Docket: IMM-1168-16
Citation:
2017 FC 561
Ottawa, Ontario, June 8, 2017
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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SANAZ NAZARI
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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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JUDGMENT AND REASONS
I.
Overview
[1]
The Applicant, Sanaz Nazari, is a citizen of
Iran and of Shia faith. Her husband is a citizen of Pakistan and of Sunni
faith. In November 2000, they were married in the United Arab Emirates [UAE]
where the Applicant’s husband was working as an agricultural engineer. The
Applicant resided with her husband in a house provided by his employer in a
camp outside of Abu Dhabi.
[2]
In June 2003, their son was born in the UAE. By
virtue of having a Pakistani father, the Applicant’s son is a citizen of
Pakistan. He does not hold UAE or Iranian citizenship.
[3]
In July 2005, the Applicant moved to Iran with
her son to live with her parents since her husband’s employer was no longer
able to accommodate families at the worksite camp where they had been living.
While in Iran, the Applicant attended university and studied business
management. Every few months, she travelled to the UAE to visit her husband.
This allowed the Applicant to maintain her permanent resident status in the UAE
and to renew her son’s Iranian visa.
[4]
When the Applicant’s husband obtained new
employment in 2008 which allowed for his family to live with him, the Applicant
returned to the UAE with her son. The Applicant and her son visited Iran
regularly, at least once per year. The family resided in the UAE until the
Applicant came to Canada with her son in February 2015, where they are
currently living with the Applicant’s sister.
[5]
In June 2015, the Applicant sought refugee
protection for herself and her son. Alleging that her husband was at risk of
losing his status in the UAE and was considering returning to his native
village in Pakistan near the Afghanistan border as he was now very religious
and close to his family, the Applicant claimed that she would be killed or
persecuted in a region dominated by the Sunni religion and rejected by her
husband’s devout family on account of her Shia faith. She also claimed that it
would be too dangerous for her son to live with his father alone, and in any
event, her husband did not want to care for the child.
[6]
The Applicant also asserted that it would be
impossible for her to live with her son in Iran as he would never obtain
citizenship or permanent residence there. While Iranian men are able to convey
their nationality to their children or to their wives of foreign nationality,
Iranian women do not have the right to pass on their nationality to their
children or to their husbands of foreign nationality pursuant to article 976 of
the Civil Code of the Islamic Republic of Iran [Civil Code]. This meant that
the Applicant’s son would not be able to attend school or obtain medical care
or any other social benefits. Moreover, her son could only go to Pakistan to
get his Iranian visitor’s permit renewed every three (3) months and this would
be too dangerous for him.
[7]
On September 28, 2015, the Refugee Protection
Division [RPD] accepted the refugee claim of the Applicant’s son against
Pakistan, concluding that if the Applicant’s son lived in his father’s village
in the tribal areas of Pakistan, there was a serious possibility that he could
be forced to join a Taliban militia group or be targeted as the son of fighting
age of a Shia woman.
[8]
Despite determining that the Applicant’s son was
a Convention refugee, the RPD nevertheless rejected the Applicant’s claim
against Iran. The RPD noted that while the Applicant resided in Iran with her
son, her biggest problems were mostly administrative complications linked to
the fact that her son was not a citizen of Iran. Otherwise, her life in Iran
was normal and she had not been ostracized because of her marriage to a citizen
of Pakistan. The RPD found the fact that she returned regularly to Iran with
her son from 2008 to 2014 demonstrated that she did not fear being persecuted
or that her son would be in danger. In addition, the RPD found that while
Iran’s nationality laws were discriminatory towards women, this did not amount
to persecution as family unity is not a concept recognized by Canadian refugee
law. Finally, relying on the decision of this Court in Nakawunde v Canada
(Citizenship and Immigration), 2015 FC 309 at paras 29-30, the RPD
concluded that the forced separation from her son would not constitute cruel
and unusual treatment or punishment pursuant to section 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. Rather, the Applicant’s
concerns were relevant to humanitarian and companionate relief under section 25
of the IRPA.
[9]
The Applicant appealed the RPD’s decision to the
Refugee Appeal Division [RAD].
[10]
In a decision dated February 24, 2016, the RAD
upheld the RPD’s decision and confirmed that the Applicant is neither a
Convention refugee nor a person in need of protection pursuant to sections 96
and 97 of the IRPA.
[11]
The Applicant now seeks judicial review of the RAD’s
decision.
II.
Analysis
[12]
The reasonableness standard of review applies
when this Court is reviewing the RAD’s determination on a question of mixed
fact and law (Canada (Citizenship and Immigration) v Huruglica, 2016 FCA
93 at para 35). The Court should not intervene if the RAD’s decision is
justifiable, transparent and intelligible and if it falls within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
[13]
While framed differently in her application for
judicial review, the Applicant’s main contention is that the RAD should have
considered and given more weight to Canadian and international law which holds
that the discriminatory interference with family life, unity and integrity
constitutes persecution. The Applicant argues that a fundamental human right is
breached where a state fails to recognize the fundamental relationship between
a parent and a child or interferes with that relationship being maintained.
According to the Applicant, the breach is even more compounded where the denial
of that relationship is rooted in discrimination based on gender.
[14]
I am of the view that the RAD’s decision is
reasonable for the following reasons.
[15]
Contrary to the Applicant’s contention, the RAD
did indeed consider the Applicant’s arguments that her right to family unity
should be construed in a manner compliant with international human rights
instruments. The RAD accepted there are international norms at play, citing for
instance the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights. It
added, however, that Parliament is the ultimate source of the law in Canada and
that the Applicant’s claim must be adjudicated based on “clear provisions of an Act of Parliament” which in
the Applicant’s case relate to sections 96 and 97 of the IRPA and the
regulations, rules and jurisprudence which flows from such law.
[16]
Relying on Canadian jurisprudence related to the
meaning of persecution, the RAD indicated that it simply could not accept the
proposition that the administrative requirements to maintain the Applicant’s
proximity to her son amounted to persecution. The RAD found that even if it
accepted that the Applicant fell within the category of “a particular social group” pursuant to section 96 of the
IRPA—Iranian women who marry foreign men and are unable to convey their
nationality to their husbands and children or a mixed-marriage Shia-Sunni
family— the Applicant’s situation did not amount to persecution as understood
in Canadian law.
[17]
Canadian jurisprudence recognizes the general
right of countries to regulate and control the granting of citizenship and the
entry of non-nationals into their territory (De Guzman v Canada (Minister of
Citizenship and Immigration), 2005 FCA 436 at para 97). Parliament has done
so principally through the IRPA (Kanthasamy v Canada (Citizenship and
Immigration), 2015 SCC 61 at para 9; Canada (Public Safety and Emergency
Preparedness) v J.P., 2013 FCA 262 at para 14, rev’d on other grounds in B010
v Canada (Citizenship and Immigration), 2015 SCC 58).
[18]
Canadian jurisprudence also provides that if a
country or state exercises this right in a discriminatory manner which imposes
limitations based on one of the enumerated grounds of persecution, such
discrimination is a factor to be considered in assessing whether a claimant has
an objective fear of persecution (Canada (Minister of Citizenship and
Immigration) v Hamdan, 2006 FC 290 at paras 23-24).
[19]
Having said that, even if one were to agree with
the Applicant that the alleged discrimination in this case is gender-based and
that the Applicant falls within the category of a “particular
social group” as defined under section 96 of the IRPA, the issue at the
core of the Applicant’s argument is whether the definition of Convention
refugee incorporates the concept of family unity. The Applicant indeed admitted
before the RPD that other than administrative problems, she herself faced no
personal harm in Iran, eliminating any issue of personal risk.
[20]
While Canadian immigration laws may strive to
facilitate family unity in certain circumstances such as those contemplated by
section 25 of the IRPA, Canadian refugee law does not recognize any fundamental
right for refugee claimants to live together (Chavez Carrillo v Canada
(Citizenship and Immigration), 2012 FC 1228 at paras 15, 17; Jawad v
Canada (Citizenship and Immigration), 2012 FC 1035 at para 10; Canada
(Minister of Citizenship and Immigration) v Khan, 2005 FC 398 at para 11).
Moreover, the concept of family unity does not relieve a refugee claimant of
the onus of demonstrating that he or she falls within the definition of “Convention refugee” (Garcia Garcia v Canada
(Citizenship and Immigration), 2010 FC 847 at para 15).
[21]
The RAD’s decision is therefore consistent with
the jurisprudence of this Court.
[22]
I do not find that the RAD’s failure to address
in further detail certain elements of the Applicant’s evidence or arguments
indicates that the RAD ignored them (Thiara v Canada (Citizenship and
Immigration), 2007 FC 387 at paras 18, 28, 41, aff’d in Thiara v Canada
(Citizenship and Immigration), 2008 FCA 151 at para 9). It was not
necessary for the RAD to do so given that the determinative issue for the RAD
was that it considered the Applicant’s claim to be based on both speculation
and implausibility.
[23]
The RAD considered speculative the Applicant’s
allegation that it would be impossible for her son to immigrate to Iran. Like
the RPD, the RAD found it difficult to believe that there was no mechanism,
albeit difficult, for the Applicant to secure permanent status for her son in
Iran provided her husband was willing to cooperate. The RAD noted that the
Applicant’s son was able to move in and out of Iran on several occasions to
maintain his status in Iran and concluded that the Applicant had not
established that it was impossible for her son to secure permanent status in
Iran.
[24]
This conclusion is both reasonable and supported
by the evidence on the record. In one of the articles provided by the
Applicant, the author discusses the limitations on the ability of Iranian women
to pass citizenship to their children. While most of the article relates to the
situation of children “born in Iran” to Iranian
mothers and foreign fathers, I note that the author also indicates that
children of Iranian women born outside of Iran “must
pursue citizenship through other naturalization procedures in the Civil Code, a
difficult task”. This statement is supported by a footnote referring to
article 983 of Iran’s Civil Code which sets out the process for submitting an
application for naturalization. Accordingly, it was not unreasonable for the
RAD to find that the Applicant had not demonstrated that it was impossible for
her to secure status in Iran, even if it would be difficult to do so.
[25]
The RAD also found inconsistent the Applicant’s
argument that she was at risk in Iran because she married a Sunni. The RAD
properly noted that the Applicant had lived and travelled in and out of Iran
repeatedly since her marriage in 2000 and there was no evidence that she had
experienced any problems between 2000 and 2015.
[26]
In addition to finding some of the Applicant’s
allegations to be speculative, the RAD also considered “simply
implausible” the Applicant’s allegation that her husband would want to
return to a small village in Pakistan. Her husband had lived in the UAE since
at least 2000 and at least two (2) of his brothers were also present in the
UAE, one of whom had lived there for over twenty-five (25) years.
[27]
Overall, the RAD was of the opinion that all of
the Applicant’s allegations were “open to question”
and that if the Applicant returned to Iran, she had not identified a real risk
of harm of persecution or a risk under section 97 of IRPA.
[28]
While the Applicant may disagree with the RAD’s
assessment and the weight it gave to the Applicant’s evidence, it is not the
function of this Court upon judicial review to substitute its own view of a
preferable outcome and to reweigh the evidence that was before the RAD and the
RPD (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 59, 61). The RAD’s
decision must be viewed as an “organic whole” (Communications,
Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper,
Ltd, 2013 SCC 34 at para 54) and the adequacy of reasons is not a
stand-alone ground of review (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 14, 16).
[29]
Ultimately, I find that the concerns of the
Applicant would be best addressed in a humanitarian and compassionate
application, as per section 25 of the IRPA. At the hearing, counsel for the
Applicant indicated that such an application had been filed but I am unaware if
it has been adjudicated at this point.
[30]
To conclude, I find the RAD’s decision to be
reasonable as it is justified, transparent and intelligible and falls within the range of possible acceptable outcomes that are
defensible in respect of the facts and law (Dunsmuir at para 47).
[31]
The Applicant proposes a number of certified
questions. Because I find that they are not dispositive of the matter, I will
not certify these questions (Zhang v Canada (Citizenship and Immigration),
2013 FCA 168 at para 9; Canada (Minister of Citizenship and Immigration) v
Zazai, 2004 FCA 89 at para 12; Pierre v Canada (Citizenship and
Immigration), 2012 FC 1249 at paras 46-47).
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