Federal Court Decisions

Date: 20020328

Docket: IMM-812-01

Neutral citation: 2002 FCT 352

BETWEEN:

                                                                 MAHIN KHOSRAVI

                        ALI HASSAN KAZEMEINI and NAVID HASSAN KAZEMEINI

                                                                                                                                                   Applicants

                                                                             - and -

                               THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                            REASONS FOR ORDER

LEMIEUX J.:

[1]                 On January 3, 2001, the Refugee Division of the Immigration and Refugee Board (the "tribunal") rejected the refugee claims of Mahin Khosravi and her two minor sons (the "applicants"), all citizens of Iran, who fled that country arriving in Canada on June 24, 1999 making claims on December 1, 1999.

[2]                 In her Personal Information Form ("PIF") the principal applicant recites, as a first semester student at the University of Tehran, she supported the 1979 Revolution which saw the formation of several political organizations. She joined the Mojahedin Khalg, a group of religious students with modern ideas and connected to the political party of the same name and the same beliefs.

[3]                 In 1980, the Revolutionary Government clamped down on the free-thinking university students and closed all universities for three years. However, the principal applicant, along with other university students, continued to attend meetings, distribute pamphlets and put up posters.

[4]                 She recites that, in 1981, she went back to her former position as an elementary school teacher but was dismissed shortly after without reason. The government continued to clamp down and she went into hiding. She relied upon her influential father for protection. He was a former clergyman with strong ties to some of Iran's religious and political leaders and had donated several hectares of valuable land to the Revolutionary Government.

[5]                 She was re-admitted to university in 1984, having been blacklisted in 1983. She completed her B.Sc. in 1986.

[6]                 At some point in time during this period, she discontinued her association with the Mojahedin Khalg.

[7]                 Her PIF indicates she taught at various schools in Tehran from 1989 to 1998. She also states the Mojahedin became a major opponent of government attempting its violent overthrow which led the Revolutionary Government to arrest, torture and execute past or present members of that organization. She states she was arrested and taken in for questioning on countless occasions, a situation which did not change after the election of the new President of Iran.

[8]                 She states the only reason she was able to survive those years of hardship was through the constant assistance of her father who was killed in a car accident in 1999 after she and her children arrived in Canada. She thinks her father's accident was deliberate and that he was murdered by the authorities.

ANALYSIS

[9]                 In my view, this judicial review application should be allowed on the basis of two of the three grounds advanced by the applicants.

[10]            First, I agree with counsel for the applicants there was simply no determination by the tribunal of the minor children's refugee claims which had been joined with their mother's claim. Mahin Khosravi testified her youngest son was constantly being beaten at school because his teacher knew her from the time they were at university. There was no mention by the tribunal of this evidence and no analysis of their claims in its reasons.

[11]            The tribunal was entitled to reject the minor applicants' refugee claim on the basis it did not believe the mother since their claims were dependent on her's. However, the tribunal had to say so and did not. This Court cannot infer that determination. (See Seevaratnam v. Canada (Minister of Citizenship and Immigration),[1999] F.C.J. No. 694 (F.C.T.D.)).

[12]            Second, the tribunal misconstrued the foundation of the principal applicant's claim which caused it, in my view, to draw unreasonable plausibilities and, in some cases, to ignore the evidence.

[13]            Mahin Khosravi's claim was not grounded on the fact she had been an active supporter of the Mojahedin from the time she joined its student religious wing in 1980 until the time she fled Iran. Rather, her claim was founded on the fact she had been a former member of this religious group having left it some time ago. It was because of this former association she had been arrested several times and why she feared to return to Iran. As I see it, there was no evidence she had been a member of the political party seeking the violent overthrow of the government and would be perceived by the authorities as such.

[14]            Yet, an analysis of the tribunal's reasons leads to the conclusion it erred in this respect and the following are some examples:

(1)        At page 1 of its decision, the tribunal describes her claim as one arising "because of her political opinion, namely, her association with a political party known as the Mojahedin Khalg";

(2)        At page 3 of its decision, the tribunal found it incredulous she was rewarded through employment in a government school "if indeed she was perceived to be evenly remotely connected to the Mojahedin, a group that was involved in violence and murder of government officials, as well as attacks on military bases".

(3)        The tribunal found it astonishing "that instead of being incarcerated for prolonged periods, she was free to dispense her views which were in conflict with the autocratic regime, to impressionable school children".

(4)        It defied the tribunal's credulity "that the claimant's father would be able to protect the claimant incessantly for approximately 20 years, have her released after arrests, arrange for her higher education and also get her jobs in government schools, when she was supposedly involved with an organization dedicated to overthrowing the regime" [emphasis mine].

(5)        According to the tribunal, what made her account even more "paradoxical" is her contention that her father was exceedingly influential with the government and had high-profile contacts. In the tribunal's view, this would lead the panel to surmise "that her hard-line father was constantly protecting an enemy of the state, year after year". The tribunal concluded at page 3 in the following words:

The claimant cannot have it both ways; on one hand, she opposed the regime, and on the other, she was protected by a powerful supporter of the regime. As a result, the panel finds the account of her alleged anti-regime political activities over a prolonged period to be totally implausible, and her profile to be entirely inconsistent with a political opponent of the government.

[15]                         As I see it, the tribunal invented a claim which Mahin Khosravi did not assert. There is nothing in her PIF nor in her testimony that could remotely lead to the conclusion that after the Mojahedin had, in the mid 1980s, turned violent, she supported it and its aims. As noted, the basis of her claim was because of past association.

[16]                         This fundamental error removes the evidentiary foundation to several of the tribunal's implausibility findings and, in particular, about how her father might have been able to protect her in that she was not a mortal enemy of the state but had been a participant in a student organization which the Revolutionary Government repressed because of its liberal ideas. It explains how she might have worked part-time teaching in a government school. It explains how her father might have been able to protect her.

[17]                         Counsel for the applicants raised other points in their attack on the tribunal's conclusion which I need not deal with since I have found the tribunal committed a crucial error in the view it took of the principal applicant's claim.

[18]            I am troubled, however, with the view the tribunal took of her subjective fear. The tribunal seemed to have overlooked the fact she attempted to leave Iran in 1988 but had been refused exit as was the case in December of 1998 when she attempted to leave to accompany her husband who had been appointed a visiting research professor at a Canadian university on a valid one-year CCV.

[19]            For all of these reasons, this judicial review application is allowed, the tribunal's decision is set aside and the applicants' refugee claims are referred back to the Immigration and Refugee Board for re-determination by a differently constituted tribunal. No question was proposed for certification.

                                                                                                                           "François Lemieux"

                                                                                                                                                                                                             

                                                                                                                                          J U D G E        

OTTAWA, ONTARIO

MARCH 28, 2002