employment driving trucks to various European countries from 1986
until 1990. He did not make any refugee claims while on these trips. The
applicant explained that he had been asked by his manager not to seek asylum,
as he would lose the truck and cargo.
[5]
In
1990, the applicant received a summons from an Iranian Court and fled to Japan, where he
lived for six years before claiming refugee status in 1996. The applicant
explained that at the time, he had no knowledge of the Japanese language, or of
the country’s legal system. He applied for a Canadian visa in the spring of
1996, which was refused. He also applied for refugee status in Japan, but his
claim was refused on the basis that he had not filed his claim within sixty
days of his arrival in the country. The applicant has appealed the refusal of
his claim by Japan. The
applicant was ordered deported from Japan in 1999 and was
detained until 2000, when he was provisionally released. The applicant applied
for refugee status in Canada while in detention, and his claim was
denied for lack of credibility.
[6]
The
applicant claims that he converted to Christianity in 2003. He was detained by
Japanese authorities in 2005, and applied for refugee status in Canada with help
from Amnesty International. His application was sponsored by the Hospitality
House Refugee Ministry in Winnipeg. The applicant claimed
that he feared persecution in Iran on the basis of his political beliefs and
religion. He claimed that the authorities were looking for him, and had destroyed
his father’s house when he failed to turn himself in. On April 26, 2006, the
applicant was interviewed by a visa officer. By letter dated May 4, 2006, the
officer refused his application for permanent residence as a Convention refugee
abroad. This is the judicial review of the officer’s decision.
Officer’s Reasons
[7]
The
officer assessed the application for permanent residence in Canada as a member
of the Convention refugee abroad class, and determined that the applicant did
not meet the requirements for immigration to Canada. The
applicant did not indicate that he had difficulty understanding the interpreter
during the interview.
[8]
The
officer first noted the criteria for Convention refugee status under section 96
of IRPA. Under section 145 of the Immigration and Refugee Protection
Regulations, S.O.R./2002-227 (the Regulations), a foreign national is a
member of the Convention refugee abroad class if this has been determined
outside Canada by an
officer. Under paragraph 139(1)(e) of the Regulations, an officer shall issue a
permanent resident visa to a foreign national in need of refugee protection, if
it is established that he is a member of a class under Division 1 of the
Regulations. The officer was not satisfied that the applicant was a member of such
a class, as there were inconsistencies in his claim, and he was unable to
establish a well-founded fear of persecution.
[9]
Under
subsection 11(1) of IRPA, a foreign national must apply for a visa before
entering Canada. A visa
shall be issued if the foreign national is not inadmissible and meets the
requirements of IRPA. The officer was not satisfied that the applicant met the
IRPA requirements for the reasons noted above, and the application was refused.
The officer’s notes state:
I reviewed the file carefully. Claim is
not credible. While PA claimed having suffered discrimination since about 1979
and having been arrested in 1984, he travelled to Europe a few times between 1985 and 1990 but
never took opportunity to claim refugee status. When asked to explain why did
not claim refugee status and was returning to Iran, explanations provided are not credible.
Also PA came in Japan in 1990 but waited
until 1996 before submitting a refugee application in Japan. Explanations provided for the delay are
not credible.
While refugee application to Cda
submitted in 2000 was based on the grounds he fear persecution as Bahai, his
current application is submitted on the basis of his convertion [sic] to
Christianity. In addition, claim that the house of his father was destroyed in
government order because the house was on bail for PA’s escape is not
substantiated.
The claim is not founded.
Settlement prospects are poor given age,
lack of knowledge of any official language of Cda, no relatives in Cda.
Refugee claim not founded.
Application refused on eligibility.
Issues
[10]
The
applicant restated the issues at the hearing as follows:
1. Did the officer ignore
a key piece of documentary evidence (the original baptismal certificate) in
connection with the applicant’s conversion to Christianity?
2. Did the officer fail
to correctly apply the law regarding religious conversion specifically with
respect to sur place refugees?
Applicant’s Submissions
[11]
The
applicant submitted that several findings in the officer’s notes contained
errors. It was submitted that the officer based his decision upon
inconsistencies in his claim which did not exist. In the alternative, it was
submitted that the inconsistencies were not disclosed to the applicant and he
was not given the opportunity to respond to them. The applicant submitted that
the officer breached the principles of natural justice and procedural fairness
(see Malala v. Canada (Minister of
Citizenship and Immigration), (2001) 201 F.T.R. 74, 103 A.C.W.S. (3d)
1200 (F.C.T.D.)), and failed to act according to section 13.1 of immigration
manual OP5, which states:
Applicants should be questioned about the
contradictions in their story. Moreover, any explanation provided by the
applicant should be addressed by the officer and they must consider whether the
explanation is reasonable in all circumstances. Also, any unresolved
inconsistency or concerns regarding an explanation are to be raised by the
officer.
[12]
The
applicant submitted that the officer failed to provide reasons for concluding
that his explanation for not having claimed refugee status while in Europe was not
credible. It was submitted that plausibility findings must be based upon facts
indicating that a claimant’s story was outside the realm of possibility (see Valtchev
v. Canada (Minister of
Citizenship and Immigration) (2001), 208 F.T.R. 267, 107 A.C.W.S. (3d)
293 (F.C.T.D.)). It was submitted that the officer committed a similar error
regarding his explanation for delay in making a claim in Japan. He
explained that he was unfamiliar with the legal system and that after he found
out that he could not obtain a Canadian visa, he made a claim in Japan. It was
submitted that any delay was irrelevant, given that Japan accepted so
few refugees.
[13]
The
applicant submitted that the officer erred in suggesting that he was not
credible because his first application was based upon his fear as a Baha’i, and
his second was based upon his conversion to Christianity. The officer seemed
concerned that his conversion was not genuine due to the apparent inconsistency
in the baptism date. The applicant submitted that the legal test for a fear of
persecution on religious grounds was not the degree of commitment to the
religion or the motive for conversion, but how the conversion would be viewed
by the persecutor (see Sadeghi v. Canada (Minister of Citizenship and
Immigration) (2002), 117 A.C.W.S. (3d) 798 (F.C.T.D.)). It was submitted
that the officer applied the wrong legal test, for assessing a refugee claim
based upon religious identity.
[14]
The
applicant submitted that the officer failed to properly review the evidence, as
the original Japanese certificate stated that he had converted to Christianity
in 2003. It was submitted that the officer failed to consider whether he might
suffer persecution as a Baha’i and an apostate, even if his conversion to
Christianity was not genuine.
[15]
The
applicant submitted that the officer ignored relevant documentary evidence,
including Iranian court documents. It was submitted that the officer was under
a duty to consider all of the evidence, particularly where it contradicted the
decision-maker (see Orgona v. Canada (Minister of
Citizenship and Immigration) (2001), 14 Imm. L.R. (3d) 273, 105
A.C.W.S. (3d) 123 (F.C.T.D.)). It was submitted that the officer erred in
finding that he had no relatives in Canada, as his application indicated that
he had an aunt in Vancouver. It was submitted that the officer also
overlooked evidence regarding resettlement, such as his employment in Japan and
adaptability. The applicant submitted that the officer ignored evidence that
his father’s house had been destroyed.
Respondent’s Submissions
[16]
The
respondent submitted that there were inconsistencies and implausibilities in
the applicant’s evidence. The applicant traveled to Europe many times
between 1985 and 1990, but never sought asylum. It was submitted that it was
implausible that he would not seek asylum if he feared persecution in Iran. The
respondent noted that he had no trouble leaving Iran although he
had been ordered not to leave the country following his release from prison in
1985. It was submitted that the applicant’s delay in claiming refugee status in
Japan was
inconsistent with his fear of mistreatment.
[17]
The
applicant’s baptism certificate indicated that he was baptised in 2005, while
he said that he was baptised in 2003. During the interview, the applicant
stated that he could not leave Iran because he did not have a passport; however,
he also stated that he had traveled outside Iran as a truck
driver and did not need a passport to do so. The applicant also stated that he
had a commercial passport between 1985 and 1990. In addition, during the
interview he stated that he worked as a truck driver in 1975, however, his
application indicated that he was a teacher from 1975 until 1981.
[18]
The
officer found that the applicant’s credibility was weakened by his demeanour.
The applicant hesitated when asked to explain his delay in leaving Iran, and was
evasive when asked about his trial in Iran. He also failed to
properly answer a question about his refugee status in Japan. Finally,
the applicant did not bring all of his previous passports to the interview, as
requested by the officer.
[19]
The
respondent submitted that the officer was entitled to find that the applicant’s
evidence was not credible due to contradictions, inconsistencies and
implausibilities in his testimony (see Jarada v. Canada (Minister of
Citizenship and Immigration), 2005 FC 409). It was submitted that the
Court should not disturb a credibility finding unless it was patently
unreasonable, and the decision should be considered as a whole (see Ochakovski
v. Canada (Minister of
Citizenship and Immigration) (2004), 132 A.C.W.S. (3d) 557, 2004 FC
962).
[20]
The
respondent submitted that refugee claimants were expected to seek asylum at the
first opportunity, and the officer was entitled to consider the applicant’s
delay. It was submitted that the officer provided the applicant with a chance
to explain these inconsistencies and implausibilities during the interview. The
respondent noted the applicant’s statement that he did not want to cause
trouble for his manager by claiming refugee status while travelling for work;
however the manager helped him leave Iran to work in Europe when he was
subject to a court order not to leave the country, and helped him flee in 1990.
It was submitted that the officer fully considered the applicant’s explanation
for having delayed his refugee claim.
[21]
The
respondent submitted that the officer was entitled to rely upon the English
translation of the baptism certificate. It was submitted that the officer gave
the applicant an opportunity to respond to the inconsistent dates, but the
applicant did not indicate that the translation was wrong. The respondent
submitted that the officer considered the applicant’s allegation that he would
be at risk because of his religious beliefs. The officer doubted the
applicant’s conversion to Christianity because he had difficulty answering
questions during the interview. In addition, there was no evidence that the
alleged conversion would come to the attention of Iranian authorities. The
officer noted that the applicant’s allegation that he was at risk as a Baha’i
had been considered during his first refugee claim. In addition, the officer
found that his claim of being at risk as a Baha’i was not credible.
[22]
The
respondent submitted that a decision-maker did not have to refer to every piece
of evidence before him and that the lack of reference to a particular piece of
evidence did not mean that it had been ignored. The officer had reviewed the
file carefully and found that the applicant’s actions since the Iranian court
documents were issued in the 1980s were not consistent with a well-founded fear
of persecution. It was submitted that the officer did not ignore evidence
regarding the destruction of his father’s house, but concluded that these
documents did not establish that the authorities were still interested in the
applicant. It was submitted that the officer properly assessed evidence
regarding his ability to resettle in Canada.
[23]
The
respondent submitted that the applicant was dissatisfied with the weight
attributed to the evidence by the officer and that it was not the role of the
Court to reconsider the evidence that was before the officer (see Hassan v.
Canada (Minister of
Employment and Immigration) (1992), 147 N.R. 317, 36 A.C.W.S. (3d) 635
(F.C.A.)).
Applicant’s Reply
[24]
The
applicant submitted that the officer wrongly emphasized his ability to become
established in Canada (a regulatory requirement), over his need for
protection (a statutory requirement).
[25]
The
applicant noted that in addition to the typographical error regarding the date
of his baptism, the officer overlooked the fact that the translated certificate
indicated that it was signed on “August 23, 20”, which was an obvious error. It
was submitted that the officer did nothing to remedy the deficiencies in the
translated document. The applicant noted that the officer only asked three
questions about his conversion to Christianity, and that he answered them
correctly.
[26]
The
applicant submitted that in failing to adequately examine his claim of
persecution on the basis of his religion, the officer failed to uphold his duty
under subsection 3(2) of IRPA, which recognizes that the refugee program is
primarily about saving lives and protecting people. It was submitted that the
visa officer’s decision was owed little deference, as he did not have expertise
in refugee matters.
[27]
The
applicant submitted that he had not provided inconsistent information about his
employment in 1975. He had indicated that he was a teacher and sought
employment as a trucker during the three month summer break.
[28]
The
applicant submitted that the respondent had referred to his demeanour during
the interview in order to bolster the officer’s finding that he was not
credible. It was noted that the officer never referred to the applicant’s
demeanour in his letter of May 2006 or his decision, as found in the notes
dated April 28, 2006. It was submitted that demeanour was not a credible gauge
of credibility (see Lattmer v. Foster Tobacco Company, [1926] 1
D.L.R. 899 (O.S.C.(A.D.)). The applicant noted that he was a native Farsi
speaker, who was speaking in Japanese, through an interpreter, to an
English-speaking officer. It was noted that the officer only used the words
“hesitated” and “evasive” once in his notes. Finally, the applicant submitted
that the applicant answered questions about his Japanese refugee claim and
indicated that his appeal was pending.
Analysis and Decision
Standard of Review
[29]
A
visa officer’s credibility and related factual findings are subject to review
on the standard of patent unreasonableness (see Khwaja v. Canada (Minister of
Citizenship and Immigration) (2006), 148 A.C.W.S. (3d) 307, 2006 FC
522).
[30]
Issue
1
Did the officer ignore a key
piece of documentary evidence (the original baptismal certificate) in
connection with the applicant’s conversion to Christianity?
Baptismal Certificate
The applicant submitted that
the officer erred by basing his negative credibility finding upon erroneous
information found in the translated baptismal certificate. Having reviewed the
certificates, it appears that the English translation contains two
typographical errors:
1. The original
certificate indicated that the applicant was baptised on September 14, 2003,
while the translated certificate indicated that he was baptised on September
14, 2005; and
2. The original
certificate indicated that it was signed by the Pastor on August 23, 2005,
while the translated certificate indicated that it was signed on August 23, 20.
The officer was concerned that
the applicant’s conversion to Christianity was not bona fide. According
to the officer’s notes, the applicant was asked why he said he was baptized on
September 14, 2003, when the English translation of his baptismal certificate
stated that he was baptized on September 14, 2005. The English translation of
the applicant’s Japanese baptismal certificate accompanied his application for
permanent residence, which was signed in August 2005. This would mean that the
application contained a baptismal certificate which referred to a baptism that
had not yet taken place.
[31]
I
am satisfied that an error was made when translating the certificate, as the
original baptismal certificate shows that it was issued on August 23, 2005. To
hold otherwise would mean that the Pastor issued a certificate for a baptism
that had not yet taken place. Considered in this manner, there is no
contradiction between the applicant’s testimony that he was baptized on
September 14, 2003 and the date of baptism contained in the original baptismal
certificate.
[32]
The
officer makes no reference to the original baptismal certificate in his CAIPS
notes nor is it mentioned in his affidavit. In my opinion, the officer ignored
relevant evidence regarding the applicant’s conversion to Christianity.
[33]
In
my view, it is important to consider that the baptismal certificate was the
only piece of objective evidence submitted by the applicant in support of his
conversion to Christianity. I believe that it was patently unreasonable for the
officer to base his negative credibility finding upon his erroneous
interpretation of the documents. Because I have no way of knowing what
conclusion the officer would have reached regarding the applicant’s credibility
had he considered the evidence contained in the original baptismal certificate,
I must set aside the decision and refer the matter to a different officer for
redetermination.
[34]
Because
of my finding on this issue, I need not deal with the other issues.
[35]
Neither
party wished to submit a proposed question of general importance for
certification for my consideration.
JUDGMENT
[36]
IT
IS ORDERED that the application for judicial review is allowed and the
decision of the officer is set aside and the matter is referred to a different
visa officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27.:
|
11.(1)
A foreign national must, before entering Canada,
apply to an officer for a visa or for any other document required by the
regulations. The visa or document shall be issued if, following an
examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
. . .
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
|
11.(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et
se conforme à la présente loi.
. .
.
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques:
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
|
The Immigration and Refugee Protection
Regulations, S.O.R./2002-227.:
|
139.(1) A permanent resident visa shall be issued to a
foreign national in need of refugee protection, and their accompanying family
members, if following an examination it is established that
. . .
(e) the
foreign national is a member of one of the classes prescribed by this
Division;
. . .
144. The
Convention refugees abroad class is prescribed as a class of persons who may
be issued a permanent resident visa on the basis of the requirements of this
Division.
145. A foreign
national is a Convention refugee abroad and a member of the Convention
refugees abroad class if the foreign national has been determined, outside Canada, by an officer to be a Convention refugee.
146.
(1)
For the purposes of subsection 12(3) of the Act, a person in similar
circumstances to those of a Convention refugee is a member of one of the
following humanitarian-protected persons abroad classes:
(a) the
country of asylum class; or
(b) the source
country class.
(2) The
country of asylum class and the source country class are prescribed as
classes of persons who may be issued permanent resident visas on the basis of
the requirements of this Division.
147.
A foreign national is
a member of the country of asylum class if they have been determined by an
officer to be in need of resettlement because
(a) they are
outside all of their countries of nationality and habitual residence; and
(b) they have
been, and continue to be, seriously and personally affected by civil war,
armed conflict or massive violation of human rights in each of those
countries.
148. (1) A
foreign national is a member of the source country class if they have been
determined by an officer to be in need of resettlement because
(a) they are
residing in their country of nationality or habitual residence and that
country is a source country within the meaning of subsection (2) at the time
their permanent resident visa application is made as well as at the time a
visa is issued; and
(b) they
(i) are being seriously
and personally affected by civil war or armed conflict in that country,
(ii) have been
or are being detained or imprisoned with or without charges, or subjected to
some other form of penal control, as a direct result of an act committed
outside Canada that would, in Canada, be a legitimate expression of freedom
of thought or a legitimate exercise of civil rights pertaining to dissent or
trade union activity, or
(iii) by
reason of a well-founded fear of persecution for reasons of race, religion,
nationality, political opinion or membership in a particular social group,
are unable or, by reason of such fear, unwilling to avail themself of the
protection of any of their countries of nationality or habitual residence.
(2) A source
country is a country
(a) where
persons are in refugee-like situations as a result of civil war or armed
conflict or because their fundamental human rights are not respected;
(b) where an
officer works or makes routine working visits and is able to process visa applications
without endangering their own safety, the safety of applicants or the safety
of Canadian embassy staff;
(c) where
circumstances warrant humanitarian intervention by the Department in order to
implement the overall humanitarian strategies of the Government of Canada,
that intervention being in keeping with the work of the United Nations High
Commissioner for Refugees; and
(d) that is
set out in Schedule 2.
149. The
Minister may, for the purpose of advising the Governor in Council of circumstances
in a country that may justify amending Schedule 2, consult with the
Department of Foreign Affairs and International Trade, the United Nations
High Commissioner for Refugees, the provinces and non-governmental
organizations with substantial knowledge of the country in question.
150.
(1)
An application for a permanent resident visa submitted by a foreign national
under this Division must be made at the immigration office outside Canada that serves the applicant's place of residence and must
be accompanied by either an undertaking or
(a) a referral
from a referral organization;
(b) a referral
resulting from an arrangement between the Minister and a government of a
foreign state or any institution of such a government relating to
resettlement; or
(c) a referal
resulting from an agreement relating to resettlement entered into by the
Government of Canada and an international organization or a government of a
foreign state.
(2) A foreign
national may submit a permanent resident visa application without a referral
or an undertaking if the foreign national resides in a geographic area that
the Minister has determined under subsection (3) to be a geographic area in
which circumstances justify the submission of permanent resident visa
applications not accompanied by a referral or an undertaking.
(3) The
Minister may determine on the basis of the following factors that a
geographic area is an area in which circumstances justify the submission of
permanent resident visa applications not accompanied by a referral or an
undertaking:
(a) advice
from referral organizations with which the Minister has entered into a
memorandum of understanding under section 143 that they are unable to make
the number of referrals specified in their memorandum of understanding for
the area;
(b) the
inability of referral organizations to refer persons in the area;
(c) the
resettlement needs in the area, after consultation with referral
organizations that have substantial knowledge of the area; and
(d) the
relative importance of resettlement needs in the area, within the context of
resettlement needs globally.
151. An officer shall issue a temporary
travel document to a foreign national who has been determined to be a member
of a class prescribed by this Division and who
(a) holds a
permanent resident visa or a temporary resident permit;
(b) does not
hold a valid passport or travel document issued by their country of
nationality or the country of their present or former habitual residence;
(c) does not
hold a valid travel document issued by the United Nations or the
International Committee of the Red Cross and is unable to obtain such a
document within a reasonable time; and
(d) would be
unable to travel to Canada if the temporary travel document were
not issued.
|
139.(1)
Un visa de résident permanent est délivré à l’étranger qui a besoin de
protection et aux membres de sa famille qui l’accompagnent si, à l’issue d’un
contrôle, les éléments suivants sont établis:
. . .
e) il fait
partie d’une catégorie établie dans la présente section;
. . .
144. La
catégorie des réfugiés au sens de la Convention outre-frontières est une
catégorie réglementaire de personnes qui peuvent obtenir un visa de résident
permanent sur le fondement des exigences prévues à la présente section.
145. Est un réfugié au sens de la
Convention outre-frontières et appartient à la catégorie des réfugiés au sens
de cette convention l’étranger à qui un agent a reconnu la qualité de réfugié
alors qu’il se trouvait hors du Canada.
146.
(1) Pour l’application du paragraphe 12(3) de la Loi, la personne dans une
situation semblable à celle d’un réfugié au sens de la Convention appartient
à l’une des catégories de personnes protégées à titre humanitaire
outre-frontières suivantes:
a) la catégorie
de personnes de pays d’accueil;
b)
la catégorie de personnes de pays source.
(2)
Les catégories de personnes de pays d’accueil et de personnes de pays source
sont des catégories réglementaires de personnes qui peuvent obtenir un visa
de résident permanent sur le fondement des exigences prévues à la présente
section.
147.
Appartient à la catégorie de personnes de pays d’accueil l’étranger considéré
par un agent comme ayant besoin de se réinstaller en raison des circonstances
suivantes:
a)
il se trouve hors de tout pays dont il a la nationalité ou dans lequel il
avait sa résidence habituelle;
b) une guerre
civile, un conflit armé ou une violation massive des droits de la personne
dans chacun des pays en cause ont eu et continuent d’avoir des conséquences
graves et personnelles pour lui.
148. (1) Appartient à la
catégorie de personnes de pays source l’étranger considéré par un agent comme
ayant besoin de se réinstaller en raison des circonstances suivantes:
a)
d’une part, il réside dans le pays dont il a la nationalité ou dans lequel il
a sa résidence habituelle, lequel est un pays source au sens du paragraphe
(2) au moment de la présentation de la demande de visa de résident permanent
ainsi qu’au moment de la délivrance du visa;
b)
d’autre part, selon le cas:
(i)
une guerre civile ou un conflit armé dans ce pays ont des conséquences graves
et personnelles pour lui,
(ii)
il est détenu ou emprisonné dans ce pays, ou l’a été, que ce soit ou non au
titre d’un acte d’accusation, ou il y fait ou y a fait périodiquement l’objet
de quelque autre forme de répression pénale, en raison d’actes commis hors du
Canada qui seraient considérés, au Canada, comme une expression légitime de
la liberté de pensée ou comme l’exercice légitime de libertés publiques
relatives à des activités syndicales ou à la dissidence,
(iii)
il ne peut, craignant avec raison d’être persécuté du fait de sa race, de sa
religion, de sa nationalité, de ses opinions politiques ou de son
appartenance à un groupe social particulier, ou, du fait de cette crainte, ne
veut se réclamer de la protection de ce pays.
(2)
Est un pays source celui qui répond aux critères suivants:
a) une guerre
civile, un conflit armé ou le non-respect des droits fondamentaux de la
personne font en sorte que les personnes qui s’y trouvent sont dans une
situation assimilable à celle de réfugiés au sens de la Convention;
b)
un agent y travaille ou s’y rend régulièrement dans le cadre de son travail
et est en mesure de traiter les demandes de visa sans compromettre sa
sécurité, celle des demandeurs ni celle du personnel de l’ambassade du
Canada;
c)
les circonstances justifient une intervention d’ordre humanitaire de la part
du ministère pour mettre en oeuvre les stratégies humanitaires globales du
gouvernement canadien, intervention qui est en accord avec le travail
accompli par le Haut-Commissariat des Nations Unies pour les réfugiés;
d) il figure à
l’annexe 2.
149. Le ministre peut, dans le
but de conseiller le gouverneur en conseil sur la situation d’un pays qui
peut justifier la modification de l’annexe 2, consulter le ministère des
Affaires étrangères et du Commerce international, le Haut-Commissariat des
Nations Unies pour les réfugiés, les provinces et des organisations non
gouvernementales qui possèdent des connaissances approfondies sur ce pays.
150.
(1) L’étranger fait sa demande de visa de résident permanent au bureau
d’immigration hors Canada qui dessert son lieu de résidence et l’accompagne
soit d’un engagement soit de l’une des recommandations suivantes:
a)
une recommandation d’une organisation de recommandation;
b) une
recommandation découlant d’une entente en matière de réinstallation conclue
entre le ministre et le gouvernement d’un État étranger ou d’une institution
de ce gouvernement;
c) une
recommandation découlant d’un accord en matière de réinstallation conclu
entre le gouvernement du Canada et une organisation internationale ou
le gouvernement d’un État étranger.
(2)
L’étranger peut présenter une demande de visa de résident permanent sans
joindre à celle-ci une recommandation ou un engagement s’il réside dans une
région géographique que le ministre désigne, en vertu du paragraphe (3),
comme une région dans laquelle les circonstances justifient que les demandes
de visa de résident permanent puissent ne pas y être accompagnées d’une
recommandation ou d’un engagement.
(3)
Le ministre peut, en se fondant sur les facteurs ci-après, désigner toute
région dans laquelle il estime que les circonstances justifient que les
demandes de visa de résident permanent puissent ne pas être accompagnées
d’une recommandation ou d’un engagement:
a) les
organisations de recommandation l’ont avisé qu’elles étaient incapables de
faire le nombre de recommandations prévues dans leur accord pour la région;
b)
les organisations de recommandation sont dans l’impossibilité de faire des recommandations
dans la région;
c)
les besoins de réinstallation de personnes de la région, appréciés après
consultation des organisations de recommandation qui possèdent des
connaissances approfondies sur cette région;
d)
l’importance relative des besoins de réinstallation de personnes de la
région, compte tenu de ces besoins à l’échelle mondiale.
151.
L’agent remet un titre de voyage temporaire à l’étranger considéré comme
appartenant à une catégorie établie par la présente section qui, à la fois:
a) est
titulaire d’un visa de résident permanent ou d’un permis de séjour
temporaire;
b) n’a pas de
passeport valide ni de titre de voyage délivré par le pays dont il a la
nationalité ou dans lequel il a ou avait sa résidence habituelle;
c)
n’a pas de titre de voyage valide délivré par les Nations Unies ou le Comité
international de la Croix-Rouge et est incapable d’obtenir un tel document
dans un délai raisonnable;
d)
serait incapable d’entrer au Canada si le titre de voyage temporaire ne lui
était pas délivré.
|
OP5
Overseas Selection and Processing of Convention Refugees Abroad Class and
Members of the Humanitarian-protected Persons Abroad Classes:
13.1…
Address applicant with
credibility concerns
Applicants should be
questioned about the contradictions in their story. Moreover, any explanation
provided by the applicant should be addressed by the officer and they must
consider whether the explanation is reasonable in all circumstances. Also, any
unresolved inconsistency or concerns regarding an explanation are to be raised
by the officer.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3669-06
STYLE OF CAUSE: MOHAMMAD
SADEGH SIAMI ASL
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 20, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: O’KEEFE
J.
DATED: April 30, 2007
APPEARANCES:
|
Daniel K. McLeod
|
FOR THE APPLICANT
|
|
Helen Park
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Preston Clark McLeod
Vancouver, British Columbia
|
FOR THE APPLICANT
|
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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