Federal Court Decisions

     IMM-2687-96

Between:

     HOSSEIN HAMEDI NEJAD and LYLIKHANOM AZAMIAN,

     Applicants,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS

     (delivered orally from the bench at Toronto on July 29, 1997)

Muldoon J.

     THE COURT: The Court will be delivering written reasons further on. [As it happens, these are the reasons - the only ones.] However, the Court can say today, having read through the file, considered the jurisprudence and taken particular note of the oral arguments, that the application will be allowed and the matter referred to a differently constituted panel of the Convention Refugees Determination Division, but that the questions presented will not be certified because the Court believes that they are not important questions of general importance. It has to do, this decision, with the particular circumstances of the applicants in this case and it is a matter of the evidence and the plausibility of their evidence.

     Now, the CRDD held them to be credible and then, in effect, said that the effect of their evidence was implausible, in effect it said that. That is the only way (it seems illogical) in which one can say the witnesses are credible and then reject the evidence they put before the board.

     The case of Usuf, which is a decision of the Federal Court of Appeal, is most important here for the very quotation of Mr. Justice Hugessen there, Usuf v. Minister of Employment and Immigration, [1992] 1 F.C. 629, in which Mr. Justice Hugessen, at p. 632, is reported as saying:

The definition of a refugee is certainly not designed to exclude brave or simply stupid persons in favour of those who are more timid or more intelligent. The CRDD did recognize and the Court agrees that there may be certain circumstances in which the particular characteristics or circumstances of a claimant again, other than those covered by the Convention grounds, might affect the assessment of whether certain acts or treatments are persecutory to the extent that an agent of persecution intentionally plays upon or exploits the fact that a person suffers from a particular frailty or condition in order to cause harm, an act not normally or inherently persecutorial, may be transformed into an act of persecution.

     That is beautiful in theory, but who knows what is the intention of the persecutor? Who knows what is the particular knowledge of the persecutor? One must look at the act and the effect. And in this case, in particular, because of the old age of the applicants, it should have been more obvious to the CRDD panel that the effect upon them was that of persecution.

     It may not be necessary to write lengthy reasons after all. The Court particularly directs the new panel to look at the effect of harassment of a violent kind on the children of the applicants as striking at them. The Court noted during the hearing that one can divorce one's spouse but one cannot divorce one's parents or one's children. And that is a normal human relationship which is very tender and sensitive and it does not take a really sophisticated persecutor to know that when you strike at the children you strike at the parents, even when the children are adults and the parents are old.

     Of course, they were seeking to find the whereabouts, somewhere in Iran, of the applicants' son Danesh and kept coming back and kept coming back to the parents, kept terrifying the parents. You know, there is more than physical terror, more than incarceration in a State such as Iran, a fundamentalist theocracy. Simply for a State official or one in league with the State to call an applicant anti-Islamic, anti-revolutionary is terrifying because people have been murdered by the State on such accusations.

     And so they came here, they said the CRDD agreed, to obtain respite from the atmosphere of persecution in Iran and they stupidly, and the Court unqualifiedly says "stupidly attended a rally, even a big rally in Queen's Park where they could be observed". One does not know whether for sure they were observed, but it was stupid and negligent of them insofar as their children's safety was concerned to attend the rally, yet they did, and then things began to happen back home in Iran. The pressure on the children was intensified, the children were regarded then as being anti-revolutionary, anti-Islamic and their chances for advancement in society were frustrated and aborted.

     The new panel of the CRDD should consider then whether the applicants became refugees sur place and whether it would be safe for them to be compelled to return to Iran, compelled or not, whether it would be safe to return to Iran. They may not be very intelligent in their attending of the political rally in Canada: they are obviously not brave, but as Mr. Justice Hugessen said the law is not addressed only to save the brave, but also the weak, the timid and even the imprudent.

     The Court has dealt with the questions put forward for certification and finds that they are not certifiable and the ultimate decision is that the Court allows the application and refers the matter back to a newly constituted panel of the CRDD.

     Are there any questions?

     MR. CRANE: No, my Lord, thank you very much.

     THE COURT: Thank you, Mr. Crane.

     MS. HENDRIKS: No, my Lord, thank you.

     THE COURT: Thank you, Ms. Hendriks.

     Perhaps this judge should end by saying that the Court's decision was not made easier by the excellence of counsel on both sides. That is not just a sop: that is sincere.

     MR. CRANE: Thank you, my Lord.

     MS. HENDRIKS: Thank you, my Lord.

     THE COURT: So the Court will rise now.

-- Court rises at 11:30 a.m.