IMM-442-97
BETWEEN:
SAID
MOHSEN GHAYOUMI-MOGHADAM
SOHAILA
SHAKERANEH
HESSAM
EDIN GHAYOUMI-MOGHADAM
MAHSA
SADAT GHAYOUMI-MOGHADAM
Applicants
-
and -
MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS
FOR ORDER
TREMBLAY-LAMER J.
The Applicants, a family of Iranian
citizens, seek judicial review of a decision of the Convention Refugee
Determination Division of the Immigration and Refugee Board denying them
refugee status because they lacked a subjective and an objective fear of
persecution.
The Applicants claim to have a
well-founded fear of persecution for reasons of religion and political
opinion. In addition, the female Applicant, the mother of the family unit,
bases her claim on her membership in a particular social group (women in
Iran). As for the two minor children, their father was designated as their
representative.
The Applicant claims to be an
apostate. Since the 1979 Revolution, he no longer considers himself to be of
Muslim faith although he still, generally speaking, believes in God. However,
he never did openly renounce Islam. In fact, very few people knew of his
religious beliefs and therefore, he never encountered any difficulties with the
authorities, that is prior to June 26, 1995.
On that day, the Applicant, while
attending an engagement party, made comments which were critical of the Iranian
government. In the course of the discussion involving a small group of five or
six people, the Applicant, in his own words, "angrily criticized the
government's policies and use of religion". The Applicant claims to be
wanted by the Iranian authorities because of these comments.
His friend, Ehsan Moghadan, also took
part in the debate. As a result, Ehsan was arrested by the police the
following day.
Fearing he would suffer the same
misfortune, the Applicant decided to take his family and leave Teheran as soon
as possible. In order to throw the authorities off his tracks, he told his
employer that he would be vacationing in Northern Iran. In reality, the family
hid out at a relative's home in Karaj. There, they eventually found out that
the police had been to their home in Teheran, as well as to the Applicant's
place of business, purportedly to arrest him.
Arrangements were then made with an
agent for the family to flee Iran. They exited the country via the Teheran
airport, using their own valid Iranian travel documents.
Finally, the female Applicant claims
that if she is returned to Iran, she would be subjected to Iranian state policy
which is fundamentally persecutory towards women. Before the Board, she
recounted an incident - the only such incident she experienced - wherein the
police raided a social gathering at her house and arrested all the guests.
While her husband was imprisoned for two months for having consumed alcohol,
she was detained for approximately two hours for having violated the Islamic
dress code. This incident took place in October 1985.
The female Applicant further asserted
that she did not agree with the dress code and generally, with the treatment
received by women in Iran. She stated that women are considered as second
class citizens.
The Board rejected the Applicants'
claims because, in its words, "the claimants have demonstrated neither a
subjective nor objective fear of persecution, nor a valid basis for fearing
persecution". In reaching its conclusion, the Board only considered two
of the bases of the claims - religion and political opinion. The issue of
gender persecution was never expressly addressed. The Respondent concedes that
the Board erred in law in failing to assess the female Applicant's claim on the
basis of her gender. I agree. In her Personal Information Form, the female
Applicant did mention that she was subjected to Iranian state policies which
were persecutory. In addition, at the hearing before the Board, she related an
incident where she was arrested for having violated the Islamic dress code.
Hence, I believe that gender persecution is indeed an issue which warrants
examination by the Board.
With respect to the male Applicant's
claim, the Board held that he did not have a well-founded fear of persecution
because he was not really wanted by the Iranian authorities. The Board's
conclusion was based on three findings: (1) it was unlikely that the
Applicant would be executed for having expressed anti-government views
especially in light of the fact that his friend who committed a similar
digression was arrested and then released; (2) the documentary evidence indicates
that members of certain political parties are not discriminated against for
expressing opposing views; (3) the Applicant was able to leave Iran with his
own valid travel documents without any difficulties.
In my view, in basing its conclusion
on these three findings, the Board failed to appreciate the evidence adduced in
this case.
First, the Applicant testified that
his friend had been arrested, released on condition and had since
disappeared. The Board did not question the Applicant's credibility.
However, it never addressed the evidence pertaining to the friend's conditional
release and subsequent disappearance despite the fact that it logically raises
an inference that the Applicant would be in danger if returned to Iran. In my
opinion, the Board should have considered and dealt with this material
evidence. The Court has recognized in the past that the experiences of
persons similarly situated to the refugee claimant do have an important bearing
on the assessment of the Applicant's claim.
For example, in Chaudri v. Minister of Employment and Immigration, the Federal Court of Appeal
held that the Board had erred in not considering uncontradicted evidence
related to people similarly situated to the claimant. In that particular case,
the Applicant was a citizen of Pakistan. He had claimed refugee status while
studying in Canada. The Pakistani government had been overthrown in a military
coup during his sojourn abroad and as a supporter and active member of the
former ruling party, the Applicant was now the subject of a "martial law
summons". Two of his friends who had also been involved in similar
political activities were also given summons and were actually arrested,
detained and tortured. In determining the Applicant's well-founded fear of
persecution, the Board did not consider this evidence. Hugessen J. ruled that
this constituted a reviewable error:
[T]he
whole gravamen of the applicant's case is not that he fears being lawfully
imprisoned and tortured but rather that he will, in fact, receive the same
treatment as his two companions. It will be recalled that the latter had
engaged in the same activities as the applicant and had received the same sort
of summons. [...]
Neither
the applicant's "minor" role nor the length of his absence from
Pakistan were relevant in the light of the uncontradicted evidence which the
Board had accepted, namely, that others who had played the same role had been
persecuted and that political persecutions of former members of the P.P.P. were
still current at the time of the appeal. In the circumstances, it appears to
me that, if the Board had not committed the errors which I have indicated, it
could only have come to the conclusion that the applicant had satisfied the
definition of Convention Refugee.
This principle was again enunciated
clearly by Cullen J. in Yue v. Minister of Employment and Immigration:
It has
been held in several cases that the fate of those who are similarly situated to
a refugee claimant is important in that it tends to establish the
well-foundedness of a claimant's fear of persecution. [...]
Upon
considering the above-noted cases it seems clear that the question of whether
the applicant was in a similar position to Ms. Wang would have been crucial to
establishing the finding of "well-founded fear of persecution" if she
were returned to China. It was clear that the applicant was indeed similarly
situated yet the board came to the conclusion that she was not. Because of
this and the significance of establishing persecution of those similarly
situated, the board's error puts its whole decision in doubt. It seems
probable that if the board had found, as the evidence established, that the
applicant was in the same position as Ms. Wang it may well have found her to be
a Convention Refugee.
Thus, the Board should have
considered the Applicant's claim in light of the experience of his friend who
had made similar comments at the social gathering. The Board's failure to do
so constitutes an error of law.
Second, the Board misstated a piece
of documentary evidence on which it relied to determine whether the Applicant
had a well-founded fear of persecution. Contrary to the Board's assertions, the
documentary evidence states that members of political parties who express opinions
in opposition to official positions have been discriminated against.
The document reads as follows:
The
Human Rights Committee noted in its July 1993 comments that contrary to the
[International] Covenant [on Civil and Political Rights]'s provisions,
"members of certain political parties who did not agree with what the
authorities believe to be Islamic thinking or who expressed opinions in
opposition to official positions have been discriminated.
While the Respondent concedes that
the Board did misstate the documentary evidence, it also argues that it is a
minor error which is not central to the Board's decision. What the Respondent
is implying is that the Board would have reached the same conclusion regardless
of the misstatement. I have reservations about such an argument. I find that
it would be speculative on my part to conclude that the reliance on the
documentary evidence was not a convincing element in the Board's decision.
Furthermore, it is not for this Court to engage in speculation on the possible
outcome of a case had the Board not made an erroneous finding. As Heald J.
noted in Sharma v. Minister of Employment and Immigration:
It is
impossible to say whether the Board's view of the applicant's credibility would
have differed had it not taken those erroneous findings into account. Nor can
we say what the Board's decision on the merits would have been in the
particular circumstances of this case had it not erred in its findings of fact.
[...]
It seems
to me that acceptance of counsel's alternative contention would involve this
court in validating a decision that, clearly, was not made in the manner
required by the Act. That would require us to speculate as to the decision the
Board might have made had it properly "considered" the application as
it was required to do. I do not think we ought to so speculate. Only the
Board can decide the merits of the application and then only after it has
considered it in a proper fashion which it has not yet done.
Third, the Board also failed to
explore uncontradicted evidence pertaining to the Applicants' exit via the
Teheran airport. In particular, the male Applicant had testified that his
brother had a friend at the airport who checked whether the Applicant's name
was on the blacklist. The Applicant also stated that he had misled authorities
by informing his employer that he was vacationing in Northern Iran with his
family. Once again, the Board without making any adverse findings of
credibility, clearly overlooked relevant evidence which it should have fully
considered before making any final determination.
For the above reasons, I therefore
grant the application for judicial review. The Board's decision is set aside
and the matter referred back to a differently constituted panel for
redetermination. As for the female Applicant's claim, its well-foundedness is
to be determined separately by a different panel.
Neither counsel recommended certification of a
question in this matter. Therefore, no question will be certified.
OTTAWA, ONTARIO
This 20th day of October 1997
JUDGE
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