Hatami v. Canada (Minister of Citizenship and Immigration)

Transcription

1 Hatami v. Canada (Minister of Citizenship and Immigration) Between Arezo Hatami, applicant, and The Minister of Citizenship and Immigration, respondent [2000] F.C.J. No. 402 Court File No. IMM Federal Court of Canada - Trial Division Toronto, Ontario Lemieux J. Heard: December 2, Judgment: March 23, (31 paras.) Aliens and immigration Admission, refugees Grounds, well-founded fear of persecution Refugee Division, determination by Refugee Division, reasons. Application by Hatami for judicial review of a decision by the Immigration and Refugee Board that she was not a Convention refugee. Hatami was a citizen of Iran. She claimed the Revolutionary Guard came to her home in Iran and arrested her husband and her husband's cousin for political reasons. The Guard later arrested and detained Hatami for a day, but she explained to them that she did not know anything about the cousin, who had stayed with them only briefly. The Guard detained her husband for fifty days, and then took him in for more questioning on subsequent occasions. Hatami stated that this caused her and her husband to believe that the persecution against them would continue. The Board determined that the Guard's interest was in the cousin and not in Hatami, and as her marriage had broken down in Canada and she would be returning to Iran alone, she had neither a subjective nor an objective well-founded fear of persecution. The tapes of the Board hearing were found to be blank, and the judicial review proceeding relied upon affidavits. Hatami claimed that the lack of a transcript prejudiced her right of review. She also contended that the Board had misapprehended the evidence. HELD: Application allowed. The matter was referred to a differently-constituted Board for redetermination. While there was nothing improper in the use of affidavit evidence, the Board wrongly concluded that there was no evidence that Hatami had a genuine subjective fear of persecution. The Board misconstrued the evidence in finding that Hatami's fear of persecution was founded on her single day of detention. The periodic detention of her husband led Hatami to believe that the persecution would continue.

2 Counsel: Rocco Galati, for the applicant. Marcel Larouche, for the respondent. LEMIEUX J. (Reasons for Order): INTRODUCTION 1 Arezo Hatami (the "applicant"), a citizen of Iran, made a refugee claim along with that of her minor son Arman Sabet which were considered at a hearing of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") on September 30, 1997, and December 8, Her claim was based on political opinion and membership in a particular social group, the Family, and, in this context, her husband's activities. 2 On April 16, 1998, the CRDD determined that the claim of her son Arman Sabet had been abandoned because during the sitting of December 8, 1997, it became clear that her son, the minor claimant, would not be appearing for his hearing as his mother, the applicant, believed her estranged husband had taken him out of Canada. The CRDD found that on the balance of probabilities, the child was in the United States with his father. This determination by the CRDD was set aside by Nadon J. of this Court on June 25, 1998, IMM Nadon J. said the CRDD erred in not considering the reason the son could not appear was because he had been kidnapped. 3 With respect to Arezo Hatami's own claim, the CRDD found, on April 16, 1998 she did not have a well-founded fear of persecution if she were to return to Iran and therefore determined that she was not a Convention refugee. 4 This judicial review is in respect of the April 16, 1998 decision. The claim of the applicant's son is still outstanding as a result of Justice Nadon's decision. THE APPLICANT'S PIF 5 The applicant, in her Personal Information Form (PIF), spells out why she, her husband and her son fled Iran. Those reasons center around the activities of Masood, her husband's cousin. Masood wanted a new car. On April 6, 1996, he called his cousin, the applicant's husband, who is in the car business in Teheran. They met on April 9, 1996, they visited car dealers over a couple of days. Masood stayed with his cousin and the applicant at their home in the capital of Iran. 6 On April 13, 1996, at 9:00 in the morning, the doorbell rang at their home; the person at the door said he was from the police but it was the Revolutionary Guards who were there. They searched the home. They found Masood and took him away blindfolded in handcuffs. They also took away her husband in handcuffs. They

3 continued searching. They found Masood's bag, they opened it and found a book, some pamphlets and other materials, all of which they seized. 7 The applicant was asked to accompany the Pasdars/Revolutionary Guards. She did so. She was interrogated about Masood and his and her husband's alleged involvement in anti-government politics. She told them she had no idea what Masood was doing, that she had only met him for the first time that week and neither herself nor her husband had ever been involved in any illegal or anti-government activities. The Revolutionary Guards stated they did not believe what she was telling them. After further questioning, she realized the Revolutionary Guards knew or suspected much more about Masood and they had been "monitoring" her husband and Masood for being involved in suspected underground activities. The applicant was detained for one day; her husband was detained for fifty days and released after putting up a bond and the deed to the family home as security. 8 The applicant relates that after her husband's release, the Revolutionary Guards returned to the family home every five to eight days, arrested her husband and took him into detention for further interrogations of one or two days. This is when the applicant said she realized her and her husband's problems following his release were not at an end and "that the Pasdars were going to continue their persecution of our family, we concluded that it was not possible to live in Iran any longer and we decided to leave the country in order to safeguard our lives and safety and that of our young son". 9 In the balance of her PIF, the applicant relates how she, her husband and her son fled Iran with the assistance of the applicant's sister who lives in Mexico; they hired a smuggler who bribed airport officials in order to avoid any problems. She talks about travelling to Cuba and from Cuba to Cancun, Mexico in order to make arrangements to get to Canada. While in Mexico, the applicant said that she and her husband began to experience marital difficulties resulting in their eventual separation. She and her son left Mexico on September 14, 1996 and arrived in Canada immediately making a refugee claim. 10 She concludes writing the following in her PIF: I am very much fearful that, if I am forced to return to Iran, I will be immediately arrested, detained, tortured and possibly even killed. The Iranian authorities appear to be convinced that my husband is somehow involved with Masood in anti-government political activities or was so involved in the past and have singled our family out for persecution. I am further very fearful of returning to Iran due to my family's illegal escape from the country which will only serve to severely aggravate our case as it has likely caused the authorities to conclude that we were involved in political activities against them. THE CRDD'S ANALYSIS

4 11 The CRDD began its analysis by quoting the Federal Court of Appeal's decision in Rajudeen v. M.E.I (1984), 55 N.R. 129, affirmed by the Supreme Court of Canada in Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689, which held that a well-founded fear of persecution involves a finding of a subjective fear of persecution for which there is a valid basis, noting that the subjective component relates to the existence of the fear of persecution in the mind of the claimant, in contrast to the objective component which "requires that the claimant's fear be evaluated objectively to determine if there is a valid basis for that fear". The CRDD added it is the obligation of the claimant to provide the evidentiary foundation for each component on a balance of probability. 12 The material part of the CRDD's decision is as follows: The panel finds the claimant has demonstrated neither a subjective or objective fear of persecution, nor a valid basis for fearing persecution. The claimant testified that she fled Iran due to a well-founded fear of persecution based on her perceived anti-government political opinion resulting from a first cousin (Masood) of her husband being active in antigovernment political activities. She testified that she was detained for one day for questioning about Masood's political involvement while her husband was held for fifty days. The panel is satisfied from the claimant's own evidence that the authorities' primary goal was to find Masood. Although her husband was held for fifty days, the claimant was released after one day when the authorities supposedly concluded she had no information to give them. Her detention in itself might be considered inappropriate, it is not persecutory. The claimant's situation as related to the Iranian authorities is now even less of a problem. Even if the authorities are still searching for Masood and/or her husband (there is no credible and trustworthy evidence presented to that effect), she would now have even less concern for the authorities, because on her return to Iran, she can show documentation (police reports) that her husband has abandoned her and kidnapped their son. It was her husband who had created the problem for her, and on balance of probabilities, there is no reason to believe the authorities would not believe or accept that explanation. Accordingly, the claimant does not have a well-founded fear of persecution, although she is in a terrible predicament after following her husband to Canada where he has abandoned her and kidnapped their son. This case should be considered for humanitarian and compassionate consideration which, unfortunately is not part of the panel's mandate. [emphasis mine] THE MISSING TRANSCRIPT

5 13 By order of this Court, the CRDD was compelled to provide the applicant with a full transcript of the proceedings before the CRDD. The CRDD attempted to do so but discovered the audio tapes of the proceedings were completely blank; it was not a matter of gaps in a transcript. No transcript at all could be provided as to what went on at the hearing. The CRDD apprised the Court. 14 On June 18, 1999, Sharlow J., (as she then was) adjourned the scheduled hearing of the judicial review application and ordered that applicant's and respondent's affidavits and cross-examination thereon be completed by certain dates. Revised memoranda could also be filed. No new affidavits were filed and no cross-examination took place on the applicant's affidavit originally filed in support of her judicial review application. THE ISSUES 15 Applicant's counsel raised three issues: first, the complete absence of the transcript was fatal and, in the circumstances, denied her a ground for judicial review; second, the CRDD erred in law in ignoring the documentary evidence which spelled out in spades human rights violations in Iran; third, the findings of the CRDD were patently unreasonable in terms of the inferences drawn. ANALYSIS 16 As I see it, the core findings which led the CRDD to determine the applicant did not have a well-founded fear of persecution if she returned to Iran was not based on either the applicant's credibility as a witness or on the veracity of the primary facts she testified to. Further, the CRDD did not identify any contradictions or inconsistencies in her testimony. Rather, the CRDD's conclusion turns on the view of the applicant's evidence and the inferences to be drawn from established facts. Masood was the target; the reason for her release because "the authorities supposedly concluded that she had no information to give them", even assuming the authorities were still looking for Masood and her husband her "situation is now even less of a problem" because "she can show documentation (police reports) that her husband has abandoned her and kidnapped their son" since "[I]t was her husband who had created the problem for her" and "there is no reason to believe the authorities would not believe or accept that explanation". (1) The lack of transcript 17 I cannot accept the applicant's submissions on the unavailability of the CRDD hearing transcript. Whether the lack of a transcript on a judicial review proceeding amounts to a denial of natural justice because it forecloses an applicant a ground for review depends on whether there were other effective means to rebuild the missing record so as to enable the reviewing court to know what went on at the hearing before the administrative tribunal. This principle is established in Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793.

6 18 One way of rebuilding the record is by way of affidavits of the parties before the tribunal. This method was endorsed, particularly in CRDD hearings, by Pratte J.A. in Kandiah v. Minister of Employment and Immigration (1992), 141 N.R. 232, specifically approved in CUPE, supra. Reconstituting the record in this manner was the very purpose of Sharlow J.'s June 18, 1999 order when she adjourned the scheduled judicial review hearing. The applicant had filed an affidavit in support of her judicial review proceedings; she essentially reproduced her PIF. The respondent chose not to crossexamine her on this affidavit and did not file any counter affidavit. 19 At the hearing and in a supplementary memorandum, the respondent accepted the applicant's affidavit as constituting the evidence which was before the tribunal when it made its decision. On this basis, the respondent submits this Court knows what went on at the hearing for the purposes of this review. I agree. In this case, there are no issues of credibility and no findings of contradictions, inconsistencies or implausibilities relating to primary facts which would turn on a detailed consideration of the evidence to determine whether there was proof before the tribunal upon which it could reasonably conclude in the manner it did. (2) The applicable principles to this case 20 The approach to resolving the issues in this judicial review was established in Chan v. Canada (M.E.I.), [1995] 3 S.C.R In that case, the Supreme Court of Canada endorsed what Heald J.A. had said in Rajudeen, supra, as to what exactly a claimant had to do to establish a fear of persecution: (1) the claimant must subjectively fear persecution in his or her own mind; and (2) this fear must be well-founded, that is, to the element of fear--a state of mind and a subjective condition--must be supported by an objective situation, i.e. evaluated objectively to determine if the fear had a valid basis. 21 Major J. in Chan, supra, at paragraph 134, stated "[T]he objective component of the test requires an examination of the 'objective situation' and the relevant factors include the conditions in the applicant's country of origin and the laws of that country together with the manner in which they are applied". 22 Major J. went on to review what he characterized as the documentary evidence in the form of Country Reports on Human Rights Practices of the U.S. State Department. He said where relevant evidence in documentary form is not available, the claimant may still be able to establish that the fear was objectively well-founded by providing testimony with respect to similarly situated persons adding "[T]his liberal approach to establishing the facts which represents a significant relaxation of the usual rules of evidence is intended to grant the claimant the benefit of the doubt in cases where strict documentary evidence may be lacking".

7 23 What I take from Chan, supra, are two principles. First, the tribunal's determination of a well-founded fear of persecution must be based on the evidence before it; this is not a novel proposition but in this case, is a useful reminder that a tribunal's conclusions cannot be based on speculation and assumptions and its findings and conclusions must be grounded in evidence. Second, relevant and direct documentary evidence in the form of country conditions may be a significant element in a claimant's case to establish objectively a claimant's subjective fear. (3) Application to this case 24 In my view, this judicial review must be allowed for several reasons. 25 First, there was no evidentiary basis upon which the tribunal could reasonably conclude the applicant did not have a genuine subjective fear of persecution. The tribunal found the applicant's evidence credible. Her subjective fear is clearly established in her PIF. This is not an insignificant error on the part of the tribunal because it impacted on the view the tribunal took on the objective element of her well-founded fear of persecution. 26 Second, the tribunal misconstrued the evidence in at least two significant ways: (1) it based its consideration of the claimant's fear of persecution only to the one instance that her husband had been detained for fifty days. The applicant's evidence was that after her husband's release from a fifty day detention, the Revolutionary Guards returned to the family home every five to eight days, arrested her husband and took him into detention for further interrogation of one or two days. It was this continued persecution which motivated the family to flee Iran; (2) the tribunal speculated Masood was still at large; the evidence is that he was arrested along with the applicant's husband; there is no evidence he was released. This fact destroys the tribunal's assumption the Iranian authorities were still searching for Masood. They had found and captured him; the question is why were they still interested in her husband if that was the case? 27 Third, I agree with the applicant's submissions the tribunal made its findings in absence of any consideration of the documentary evidence. This is not the type of case where the tribunal considered the documentary evidence but did not refer to every document in its reasons. 28 In this case, the documentary evidence was directly material to the applicant's claim. It spoke to practices in Iran constituting human rights abuses: persecution on political grounds and persecution of relatives of political dissidents particularly family members and the vulnerability of women in that process. There was also documentary evidence relating to how Iran treats returnees who had left illegally, which was the applicant's case. 29 None of this evidence was commented upon by the tribunal leading necessarily to the conclusion it was not taken into account and considered.

8 30 In my view, the combined failure by the tribunal to assess the documentary evidence and the misinterpretation of the evidence, led the tribunal to assume the lack of interest which the Iranian officials would have in the applicant if she were to return to Iran because her husband abandoned her. The tribunal assumed the Iranian officia ls no longer were searching for her husband and made a fundamental mistake, not based on the evidence, about Masood's whereabouts. On this basis, the tribunal determined the Iranian officials would leave her alone if she returned to Iran. These findings were not based on evidence. In the circumstances, intervention by this Court is warranted and justice, based in law, requires a redetermination by the tribunal on whether in reality the applicant has a well-founded fear of persecution. DISPOSITION 31 For all of these reasons, this judicial review is allowed, the applicant's claim is to be reassessed by a differently constituted tribunal. No certified question was proposed and none is put forward. LEMIEUX J.