Date: 19980128
Docket: IMM-1611-97
Between:
FARZAM MOLAEI AND
MEHRNAZ MOUSAVI
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
Muldoon, J.
[1] This is an application pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the Act) for judicial review of a decision of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board dated March 21, 1997 which found the applicants not to be Convention refugees. The CRDD here consisted of a sole member.
[2] The applicants seek an order setting aside the decision of the CRDD as well as a declaration that the applicants are Convention refugees. In the alternative the applicants seek an order referring the matter back to the CRDD with directions.
[3] The applicants are citizens of Iran. The principal applicant, Farzam Molaei, claims a well-founded fear of persecution on the basis of perceived political opinion. His spouse, Mehrnaz, bases her claim on her husband"s claim. In November 1994, the applicants left Iran to France and from France travelled to the United States. On January 15, 1995, the applicants arrived in Canada where they made claims to Convention refugee status.
[4] The details of the applicants" claim of persecution were set out, in full, in the decision of the CRDD. The primary applicant"s father was a colonel in the Iranian army during the Shah"s reign. His father was arrested during the revolution, and was later tried and convicted by the Revolutionary Court. His father was sentenced to death, but subsequently, he received a 20-year sentence. In 1985, the applicant"s father was pardoned. The applicant alleges that upon completion of high school, he applied to the University of Tehran but was not admitted because the authorities learned of his father"s involvement in the Iranian army and his subsequent imprisonment.
[5] The essence of the applicant"s claim of persecution is due to his activities as a seller/installer of satellite dishes. In 1992, the applicant and a friend started their own business selling audio and video electronic equipment. The applicant and his partner soon learned that sales in satellite dishes were booming and they decided to capitalize on the good market conditions. The business soon became very profitable, as they were selling and installing dishes at the rate of one per day. However, the sale of satellite dishes was not without its problems. Hardliners in the Iranian government considered satellite dishes dangerous and "anti-Islamic".
[6] In June 1993, the applicant experienced some difficulties with the authorities. The authorities came to his store and spoke with the employees, asking for the applicant"s whereabouts. One of the employees informed the applicant that the authorities were looking for him. The applicant and his partner agreed to shut down operations for a while, until the attention directed toward them died down. On June 22, 1993, the applicant was arrested and the store was sealed. The applicant was driven to a police station where he was questioned about his activities and allegedly tortured. His hands were tied and the authorities slapped and kicked him. The applicant continued to deny any involvement in the sale of satellite dishes. He was detained for one week and claims to have been slapped and kicked daily.
[7] One week later, the applicant"s father paid US $2000.00 to secure his release. He was admitted into hospital and was examined. He remained in hospital overnight for observation.
[8] Twenty days later the applicant and his partner decided to reopen the business because "the government apparently was no longer enforcing restrictions against it.".1 The applicant worked as intermediaries, buying satellites from suppliers and selling them to private installers. In this manner, the applicant and his partner calculated that they would not be subjecting themselves to much risk. Large installations were still performed by the applicant and his partner, as they could earn a substantial profit.
[9] In December 1993, while the applicant was at an installation site, the authorities attempted to arrest him. After paying a bribe equivalent to US $100.00, the authorities decided not to arrest the applicant. Four days later, the authorities again attempted to arrest the applicant but, again, the applicant paid them a bribe (US $100). These actions continued every two weeks until April 1994. The applicant later learned from the press that the several officers were accused of failing to arrest people in exchange for the payment of a bribe. The applicant decided to close his store upon hearing this news. He and his partner moved all of their merchandise to the home of the applicant"s father.
[10] In June 1994, the authorities attended the store with a search warrant. Nothing was found in the store since the applicant had stored all of his wares to his father"s home. In July 1994, the applicant and his partner were served with a notice to appear at the office of the Komiteh. The applicant and his partner were interrogated separately about the business. Both denied any involvement in the sale of satellite dishes. The applicant claims that he was taken to prison that evening and imprisoned for one months for bribing officials and distributing western culture. The applicant asserts that he was beaten daily. The authorities decided to release the applicant after one month, on the condition that he agree to provide the names of suppliers and customers. He was prohibited from carrying out these activities.
[11] The applicant and his partner resumed activities at the store. The applicant later called his suppliers to inform them that they should not try to contact him as he was being asked to co-operate with the authorities. Shortly thereafter, the authorities came to the store to observe the operations of the business. The applicant was asked to request business from some individuals that they suspected to be the applicant"s suppliers. The authorities were unsuccessful, but they continued to come to the store for approximately two months.
[12] On October 23, 1994, the applicant received another notice to attend at the offices of the Komiteh. The order required him to present himself within 30 days of receiving the notice. The applicant learned from a friend that the Komiteh had decided to convict some individuals involved in the satellite dish business, in order to frighten others involved in the sale of satellite dishes. The applicant knew that he faced a prison term as well as a large fine.
[13] The applicant went to Turkey on October 29, 1994 in order to make arrangements to leave Iran permanently. The applicant arranged to obtain a visa to the United States from his cousin residing in California. While away, the applicant"s wife was questioned by the Komiteh. The applicant returned to Iran to take his wife out of the country. On November 19, 1994, the applicant left Iran.
[14] Upon his arrival in Canada, the applicant learned from his mother that his store was shut down by the Komiteh. She also informed him that his partner was in prison. The Komiteh had attended her home demanding to know the applicant"s whereabouts. The applicant states that he fears that if he is returned to Iran he will be arrested by the Komiteh, as he failed to meet the deadline in the notice of appearance.
[15] At the hearing, the Refugee Claims Officer (RCO) was not present but had outlined some issues to be determined in the hearing. One of the issues outlined by the RCO was the issue of whether the events outlined amount to prosecution as opposed to persecution.
[16] Despite the fact that an RCO was not present during the hearing, the CRDD made two references to the RCO. At page 13 of the Application Record, the CRDD writes:
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In his testimony the claimant repeated his PIF as though he had learned it by heart. The claimant added few details while answering questions from the RCO. His statements remained vague and repetitious. |
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[17] At page 14, the CRDD writes:
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The RCO indicated that this matter is one of prosecution not persecution. |
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[18] The CRDD accepted the applicant"s testimony that he sold satellite dishes, but the CRDD did not find the applicant"s statements that he will be sentenced to a long prison term or be executed for his activities as credible. The CRDD noted that the law banning the use of satellite dishes was passed on April 22, 1995, after the applicant had come to Canada.
[19] After reviewing the documentary evidence from Human Rights Watch, 1996, the CRDD determined that although freedom of speech and information were curtailed by Iran"s policy to ban satellite dishes, the punishment faced by the applicant, should he return to Iran, amounts to prosecution, not persecution. At page 16 to 18 of the Application Record, the CRDD writes:
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In my view, banning the use of satellite dishes does not itself indicate that there is deprivation of fundamental human rights sufficiently grave to fall within the protection afforded by the Convention for refugee status. Satellite dishes are communication hardware products. As Marshall McLuhen stated quite clearly: "the medium is not the message". The law regulating the ownership of satellite dishes or the sale of such communication hardware is a law of general application. All citizens of Iran must abide by it. There are a great variety of programs which are transmitted by satellite. The punishment, which is a fine, is not persecutory in nature. ... To be prosecuted for breaking a law of general application is not a valid reason to obtain refugee status. |
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I noticed that there is no evidence regarding the punishment for vendors who want to sell or distribute satellite dishes. But I also noticed that the punishment for owning a dish-antenna is not such that it would, in any case, constitute punishment. Counsel submitted that the claimant will face a more severe punishment than a fine. |
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After assessing all the evidence in this case, I do not fund that the claimant provided sufficient evidence to demonstrate that he could face a life imprisonment sentence or death as he alleged. I find that such an exaggeration mars the credibility of the claimant. Even if I believed that the claimant was detained for a month, considering the above noted exaggeration, I do not believe that he was tortured due to his political opinion. The claimant did not introduce sufficient evidence to demonstrate that there are charges pending against him, that those charges are of a political nature and that for such the sentence would be of the magnitude alleged. As per the claimant"s family past, I noted that he was able to live normally in Iran until he had problems following his commercial venture. |
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After reviewing all the evidence, I find there is no nexus to the Convention definition. |
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In any case this matter is one of prosecution not persecution. I do not find any nexus to the Convention definition. |
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[20] The following issues are raised in this application for judicial review:
| 1. Whether the CRDD erred in law by basing its decision on questions put to the applicant from an RCO, when no RCO was present; |
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| 2. Whether the CRDD erred by failing to apply the proper definition of "political opinion" in determining that the applicant"s activities did not fall under the definition of "political opinion". |
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| 3. Whether the CRDD erred in determining that this case was one of prosecution and not persecution. |
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[21] The applicants challenge the decision of the CRDD, on the basis that the written reasons refer, on two occasions, to an RCO when, in fact, an RCO was not present. The applicants" argue that the discrepancy brings into serious question whether the CRDD was recalling the correct case when writing the reasons for the decision.
[22] While it is true that the RCO was not present during the hearing, from the following exchange, at page 25 of the Application Record, it appears that the RCO was involved in determining the relevant issues to be examined during the hearing:
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PRESIDING MEMBER: Counsel, do you have a brief preliminary statement? |
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COUNSEL: Not particularly. I do note that the Refugee Claims Officer screening form identifies eight issues. I have borne this mind in preparing for this hearing and I suggest that through the testimony of the claimants and the corroborating evidence provided in the claimant"s book of documents, each of those issues can be satisfactorily dealt with, and I venture to suggest, any additional issues which you may come up with. [Emphasis added] |
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Based on this exchange, the second reference to the RCO is easily explained and is entirely accurate. Accordingly, the CRDD did not err when making this statement.
[23] The first reference to the RCO, in which the CRDD writes, "The claimant added few details while answering questions from the RCO" is obviously an error. The Appeal Division of this Court in Medina v. Canada (Minister of Employment & Immigration), (1990) 12 Imm. L.R. (2d) 33 (C/A.) has cautioned against reading the reasons of the CRDD microscopically.
[24] The crucial issue in this case was not the credibility of the applicant. Rather, the reason that the applicants were determined not to be Convention refugees was due to the CRDD"s belief that there was no nexus between the persecution alleged and the definition of a Convention refugee. Therefore, in what seems to be a momentary hallucination of the CRDD's part, that error was made. The applicants are also required to demonstrate that the error was so grave as to constitute a clear misunderstanding of the principles; or that the decision would have been different, if the error had not been committed. The applicants have not provided clear evidence on this point.
[25] The applicants' second argument is that the CRDD erred by failing to apply the proper definition of "political opinion" in determining that the primary applicant"s activities did not fall under the definition of "political opinion". The applicant asserts that he has a well-founded fear of persecution based on the activities of his father resulting in an imputed political opinion. The applicant points to the fact that his father was active in the Shah"s regime and was subsequently detained for several years. As a result of his father"s activities, the applicant was denied entrance into university. The applicant further argues that any punishment he faces will be exacerbated by his father"s actions. The applicant relies on Bhatti v. Canada (Secretary of State) (1994), 84 F.T.R. 145, in which the Court held that "[t]he concept of indirect persecution is premised on the assumption that family members are likely to suffer great harm when their close relatives are persecuted.". It also held that the harm experienced as a result of indirect persecution can "manifest itself in many ways ranging from the loss of the victim"s economic and social support to the psychological trauma associated with witnessing the suffering of loved ones".
[26] This case was subsequently overruled by the Appeal Division of this Court in Pour-Shariati v. Canada (Minister of Employment and Immigration) (June 10, 1997) A-721-94. At page 2 to 3 of that decision, MacGuigan J.A. writing for the unanimous court adopted the reasoning of Rothstein J. [1995] 1 F.C. 767 at p. 779 where Rothstein J stated:
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Having considered all the cases referred to in Bhatti, and the provisions of the Immigration Act, to which I have referred, I do not see how indirect persecution as described in Bhatti arises. I conclude therefore that the panel in the case at bar did not err by not considering the question of indirect persecution or by not raising indirect persecution in the proceedings before it. |
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We accordingly overrule Bhatti"s recognition of the concept of indirect persecution as a principle of our refugee law. In the words of Nadon, J. in Castellanos v. Canada (Solicitor General) (1994), 89 F.T.R. 1, 11, "since indirect persecution does not constitute persecution within the meaning of Convention refugee, a claim based on it should not be allowed." |
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[27] In any event, the CRDD specifically referred to the "indirect persecution" alleged by the applicant as a result of his father"s activities at page 17 of the Application Record, where the CRDD states: "[a]s per the claimant"s past, I noted that he was able to live normally in Iran until he had problems following his commercial venture".
[28] The applicants' third argument is that the CRDD erred in determining that this case was one of prosecution and not persecution. The applicants point to Astudillo v. Minister of Employment and Immigration (1980), 31 N.R. 121 (F.C/A.), in which the Appeal Division of this Court affirmed that when determining whether a particular activity is political in nature, the viewpoint should be that of the government in question. Thus, it is not for the CRDD to determine whether the activity is political; rather, the perspective to be analyzed is that of the country from which the claimant alleges persecution. (This is a similar analysis as provided in the Supreme Court"s decision in Ward and the Appeal Division"s decisions in Hilo and Inunza). The primary applicant points to the fact that he was detained, imprisoned and tortured by the authorities as a result of his business activities. This, the applicant argues, is proof that the Iranian government perceives the actions of the applicant to be political.
[29] While this general proposition is one that has been accepted in several cases, in Zolfagharkhani v. Minister of Employment and Immigration, [1993] 3 F.C. 540 (C/A.) Justice MacGuigan set forth the following propositions when dealing with an ordinary law of general application:
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(1) The statutory definition of Convention refugee makes the intent (or principal effect) of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution. |
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(2) But the neutrality of an ordinary law of general application vis-à-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required. |
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(3) In such consideration, an ordinary law of general application, even in non-democratic societies, should, I believe, be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some other reason persecutory. |
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(4) It will not be enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Convention ground. (p. 552) |
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[30] The applicant did not adduce any evidence to corroborate his claim that he would face a long prison term or execution for his activities as he alleged. The documentary evidence relied upon by the CRDD indicates that the general fine is $1000 and the maximum fine is $2000. Further, it is important to note that the CRDD did not find the applicant"s testimony regarding the punishment he faces credible. This determination should not be overturned on review unless it was made without regard to the material before the CRDD (Rajaratnam v. Minister of Employment and Immigration (1992), 135 N.R. 300 (F.C/A.). As the applicants have not demonstrated that the determination was made without regard to the material before the CRDD, the applicants' argument on this ground must fail.
[31] In consequence, the applicants' motion for judicial review is dismissed.
[32] No question is to be certified.
(Sgd.) "F.C. Muldoon"
Judge
Vancouver, British Columbia
January 28, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: January 27, 1998
COURT NO.: IMM-1611-97
STYLE OF CAUSE: Farzam Molaei and Mehrnaz Mousavi
v.
Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, B.C.
REASONS FOR ORDER OF MULDOON, J.
dated January 28, 1997
APPEARANCES:
Mr. Lee Rankin for Applicants
Ms. Esta Resnick for Respondent
SOLICITORS OF RECORD:
Mr. Lee Rankin for Applicants
Barrister & Solicitor
Vancouver, BC
George Thomson for Respondent
Deputy Attorney General
of Canada
__________________
1 Applicant's Record, page 72
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