Federal Court Decisions

     IMM-455-96

BETWEEN:

     MASOUD SAFAKHOO and BATOUL ABDOLLAZADEH SARVARI

     and SHAGHAYEGH SAFAKHOO (by her litigation guardian)

     and SHAHIN SAFAKHOO (by his litigation guardian),

     Applicants,

     - and -

     THE MINISTER OF CITIZENSHIP AND

     IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

PINARD J:

     This is an application for judicial review of a decision of the Convention Refugee Determination Division ("the Board"), dated January 23, 1996, which found the applicants not to be refugees within the meaning of the Convention. The applicants claim to have a well-founded fear of persecution in Iran as a result of the principal applicant's political activities in France.

     The Board rejected the applicants' claim on the grounds that their conduct was inconsistent with that of genuine refugees with a well-founded fear of persecution in Iran.

     It is established in the jurisprudence of this Court that conduct inconsistent with a well-founded fear of persecution may properly be relied upon by the Board in rejecting a refugee claim (see for example Caballero et al. v. M.E.I. (1993), 154 N.R. 345, at p. 346 (F.C.A.)).

     In the present case, the Board found that it was inconsistent with a well-founded fear of persecution in Iran that the applicants should sojourn in France for five years without making an application for refugee status. Delay in making a refugee claim is a relevant factor which the Board may consider, but it is not in and of itself determinative of the validity of that claim. As noted by the Federal Court of Appeal in Huerta v. M.E.I. (1994), 157 N.R. 225, at p. 227:

The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant1.

     In any event, delay was not the only factor the Board in the case at bar cited and relied upon as being inconsistent with a well-founded fear. The Board also found it inconsistent with a fear of persecution for the applicants to have chosen to return to Iran "illegally" when their legal status in France ran out. In this regard, it is useful to refer to the following cases: Bogus v. Canada (M.C.I.) (1994), 71 F.T.R. 260, at p. 262 (F.C.T.D.); Ali v. M.C.I. (1996), 112 F.T.R. 9 (F.C.T.D.); Ilie v. M.C.I. (1994), 88 F.T.R. 220 (F.C.T.D.); and Ccanto v. M.C.I. (1994), 73 F.T.R. 144, at p. 149 (F.C.T.D.).

     In my view, the Board's findings that both the failure of the applicants to seek protection in France, and their decision to return to Iran, were inconsistent with a well-founded fear of persecution were reasonable and open to it on the evidence. Consequently, the applicants have not discharged their burden of establishing that the inferences drawn by the Board, which is a specialized tribunal, could not reasonably have been drawn from the testimonial and documentary evidence before it (see Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)). The application must accordingly be dismissed. No questions for certification were proposed by the parties.

O T T A W A

April 11, 1997

    

     Judge

__________________

¹      See also Hue v. M.E.I., March 8, 1988, A-196-87 (F.C.A.) and Heer v. M.E.I., April 13, 1988, A-474-87 (F.C.A.).