Federal Court Decisions

     IMM-1921-96

B E T W E E N:

     SEDIGHEH ASADI, FARIBORZ AZIMPOUR and

     FARZIN AZIMPOUR

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

LUTFY, J.:

     This is an application for judicial review of the determination by the Convention Refugee Determination Division (the "Tribunal") that the applicants have no well-founded fear of persecution for reason of their membership in a particular social group or their political opinion.

     The applicants, a mother ("the principal applicant") and her two minor children, are citizens of Iran. The principal applicant's family was first involved in anti-government activities in 1979. Her brother was executed in 1984. In March 1990, the Islamic Revolutionary Guard raided the applicants' family home in searching for her two older sons, not the minor applicants. She was insulted and kicked. Her husband was beaten, arrested and detained for two months in Evin Prison where he was interrogated and tortured. Her two older sons left for Canada in July 1991 and March 1992 respectively where they were determined to be Convention refugees by two different panels in 1992. According to her Personal Information Form, the principal applicant was interrogated, sworn at and threatened with flogging and imprisonment after her sons' departure from Iran.

     In July 1994, the principal applicant's husband was arrested. A few days later, on July 27, 1994, the family home was once again searched. The principal applicant was insulted, threatened and struck but neither arrested nor detained. According to her evidence, her husband has been in prison since July 1994 without trial, mainly at the Evin Prison. The principal applicant encountered no further incidents while in Iran prior to her departure for Canada some five months later in December 1994.

     While the principal applicant was supportive of the cause espoused by her family members, her own active involvement was marginal.

     On the basis of this evidence, the Tribunal found as follows:

The panel is of the opinion that the claimants do not have a well-founded fear of persecution. The test for determining whether or not a fear is well-founded is whether or not there is a reasonable chance or a serious possibility of persecution if returned, with "serious possibility" being the preferred phraseology. (references omitted)

     ...

The Iranian response to political dissidence is thus very brutal. But does this mean that the claimants face a serious possibility of persecution? We think not.

In 1984, the female claimant's brother was executed. She was not, however, arrested or detained in connection with his activities.

In 1990, two of her sons (not the minor claimants) had to go into hiding due to their political activities, and although the female claimant's home was searched and she was roughly treated, she was not arrested or detained.

In July 1991, one son escaped Iran. In March 1992, so did another. The female claimant was subsequently questioned about their whereabouts, but she was neither arrested nor detained.

On 27 July 1994, a few days after the arrest of her husband, the female claimant's home was searched and, once again, she was neither arrested nor detained.

In our opinion, this evidence demonstrates that the claimants do not have a well-founded fear of persecution in Iran. Had there been a serious possibility that the Iranian authorities would arrest, detain, torture, incarcerate, and/or execute the claimants, they had ample opportunity to do so from 1984 to 1994. That they did not do so leads us to find that, while the mere possibility may not be able to be ruled out, no serious possibility of persecution exists.

     ...

After the July 1994 incident, the claimants remained in Iran. They were not in hiding, and remained at their own home. The authorities never came again to even question the claimants, let alone arrest, detain, torture, incarcerate, or execute them. Given that they remained in Iran, without difficulty, until December 1994, our finding must be that they have no well-founded fear of persecution.

     The applicants' counsel submits that the Tribunal's use of the words "had there been" is inconsistent with the prospective element of the test of a well- founded fear of persecution. Similarly, he argues that the use of the word "would" in the same sentence is inconsistent with the threshold of "serious possibility". In my view, these submissions must fail. On a review of the decision in its entirety, I am satisfied that the Tribunal properly defined the test that it had to apply.

     The Tribunal was entitled to consider past events in the context of all other evidence in assessing whether the applicants are objectively at risk. However, in reviewing the principal applicant's mistreatment since 1984, the Tribunal noted not less than four times that she was neither arrested or detained. The clear implication is that persecution necessarily requires arrest or detention. In my opinion, this constitutes the Tribunal's first error in law. See Oyarzo v. Minister of Employment and Immigration, [1982] 2 F.C. 779 (F.C.A.) at 781 (Thurlow C.J.) and 782 (Heald J.).

     The Tribunal went on to consider the impact of the applicants' illegal departure from Iran:

The female claimant also claims to fear that the claimants will be persecuted because they left Iran illegally. In the documentary evidence, we note the following:

The most likely sentence of an Iranian who has left Iran illegally, according to both the Ministry of Foreign Affairs and the information we have been able to gather would be an administrative fine... Cases of this nature are dealt with by the civil court, not the revolutionary courts. A prison sentence seems to be rarely used... 10

Based upon this evidence (and the claimants provided no evidence to the contrary), we find that, for their illegal exit, they face a serious possibility of a fine, but only a minimal possibility of imprisonment.

A fine is an economic sanction, and "clearly economic sanctions do not constitute persecution." Accordingly, a serious possibility of a fine does not equate to a serious possibility of persecution.

Even if the claimants were to face a serious possibility of imprisonment for their illegal exit from Iran, that would not support a finding of a well-founded fear of persecution. There is no evidence before us to indicate that the term of imprisonment is so lengthy as to be persecutory, and, in any event, there would appear to be no connection to any of the five Convention reasons. (other references omitted)

    

10      Exhibit R-1, CRDD Information Package: Iran, January 1996, item 1.4, Issues Related to Iranian Asylum Seekers and Refugee Applications Abroad, Tehran, October 1993, p.33

     The Tribunal did not identify the applicants' illegal departure from Iran as a specific issue during the opening comments of the hearing. Its finding that the principal applicant would likely face no more than an administrative fine or a term of imprisonment so short as not to be persecutory was based on the document cited in footnote 10 of its reasons (see above). This document was not produced at the hearing nor included in the Tribunal's record filed with this Court. However, an index referring to the document was tabled at the Tribunal hearing.

     The respondent's counsel submits that these procedural issues do not constitute a denial of natural justice. In his view, the applicants' illegal departure is a fact to be considered in assessing their well-founded fear and need not to be noted as a specific issue at the outset of the hearing. The document relied upon by the Tribunal is publicly available and is referred to in the index. The principal applicant did make a passing reference to her fear of imprisonment and torture upon her return "... because I have skipped from Iran." Her counsel also alluded to this issue very briefly in his oral representations to the Tribunal.

     When read in its entirety, the Tribunal's decision discloses a second reviewable error in law over and above these procedural issues.

     The Tribunal relied on the general practice of administrative fines or short periods of imprisonment for returning Iranians who flee their country illegally. In my view, it was wrong for the Tribunal to assume that this general practice would apply to the applicants without taking into consideration the execution of the principal applicant's brother, the anti-government activities of her two older sons and, more importantly, the ongoing incarceration of her husband in Evin Prison. It was incumbent upon the Tribunal in assessing the prospective element of the applicants' well-founded fear to consider the possible consequences of their return to Iran in the context of the family history and the principal applicant's husband still in prison without trial. The Tribunal's decision does not disclose that this prospective assessment was made. Even the Tribunal's assumption that the general practice of administrative fines or short prison terms would be applicable to these applicants is not evident from the short extract of the document cited in footnote 10.

     For these reasons, the decision of the Tribunal will be set aside and the matter referred to a differently constituted panel for a new hearing in a manner not inconsistent with these reasons. In the circumstances, it is not necessary to consider the applicants' submissions concerning the Tribunal's statements in respect of the evidence, or lack thereof, of the refugee status granted to the principal applicant's older sons. There is no question to be certified.

                         "Allan Lutfy"

                         Judge

Ottawa, Ontario

April 18, 1997