Federal Court Decisions

Date: 19971202

Docket: IMM-2193-96

BETWEEN:

     GHAFOUR SERRI,

     Applicant,

AND:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

JOYAL, J.

[1]      This is an application for judicial review of a decision by the Immigration and Refugee Board, dated May 10, 1996, wherein the Board decided that the applicant was not a Convention refugee under s.2(1) of the Immigration Act, R.S.C. 1985, c.I-2.

The Facts:

[2]      The applicant is an 81 year-old citizen of Iran. He is the father of six children and has been a widower since 1994. All of his children fled Iran some eight to ten years ago after the Islamic revolution. Three of his children are in Canada, with the remainder in the United States, Austria and Turkey.

[3]      After the departure of his children from Iran, the applicant and his wife started being questioned three or four times a year by the Iranian government. They were usually taken to the Evin prison and detained from morning until two o'clock in the afternoon. They would be questioned as to the whereabouts of their children and would be pushed and punched by their guards.

[4]      The couple were last detained in April 1994. Shortly thereafter, in July of that year, the wife suffered a fatal stroke and heart attack. In October 1994, the applicant legally left Iran, with his own passport and visa, and came to Canada, where he eventually claimed refugee status. His children who are in Canada were admitted as refugees.

Refugee Board Decision:

[5]      In its decision, the Board concluded that the applicant did not have a well founded fear of persecution. It did recognize a subjective fear, but found that the applicant's situation did not amount to persecution as defined by the U.N. Convention and as interpreted by the Federal Court.

The Issue:

[6]      At issue herein is whether the Refugee Board erred in law by concluding as it did that the applicant did not have a well founded fear of persecution.

Analysis:

[7]      The criteria that must be met by the claimant in order to establish a well founded fear of persecution was best articulated by Heald J.¹:

The subjective component relates to the existence of fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.

[8]      In the present case, the Board did not question the applicant's credibility and indeed it did acknowledge that he had a subjective fear of persecution. It concluded, however, that the applicant did not meet the onus put upon him as to his objective fear of persecution. This "objective fear" has been defined as requiring the claimant to prove that there is a "reasonable" or "serious" possibility of persecution if he is returned to his country of origin².

[9]      The definition of Convention refugee does not include the definition of the term persecution, thus that term may be considered as per its ordinary definition³. The Living Webster Encyclopedic Dictionary defines "persecute" as:

to harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship.

and "persecution" as:

the act or practice of persecuting; the state of being persecuted.

[10]      This Court has established that the word "persecution" does not need to be interpreted restrictively. It has been decided that persecution could occur even without deprivation of the claimant's liberty⁴ or actual physical mistreatment⁵.

[11]      In the present case, the applicant comes from Iran, a country not officially plagued with terrorism, rebellion or civil war, but which is nonetheless a very oppressive state. The Islamic Republic of Iran has been denying Amnesty International access for research into the human rights situation in the country since 1979. Most country reports are consistent in finding that any anti-government activity carries extreme penalties.

[12]      The hard line conditions in Iran were considered by the Board, which could readily conclude that the subjective fear of persecution experienced by the claimant was well-founded: the advanced age of the claimant, the repetitive interrogation sessions in prison, the heart attack suffered by his spouse and her demise a short while later, his longstanding connection with the pre-revolutionary regime under the Shah, such was the simple evidence on which the Board could conclude as it did in that respect.

[13]      However, the road was not so easily traversed when the Board had to deal with the issue of whether the claimant had satisfied the onus of establishing objective fear of persecution. The Board noted that in spite of the history of arrests, disappearances and executions in Iran, the claimant did not suffer any similar experiences during the eight or ten years following the departure of his children. Further, the Board found that the claimant had left Iran legally for Canada, a situation which would have been unlikely had he been subject to police surveillance or arrest.

[14]      The Board did find that the claimant had a well founded fear of further questioning by the police with respect to the whereabouts of his children who had left Iran some many years earlier. But such a fear, according to the Board, cannot be said to be an objective fear of persecution. In this respect, the Board relied on the United National High Commission for Refugees Handbook⁶, as well as on the comments of my colleague Muldoon J. in Naguleswaran⁷ and Shanmuganathan⁸.

Findings:

[15]      It is my respectful view that the criteria set out in the jurisprudence with respect to both subjective and more objective fears of persecution have been aptly covered by the Board. The authorities cited are clear and specifically adapted to the particular set of facts facing the Board.

[16]      No doubt, the age and health condition of the claimant, as well as the evidence of his granddaughter at the hearing, are of a nature to attract a great deal of sympathy on his behalf. It might be said that under the circumstances, compassionate and humanitarian grounds are there for the applicant's benefit. Such grounds were readily noted by the Board which, however, respected its jurisdiction or terms of reference in dealing exclusively the refugee status of the claimant. Said the Board:

Our mandate is to determine who are and who are not Convention refugees. All we are to do is render a legal determination of a person's legal status. Nothing more, nothing less.

[17]      In other words, the Board was respectful of the role or authority of others in determining who can remain in Canada or who is to be removed.

Conclusion:

[18]      After reading the transcript of the hearing before the Board, upon analyzing the reasons for the Board's decision and after considering the very articulate memoranda of argument filed by both counsel, I cannot subscribe to the claimant's argument that the Board's decision contains the kind of error which might justify my intervention. It is true that the case has its singular shape and form. It might also be true that the Board faced the type of borderline case where rendering any kind of decision is more of a toss-up than anything else. Yet, I am satisfied that the Board did apply itself to that unhappy task. I am satisfied that it covered all bases and in so doing, made proper findings of fact and correctly applied the law.

[19]      I should leave it to the respondent to look seriously and generously at the humanitarian and compassionate aspects of the claimant's case, aspects to which the Board referred but upon which it properly refrained from ruling. For purposes of judicial review, however, the application should be dismissed.

                                 L-Marcel Joyal

    

                                 J U D G E

O T T A W A, Ontario

December 2, 1997.

__________________

     ¹      Rajudeen v. M.E.I., (1984) 55 N.R. 129 at 134.

     ²      See Chan v. Canada (M.E.I.) , (1995) 128 D.L.R. (4th) 213 at 259; and Adjei v. Canada (M.E.I.), (1989) 2 F.C. 680 (F.C.A.).

     ³      Rajudeen v. M.E.I., (1984) 55 N.R. 129 at 133.

     ⁴      Oyarzo v. M.E.I., (1982) 2 F.C. 779.

     ⁵      Amayo v. M.E.I., d(1982) 1 F.C. 520.

     ⁶      UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, 1988, p. 104-5.

     ⁷      Naguleswaran et al vs. MCI, Court file IMM-1116-94, 19 April 1995.

     ⁸      Shanmuganathan vs. MCI, Court file IMM-2019-94, 2 May 1995.