Date: 20060426
Docket: IMM-3462-05
Citation: 2006 FC 521
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
MEHRNAZ JOLINE CHOUBAK
(a.k.a. MEHRNAZ CHOOVAK)
Respondent
REASONS FOR ORDER
1. Introduction
[1] The Applicant, the Minister of Citizenship and Immigration (the Minister), applies for judicial review of the decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated April 21, 2005, wherein the Board found the Respondent, Mehrnaz Joline Choubak, to be a Convention refugee
[2] The Applicant asserts that the Board erred in finding that the Respondent was not excluded by virtue of Article 1E of the United Nation Geneva Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6 (the Refugee Convention). The Applicant does not challenge the Board's finding that the Respondent had established a well-founded fear of persecution in Iran due to her perceived political opinion, her religion, and her membership in a particular social group.
[3] This is the second time a decision of the Board concerning the Respondent's refugee claim has come before the Court.
2. Factual Background
[4] The Respondent (now known as Melisa Joline Choubak) was born on June 11, 1982 in Tehran, Iran. She is a citizen of Iran. In March 1986, the Respondent accompanied her mother to Germany and was given asylum under the guardianship of her aunt and uncle by a judgment of the local guardianship court. Her aunt and uncle had been accepted in Germany as refugees from Iran in 1985. The Respondent was granted a special temporary residence permit. Her mother travelled back to Iran, and visited the Respondent once a year in Germany when she was allowed to leave Iran. In 1998, the Respondent's mother moved to Germany and reclaimed guardianship over the Respondent.
[5] In 1999, the Respondent applied for and obtained a student visa from the Canadian Embassy in Bonn, Germany, for the purpose of attending school in Toronto. The Respondent arrived in Canada on September 15, 1999. Five days later, she made a claim for refugee protection against Germany on the grounds of race, nationality and political opinion. While the Respondent stated in her personal information form (PIF) that she could not return to Iran, she did not at that time make a specific claim of persecution against Iran. She did, however, amend her PIF to claim against Iran prior to her second refugee hearing.
[6] At the time the Respondent travelled to Canada, she was the holder of a document issued by the German government called an unbefristete Aufenhaltserlaubnis (a permanent residence permit). A permanent residence permit was first issued to the Respondent in 1994 and had been renewed several times. When the Respondent came to Canada, her German residency permit was valid until December 31, 2000.
3. Procedural History
A. First Refugee Hearing
[7] At the Respondent's first refugee determination hearing, the Minister intervened to argue that the Respondent should be excluded from refugee protection under section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, on the basis that she fell within Article 1E of the Refugee Convention.
[8] Section 98 states that:
| 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
|
98. La personne visée aux sections E ou F de l'article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
|
[9] Article 1E of the Refugee Convention reads as follows:
| This Convention shall not apply to a person who is recognized by the competent authorities of 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.
|
Cette Convention ne sera pas applicable à une personne considérée par les autorités compétentes du pays dans lequel cette personne a établi sa résidence comme ayant les droits et les obligations attachés à la possession de la nationalité de ce pays.
|
[10] A two-member panel of the then Convention Refugee Determination Division (the First Panel) heard the Respondent's claim on April 4, 2001. It released written reasons on May 31, 2001, on the preliminary question of exclusion. The First Panel determined that the Respondent's "temporary permanent status in Germany was null and void" as it had expired by the time of her refugee hearing, that the Respondent no longer had the right to return to Germany, and that her residence status in Germany was permanently abandoned. As a result, the panel found that Article 1E of the Refugee Convention did not apply to the Respondent. By letter dated June 7, 2001, the First Panel also notified the Respondent that it found her to have a well-founded fear of persecution if she were to be returned to Iran. Therefore, the panel found her to be a Convention refugee.
B. Judicial Review before Justice Paul Rouleau
[11] The Minister applied to judicially review the First Panel's decision, arguing that the panel erred in finding that Article 1E of the Refugee Convention did not apply to the Respondent and that she would face persecution if she returned to Iran. The Minister argued that the Respondent had allowed her permanent residence status in Germany to lapse and, as a consequence, could not benefit from her voluntary action to avoid exclusion pursuant to Article 1E of the Convention.
[12] In his decision released on May 17, 2002, Justice Paul Rouleau concluded that the First Panel had erred in finding that the Respondent did not have the right to return to Germany: Canada (Minister of Citizenship and Immigration) v. Choovak, 2002 FCT 573. Justice Rouleau held that the proper time for determining the existence of the right to return to a country is not the date of the refugee hearing, but the date of the application for admission to Canada. In support of his statement as to the relevant date, Justice Rouleau cited Mahdi v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1623 (QL), wherein at paragraph 12 the Federal Court of Appeal held as follows:
[...] the real question that the Board had to decide in this case was whether the respondent was, when she applied for admission to Canada, a person who was still recognized by the competent authorities of the United States as a permanent resident of that country.
[13] On the question of whether the Respondent was recognized by competent authorities in Germany as a permanent resident of Germany at the time of her admission to Canada, the Court held that she was. Justice Rouleau determined that the grey travel document (the unbefristete Aufenhaltserlaubnis) issued to the Respondent gave her permanent residence status in Germany subject to renewal every two years.
[14] Justice Rouleau further found that the Respondent's status met the criteria adopted by the Court in Shamlou v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1536 (T.D.) (QL), for determining whether the Respondent had the "rights and obligations" attached to the possession of nationality in Germany which would bring her within Article 1E.In Shamlou, the Court endorsed the following basic rights as associated with nationality: the right to return, the right to reside for an unlimited period of time, the right to study, the right to work, and access to basic social services. Justice Rouleau found that, by her own testimony, the Respondent established that she was able to work and study in Germany; that she was entitled to and received a small stipend from the government for her care; and that she was also able to leave and return to Germany, as she had done previously for a school field trip.
[15] As a result, Justice Rouleau held that the Minister had put forward prima facie evidence that Article 1E applies to the Respondent, and that the onus shifted to the Respondent to demonstrate why, having caused her permanent residence status to have lapsed, she could not have reapplied and obtained a new visa. With regard to meeting that onus, Justice Rouleau found that, on the evidence, the Respondent had not rebutted the prima facie case that she had a right to return to Germany.
[16] Justice Rouleau consequently quashed the First Panel's decision with respect to its finding that Article 1E did not apply. Justice Rouleau also quashed the First Panel's finding that the Respondent was a Convention refugee, stating that the panel erred in not turning its mind to the specific claim made by the Respondent against Germany and in considering the "virtually non-existent and, at best, an unspecified claim against Iran". Justice Rouleau remitted the matter back to the Board for re-determination by a differently constituted panel.
C. Second Refugee Hearing
[17] At the Respondent's second refugee hearing, the Applicant did not intervene. Rather, the Applicant relied on previous submissions and exhibits and the decision of Justice Rouleau. The Respondent's second refugee hearing took place over four days: July 15, 2003, October 16, 2003, February 19, 2004 and March 17, 2005.
[18] On April 21, 2005, the Board issued its written reasons, deciding that the Respondent was not subject to the exclusion clause, Article 1E of the Refugee Convention, and finding that she had established a well-founded fear of persecution against Iran.
D. Present Judicial Review
[19] The Minister applied to judicially review the Board's decision with respect to Article 1E. Leave for judicial review was granted on September 12, 2005.
4. Impugned Decision
[20] Below, I will only address the Board's findings respecting the exclusion of the Respondent from refugee protection by virtue of Article 1E of the Refugee Convention as that is the only matter raised in this application for judicial review. The Minister is not challenging the Board's finding that the Respondent has established a well-founded fear of persecution against Iran. I note also that during the course of her second refugee hearing, the Respondent did not pursue her allegations of persecution against Germany.
[21] Applying the decision of Justice Rouleau, the Board fixed the relevant date for determining exclusion at September 15, 1999 - the day the Respondent arrived in Canada. In its decision, the Board examined whether under German law, the Respondent still had residency in Germany as of that date. Specifically, the Board considered section 44 - "Termination of lawful residence; continuation of restrictions" - of the German Act Concerning the Entry and Residence of Aliens in the Territory of the Federal Republic (the Aliens Act).
[22] In its decision, the Board cited section 44(1) of the Aliens Act as stating the following in English:
44(1) Except where the validity of a residence permit has expired or where it has been revoked or there is cause for cancelling it, the permit will lapse if the alien:
1. is deported,
2. leaves the country for a reason which is inherently other than temporary,
3. has left the country and has not re-entered within six months, or any longer time limit fixed by the Aliens Authority.
Of specific interest to the Board was section 44(1)2, under which a residence permit lapses if the person leaves the country "for a reason which is inherently other than temporary". The Board held that this provision applied to the Respondent, finding that "the evidence establishes that when the claimant left Germany, her intention was to remain permanently in Canada". The Board also accepted the Respondent's testimony that prior to coming to Canada she had discussed with her mother, her aunt and uncle in Germany, and her uncle in Canada her intention to seek refugee protection in Canada.
[23] As a consequence, the Board held that once the Respondent left Germany for Canada, intending to stay permanently, her German residency permit lapsed and she forfeited her right to return and the other basic rights enumerated by the Court in Shamlou, above. Specifically, the Board member stated the following:
I find that by virtue of section 44(1)2 of the Alien's Act, the claimant's residence permit lapsed when she decided to leave Germany, with the intention of remaining permanently in Canada.
[24] As the Board found that at the time of her "admission" into Canada the Respondent was no longer recognized as having the rights and obligations of a national of Germany, the Board held that Article 1E of the Refugee Convention did not apply to her. At pages 19 and 20 of its decision, the Board stated:
The claimant's German residency permit lapsed on September 15, 1999, when she left Germany for Canada, with the intention to stay in Canada permanently. She had no automatic right to return to Germany once she came to Canada and according to the relevant German law and communications from German officials entered as exhibits in this hearing, it is unlikely that she would have been able to reacquire a German residency permit. I find that this is particularly so, once the claimant applied for refugee status in Canada on September 20, 1999, giving effect to her intention before leaving Germany.
Once the claimant left Germany for Canada, intending to stay permanently, resulting in the lapsing of her residency permit, she forfeited the right of return to Germany, and the other "basic rights" enumerated by the courts in Shamlou. Applying the test enunciated by the Federal Court of Appeal in Mahdi, when she applied for admission to Canada, the claimant was no longer recognized by the competent authorities of Germany as a permanent resident of the country.
In reaching its decision, the Board stated that it also took into account the Respondent's reason for leaving Germany, namely that she was being harassed and teased because of her race and nationality which resulted in psychological and medical problems for her.
[25] Although the Board found that Article 1E did not apply to the Respondent, it continued on to determine whether the Respondent could meet the onus of rebutting a prima facie finding that Article 1E applies. The Board considered the evidence as to whether the Respondent could have reapplied and obtained a new visa from German authorities. The Board held that the lapsing of her permanent residency status left the Respondent with no automatic right to return to Germany. The Board also found that it was unlikely that the Respondent would be able to reacquire a German residency permit. After reviewing provisions in the Aliens Act - in particular, sections 16 and 7 which set out criteria for residency status - the Board determined that, on the balance of probabilities, the Respondent would likely be refused a residence permit.
[26] Finally, the Board stated that the Respondent could not be faulted for leaving Germany permanently for Canada, under the circumstances, stating: "I do not regard her actions as 'asylum shopping'."
5. Issues
[27] The sole issue raised in this application for judicial review is whether the Board erred in determining that the Respondent was not subject to Article 1E of the Refugee Convention, and thereby excluded from refugee protection in Canada under section 98 of the IRPA. More specifically, the question before this Court is whether the Board erred in finding that by virtue of section 44(1)2 of the Aliens Act "competent authorities" in Germany would have considered the Respondent to have lost "the rights and obligations which are attached to the possession of [German] nationality" at the time of her admission to Canada, namely, September 15, 1999.
6. Standard of Review
[28] The Applicant does not suggest a standard of review applicable to the Board's decision in the circumstances of this case.
[29] The Respondent submits that a determination by the Board on an issue of foreign law is a finding of fact, and as such, is subject to deference by the Court on review. Referring to subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7, the Respondent asserts that the applicable standard of review is patent unreasonableness. In support of her position, the Respondent also refers to Canada (Minister of Citizenship and Immigration) v. Saini, 2001 FCA 311. In that case, the Federal Court of Appeal stated at paragraph 26 that:
Foreign law is a question of fact, which must be proved to the satisfaction of the Court. Judicial findings about foreign law, therefore, have always been considered on appeal as questions of fact (see J.-G. Castel, Canadian Conflict of Laws, 4th ed. (Toronto: Butterworths, 1997), at page 155). Moreover, it is well settled that this Court will only interfere with a finding of fact, including a finding of fact with regard to expert evidence, if there has been a palpable and overriding error (see for example N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247; [1976] 2 S.C.R. 802">Stein et al. v. "Kathy K" et al. (The Ship), [1976] 2 S.C.R. 802).
[30] In my opinion, Saini, above, does not represent the standard of review appropriate to the circumstances of this case, in particular, because the Federal Court of Appeal was reviewing a decision of the Federal Court - Trial Division and not a decision of an administrative tribunal. The Court of Appeal in Saini dealt with findings of a trial judge and applied the test in Housen v. Nikolaisen, [2002] 2 S.C.R. 235. In my view, this is not the test to be applied for reviewing decisions of administrative tribunals.
[31] To establish the appropriate standard for reviewing the Board's decision in this case, it is necessary to apply the pragmatic and functional approach first set out by the Supreme Court of Canada in Pushpanathan v. Canada(Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and re-affirmed in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. Such an approach involves considering the following four contextual factors in order to determine the level of deference to be afforded the Board and the corresponding standard for reviewing the Board's decision:
(1) the presence or absence of a privative clause or statutory right of appeal;
(2) the expertise of the tribunal;
(3) the purposes of the legislation and the provision in particular; and
(4) the nature of the question.
[32] Below, I will review each of the four factors in turn to determine the appropriate standard for reviewing the Board's finding with respect to the meaning of section 44(1)2 of the Aliens Act and its application to the circumstances of the Respondent's case.
(1) The presence or absence of a privative clause or a statutory right of appeal
[33] The IRPA contains neither a privative clause nor a statutory right of appeal. However, by virtue of subsection 72(1), a party can apply to judicially review decisions of the Board to the Federal Court; such applications require leave of the Court. Notwithstanding the restricted right to challenge decisions of the Board, I am of the view that, with regard to this first factor, Parliament intended the Court to retain its general supervisory jurisdiction.
(2) The relative expertise of the Board
[34] The matter to be decided here is whether the Board has particular expertise, relative to the Court, in determining the content of German law related to residency status. At paragraph 33 of Pushpanathan, above, the Supreme Court of Canada stated that relative expertise involves considering the following three dimensions:
- the Board's expertise;
- the Court's own expertise relative to that of the Board; and
- the nature of the specific issue before the Board relative to the Court's expertise
[35] In Dr. Q., above, at paragraph 28, the Supreme Court further stated that "greater deference will be called for only where the decision-making body is, in some way, more expert than the courts, and the question under consideration falls within the scope of this greater expertise".
[36] In the present case, the nature of the specific issue decided by the Board is the meaning of section 44(1)2 of the Aliens Act. The jurisprudence establishes that determining the content of foreign law is a question of fact: see Saini, above and Canada (Minister of Citizenship and Immigration) v. Sharma, [1995] F.C.J. No. 1151 (T.D.) (QL). The jurisprudence has also established that the Board has special expertise in evaluating evidence and determining facts: see Aguebor v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.) (QL).
[37] The Board's decision in this case, however, does not concern the evidentiary basis for the Respondent's claim for refugee protection or a finding in respect of the credibility of the Respondent. It is recognized that such factual determinations are within the purview of the Board's expertise. In this case, the Board's factual finding is not related to the core of its expertise. Rather, the decision at issue revolves around whether by operation of section 44(1)2 of the Aliens Act the Respondent lost her residency status in Germany, including her right to return to Germany, from the moment she decided that she wanted to stay in Canada permanently. Ultimately, the Board's decision concerns an interpretation of German law and its effect on the Respondent's situation. In my view, such a finding is not within the expertise of the Board. I find that the Court is in a better position to determine whether the evidence sufficiently establishes the content of section 44(1)2 of the Aliens Act. As a result, with regards to this second factor, I would extend less curial deference to the Board.
(3) the purpose of the IRPA and the exclusion provisions
[38] The Supreme Court of Canada has held that the level of deference to be granted to an administrative decision maker depends on whether the role it is performing is one of balancing the interests between competing constituencies, or of establishing the rights and obligations of a party: see Pushpanathan, above at paragraph 36. A greater level of deference is to be afforded to the Board when it is engaged in the former role.
[39] In understanding the role played by the Board in this case, it is necessary to consider the purpose of the IRPA more generally and the exclusion provision, in particular. With respect to refugee protection, the purpose of the IRPA is to provide a safe haven in Canada to persons who have established a well-founded fear of persecution: see the IRPA, subsection 3(2). However, the IRPA also places restrictions on who is entitled to refugee protection in Canada. Specifically, section 98 of the IRPA - the exclusion provision - stipulates that persons who come within the definition of Article 1E of the Refugee Convention cannot be found to be Convention refugees by the Board. As such, the role of the Board is to determine whether the Respondent is entitled to refugee protection in Canada, rather than to balance between interlocking interests. Taken as a whole, the legislative purpose of the IRPA suggests a lesser degree of deference ought to be granted to the Board with respect to its finding that the Respondent is not subject to Article 1E of the Refugee Convention.
4) the nature of the question
[40] In the present case, the question before the Board concerns the Applicant's residency status in Germany as of September 15, 1999 - the date of her admission into Canada. The Board must first determine the meaning of section 44(1) of the Aliens Act, and then it must apply the law as determined to the circumstances of the Respondent's case. The jurisprudence establishes that determining the content of foreign law is a finding of fact, while determining how the foreign law is applied is a question of law: see Sharma, above, at paragraph 10. In my opinion, the nature of the question militates towards affording less deference to the Board.
[41] Considering the above contextual factors and the circumstances of this case, I find that the standard of review applicable to the Board's decision that the Respondent was not excluded from refugee protection in Canada by virtue of Article 1E of the Refugee Convention is reasonableness simpliciter. In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56, the Supreme Court of Canada described the reasonableness standard as follows:
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it.
7. Analysis
[42] At the outset, I wish to confirm that this is not a case concerning the operative date of the Article 1E exclusion. In his decision in Choovak, above, Justice Rouleau established that date to be the time of the Respondent's admission to Canada. In following Justice Rouleau's decision, the Board stated the relevant date for determining whether the Respondent is excluded from refugee protection in Canada as being September 15, 1999. The parties in this application for judicial review do not dispute this finding.
[43] Moreover, it is not disputed that at the time of her arrival in Canada, the Respondent was in possession of a German permanent residence permit - an unbefristete Aufenhaltserlaubnis - in her name, which on its face was valid until December 31, 2000. I note that along with her authorization to study in Canada, the Respondent used this residency permit to travel to Canada. Additionally, the Respondent did not challenge Justice Rouleau's finding that the residency permit satisfied the requirements set out in Shamlou, above, in providing the Respondent with the rights of a German national, including the right to return to Germany.
[44] In its decision, the Board effectively concluded that the Minister could no longer establish a prima facie case that the Respondent was excluded under Article 1E at the time of her admission to Canada. In making such a finding, the Board adopted the Respondent's characterization of section 44(1)2 of the Aliens Act. At page 44 of the transcript of the refugee hearing, the Board member described his understanding of the Respondent's submission as follows:
Right, okay. So, as I understand your interpretation of [section 44(1)2], the question is what was the reason the person left the country, regardless as to whether the reason was ever communicated to the [German] authorities? So we look at the best evidence to try and determine whether the person left for reasons inherently other than temporary, if I determine that that was the reason she left and the making of the refugee claim was just the manner of implementing her desire to leave for a - permanently, or for a reason that wasn't that was other than inherently temporary, then by operation of law, her residence permit would have expired as soon as she formed the intention to leave for a reason, other than temporary.
[45] The Board also relied on the Respondent's testimony and correspondence between the Respondent's counsel and German consular officials in Canada as evidence of the content and meaning of section 44(1)2. The Board accepted this evidence as sufficient proof that under German law competent authorities would consider the Respondent to have relinquished her residency status in Germany upon her arrival in Canada because the Respondent had intended to leave Germany for good.
[46] The issue for the Court to determine is whether such a finding was reasonably open to the Board. In my opinion, the Board's decision cannot stand. In the circumstances of this case, I find that it was unreasonable for the Board to hold that the meaning of German law turns on the subjective desire of the Respondent.
[47] Unlike with other findings of fact made by the Board in determining refugee claims, the criterion for establishing the "fact" in this case - that is, the content of section 44(1)2 of the Aliens Act - requires proof by way of expert evidence of that foreign law. As noted in Marvin Baer et al., Private International Law in Common Law Canada: Cases, Texts, and Materials (Toronto: Emond Montgomery Publications Ltd., 2003) at page 519:
At common law, foreign law must be proved as a matter of fact by the evidence of persons who are experts in that law. In the absence of agreement or statutory authority, it is insufficient to simply place the text of the relevant foreign statutes (even when authenticated), judicial decision, or other authority before the court. Written sources and references are normally admissible only when introduced in support of the evidence of expert witnesses in which event "the passages and references cited by them will be treated as part of their testimony." (See Allen v. Hay (1922), 64 SCR 76, at 80-81).
[48] After reviewing the record before the Board, I find that there is insufficient evidence to justify the Board's finding with respect to section 44(1)2 of the Aliens Act. The Board did not have any expert evidence to assist it in interpreting the content of the Aliens Act. In fact, the Board did not even have an authenticated version of the relevant statutory provisions. The Board had only an English-language version of section 44(1)2 of the Aliens Act, and even that version was not certified as an accurate translation of the original, which was presumably written in German. Further, the comments made by German consular officials cannot be deemed to constitute evidence of persons who are experts in German law. Indeed, there is no indication of the qualifications of the consular officials to give a legal opinion as to the proper interpretation of section 44(1) of the Aliens Act.
[49] Even if I were to disregard my significant concerns with the quality of the evidence before the Board, the evidence adduced, in my view, does not support the conclusion reached by the Board. The particular provision referred to by the Board - section 44(1)2 - states that a person's residency in Germany lapses if the person leaves "for a purpose that is inherently other than temporary" [my emphasis]. The Board appears to have accepted that the Respondent's entirely subjective decision to leave Germany and not return is sufficient under German law to establish the loss of residency status. The Board accepted her counsel's argument that it was unnecessary for the German authorities to know of the Respondent's intention to leave Germany permanently in order for section 44(1)2 to become operative. Accordingly, all that was required was her thinking that her leaving was "other than temporary". Such an interpretation would also mean that the Respondent could have returned to Germany if she had been unsuccessful in claiming refugee protection in Canada since German authorities would have been unaware of her intention to leave Germany permanently.
[50] To accept such an argument would be to accept that permanent residency status in Germany can be determined solely on an individual's own subjective assessment at the time he or she leaves the country. The lack of an objective component in determining loss of residency status under German law makes such a test unworkable and in my view opens the door to jurisdiction shopping, the very consequence intended to be prevented by Article 1 E of the Convention. Further, it is unreasonable, on the evidence before the Board, to accept that this is a proper interpretation of German law. In my view, the evidence before the Board supports a finding that the Respondent could have returned to Germany without difficulty at the time of her admission to Canada, and that her residency status in Germany was not in jeopardy until at least six months after she left Germany. Indeed, the Applicant's own evidence suggests that German authorities would have let her back in.
[51] Much of the evidence which contradicts the Board's finding that "competent authorities" in Germany would have considered the Respondent to have lost her German residency status the moment she left for Canada was cited by the Board in its reasons. Specifically, the Board mentions the following evidence that was before it:
· The claimant testified that when she went to the German Consulate in Toronto in March 2001 to inquire about her status in Germany, she was advised that since she had been outside of Germany for more than six months, her residency permit would have expired and that she would have to apply for a new visa if she intended to return to Germany.
· On March 6, 2003, the Respondent's counsel wrote to the German Consulate to inquire about the present status of the Respondent. Counsel did not name the Respondent but set out some material facts including that the Respondent had resided in Germany from 1986 until 1999; that she left Germany in 1999 "with no intention of returning and has not returned"; and that she has an identity document - an unbefristet Aufenhaltserlaubnis - issued by Germany which was valid until December 2000 but had not been renewed. The Respondent's counsel asked whether "the aforementioned status would exist upon return to Germany", among other questions. The following day, S. Kohler, a visa officer with the German Consulate, replied and in response to the above question stated that "[t]he status of the individual ceased to exist following German regulations after 6 months".
· On May 21, 2003, Peter Ziegler, Counsellor, Cultural and Legal Affairs, with the German Embassy in Ottawa wrote to the Respondent's counsel in reply to his inquiry about the Respondent's German residency document. Mr. Ziegler stated that:
Under s. 44 I Nr. 1 of the German Aliens Act, the unlimited residence permit expires when the resident is absent from Germany for more than six months. The person you mentioned could not have that document renewed while being in Canada because it was still valid. The only thing she could have done was to go back to Germany to avoid the six months being completed.
[52] Although not determinative of the content of section 44(1)2, the above noted evidence indicates that if the Respondent had returned to Germany within six months after her arrival in Canada, German authorities would likely have allowed her to re-enter the country on the basis of her permanent residence permit. By extension, in my view, it seems clear that "competent authorities" in Germany would not have considered the Respondent's residency status to have lapsed immediately upon her leaving Germany.
[53] The only evidence that supports the Board's finding that it was the subjective desire of the Respondent that determined her residency status in Germany as of September 15, 1999, is the response of Katrin Siegel, a visa officer with the German Consulate in Toronto. The Respondent's counsel had written to Ms. Siegel on February 19, 2004, with several questions, including: "Section 44(1)2. of the Aliens Act states that a residence permit lapses if the alien 'leaves the country for a reason which is inherently other than temporary'. Does this mean that the residences permit lapses in law at the time that the holder leaves Germany if there is no intent to return as in the case we describe?" [emphasis in original]. In a response handwritten on the original letter, Ms. Siegel stated: "When you leave with the intention not to return, yes" [emphasis in original]. Given the informality of the response, I do not find this evidence compelling, nor do I find it to be sufficient to establish the content of section 44(1)2 of the Aliens Act. I also note that Ms. Siegel's comment was not cited by the Board in its decision.
[54] In summary, I find that there was insufficient evidence to reasonably allow the Board to find that competent authorities in Germany would have considered the Respondent to no longer have the rights and obligations afforded to German nationals as of September 15, 1999. As a result, I am of the view that the Board's conclusion is unreasonable.
[55] The Board in its reasons went on to consider whether the Respondent could regain status in Germany after finding that she had indeed lost status at the time of her admission to Canada. In my view such an analysis is not relevant to the determinative issue. As I stated above, at the time of her arrival in Canada, the Respondent was in possession of a permanent residency permit from Germany which was valid until December 31, 2000. In other words, at the operative date for determining exclusion the Respondent had a valid permit which gave her residency in Germany, including the right to return.
8. Conclusion
[56] I find that the Board committed a reviewable error in determining that the Respondent was not subject to Article 1E of the Refugee Convention. I would set aside the decision of the Board. In my opinion, the only conclusion that can be reached in the circumstances of this case is that at the time of her admission to Canada, competent authorities in Germany would have considered the Respondent to have the rights and obligations afforded to a German national, including the right to return to Germany. In my view, the result is inevitable. Pursuant to section 98 of the IRPA, the Respondent is not a Convention refugee or a person in need of protection.
[57] In the circumstances of this case, I would not remit the matter back to the Board for re-determination by a differently constituted panel. I find that the matter of the Respondent's refugee claim against Iran is settled because she is not eligible for refugee protection in Canada on the basis of her residency status in Germany at the time of her admission to Canada. Further, I find that the Respondent's refugee claim against Germany is no longer an issue to be determined by the Board. The First Panel did not conclude that the Respondent had established a well-founded fear of persecution against Germany. Although not dismissing the Respondent's claim against Germany, in the end, the First Panel only found that the Respondent's refugee claim against Iran was made out. At her second refugee hearing, the Respondent essentially abandoned her claim for refugee protection against Germany by not pursuing the matter before the Board during oral testimony and in submissions by counsel. As a result, I find that there would be no purpose in sending the Respondent's refugee claim back to the Board, as her refugee claim has been fully canvassed by the Board and the Court, and the outcome has been determined: see Yassine v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 949 (C.A.) (QL).
[58] That said, I am cognizant that given the passage of time it is unlikely that the Respondent would now have permanent residency status in Germany. Without deciding the matter, the evidence before the Board indicates that this is likely the case. On the merits of her claim, the Respondent had been found to be a Convention refugee and, but for her exclusion under Article 1E, she would by definition be a protected person. Since she likely has no status in Germany, her removal would be to Iran. In the circumstances, this may be an appropriate case for the Minister to exercise discretion under section 25 of the IRPA. In any event, should the Respondent make an application for a pre-removal risk assessment (PRRA), the risk assessment officer should bear in mind the Board's earlier finding that the Respondent established a well-founded fear of persecution against Iran, and that that finding was not contested by the Minister. I make this observation on the understanding that the Respondent at the moment likely has no status in Germany.
[59] The parties will have an opportunity to make submissions concerning certification of a question or questions of general importance. The parties will have ten days from the date of this decision to submit a question or questions for certification. The parties will have a further five days to reply to those submissions. Upon considering the parties' submissions, I will decide on the certification of proposed questions, if any, and issue an order allowing the application.
"Edmond P" Blanchard"
Ottawa, Ontario
Date: April 26, 2006
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