Date: 20040317
Docket: IMM-4168-03
OTTAWA, Ontario, this 17th day of March, 2004.
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
REZA ZANDI
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated May 5, 2003, which determined that the applicant, a defector from Iran, is not a Convention refugee or a person in need of protection.
FACTS
[2] The applicant is a 27 year old male citizen of Iran. He is a martial arts athlete and claims a fear of imprisonment and torture in Iran because he defected while in Canada for an athletic competition.
[3] The applicant arrived in Vancouver, Canada on October 9, 2002, as part of a team selected to represent Iran in a martial arts competition. He expressed his desire not to return to a former Iranian athlete now residing in Canada, and was advised to make a refugee claim. On the day the team was scheduled to return to Iran, he separated himself at Vancouver international airport, and returned to the city undetected. He eventually made his way Toronto and filed a refugee claim on November 25, 2002.
[4] After his hearing on May 5, 2003, the Board was not satisfied with the applicant's credibility. It found that the applicant's testimony did not accord with the country conditions in Iran and that the applicant did not fit the profile of persons who pose a serious challenge to the authority of the regime, and are therefore subject to persecution. At page 2 of its reasons the Board states:
[...] The documentary evidence confirms that tens of thousands of students and other activists take part in anti-government rallies and demonstrations expressing their objection to the totalitarian regime. The government often responds by cracking down on demonstrators, temporarily arresting student leaders and resorting to other intimidating tactics in order to control the situation. Under the circumstances, it appears that the government focuses its energy and resources in targeting individuals who pose a serious challenge to the authority of the regime. The documentary evidence confirms that the government targets mainly journalists, writers and political activities. [sic]
[5] The Board did not believe that the applicant had been recruited as a spy and found that he had embellished his claim during his oral testimony. The Board states at page 2 of its reasons:
In such an environment it therefore does not seem plausible that the government agents would waste time on the claimant and try to recruit him for spying on other athletes. There is no evidence that the club, with which the applicant was involved, had any political activity against the regime. Moreover, it appears suspicious that the claimant who did not have any fear from the government (before his departure), all of a sudden would develop such a fear just a few weeks before leaving the country. Sensing this weakness in his story, the claimant made attempt to cover this deficit by adding more information in his oral testimony, implying that the agents recruited him in such a hasty manner because they were seeking information about the athletes who were planning to defect during their competition in Canada.
[6] The Board's specific findings with respect to the applicant's credibility include:
(i) the applicant's testimony did not accord with country conditions in Iran;
(ii) the applicant suddenly developed a fear of the government prior to departing for Iran;
(iii) there was an omission in his Personal Information Form ("PIF") as to being asked to spy on other athletes; and,
(iv) his testimony regarding the month delay in filing his claim was vague, confusing and unsatisfactory.
[7] The applicant submits that the Board wrongly concluded that the documentary evidence indicates that only persons who pose a serious threat to the regime are subject to persecution in Iran. The applicant argues that the evidence shows that the regime devotes considerable energy to monitoring its ordinary citizens.
[8] The standard of review applicable to the Board's findings of fact, and assessment of credibility is patent unreasonableness. The Court will not substitute the Board's decision with its own, except the Board's decision is clearly wrong. See Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), and De (Da) Li Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.). It is open to Board to make a negative credibility finding based on omissions within a claimant's evidence.
[9] The Board's finding that the applicant was not credible is supported by reasons based on findings which were reasonably open to the Board. The Board held that the applicant was not asked by government agents to spy on other athletes. The Board also held that the documentary evidence states that a person such as the applicant would not be targeted by the government. These conclusions were reasonably open to the Board on the evidence. Accordingly, the Court concludes that the credibility finding of the Board should not be set aside.
[10] The applicant submits that the Board did not consider whether he was a Convention refugee based on his membership in a particular social group, namely being a defector under section 96 of IRPA or whether he was a person in need of protection under subsection 97(1)(b) of IRPA. The Court disagrees. The Board did decide that the documentary evidence is that the Government of Iran would not persecute the applicant for simply failing to return to Iran, i.e.
defecting. However, that does not mean that the applicant may not be sanctioned in accordance with the law of Iran for violating the terms of his exit visa. This type of sanction does not equate to the risk of punishment or sanction contemplated by section 96 and 97 of IRPA. The Federal Court of Appeal has held that a person, such as the applicant, who has not been subject to persecution cannot create a ground of persecution (or need of protection) by freely, on their own accord, violating the terms of their exit visa and making themselves liable to punishment upon their return. In Vialentin v. Canada (MEI), [1991] 3 F.C. 390 the Federal Court of Appeal held at paragraph 8 per Marceau J.A.:
¶ 8 I will say, first, that while in humanitarian terms I am very much inclined to sympathize with the idea of granting refugee status to everyone who faces criminal sanctions such as those imposed by section 109 of the Czech Criminal Code, in practical and legal terms the idea seems to me to be illogical and without any rational basis. Neither the international Convention nor our Act, which is based on it, as I understand it, had in mind the protection of people who, having been subjected to no persecution to date, themselves created a cause to fear persecution by freely, of their own accord and with no reason, making themselves liable to punishment for violating a criminal law of general application. I would add, with due respect for the very widely held contrary opinion, that the idea does not appear to me even to be supported by the fact that the transgression was motivated by some dissatisfaction of a political nature (on this point, see, inter alia, Goodwin-Gill, op. cit., pages 32 et seq.; James C. Hathaway, The Law of Refugee Status, pages 40 et seq.), because it seems to me, first, that an isolated sentence can only in very exceptional cases satisfy the element of repetition and relentlessness found at the heart of persecution (cf. Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 (F.C.A.)), but particularly because the direct relationship that is required between the sentence incurred and imposed and the offender's political opinion does not exist. [emphasis added]
To paraphrase the Federal Court of Appeal in Valentin, supra, a defector cannot gain legal status in Canada under IRPA by creating a "need for protection" under section 97 of IRPA by freely, of their own accord and with no reason, making themselves liable to punishment by violating a law of general application in their home country about complying with exit visas, i.e. returning. As worthy as the applicant may be for Canadian immigrant status, the Refugee Board, and this Court, do not have the legal jurisdiction to grant defectors legal status.
[11] Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4168-03
STYLE OF CAUSE: REZA ZANDI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 11, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
DATED: March 17, 2004
APPEARANCES:
Mr. Micheal Crane FOR APPLICANT
Mr. Stephen H. Gold FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Micheal Crane FOR APPLICANT
Barrister & Solicitor
Toronto, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Toronto Ontario
FEDERAL COURT
Date: 20040317
Docket: IMM-4168-03
BETWEEN:
REZA ZANDI
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER