Date: 20010112
Docket: IMM-4282-99
BETWEEN:
SHARAM PAHLEVAN MIR AGHA,
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS FOR ORDER
NADON J.
[1] This is an application for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "Board") rendered on July 7, 1999, whereby the Board concluded that the applicant was not a Convention refugee on the grounds that he was excluded from the application of the Convention pursuant to Article 1(E) thereof.
[2] The facts are as follows. The applicant is a citizen of Iran who came to the United States in 1974 while his father was on a military posting. He obtained permanent resident status in the United States on March 18, 1977 and resided there until 1985 (at that time, he was 19 years old). As a juvenile and young adult, the applicant was charged with various offences: in 1983-84, he was charged with involuntary vehicle manslaughter and unauthorized use of a stolen vehicle. In 1985, he was charged with possession of an automatic weapon and related offences. His father forced him to return to Iran in order to punish him for his behaviour (and to avoid the legal consequences, as the Board points out).
[3] The applicant therefore returned to Iran where he was drafted for military service. He deserted and escaped to Turkey where he contacted the United States consulate. However, the Turkish authorities seized him before the American consulate could provide any assistance, and deported him to Iraq where he was arrested and interrogated. Following this, he attempted to enter Iran but was caught by Kurdish opposition forces and detained for six months. He then joined a Kurdish group with which he subsequently entered Iran, but he was arrested by the Iranian revolutionary guards. While in prison, he was tortured and tried to commit suicide. He was also sentenced to death but this sentence was modified to five years imprisonment, flogging, and a fine. The applicant was released in1992, but in return for his release, he was obliged to complete his military service. While serving in the military, the applicant was once again arrested for organizing political action. His wife was also arrested. Both were interrogated and beaten; as a result of the beatings suffered by his wife, she had a miscarriage. The claimant and his wife eventually managed to flee Iran via Turkey and after sojourning in Cuba and the United States, they arrived in Canada on December 6, 1995 and claimed refugee status on June 20, 1997. The wife's refugee claim was found by the Board to be well founded.
[4] As I have already indicated, the Board denied the applicant's refugee claim on the ground that he was excluded pursuant to Article 1(E), which provides 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. |
[5] The Board heard the testimony of Christine Anne Racine, a special agent of the United States Immigration and Nationalization Service (the "INS"), who testified that the applicant continues to be a permanent resident until an immigration judge determines otherwise.
[6] Before the Board, the applicant argued that he was ineligible to keep his U.S. status due to several factors: the voluntary departure form he signed in December 1995, his ten-year absence from the U.S., and his military service in the Iranian army. The Board, however, did not accept the applicant's argument, given the evidence before it that he was a permanent resident of the U.S. when he applied for refugee status in Canada. The Board's reasoning, as it appears at page 4 of its Reasons, is as follows:
| The evidence also showed that the claimant, after becoming a permanent resident of the USA, had of late, acted in such a way as to create a serious possibility, if not a probability, that the American authorities would question the continued validity of such a status and refer the matter to competent judicial authorities. However, given the evidence, the Refugee Division does not believe that there is a serious possibility, if not a probability, that this judicial authority would no longer recognize the claimant's status and deny him the right to return. |
[7] Furthermore, the Board noted that all of the applicant's family members (except for one sister) are U.S. citizens or residents of that country. The Board also noted that the applicant had been unable to return to the U.S. because of his military conscription in Iran and imprisonment in Iraq, Turkey and Iran. The Board also observed that the applicant had tried to contact U.S. authorities after deserting the Iranian army and escaping to Turkey. Furthermore, the Board was of the view that the applicant had not tried to avail himself of the protection of the U.S. when he entered that country in 1995, and that he voluntarily renounced the protection of the U.S. only to seek refuge somewhere else -- i.e., Canada. Consequently, the Board found that the applicant was excluded from the application of the Convention pursuant to Article 1(E) thereof.
[8] The applicant submits that the Board erred when it concluded that he fell within the parameters of Article 1(E), for the following reasons. He submits that his right of return is uncertain and that given this uncertainty, it was not the Board's role to determine the outcome of any attempt to return to the United States. The applicant is undoubtedly referring to the Board's finding which I quoted above -- namely, that although the INS would likely question the validity of the applicant's status and refer his case to an immigration judge, that judge would, in the opinion of the Board, probably not deny the applicant the right to return.
[9] The applicant relies on information from the Canada-U.S. Business Immigration Handbook to the effect that a person is deemed to have abandoned his or her permanent resident status if he or she is outside the U.S. for more than one year. The Handbook offers suggestions about how to maintain permanent residence status: eg., filing U.S. resident income tax returns, having U.S. license plates, maintaining a domicile in the U.S., working and owning property in the U.S. Based on this information and on the fact that he left the U.S. in 1985 and only returned briefly in 1995, the applicant argues that his status in the U.S. is precarious and that the Board erred in concluding that he was a person who was excluded pursuant to Article 1(E).
[10] On first glance, it may seem surprising for the Board to first conclude that the applicant's status in the U.S. is precarious, and then to conclude that an immigration judge would likely recognize his status and allow him to return to the U.S. This issue was considered by the Federal Court of Appeal in Mahdi v. MCI, (1995) 32 Imm. L.R. (2d) 1, In Mahdi, an applicant from Somalia claimed refugee status in Canada even though she was a permanent resident of the U.S. (she had initially concealed this fact when she claimed refugee status in Canada). The Board had concluded that the applicant was a refugee but, upon the Minister's application, revoked the applicant's status following evidence that she was a permanent resident of the_U.S. In allowing the applicant's judicial review application, the Federal Court of Appeal, at page 6, made the following remarks:
| ... 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. The evidence showed that the respondent, after becoming a permanent resident of the United States, had acted in such a way as to create a serious possibility, if not a probability, that the American authorities would no longer recognize her as a permanent resident and would, for that reason, deny her the right to return to the United States. Surely, that possibility had to be taken into account in deciding whether it was established on a balance of probabilities that the American authorities still recognized the respondent as a permanent resident. |
[11] Applying these remarks to the case before me, the question to be determined is whether the U.S. authorities still recognize the applicant as a permanent resident. In Mahdi, as in the case before me, the applicant had an extended absence from the United States. However, unlike the present case, it was unclear in Mahdi whether the U.S. authorities would still recognize the applicant's status, given her absence. In the present case, there was evidence before the Board, in the form of an INS letter to Canada Immigration, dated February 8, 1999, coupled with Ms. Racine's evidence, that confirmed the applicant's continued status in the United States. Thus, in light of these circumstances, it was reasonable, in my view, for the Board to conclude as it did.
[12] The case at bar is also very similar to another decision of this Court, Hadissi v. MCI, [1996] F.C.J. No. 436, which dealt with an Iranian citizen who had obtained permanent resident status in the U.S. but had claimed refugee status in Canada. In Hadissi, the Board recognized that permanent residents may lose their U.S. status if they live outside the U.S. for an extended period of time, but also noted that this was not automatic. Moreover, as in the case at bar, there was no evidence that the applicant had in fact lost her permanent resident status; on the contrary, there was evidence that her status was still active. The Board therefore concluded that the applicant was excluded from the Convention pursuant to Article 1(E). Jerome ACJ dismissed the applicant's application for judicial review and, at paragraph 14, made the following comments:
| Applying that principle here, I am unable to conclude that the Refugee Board committed any reviewable error in making its decision. The panel correctly identified the issue before it and, after weighing and assessing the evidence, decided there was nothing to support the applicant's contention that American authorities would not recognize her as a permanent resident. On the contrary, cogent evidence from American and Canadian immigration officials established that Ms. Hadissi's permanent resident status was active and current. Unlike the Mahdi case, therefore, the evidence here did not demonstrate that there was a serious possibility that American authorities would no longer recognize her as a permanent resident and deny her the right to return to the United States. |
[13] Jerome ACJ's reasoning is, in my view, entirely relevant to the present matter. As in Hadissi, where the Board considered the possibility that the applicant might lose her permanent resident status but found no indication that the applicant had in fact lost her status, the Board herein appreciated that the INS might question the validity of the applicant's status, but ultimately concluded, based in part on Ms. Racine's evidence and on the February 8, 1999 letter form the INS to Canada Immigration, that the likelihood was that the applicant would not be denied the right to return to the United States.
[14] The fatal flaw in Mahdi was that the Board had not considered the possibility that the U.S. authorities might no longer recognize the applicant's status in that country. I am faced with a different situation here, one that is closer, as I have said, to Hadissi. In the present case, in determining that the U.S. authorities would probably recognize the Applicant's status and allow him the right to return, it is important to remember that the Board canvassed the following factual context: the strong familial links the applicant has to the U.S., including his daughter's citizenship; the fact that his absence from the U.S. was not his fault (given that his father forced him to return to Iran and that he was imprisoned while in Iran; the fact that he contacted the U.S. consulate when he escaped to Turkey; and the probability that he did not seek the protection of the U.S. when he returned in November 1995). Clearly, the Board weighed all of the evidence in making its determination and in particular, relied upon the cogent evidence of the INS confirming that the applicant's permanent resident status was indeed current and active even in February 1999.
[15] In Shahpari v. Canada (MCI) (1998), 146 F.T.R. 102, Rothstein J. (as he then was) held that once the Minister submits evidence to the effect that an applicant can return to a given country, the onus then shifts to the applicant to show that he cannot. At page 105, Rothstein J. explained this as follows:
| [11] Nor can the fact that the applicants destroyed the carte de resident avail to the benefit of the applicants. At the very least, once the respondent put forward prima facie evidence that Article 1(E) applied, the onus shifted to the applicant to demonstrate why, having destroyed her carte, she could not apply and obtain a new one. |
| [12] The applicants rely on Wassiq, supra. However, the facts in that case are quite different. In Wassiq there was evidence had been advised by the German government that they could not return. In this case, the applicants provided no such evidence. Once the respondent submitted prima facie evidence which would enable the panel to conclude that the applicants could return to France, the onus shifted to the applicants to show they could not. |
[16] The applicant herein has not adduced any evidence showing that he no longer has status in the U.S., aside from the suggestion that he might lose his status by reason of his extended absence and the voluntary departure order. However, in my view, it was open and reasonable for the Board not to place too much weight on this evidence; with respect to the Handbook suggesting that a person might lose status after an extended absence, the Board had cogent evidence from Ms. Racine to the effect that this was not automatic, but discretionary. With respect to the departure order, the Board suspected that this form had only been issued because the applicant had not availed himself of his status.
[17] The real issue before me is whether the Board, on the evidence before it, reached a conclusion that was reasonably open to it. After careful review of the evidence and of the Board's Reasons, I have not been persuaded that the Board made any error, either of fact or of law, when it concluded that the likelihood was that a U.S. immigration judge would recognize the applicant's status and allow him to return.
[18] For these reasons, this application for judicial review will be dismissed.
Marc Nadon
Judge
OTTAWA, Ontario
January 12, 2001.
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