Date: 20070212
Docket: IMM-2930-06
Citation: 2007 FC 158
Ottawa, Ontario, February 12, 2007
PRESENT: The
Honourable Mr. Justice Blanchard
BETWEEN:
MOSTAFA EJTEHADIAN
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Applicant, Mr. Ejtehadian, seeks judicial
review of a decision of the Immigration and Refugee Board (IRB) dated April 20,
2006, rejecting his request for asylum as a Convention Refugee and as a person
in need of protection.
[2]
The Applicant was born in Teheran, Iran on August 14, 1962 and is a citizen of that country. He completed
thirteen years of education and worked as a publisher and translator. Until
2004, the Applicant was Shia Muslim.
[3]
In 1978, the Applicant visited his brothers in
the United States who were studying in Utah, and remained there until 1981, during which time he met members of
the Mormon Church. After this, the Applicant returned to Iran and completed his military service.
[4]
In August of 2004, while in Vancouver on a visitor’s visa, the Applicant met members of the Mormon Church
who rekindled his interest in the faith. He had become disillusioned with the
Shia Muslim faith and how it was being practiced in Iran. He discussed the possibility of his conversion to Christianity
with his wife, who agreed. He was subsequently baptized as a member of the
Mormon Church and later became a priest in the Church.
[5]
Upon learning of the Applicant’s conversion, the
Applicant’s father-in-law demanded that he abandon his membership in the Mormon
Church or divorce his daughter.
[6]
The Applicant claims that should he return to Iran, in order for him to
proselytize or even practice his religion, he would run the risk of violating
the laws against apostasy and thus could face imprisonment or death.
[7]
The Applicant made his refugee claim on September 2, 2004, and his
hearing took place on February 14, 2006, in Halifax.
[8]
The IRB acknowledged that the Applicant’s claim was a sur place
refugee claim. The IRB determined that as the claimant had not provided
“credible or trustworthy evidence”, he was neither a “Convention Refugee” nor a
“person in need of protection” by reason of risk to life or a risk of cruel and
unusual treatment or punishment or a danger of torture.
[9]
The IRB found that the Applicant had been a non-practicing adherent of
the Muslim faith at the time he left Iran. The IRB determined that it is only
as a result of his contact with Mormons and his conversion and membership in
the priesthood of the Church of Jesus Christ of Latter Day Saints, that he now
alleges a risk of persecution or serious harm as a result of the apostasy laws,
should he return to Iran. The IRB accepted that apostasy and proselytizing of
Christians to Muslims in Iran could result in the Applicant’s death.
[10]
The IRB articulated its understanding of how it must conduct its
assessment of a refugee sur-place claim. At page 4 of its reasons the
IRB wrote:
As a sur-place
claim, the panel must examine the claimant’s motives, which led to the decision
to convert. There is no doubt that the claimant since his arrival in Canada has become a member of the Mormon
Church. Was this conversion a legitimate conversion, as the claimant alleges,
or was it simply as a means to remain in Canada and claim refugee status?
[11]
The IRB’s articulation of the test in a sur-place claim is
incorrect. In a refugee sur-place claim, credible
evidence of a claimant’s activities while in Canada that are likely to
substantiate any potential harm upon return must be expressly considered by the
IRB even if the motivation behind the activities is non-genuine: Mbokoso v.
Canada (Minister of Citizenship and Immigration, [1999] F.C.J. No. 1806
(QL). The IRB’s negative decision is based on a finding that the Applicant’s
conversion is not genuine, and “nothing more than an alternative means to
remain in Canada and claim
refugee status.” The IRB accepted that the Applicant had converted and that he
was even ordained as a priest in the Mormon faith. The IRB also accepted the
documentary evidence to the effect that apostates are persecuted in Iran. In assessing the Applicant’s risks of
return, in the context of a sur-place claim, it is necessary to consider
the credible evidence of his activities while in Canada, independently from his motives for conversion. Even if the
Applicant’s motives for conversion are not genuine, as found by the IRB here,
the consequential imputation of apostasy to the Applicant by the authorities in
Iran may nonetheless be
sufficient to bring him within the scope of the convention definition. See Ghasemian
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1266, at
paragraphs 21-23, and Ngongo c. Canada (M.C.I.), [1999] A.C. F. No 1627 (C.F.)
(QL).
[12]
Applying the wrong legal test is an error of law reviewable on the
standard of correctness. By articulating the incorrect test and conducting the
assessment of the Applicant’s sur-place claim as it did, the IRB
committed a reviewable error.
[13]
For the above reasons, the application for judicial review will be
allowed. The decision of the IRB will be set aside and the matter returned to
the IRB for reconsideration by a differently constituted panel.
[14]
The parties have had the opportunity to raise a
serious question of general importance as contemplated by paragraph 74(d)
of the Act, and have not done so. I am satisfied that no serious question of
general importance arises on this record. I do not propose to certify a
question
ORDER
THIS COURT ORDERS that:
1. The
application for judicial review is allowed.
2. The matter is sent back to the Board for
re-consideration by a differently constituted panel to be decided in accordance
with the above reasons for decision.
3. No serious question of general importance is certified.
“Edmond P.
Blanchard”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2930-06
STYLE OF CAUSE: Mostafa
Ejtehadian v. MCI
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: January 10, 2007
REASONS FOR ORDER AND ORDER: Blanchard J.
DATED: February
12, 2007
APPEARANCES:
Ms. Lori Hill FOR
THE APPLICANT
902.422.6736
Ms. Melissa
Cameron FOR THE RESPONDENT
902.426.7916
SOLICITORS
OF RECORD:
Ms. Lori Hill FOR
THE APPLICANT
John H. Sims,
Q.C. FOR THE RESPONDENT
Deputy Attorney
General of Canada
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