Date: 20071017
Docket: IMM-2062-06
Citation: 2007 FC 1067
Ottawa, Ontario, October 17,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ENSHAALLAH
ZENDEH PIL
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Enshaallah Zendeh Pil challenging a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (Board) which denied his claim to refugee protection.
Background
[2]
Mr.
Pil is an Iranian citizen. He entered Canada with a
visitor's visa in
2004 for the ostensible purpose of visiting his daughter. He was able to
obtain a 6-month extension to his visa and, about 7 weeks after the visa
expired, he applied for refugee protection.
[3]
Mr.
Pil's claim for protection was based, in part, on a history of wrongful
detention in Iran beginning in
1980. At that time, he was an army officer. He was arrested in August, 1980,
along with about 100 other officers on suspicion of plotting to overthrow the
government. He claimed that he was initially held for about 45 days and,
during that time, he was tortured. Other officers who had been arrested were
hanged but he and many others were released to fight in the Iraq/Iran war.
After a time at the front, he said that he was re-arrested, tried, convicted
and sentenced to 15 years in prison. In 1982 his sentence was reduced to 5
years. He was released early in 1986.
[4]
Mr.
Pil claimed that following his release he was treated with suspicion by the
authorities and told that he could not leave Iran. In 1997 he
moved, within Iran, back to his
place of birth. Shortly thereafter he was visited by two plain-clothes
security officers. Otherwise, he was able to work and was largely left alone.
He was also able to obtain a passport for the purpose of traveling to Malaysia in 1997 to
visit his daughter. In his Personal Information Form (PIF), he said that
although the authorities gave him permission to leave Iran for this
visit, he was also told that subsequent trips abroad would require separate
approvals. This did not prove to be a problem, as he also traveled to Malaysia in 1999 and
again in 2000. In addition, he had apparently been given an exit visa to
travel to the United
Kingdom
in 2003 - albeit that he did not go. He offered no evidence that he
experienced any difficulties upon returning to Iran following
his trips to Malaysia.
[5]
Mr.
Pil said that the Iranian officials who approved his trip to Canada in 2004 had
required him to put up his family home as security to ensure that he would
return to Iran.
Surprisingly, this matter was not explored in any detail during his testimony
and, in the result, the record does not indicate why this security was
demanded, whether it had been a stipulation for his earlier trips abroad or
whether this was a common condition for obtaining an Iranian exit visa.
[6]
Mr.
Pil also testified that when the Iranian Ministry of Foreign Affairs granted
him permission to come to Canada, he was questioned about whether he had
any unfriendly political intentions. He gave assurances that he had no such
motives but he was warned, nonetheless, that he would be watched in Canada.
[7]
Mr.
Pil claimed that when he did not return to Iran as required
by the terms of his exit visa, the family home was confiscated. When he was
asked what he thought would happen if he went back to Iran, he stated:
CLAIMANT: Considering the situation of
the house and all of the things that they have - - the threats that they’ve
made then, if I go back, the same thing that happened to me when they arrested
me and imprisoned me will happen again.
…
RPO: So what - - if you went back
to Iran now, what is the charge
against you?
CLAIMANT: Delay of return and that’s a
big problem.
RPO: Okay. So the charge is for
delaying outside of Iran; correct?
CLAIMANT: Yes.
RPO: And what’s the penalty for
that?
CLAIMANT: I don’t know. They are not
bound by any laws; why was I kept in prison for six years for something that
I’ve never done. (Sobbing)
All
my life was destroyed because of a crime that I’ve never done. They took my
life away; they took everything I had away and they destroyed it.
[8]
During
the hearing, Mr. Pil was also questioned about why he had re-availed to Iran from
Malaysia on three occasions and delayed making a refugee claim in Canada for more
than a year. He explained that he was told that Malaysia would not
accept refugee claimants from Iran and that, while in Canada, he was
conflicted about whether he should return home. It was only after the
confiscation of his home and the visits by security officials to his wife that
he made the decision to claim protection.
Board Decision
[9]
The
Board's
determinative finding was that Mr. Pil's asserted fear of persecution by Iranian
authorities was not well-founded. Although the Board accepted his evidence of
persecution during the time of his detention ending in 1986, it observed that
he had experienced no significant problems with the state during the following
18 years. The Board noted that he had obtained permission to leave Iran at least
four times between 1997 and 2004 and, therefore, was unlikely to have been
perceived as a political threat. This was consistent with some of the country
condition evidence cited by the Board which indicated that political opponents
of the regime are usually denied exit visas. The Board also found that Mr. Pil
was not a political opponent of the Iranian government and had not engaged in
any anti-regime activity during his time in Canada. Against
this history, the Board found that the authorities had no interest in Mr. Pil
and would not have placed him under surveillance.
[10]
The
Board also found that Mr. Pil had failed to establish a subjective fear of
persecution. That conclusion was drawn from his triple re-availment to Iran, from his
delay in seeking protection and from his own equivocation about whether he
wanted to claim refugee protection in Canada.
Issues
[11]
(a) What
is the standard of review for the issues raised on this application?
(b) Did
the Board commit any reviewable errors in its analysis of the evidence?
Analysis
[12]
All
of the issues raised on behalf of Mr. Pil on this application are
evidence-based and therefore, the standard of review is patent
unreasonableness: see Perera v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1069, [2005] F.C.J. No. 1337 at
para. 14.
[13]
The
principal argument advanced on behalf of Mr. Pil concerned the Board's failure
to fully consider the risk implications arising from the confiscation of his
family home. The only mention of this issue in the Board’s decision is the
observation that when Mr. Pil applied for an extension to his Canadian visitor's visa he
knew that his delayed return to Iran could lead to the
confiscation of his property.
[14]
Mr.
Pil contends that the conduct of the state in realizing upon the security he
had posted was critical and highly relevant evidence of the risk he faced if he
returned to Iran and that the Board erred by failing to give it any
consideration and weight.
[15]
I
do not agree that the Board overlooked Mr. Pil's evidence on this issue. What
is apparent from the decision is that the Board did not accept Mr. Pil's view of the
significance of this event to the assessment of future risk. The fact that the
state realized upon the security that Mr. Pil had posted after he apparently
breached the obligation to return to Iran carried minimal probative weight in
determining his future risk in that country. Even Mr. Pil conceded that he was
not aware of the penalties, if any, for exceeding the terms of an exit visa.
It was also noted by the Board that no evidence was tendered on his behalf to
establish how the authorities might react to his return beyond what they had
already done.
[16]
Presumably,
it would have been a simple task for Mr. Pil to have asked for an extension to
his exit visa when he applied to extend his Canadian visa. It is therefore
somewhat incongruous to now assert that his refugee claim ought to be enhanced
by his failure to seek permission to extend his exit visa thereby putting his home
at risk. The further argument that the Iranian regime is unpredictable and,
therefore, the Board ought to have assumed the worst for his return, is also
untenable. Mr. Pil had the burden of proving that he faced a real risk in Iran. That
burden could not be satisfied by speculation about what the authorities might
do or by asserting that he might simply be perceived as a political threat
notwithstanding the absence of any evidence to that effect.
[17]
The
Board had good reason to expect to see some evidence about how returning
Iranians had been treated in like circumstances. If such citizens had
experienced arrest and persecution, one could reasonably expect to find some
documentary verification but, here, none was tendered. The Board raised this as
an issue during argument but nothing was done to address it. In my view, the
Board was not obliged to give any greater consideration to the evidence
concerning Mr. Pil's home than what is reflected in its decision. The
authorities simply executed on the security they held and, in the absence of
any other evidence, no reasonable inference could be drawn that further adverse
consequences would await Mr. Pil upon his return to Iran.
[18]
Counsel
for Mr. Pil argued that the Board also erred in its treatment of the evidence
dealing with the issues of re-availment and delay. He pointed to Mr. Pil's
explanations for failing to seek refugee protection in Malaysia and for his
14-month delay in seeking refugee protection in Canada. He
contended with some justification that Mr. Pil's explanations were reasonable.
He maintained, therefore, that Mr. Pil's explanations should have been
accepted. While I agree that it was reasonably open to the Board to accept Mr.
Pil's evidence on these issues, the fact remains that it did not. The Board's
review of this evidence is comprehensive and its conclusion is reasonable.
That conclusion is contained in the following passage:
The fact that the claimant left and
returned to Iran on three previous occasions, delayed leaving Iran for eleven
years after he was released from prison, failed to claim protection in Malaysia
while there on three occasions between 1997 and 2000, and failed to claim
protection at the Port of Entry or for fourteen months thereafter, lead me to
conclude that the claimant does not, subjectively, fear serious harm in Iran.
Each of these facts is significant when considering the claimants’ subjective
fear. Although the presence of any one of them may not necessarily be
determinative, I find that these instances, when accumulated, are
determinative.
The claimant testified that he was
“conflicted” as to what he should do. He was concerned for his family in Iran
as well as his daughter here in Canada,
who if he claimed would suffer some unspecified problems. I find that if the
claimant had “conflict of the mind” as to what he should do, that, in itself,
is an indication that the claimant lacks a subjective fear. When one fears for
one’s life, one is not concerned about one’s property or whether it might
discomfit one’s offspring. Nevertheless, the claimant asked Immigration Canada
for an extension on his visa, knowing his wife and son remained in Iran, knowing that the regime might
confiscate his home held by way of a bond.
I do not accept his explanations as to why
the claimant re-availed to Iran thrice, delayed in leaving
and delayed in claiming once here. The claimant is well educated, an
accountant and an entrepreneur. He has two sons who have claimed asylum in the
UK and a son-in-law who
successfully claimed refugee protection from Canada. I find, on balance, that the claimant
has not provided sufficient credible or trustworthy evidence to establish he
has the requisite subjective fear for accepting his claim for protection.
[19]
It
is not the function of this Court to reweigh the evidence or to substitute its
views for those of the Board provided that there is evidence which reasonably
supports the Board's findings. On these issues, the Board's conclusion had
ample evidentiary support and, therefore, cannot be impeached. For this, I
adopt the views of my colleague Justice Richard Mosley in Gonzalez v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1595, [2005] F.C.J. No. 1965 at
paragraph 17:
The applicant submits that the Board
erred in concluding that her evidence as to why she did not make a claim in the
United States was vague and asserts that
she provided plausible explanations for the delay. It is well settled that
delay in making a refugee claim is an important factor which the Board may
consider in weighing a claim for refugee protection: Heer v. Canada
(Minister of Employment and Immigration), [1988] F.C.J. No. 330 (QL). In
this case, a delay of over four years suggests a lack of a subjective fear of
persecution and it was open to the Board to reject the applicant's
explanations. The applicant, in effect, is asking the Court to make its own
assessment of her reasons and substitute its opinion for that of the Board.
Unless the finding was patently unreasonable, which I do not find, there is no basis
for the Court's intervention.
[20]
Mr.
Pil complains that the Board ignored documentary evidence submitted by his
counsel after the hearing. He says that this was material evidence that should
not have been overlooked.
[21]
I
do not agree that this evidence was material or that it was overlooked. During
argument, the member noted that there was no evidence before him to establish
that returning Iranians who had overstayed the terms of their exit visas were
punitively treated by the authorities. Mr. Pil expressed a concern that the
authorities would assume that he had been involved in anti-government
activities during his time abroad and that he would be subjected to
persecution. The Board then asked if Mr. Pil had evidence that he had been
engaged in such activities during his time in Canada. In
response to this inquiry, Mr. Pil's counsel tendered a 1999 internet editorial
authored by the International Federation of Iranian Refugees in Canada dealing with
the opening of an Iranian cultural center in Ottawa. That
article speculated that this institution was intended to be an "officially
backed center for assassination and spying plots" with a true purpose of
threatening Iranian dissidents in Canada.
[22]
It
is clear from a reading of this article that it was completely non-responsive
to the Board's stated concern about the risk faced generally by returning
Iranians and, also, whether Mr. Pil had been engaged in anti-government
activities in Canada which might
have become known to the Iranian authorities. The Board noted this article but
only by pointing out that it was older than the country condition evidence
already before it from 2005.
[23]
Quite
apart from the fact that this document offered nothing more than a speculative
opinion about the presence of Iranians spying in Canada, it had no
probative value in addressing the Board's stated concerns and it was irrelevant
to the risk that he claimed to face in Iran. It was,
therefore, not an error for the Board to decline to refer to it in the context
of its risk analysis.
[24]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
[25]
This
application for judicial review is dismissed.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
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