Docket: IMM-1203-14
Citation:
2014 FC 1223
Ottawa, Ontario, December 16, 2014
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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ABBAS GHOLAMI,
FATEMEH NASERIAN MOCHADAM,
ALI GHOLAMI, BATOUL GHOLAMI,
HOURA GHOLAMI, MOHAMAD GHOLAMI AND HOSSEIN GHOLAMI
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Applicants
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and
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MINISTER OF CITIZENSHIP IMMIGRATION AND MULTICULTURALISM
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicants seek refugee protection in Canada and rely principally on Mr Abbas Gholami’s application. They are citizens of Iran, but held permanent resident permits for Kuwait. In fact, they have never been to Iran. Their residency permits for Kuwait have now expired.
[2]
While in Kuwait, the applicants say they received
threatening messages that caused them to fear persecution in Iran. In particular, they fear Mr Gholami’s wife’s Arabic family in Iran, who object to their daughter’s marriage to Mr Gholami, who is Persian. They also fear
that they would be perceived as Arabs in Iran, given that they have spent their
entire lives in the Arabic state of Kuwait, and suffer persecution as a result.
[3]
A panel of the Immigration and Refugee Board
rejected the family’s claim for refugee protection in Canada. The Board found that there was no credible evidence that the applicants would experience
persecution in Iran. While certain family members may have objected to the
marriage, that event took place in 1995 and it is unlikely, according to the
Board, that the threat continues today. In addition, while Arabs experience
discrimination in Iran, the Board concluded that the applicants are likely to
be regarded as Persian, given that the head of the family, Mr Gholami, is
Persian. Further, the family will not experience religious persecution because
they are Shiites, and Shiites comprise the vast majority of the population in Iran. Finally, the Board found that, as failed asylum seekers, the applicants may be
questioned on their removal to Iran, but they are unlikely to face persecution
on that basis.
[4]
The applicants dispute several of the Board’s
conclusions but their main argument is that the Board’s decision was
unreasonable because it failed to appreciate that they self-identify as being Arab
even though Mr Gholami, technically, through his father, is ethnically Persian.
In Kuwait, they spoke, worked and attended school in Arabic. They have always
lived in an Arabic society. They maintain that if they are forced to live in Iran, they will be persecuted there because they will be regarded as Arabs.
[5]
The applicants ask me to overturn the Board’s
decision and order another panel to reconsider their claims.
[6]
I agree with the applicants that the Board’s
decision was unreasonable. In my view, the Board failed to give adequate
attention to the essence of the applicants’ refugee claim – their fear of
persecution in Iran on the basis of their Arab ethnicity. I must, therefore,
allow this application for judicial review and order a reconsideration of the
applicants’ claims.
[7]
The sole issue is whether the Board’s decision
was unreasonable.
A.
Was the Board’s decision unreasonable?
[8]
The applicants’ main argument is that the Board
failed to recognize an essential aspect of their claim, namely, that they would
likely experience persecution in Iran based on a perception that they are
Arabs. That failure, they say, rendered the Board’s decision unreasonable.
[9]
I agree.
[10]
The Board clearly recognized that Arabs face
widespread discrimination in Iran. That finding is well supported in the
documentary evidence.
[11]
However, the Board determined that the applicants
are not Arabs, based solely on the fact that Mr Gholami’s father is Persian. Therefore,
in the Board’s opinion, Mr Gholami is Persian, and the rest of the family would
be perceived as Persian, as well.
[12]
In my view, the Board failed to recognize that
in Iran the applicants would likely be regarded as Arabs, given their language,
upbringing, and family history in Kuwait. As a result, the Board neglected to
consider an important element in the applicants’ claims for refugee protection.
[13]
Accordingly, I find that the Board’s conclusion
does not represent a defensible outcome based on the facts and the law.
II.
Conclusion and Disposition
[14]
The Board overlooked an essential aspect of the
applicants’ claims for refugee status. Therefore, its conclusion that the applicants’
claims should be dismissed was unreasonable. Accordingly, I must allow this
application for judicial review and order another panel of the Board to
consider the applicants’ claims. Neither party proposed a question of general
importance for me to certify, and none is stated.
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