Date: 19980116
Docket: IMM-4811-96
BETWEEN:
AIYOUB CHOUBDARI BASMENJI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR DECISION
WETSTON J.
[1] The applicant appeals a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board"), dated 14 November 1996, wherein the Board determined that the applicant was not a Convention refugee, within the meaning of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The Board found that the applicant did not have a well-founded fear of persecution in his country of nationality, Iran. This finding was based on the Board's determination that the applicant's evidence was not credible, as the applicant's behaviour prior to his arrival in Canada did not appear to the Board to be in accord with the applicant's claim that he faced persecution, should he be returned to Iran.
[3] The Board found that the applicant had been living in Japan, where he married his present wife, but voluntarily returned to Iran. The Board also found that the applicant could have pursued "a claim for status" in Japan, as the spouse of a Japanese national, but chose not do so. This behaviour was found not to be in accord with the applicant's claim for refugee status in Canada, on the grounds that he faced persecution, should he be returned to Iran. Moreover, the Board found that the applicant must have attempted to make a claim in Japan, before he could make a claim for refugee status in Canada.
[4] The applicant submits that he did not fear persecution in Iran when he left for Japan, but did have grounds to do so shortly upon his return from Japan. He did leave Japan voluntarily, but only on the threat of imminent deportation, as he had overstayed his visa. The applicant argues that whether he may have a claim for some form of status in Japan, as the spouse of a Japanese national, is not relevant in the determination of refugee status under the Act. Further, the applicant argues that the Board erred in making its finding of credibility, in that it misconstrued the evidence before it, and that it breached its duty of fairness, by failing to notify the applicant that his possible claim to status would be at issue in its decision.
[5] The respondent argues that, even if the Board erred in determining that the applicant must first seek the protection of Japan before he could apply for refugee status in Canada, the primary thrust of the Board's reasons was that it did not believe the incidents alleged by the applicant in support of his claim. This finding of credibility was for the Board to make, and should not be substituted by the opinion of this Court, upon review.
[6] At issue in this application is whether the Board erred in making its finding of credibility, based, in part, on its finding that the applicant should have attempted to claim some form of status in Japan, prior to his making a claim for refugee status in Canada.
[7] The respondent's argument suggests that the Board, in effect, made two separate findings: a primary finding concerning the applicant's credibility, and a secondary, non-determinative, finding concerning the need to apply for some form of status in Japan prior to making a claim for refugee status in Canada. The respondent submits that even though the Board may be found to have erred in making the latter finding, such an error is inconsequential given the Board"s finding of credibility: Sandhu v. M.C.I. (IMM-299-96, 22 November 1996, F.C.T.D.); Manu v. M.C.I. (IMM-1505-92, 21 June 1995, F.C.T.D.).
[8] I cannot accept this interpretation. The Board did not merely rely upon its assessment of the evidence before it to find that the applicant's allegations were not credible. Rather, the Board also relied on its finding concerning the availability of Japan as a possible source of protection for the applicant to support its determination that the applicant lacked credibility.
[9] The Board indicated that "the main reason for ... making this finding is that the [applicant's] behaviour is not in accord with alleged facts. The [applicant] could have sought Japanese protection, upon marriage to a Japanese citizen." The Board also stated:
| It is clear to the panel that the claimant had the opportunity and still has before him the opportunity of status in Japan. It is therefore the finding of this panel, that, with the opportunity of making a claim in Japan still before the claimant, that this claimant must first seek the protection of Japan before he turns to the international community for Refugee status, whether the claimant wants that available protection or not (emphasis added). |
[10] The Board has closely linked the issue of the availability of a claim in Japan for the applicant, which, the Board concluded, must be sought prior to any claim being made in Canada, with its finding of credibility. As such, the Board's finding that the applicant must first seek some form of protection in Japan is fundamental to its decision.
[11] "If the Board's decision is based on a substantial error, which if it had not been made might have caused the Board to decide otherwise, that decision should be quashed and referred back for re-consideration by another panel of the Board": Abdullahi v. MCI (IMM-1610-95, 10 January 1996, F.C.T.D.) at 2. Therefore, if the Board erred in its finding that the applicant must have attempted to claim some form of status in Japan, prior to making a claim for refugee status in Canada, its decision cannot stand.
[12] There does not appear to be any authority for the proposition that the applicant must have first pursued a claim for some form of status in Japan (presumably either as a refugee, or a spouse of a Japanese national), before he could claim refugee status in Canada. It is only clear that a claimant must seek the protection of countries in which the claimant can assert nationality as a basis of citizenship, prior to making a refugee claim in Canada: Canada (A.G.) v. Ward , [1993] 2 S.C.R. 689; M.E.I. v. Akl (1990), 140 N.R. 323 (F.C.A.); Grygorian v. M.E.I. (IMM-5158, 23 November 1995, F.C.T.D.).
[13] In this case, there is only one country in which the applicant can claim citizenship on the basis of his nationality: Iran. He does not have a right to claim citizenship in Japan, though he may be able to obtain some form of protection on the basis of his marriage to a Japanese national. This case is therefore unlike those involving persons who could qualify for citizenship in another country, as of right, prior to their making a claim for refugee status in Canada.
[14] Accordingly, the application for review shall be granted. The matter shall be returned to a differently constituted panel of the Board for rehearing and reconsideration.
[15] I have decided that no question shall be certified in this case.
Howard I. Wetston
Judge
Ottawa, Ontario
January 16, 1998