Date: 20020612
Docket: IMM-4539-01
Neutral citation: 2002 FCT 666
Toronto, Ontario, Wednesday, the 12th day of June, 2002
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
SHIRZAD SHAHAB AHMAD
MOSTAFA AHMAD
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an Application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated August 31, 2001, wherein the CRDD determined that the Applicants were not Convention refugees.
[2] The Applicants are citizens of Iraq who claimed Convention refugee status on the basis of a well-founded fear of persecution on the grounds of their ethnicity as Kurds, their political opinion, and membership in a particular social group, family membership. The Applicants fear persecution by the Iraqi authorities because their father was a member of the Kurdish Democratic Party (the "KDP"). The Applicants also fear persecution by another Kurdish group called the PUK, because of inter-factional fighting between the two groups.
[3] In its extensive evaluation of the evidence, I find that the CRDD made a preliminary error in law which will not allow the decision to stand.
[4] At page 6 of the decision, the CRDD makes the following findings of law:
The panel does not find it reasonable to believe that the PUK were seeking to persecute the claimants. Perceived persecution has, according to the Federal Court of Appeal in Hilo to be assessed from what one would reasonably expect from the eyes of the allege (sic) persecutors. It is not a subjective test, but an objective one, based on what the reasonable person would expect.
...
If one applies the Hilo test, requiring assessment of perceived persecution, according to what one would expect a reasonable person would see through the eyes of an alleged persecutor, there is no persuasive evidence that the Iraqis saw the claimants as KDP supporters.
[5] A footnote in respect of the citation of Hilo by the CRDD is the following:
Hilo v. Canada (Minister of Employment and Immigration (1991) 15 Imm. L.R. (2d) (F.C.A.) at 203. The court held: "It is not just what the claimant perceives, but it is also what the potential persecutors perceive or could reasonably be expected to perceive".
[6] In fact, as pointed out by counsel for the Applicant, the "test in Hilo" at pages 202-203 is the application by Justice Heald of a statement from the case of Inzuza v. Minister of Employment and Immigration (1980), 103 D.L.R. (3d) 105 (Fed. C.A.), at page 109, where Justice Kelly said:
[T]he crucial test in this regard should not be whether the Board considers that the appellant engaged in political activities, but whether the ruling government of the country from which he claims to be a refugee considers his conduct to have been styled as political activity.
[7] Thus, the quotation cited in the footnote in the present case is not found in Hilo, but is most likely the quotation of some person's interpretation of that authority. Nevertheless, no quarrel exists between counsel in the present case with respect to the interpretation, it being agreed that Hilo stands for the proposition that the CRDD should strive to decide "what would reasonably be apparent to a persecutor".
[8] However, the concern raised by the Applicant is the CRDD's addition to the test of a "reasonable person" looking through the eyes of an alleged persecutor. It is argued that this addition is not only a misstatement of the law but the introduction of a factor which can make a difference to the outcome of a case in which the test is applied.
[9] I agree with the Applicant and find that the decision was made in error of law.
ORDER
Accordingly, I set the CRDD decision aside and refer this matter to a different panel for redetermination
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4539-01
STYLE OF CAUSE: SHIRZAD SHAHAB AHMAD
and MOSTAFA AHMAD
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, JUNE 12, 2002
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: WEDNESDAY, JUNE 12, 2002
APPEARANCES BY: Mr. Micheal Crane
For the Applicants
Ms. Mary Matthews
For the Respondent
SOLICITORS OF RECORD: Micheal Crane
Barrister and Solicitor
166 Pearl Street
Suite 100
Toronto, Ontario
M5H 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020612
Docket: IMM-4539-01
BETWEEN:
SHIRZAD SHAHAB AHMAD
and MOSTAFA AHMAD
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER