Ottawa, Ontario, March 1, 2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
AND IMMIGRATION
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Refugee Protection Division of the Immigration and Refugee Board found that Sima Tajdini was not excluded from the definition of Convention refugee as the Board was satisfied, on a balance of probabilities, that she no longer had permanent resident status in the United States. The Board also found that because she had a well-founded fear of persecution in Iran, she was entitled to refugee protection in Canada.
[2] This is an application brought by the Minister of Citizenship and Immigration seeking judicial review of the Board’s decision. The Minister asserts that the Board erred in finding that Ms. Tajdini had lost her American permanent resident status, and in failing to find that by seeking refugee protection in Canada, Ms. Tajdini was ‘asylum shopping’. The Board further erred, the Minister says, in its assessment of Ms. Tajdini’s credibility.
[3] For the reasons that follow, I am not persuaded that the Board erred as alleged by the Minister, and accordingly, the application for judicial review will be dismissed.
Background
[4] Ms. Tajdini is an Iranian citizen who was granted permanent residency in the United States in 1994, as the spouse of an American citizen. In January of 1996, Ms. Tajdini returned to Iran with her children. In 1998, Ms. Tajdini divorced her husband, and, in accordance with Iranian law, her ex-husband received sole custody of her children. By virtue of a 1999 order of an Iranian Court, Ms. Tajdini was allowed a brief visit once a week with one of her sons.
[5] When she returned to Iran, Ms. Tajdini supported herself by providing English language translation services, and by selling paintings. She became involved with a man in Iran to whom she became engaged in 2003. Ms. Tajdini says that she then discovered that her fiancé, who was involved in the upper reaches of the Iranian government, was addicted to illegal drugs.
[6] Ms. Tajdini states that when she confronted her ex-fiancé about his drug use and threatened to leave him, he became violent with her. Ms. Tajdini was then arrested and jailed. During the course of her imprisonment, she was severely beaten. She believes that her ex-fiancé was able to order her arrest and assault because of his position in the Iranian government.
[7] Ms. Tajdini was also afraid that her ex-fiancé might also use the fact that she had converted to Christianity to further harm her. As a result, with the help of her family, Ms. Tajdini decided to leave Iran and seek refuge in Canada.
[8] Ms. Tajdini travelled to Canada in September of 2004. She arrived at Pearson International Airport, where she met with immigration officials. At that time, she did not cooperate with the immigration officials, refusing to answer any questions about her previous residence in the United States, or with respect to the location of her sons.
[9] Ms. Tajdini says that because of her recent detention in Iran, she was extremely fearful of governmental authorities. She says that she was also taken aback by the hostile treatment she says that she was subjected to on her arrival in Canada, and was afraid to say anything that could be used against her.
[10] A hearing regarding Ms. Tajdini’s refugee claim was held before the Refugee Protection Division of the Immigration and Refugee Board. Although the Minister did not have counsel present at the hearing, the Minister did file a notice of Intent to Participate raising the issue of whether Ms. Tajdini was excluded from the definition of Convention refugee by virtue of her allegedly ongoing permanent resident status in the United States.
[11] The Minister provided the Board with a copy of a printout of the computer file of the United States Immigration and Naturalization Service, which indicated that Ms. Tajdini had received her American permanent residency in 1994. There is nothing in the printout to suggest that her status in that country had changed any time after 1994.
[12] The Minister also provided the Board with an extract from an INS website, entitled “Maintaining Permanent Residency”, which detailed the ways in which permanent residency in the United States could be lost.
The Board’s Decision
[13] The first question that the Board had to address was whether Ms. Tajdini was excluded as a Convention refugee under Article 1E of the Refugee Convention because she continued to have permanent resident status in the United States. In this regard, the Board found, on a balance of probabilities, that Ms. Tajdini was no longer a permanent resident of the United States at the time that she entered Canada.
[14] The Board noted that while the INS report indicated that Ms. Tajdini was granted permanent residency in 1994, it did not disclose her current status. The Board did not accept that because there was no change in her status noted in the INS records, it was necessary to conclude that her status in that country had in fact remained unchanged.
[15] The Board observed that the extract from the INS website stated that a person could lose their permanent resident status if they left the United States to live in another country where they intend to live permanently, or where they remained outside the United States for more than a year. Further, the Board noted that Ms. Tajdini did not meet any of the requirements that would have allowed her to maintain her status in the United States, notwithstanding her absence from that country.
[16] In this regard, the Board found as a fact that Ms. Tajdini had left the United States in 1996, and had lived in Iran from 1996 until she fled to Canada in September of 2004. In reaching this finding, the Board relied on Ms. Tajdini’s testimony, which the Board found to be credible, as well as documentary evidence such as the Iranian Court order providing her with weekly access to her son, and her personal telephone book, which contained only Iranian telephone numbers.
[17] The Board also considered the Air Iran boarding pass used by Ms. Tajdini to come to Canada, and a 2004 document from the Iranian Ministry of Justice exempting her from a one month annual service requirement as a nurse as evidence that she did in fact reside in Iran during the period in question.
[18] Given that Ms. Tajdini had left the United States, intending never to return, and had lived in Iran for eight years before coming to Canada, the Board was thus satisfied that it was more probable than not that she no longer had permanent resident status in the United States.
[19] Moreover, after reviewing the jurisprudence relating to Article 1E of the refugee Convention, the Board concluded that there was simply no evidence that Ms. Tajdini had been “asylum shopping”, as she clearly was no longer a permanent resident of the United States at the time that she entered Canada. The Board also accepted Ms. Tajdini’s explanation as to why she did not try to return to the United States as reasonable.
[20] As a result, the Board found that Ms. Tajdini was not excluded from the refugee definition by operation of Article 1E.
[21] In relation to the inclusion issue, the Board accepted Ms. Tajdini’s explanation as to why she fled Iran. The Board also accepted that her conversion to Christianity was genuine.
[22] The Board found that Ms. Tajdini would be subject to severe punishment or harassment if she were to return to Iran. In coming to this conclusion, the Board relied on Ms. Tajdini’s past experience at the hands of her ex-fiancé, and the country condition information before it relating to the treatment of converts from Islam to Christianity in Iran.
[23] As a consequence, the Board determined that Ms. Tajdini had a well-founded fear of persecution in Iran. The Board further found that there was no safe internal flight alternative available to her in Iran, and that she was indeed a Convention refugee.
Issues
[24] The Minister contends that the Board erred in finding that Ms. Tajdini had lost her permanent resident status in the United States, given that she had not obtained a ruling from an American Immigration Court to that effect. The Board further erred, the Minister says, in failing to recognize that in coming to Canada rather than returning to the United States, where she had permanent resident status, Ms. Tajdini was ‘asylum shopping’. Finally, the Minister says that the Board erred in its assessment of Ms. Tajdini’s credibility.
[25] I will deal first with the issue of the soundness of the Board’s credibility findings. This is because it is necessary to know what the factual context of the case is, and whether the Board’s factual findings can withstand scrutiny before the Minister’s other arguments can be addressed.
The Board’s Credibility Findings
[26] Counsel for the Minister submits that the Board did not provide a sufficiently thorough assessment of the evidence before it in coming to the conclusion that Ms. Tajdini was a credible witness.
[27] The Minister did not point to any evidence that was overlooked or misconstrued by the Board in this regard. Indeed, when questioned by the Court, counsel acknowledged that she was essentially asking the Court to reweigh the evidence that was before the Board. That is not the task of the Court on judicial review, and as a result, I can give no effect to the Minister’s argument that the Board’s credibility findings were patently unreasonable.
Did The Board Err in Finding That Ms. Tajdini Had Lost Her Permanent Resident Status In The United States?
[28] A finding that a claimant should not be excluded pursuant to Article 1E of the Refugee Convention involves a question of mixed fact and law, and is reviewable on the standard of reasonableness: see, for example Canada (Minister of Citizenship and Immigration) v. Choovak, 2002 FCT 573, Canada (Minister of Citizenship and Immigration) v. Choubak, 2006 FC 521 and Parvanta v. Canada (Minister of Citizenship and Immigration), 2006 FC 1146.
[29] Based upon the extract from the website of the United States Immigration and Naturalization Service, the Minister says that the only way that Ms. Tajdini could lose her permanent resident status in the United States was if an American Immigration Court made a ruling to that effect.
[30] In the absence of any such ruling having been obtained by Ms. Tajdini, the Minister says that it was patently unreasonable for the Board to have found that she was no longer a permanent resident of the United States.
[31] In light of the Minister’s argument, it is helpful to consider precisely what the INS website says. The relevant provisions of the section entitled “Maintaining Permanent Residency” state:
Maintaining Permanent Residency
You may lose your permanent resident status if you commit an act that makes you removable from the United States under the law in section 237 of the Immigration and Nationality Act. If you commit such an act, you may be brought before the immigration courts to determine your right to remain a Permanent Resident.
You may be found to have abandoned your permanent resident status if you:
• Move to another country intending to live there permanently.
• Remain outside the US for more than one year without obtaining a reentry permit or returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
• Remain outside the US for more than two years after issuance of a reentry permit without obtaining a returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
• Failing to file income tax returns while living outside the US for any period.
• Declare yourself to be a “non-resident” on your tax returns.
[32] I do not accept the Minister’s reading of the above statement. The Minister relies on the first paragraph in support of the contention that permanent residency in the United States could only be lost through a court ruling. It seems quite clear to me that the first paragraph deals with cases where permanent residency may be lost through a positive act on the part of an individual that makes the individual removable from the United States. In such cases, a ruling from a US immigration court to this effect is required.
[33] The second section of the extract deals with situations that may give rise to permanent residency in the United States having been abandoned. Ms. Tajdini’s case clearly falls into this latter category, and there is nothing in the evidence to suggest that any kind of court ruling is required in cases of abandonment.
[34] The first, second and fourth bulleted items on the list apply to Ms. Tajdini. Based upon the facts found by the Board, Ms. Tajdini satisfies all three of the conditions, any one of which could lead to her having abandoned her US permanent residency.
[35] That is, the Board found as a fact that Ms. Tajdini moved to Iran in 1996, intending to live there permanently. Moreover, Ms. Tajdini had been outside of the US for eight years when she came to Canada, and had never obtained a re-entry permit or returning resident visa. Finally, there was nothing in the evidence to suggest that Ms. Tajdini had filed American income tax returns while she was living in Iran.
[36] The jurisprudence is clear that once the Minister establishes a prima facie case that a refugee claimant is excluded by virtue of the claimant’s status in another country, the burden shifts to the claimant to show that he or she no longer has that status: see, for example, Shahpari v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. 429.
[37] That said, Ms. Tajdini did not have to establish conclusively, beyond any reasonable doubt, that she had lost her permanent residency status in the US by the time that she entered Canada. Rather, the possibility that the American authorities might no longer recognize Ms. Tajdini’s permanent resident status in the United States had to be taken into account in deciding whether it had been established on a balance of probabilities that she still had status in that country: see Mahdi v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1623 (F.C.A.), at & 12.
[38] In this case, the evidence clearly showed that after becoming a permanent resident of the United States in 1994, Ms. Tajdini had acted in such a way as to create a very real probability that the American authorities would no longer recognize her as a permanent resident and would, for that reason, deny her the right to return to the United States.
[39] For these reasons, I am satisfied that the Board’s finding that Ms. Tajdini had established, on a balance of probabilities, that she was not a permanent resident of the United States, and was thus not excluded from the definition of refugee was one that was supported by the evidence, and was entirely reasonable.
Did The Board Err In Finding That Ms. Tajdini Was Not “Asylum Shopping”?
[40] The Minister’s final argument is that the Board erred in failing to find that in seeking the protection of Canada rather than returning to the United States, Ms. Tajdini was “asylum shopping”.
[41] According to the Minister, Ms. Tajdini’s failure to make any enquiry into her permanent resident status in the United States, choosing instead to come to Canada and claim refugee protection in this country, amounts to asylum shopping.
[42] To a large extent, this submission is predicated on the assumption that Ms. Tajdini still had permanent resident status in the United States. I have already found that the Board’s finding that Ms. Tajdini had demonstrated on a balance of probabilities that this was not in fact the case was a conclusion that was reasonably open to it on the evidence.
[43] Moreover, the Board considered Ms. Tajdini’s explanation for her failure to try to re-enter the United States, noting that she had left the United States in 1996, intending never to return. In returning to Iran, Ms. Tajdini had every intention of living there permanently.
[44] The events giving rise to Ms. Tajdini’s fear of persecution did not occur until many years later. The Board accepted as credible Ms. Tajdini’s explanation as to why she felt it necessary to flee Iran, and why she did not think that she would be able to re-enter the United States. As a result, the Board’s finding that Ms. Tajdini was not asylum shopping was one that was reasonably open to it on the evidence.
[45] Moreover, as in the Mahdi decision previously cited, this is not a case where a refugee claimant has voluntarily renounced the protection of one country in order to seek refuge elsewhere. As a result, I can give no effect to the Minister’s argument in this regard.
Conclusion
[46] For these reasons, the application for judicial review is dismissed.
Certification
[47] The hearing in this matter was held on February 22, 2007. At the close of the hearing, and in response to the Court’s inquiry, the Minister’s counsel proposed the following question for certification:
Once there is evidence from a country where a claimant has status for Article 1E exclusion, is the onus on the claimant to produce evidence from that same authority to show that the status does not exist?
[48] Later that date, counsel for the Minister wrote the Court to advise that she had reformulated the proposed question to read:
Once there is evidence from a country where a claimant has status, consistent with Shamlou, is the onus on the claimant to produce evidence that the status has not been lost?
[49] The Shamlou case referred to by the Minister is the decision of this Court in Shamlou v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1537.
[50] In Shamlou, the Board’s finding that a refugee claimant could return to Mexico was challenged by the claimant on judicial review. In this regard, Justice Teitelbaum identified the issue before the Court as “whether the Board came to a conclusion that was reasonably open for it to make based on the facts before it”.
[51] The Board had found that there was no credible or reliable evidence before it to support the clamaint’s assertion that he could not return to Mexico, where he had previously enjoyed status.
[52] This is not the case here, as there was evidence before the Board in the form of the extract from the INS website, which detailed the circumstances under which a foreign national would be deemed to have abandoned his or her permanent residency in the United States. Moreover, there was evidence from Ms. Tajdini, which was accepted by the Board, as to the circumstances surrounding her departure form the United States in 1996, and her residency in Iran between 1996 and 2004.
[53] As a consequence, I was satisfied that the reformulated question suggested by the Minister did not arise on the facts of this case, and it was my intention to refuse to certify it. However, after these reasons were completed, but before they were actually signed, counsel for the Minister wrote a further letter to the Court dated February 26, 2007, in which she said:
Subsequent to the hearing in this matter, and after having had an opportunity to reflect on a proper wording for a proposed question for certification in this case and to further consult with my client, the Minister requests the Court’s indulgence in considering the following questions for certification in lieu of the question I proposed at the hearing on Thursday.
[54] I take counsel to mean that she wanted to substitute her new questions for the reformulated question that she provided to the Court after the hearing, as opposed to the question that she suggested at the hearing itself.
[55] The two questions suggested by counsel in her February 26 letter were:
1. Once the Minister has put forward prima facie evidence that Article 1E applies, does the onus shift to the claimant to demonstrate with evidence that he or she would not be permitted to return to that country? and
2. If so, what test must the claimant satisfy? Is the test that there is a possibility that the claimant would not be permitted to return, or is it one of reasonable probability?
[56] I will comment first on the process followed in this case in relation to the certification issue, and will then address the questions themselves.
[57] Subsection 74(d) of the Immigration and Refugee Protection Act provides that no appeal lies to the Federal Court of Appeal from a decision of this Court in an immigration matter, unless the judge hearing the application certifies that a serious question of general importance is involved, and states the question or questions.
[58] Subsection 18(1) of the Federal Courts Immigration and Refugee Protection Rules provides that prior to rendering a judgment in an application for judicial review in an immigration matter, the judge hearing the case must give the parties the opportunity to request that the judge certify that a serious question or questions of general importance is involved in the case.
[59] As a consequence, it should come as no surprise to counsel when, at the close of a judicial review hearing in immigration matters, the presiding judge asks the parties if either has a question or questions to propose for certification. In all but the most exceptional cases, counsel should be ready, willing and able to respond to the judge’s inquiry. If counsel are of the view that the case does raise one or more serious questions of general importance, then they should have already obtained the necessary instructions, and should have the question or questions already formulated for submission to the Court.
[60] Given the position taken by the Minister throughout this case, there is nothing that occurred at the hearing that would or should have caught the Minister by surprise, and there is no reason why the Minister could not have come to the hearing having already considered the certification issue.
[61] Suffice it to say that the process followed in this case is not appropriate, and should not be encouraged.
[62] That said, I turn now to consider the last two questions proposed by the Minister.
[63] Insofar as the Minister’s first question is concerned, I do not understand there to be any dispute in the jurisprudence about the fact that once the Minister has put forward prima facie evidence that Article 1E applies, the evidentiary onus shifts to the claimant to demonstrate that he or she would not be permitted to return to that country. As a consequence, this is not an appropriate question for certification.
[64] With respect to the Minister’s second proposed question, the Federal Court of Appeal has clearly spoken on this point in the Mahdi case when it said that the possibility that a foreign authority might no longer recognize a claimant’s status in that country had to be taken into account in deciding whether it had been established on a balance of probabilities that the person still had status in that country.
[65] Indeed, at page 11 of the decision under review, the precise language of the Mahdi case was used by the presiding member in identifying the test that had to be satisfied. On the following page, the member then went on to conclude, on a balance of probabilities, that Ms. Tajdini was no longer a permanent resident of the United States.
[66] Given that the jurisprudence emanating from the Federal Court of Appeal is quite clear on this point, I am not prepared to certify the second question suggested by the Minister.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is dismissed; and
2. No serious question of general importance is certified.
“Anne L. Mactavish”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1270-06
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND
IMMIGRATION v. SIMA TAJDINI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 22, 2007
AND JUDGMENT: The Honourable Madam Justice Mactavish
APPEARANCES:
Leanne Briscoe FOR THE APPLICANT
Geraldine Macdonald FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada FOR THE APPLICANT
Toronto, Ontario
GERALDINE MACDONALD FOR THE RESPONDENT
Barrister and Solicitor
Toronto, Ontario