Docket: IMM-1260-11
Citation: 2011 FC 1263
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, November 7, 2011
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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BEHZAD KHALILZADEH
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant is an Iranian citizen. He is challenging the lawfulness of a decision
by the Immigration and Refugee Board, Refugee Protection Division (panel), rejecting
his refugee claim on the ground that he is not credible and, objectively
speaking, that he would not be subject to a personalized risk if he were to
return to his country.
[2]
Essentially
the applicant fears persecution and fears for his life because he refused to
disclose to the Iranian authorities the identity of a source possessing information
on the circumstances of the death of Zahra Kazemi, the Iranian-Canadian
journalist who died in July 2003 in a prison in his country. The applicant’s
involvement in the activities of the company GoldQuest International, a
pyramid-type sales company, which were deemed illegal, was apparently the
pretext used by the authorities for arresting him and for continuing to searching
for him today. Furthermore, the applicant claims to be a “refugee sur place” because
he participated in organized demonstrations in Montréal against the Iranian
regime after the presidential elections in June 2009.
[3]
In
its reasoned decision, the panel found that the applicant is not a Convention
refugee or a person in need of protection. Of course, the applicant does not
agree with the panel’s reasoning and findings. For example, how can it be
explained that the panel disregarded or attached no weight to the statements by
the applicant’s brother and Mehdi Saberi (discussed later), which support the
applicant’s allegations of persecution and danger?
[4]
With
force and conviction, the applicant submits that, if it were not for the
panel’s errors of fact, the refugee claim would have succeeded. But this is not
the test to be applied. Because the standard of review is reasonableness, the
Court must limit its review to “ . . . the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9
at paragraph 47; Canada (Minister of Citizenship and
Immigration) v. Khosa, 2009 SCC
12 at paragraph 59).
[5]
That
being said, it is well established that the panel is assumed to have weighed and
considered all of the evidence unless the contrary is shown (Santos v.
Canada (Minister of Citizenship and Immigration),
2007 FC 706 at paragraph 25, among others), and, in this case,
the applicant did not convince me that the panel’s general finding is
unreasonable.
[6]
First,
the panel did not believe that the applicant initially escaped Iran in 2006
like he alleged in his Personal Information Form (PIF). The panel’s finding
relies on the evidence in the record and does not appear unreasonable in this
case. The applicant stated that he also sought refugee protection in Sweden in 2006
and returned to Iran in 2008. Considering the applicant’s negative response at
the hearing with respect to the official documents (supposedly left in Sweden),
his lack of knowledge of his counsel’s name in Sweden, and the absence of any
request by his representative for time to obtain these documents, the applicant
cannot now complain that there was a breach of natural justice. It was simply
too late to submit in evidence before the panel an untranslated letter from an
immigration appeal court in Stockholm dated February 28, 2008, which
the applicant now says he received only after being informed of the panel’s
negative decision.
[7]
Second,
the panel did not accept the applicant’s allegation that he was suspended from
his part-time journalist job in July 2003 after making a report to the editorial
office on the suspicious circumstances surrounding the death of Ms. Kazemi. It
must be remembered that, according to his PIF, an unidentified source told him
that Zahra Kazemi had not died of natural causes, but as a result of a blow to
the head. However, the applicant purportedly refused to disclose the name of
that source to his superior, and after some time, intelligence officers
apparently interrogated him and even threatened him if he failed to cooperate.
[8]
The
panel found this entire portion of his account implausible because, according
to the evidence in the record, Ms. Kazemi’s death was reported by the
international media on July 11, 2003, and the Iranian vice president
admitted publicly, on July 13, 2003, that she had died in prison. Therefore, the
applicant could have obtained that information other than by way of a secret source:
an inference grounded in the evidence in the record and which does not appear
unreasonable given the applicant’s other credibility problems.
[9]
Third,
the applicant stated that, in September 2003, agents raided the GoldQuest International
sales office where he worked with his friend and associate, Mehdi Saberi. During
his absence, the agents arrested his friend. Seeing a direct link to the
problems at his newspaper, the applicant therefore left Tehran to live in
hiding in Karaj, and then Tabriz, where he carried out odd jobs. We saw earlier
that the panel did not believe that the applicant left Iran in 2006 and
returned in 2008. Regardless,
given that Mr. Saberi was released only in March 2010, more than six years
later, the applicant now fears persecution and cruel and unusual treatment if
he were to return to Iran.
[10]
In
this case, it was reasonable for the panel to find that the applicant’s past
involvement in the GoldQuest activities, objectively speaking, was not a valid
reason to fear persecution or to fear for his life. According to the
applicant’s PIF and his testimony before the panel, he was no longer an active
member of the company when the GoldQuest activities were declared illegal and
when its offices were closed in Tehran in September 2005. The applicant stated
in his PIF and in his testimony before the panel that he stopped working for GoldQuest
in September 2003, but continued to pay membership fees in the hopes of recovering
the $25,000 the company owed him in commissions. What is more, it was reasonable for the
panel to find that there was no tangible evidence that the Iranian authorities
were looking for the applicant (the activities had taken place several years
earlier), and that, even if this were the case, no evidence was put forward
regarding the nature of the penalties that the applicant would face today.
[11]
At
the risk of repeating myself, the applicant is submitting his own
interpretation of the facts and asking this Court to take the place of the
panel to determine that the GoldQuest office raid in September 2003 was only a
pretext and that the real reason was the Kazemi matter. In my opinion, however, it
was not unreasonable to consider that the applicant had not met his burden of
proof, given all of the circumstances, especially if we accept his version of
the facts, that he returned to Iran in August 2008 without being arrested and
that more than seven years has passed since he was no longer an active member
of GoldQuest.
[12]
Fourth,
the applicant is challenging the lawfulness of the panel’s finding that he is
not a “refugee sur place”. This does not seem unreasonable to me even if the applicant
participated in demonstrations against the Iranian regime in Montréal. The fact
that nothing demonstrates that he was photographed or otherwise identified at
these demonstrations, in which hundreds of demonstrators participated, seems to
be a relevant factor, even if not necessarily determinative. It depends upon
the circumstances of each particular case, which must, in fact, be assessed in
light of the documentary evidence as a whole (Zaree v. Canada (Minister of
Citizenship and Immigration), 2011 FC 889 at paragraph 14). Be that as
it may, the applicant’s scanty allegations in his PIF and in his answers at the
hearing did not leave the panel with a lot of choice regarding analysis and may
explain here the somewhat summary nature of the reasons for the rejection in
that respect.
[13]
In
conclusion, the panel’s general finding that the applicant did not meet the
burden of demonstrating that he could be persecuted or subject to a
personalized risk if he were to return to Iran appears reasonable in all
respects and must not be reviewed by the Court.
[14]
For
these reasons, the application for judicial review must fail. No question of general
importance was presented by counsel to the Court.
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