Date: 20030211
Docket: IMM-1213-02
Neutral citation: 2003 FCT 147
Toronto, Ontario, Tuesday, the 11th day of February, 2003
Present: The Honourable Madam Justice Snider
BETWEEN:
GHAHRAMANINEJAD SEDIGHEH
LADAN BOZORGZAD
NILOUFAR (NILOFAR) BOZORGZAD
Applicants
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of a panel of the Convention Refugee Determination Division (the "panel") dated February 25, 2002 wherein the panel determined that Ghahramaninejad Sedigheh ("senior claimant"), Ladan Bozorgzad ("intermediate claimant") and Niloufar (Nilofar) Bozorgzad ("junior claimant") (collectively, the "Applicants") were not Convention refugees.
FACTS
[2] The senior claimant is a forty-eight year old woman. The two other claimants, her daughters, are thirty-three and twenty-six respectively. The claimants are citizens of Iran and make their refugee claim on the basis of their perceived political opinion and membership in a particular social group, i.e. women. The claims were joined at the request of counsel, and the three claimants consented to have their claims heard by a single member pane.
[3] The senior claimant married Mr. Parviz Bozorgzad when she was thirteen. He is a religious militant and supporter of the Hezbollah. He was verbally and physically abusive to her and her children. In 1985 Mr. Bozorgzad agreed to a divorce on the condition that he would not have to support the senior claimant and her children. After the divorce, she supported her family through teaching and in part by renting the upstairs of her residence to two female students in 1997.
[4] She claims that in 1999 her ex-husband punched her after their oldest daughter, the intermediate claimant, was arrested at student demonstrations. Later that year, authorities at the Shiraz Board of Education questioned her about her family and their political views and the failure of her marriage. She was released after signing an undertaking to report activities by her family (the "undertaking"). She was allowed to continue teaching. She made arrangements to flee Iran with her older daughter in March 2000.
[5] The intermediate claimant is a university graduate and high school teacher. In July 1999 she attended but did not participate in student demonstrations in Shiraz. She saw her father at the demonstration. She was detained by authorities for eight hours and questioned about her involvement. In February 2000 she learned that her home had been raided and the two female boarders had been arrested after authorities found anti-regime leaflets in their upstairs flat. She fled Iran in March 2000 with her mother.
[6] The junior claimant was a student at university in Arsenjan. On February 5, 2000 she was detained by Iranian intelligence authorities for eleven days and questioned about the other two claimants and her mother's tenants. Afterwards, her father made her live with him, kept her at home and prevented her from attending university. After eight months, he informed her that he had arranged a marriage for her with a fifty-year-old religious man to take place in February 2001. She fled Iran in December of 2000 and met her mother and sister in Canada.
THE PANEL'S DECISION
[7] The panel determined that none of the claimants are Convention refugees.
Senior Claimant
[8] The senior claimant did not give any oral evidence at the hearing. She relied on the PIF and the testimony of her older daughter.
[9] The panel found that the questioning by her employers "amounted, at worst, to harassment". They also found that the senior claimant was not a risk of persecution because she was not involved in any political activity. They held that:
The sole activity which could be perceived as political was to rent the flat where anti-government leaflets used in an anti-government student demonstration in Shiraz were found.
[10] Concerning the student demonstrations, the panel stated:
There is considerable amount of documentary evidence concerning student demonstrations in Tehran which took place at the same time in July 1999, stating that the majority of the participants were released after a few days of detention. There was no evidence before the panel that those such as the senior claimant who might be perceived as encouraging student protestors in Shiraz would be treated more harshly by Iranian authorities than those who actually participated in student demonstrations in Tehran. Consequently, the panel finds that the senior claimant has no objective basis for a well-founded fear of persecution on the basis of her perceived political beliefs.
[11] With respect to her claim for gender-related persecution, the panel found that the violence that the claimant suffered at the hands of her husband was sporadic and "did not constitute such serious discrimination as to constitute persecution". Furthermore, though the claimant stated that it was her husband that was behind much of the harassment from officials, she did not offer any evidence to support her belief. Finally, they found that:
The panel considered the alleged behaviour of the senior claimant's former husband during the period from July 1999 (the date of the demonstration) until March 2000 (the date that the senior claimant fled Iran), consisting of two curses before relatives, and one punch ... During this period, the senior claimant continued to teach in Shiraz public schools without effective interference from her former husband. The panel finds that there is insufficient evidence of violence at the hands of her former husband directed at the senior claimant to constitute acts of persecution in the past. The panel finds, based on the lack of evidence of domestic violence by her long-estranged husband in the past, there is not more than a mere possibility that such acts will occur in the future. Consequently, the panel finds that the senior claimant does not have a well-founded fear of persecution based on her membership in a particular social group, namely women who have suffered from domestic violence.
Intermediate Claimant
[12] The panel found that there was not more than a mere possibility that she would face detention for a considerable time, or other forms of persecution, as a result of her perceived political opinions. This was because she did not participate in the demonstrations and because she was not involved politically. They further found that there was not a "reasonable or serious possibility that this claimant will be subject to violence by her father should she return to Iran." They concluded that the violence her father exhibited was more towards the senior claimant than the children and that the behaviour of her father towards her was not so serious as to constitute persecution.
Junior Claimant
[13] The panel also found that the junior claimant did not face any serious possibility of facing further detention if she went back to Iran. Furthermore, although the panel recognized that women forced into marriage without their consent have been found to constitute a social group with a well founded fear of persecution, they did not find that junior claimant qualified under this group. They found that the claimant had independence from her father and was consequently not so much under his control that she could not avoid the marriage if in Iran. They also found that the Supreme Leader of Iran has denounced arranged marriage and therefore concluded that "there is some doubt that authorities would, without question, support arranged marriage." Furthermore, the panel also found it implausible that the claimant, given her education, age, and independence, was forced to live with her father for eight months. Similarly, they also found it implausible that she could be forced into marriage in the future.
ARGUMENTS
Applicants' Submissions
[14] With respect to the junior claimant, the Applicants submit that the finding of the panel that the "there is some doubt that authorities would, without question, support an arranged marriage" was capricious, perverse and patently unreasonable. The Applicants argue that this finding runs directly counter to evidence cited by the panel. This evidence indicates that there are instances of forced marriages in Iran as well as cases where persons associated with the Islamic government have engaged in pressuring women to marry. The panel's reliance on the statement by the supreme leader was erroneous. The Federal Court has held that mere declarations that human rights violation would cease were not sufficient to overcome the evidence that human rights violations had occurred (Ali Ahmed v. The Minister of Employment and Immigration, [1993] F.C.J. No. 718 (C.A.) (QL)).
[15] Furthermore, the Applicants submit that the panel's finding that the junior claimant can seek the protection of family members if such forcible marriage were to occur, is not grounded in any proof and is merely speculative.
[16] The finding that it was implausible that the junior applicant was forced to live with her father because she was independent minded and had the support of her relatives was also patently unreasonable. The panel did not provide adequate reasons for this finding.
[17] In the Applicants' submission the panel's finding that all of the incidents relating to the senior claimant amounted only to harassment was erroneous. The Applicants submit that being forced to sign an agreement to inform on the persons that are closest to you is a violation of personal dignity of the grossest kind and is persecution. Such persecution violates the second category human rights as supported by the Declaration of Human Rights and the International Covenant on Civil and Political Rights, namely the protection of personal and family privacy and integrity (Articles 17 and 21) and liberty of opinion, expression, assembly and association. The Applicants submit that to require a person to be an informant on one's relatives is a violation of the freedom of conscience.
[18] Furthermore, the panel's finding that the beatings that the senior claimant suffered at the hands of her husband were not persecution was an error. The fact that the claimant did not lose her job as a result of the abuse is irrelevant.
[19] The Applicants further submit that the panel finding that the authorities would treat the Applicants the same way as it had treated others who were involved in demonstrations was perverse and capricious. The panel did not state that they did not believe the Applicants' story and yet their story states that they were treated differently then other students in the demonstrations. The documentary evidence states that two hundred persons (or about ten percent of those originally arrested) remain in detention from the demonstrations that have not been accounted for and that non-students remain at risk.
[20] The Applicants submit that implausibility findings are more vulnerable to judicial review then credibility findings and should therefore be scrutinized with less deference. Furthermore, the Applicants' evidence is consistent with the documentary evidence and must therefore be given the benefit of the doubt with respect to elements of the evidence that the Applicants have not been able to provide.
The Respondent's Submissions
[21] The Respondent submits that the Applicants are merely challenging the weight the panel gave to the evidence before it. Assessments of fact are within the jurisdiction of the panel. It was open to the panel to assess the information available to it in the context of the facts of the particular case before it. The panel assessed the particular risk of a forced marriage and whether such marriage would be condoned by the state.
[22] With respect to the undertaking, the Respondent submits that the panel is obliged to assess whether the claimants meet the definition of Convention refugees as incorporated in the Immigration Act, R.S.C. 1985, c. I-2 and not whether there has been general potential for human rights violation. The Respondent argues that the Applicants oversimplified the panel's finding on the senior claimant's abuse by her husband and did not demonstrate that the panel misapprehended the material elements of the Applicants' assertions.
[23] With respect to the risk of persecution for perceived political opinion, the Respondent submits that the facts of this case were that the two Applicants were detained and released and the principal Applicant was never detained. Therefore, it was open to the panel to draw inferences from the documentary record and weigh the assertions before it.
[24] Finally, the Respondent submits that implausibility is not to be reviewed with greater scrutiny then credibility. Findings of lack of credibility which are based on implausibility and problems internal to an applicant's testimony are in the heartland of the discretion of triers of fact.
ANALYSIS
[25] For the reasons set out below, I am not persuaded that there was an error in the Board's decision in respect of any of the three claimants.
Standard of Review
[26] The Court must first determine what standard of review to apply to this case.
[27] In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.) (QL) Mr. Justice Décary stated at paragraph 4:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: Who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[28] Therefore, the Board's decisions in the case at bar with respect to the credibility of the Applicants and the plausibility of their stories should be reviewed with deference.
[29] However, the standard of review for determination of whether certain incidents amount to persecution is reviewable on a reasonableness standard. In the case of Sagharichi v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 796 (C.A.) (QL) the Federal Court of Appeal commented, at paragraph 3, that these were matters to be determined by the panel and the Court would only intervene if the conclusions were unreasonable:
It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may very well be seen as amounting to persecution. It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact, but a mixed question of law and fact, legal concepts being involved. It remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this court is not warranted unless the conclusion reached appears to be capricious or unreasonable.
[30] Therefore, the panel's determinations that the husband's violence towards the senior claimant, the threat of the junior claimant being forced into an arranged marriage, and the actions of the state with respect to the perceived political views of all three claimants did not amount to persecution are reviewable on a reasonableness standard.
Senior Claimant
[31] With respect to the senior claimant, the Applicants argue that being forced to sign a document that the claimant would report on her family is persecution. In my view, it was a reasonable decision that the panel did not find that this state action amounted to persecution. The senior claimant was not detained, but only questioned by officials at her work and forced to sign an undertaking that she would report any activities by her family. The evidence before the panel was that the family was not involved in any of the activities of concern. Accordingly, there were likely no negative consequences of the signing of the undertaking.
[32] While it may be true that it may violate human rights to be forced to sign a document stating that you will report on family members, not all such acts would meet the standard of persecution. It is my view that the panel considered the consequences and potential danger to the senior claimant and determined, not unreasonably, that the state's actions did not amount to persecution.
[33] The Applicants argue that the panel erred when it found that the abuse suffered by the senior claimant at the hands of her husband did not amount to persecution. In argument, the Applicants pointed in particular to the following paragraph:
In her PIF, the senior claimant stated that after their divorce in 1985, her former husband engaged in acts of abuse towards her and her daughters, such as humiliating her at the school where she was teaching and screaming and beating her and her children when he collected his children for visits. The panel finds that acts of abuse committed by her husband between 1985 and 1999 were sporadic and did not constitute such serious discrimination as to constitute persecution. They did not lead to consequences of a substantially prejudicial nature for the senior claimant, who maintained her position as a teacher, the intermediate claimant who obtained a university degree in microbiology, or the junior claimant who was accepted into university to study computer science.
[34] In particular, the Applicants submit that the senior claimant's ability to continue to work as a teacher after such acts of abuse was irrelevant to the question of persecution.
[35] The paragraph cited by the Applicants comprises only a portion of the overall conclusion with respect to persecution. The subsequent paragraph referred to at paragraph 11 of these reasons also is a source of reasons supporting the panel's conclusion on this issue. The panel cited further evidence concerning abuse by the former husband. Specifically, the panel stated that, between July 1999 and March 2000, the abuse consisted of "two curses before relatives, and one punch." The panel also stated that "during this period, the senior claimant continued to teach in Shiraz public schools without effective interference from her former husband." Another way of stating this is that, during this period leading up to the recent past, the senior claimant was not subject to abuse that prevented her from continuing to work. This is, in my view, relevant in considering the extent of the harassment or abuse.
[36] The abuse suffered by the senior claimant was sporadic. It lacked "the element of repetition and relentlessness found at the heart of persecution" as stated by Marceau J.A. in Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390. While the facts of Valentin, supra can be distinguished from those at issue in this case, the principle stated is clearly applicable.
[37] The panel's findings that the behaviour of the former husband did not constitute persecution in the past and that there was not "more than a mere possibility that such acts will occur in the future" were reasonably open to it.
[38] The Applicants further argue, with respect to the senior claimant as well as her two daughters, that it was perverse for the panel to find that the Applicants were not at risk of persecution by the state because they were not involved in the student protests. I do not agree.
[39] The matter of the student demonstrations was considered at some length by the panel in its decision. The panel differentiated between the Applicants and the participants in the demonstrations. Although the documentary evidence shows that there were some severe and immediate reprisals and that slightly more than ten percent of those originally arrested remain in custody, it also shows that over eighty percent of those originally detained are no longer in detention. Further, the panel noted that "there was no evidence before the panel that those such as the senior claimant who might be perceived as encouraging student protesters in Shiraz would be treated more harshly by Iranian authorities than those who actually participated in student demonstrations."
[40] The conclusion of the panel was reasonably open to it on the basis of the documentary evidence.
The Intermediate Claimant
[41] The arguments of the intermediate claimant are similar to those of the senior claimant. For similar reasons, I am of the view that the conclusions of the panel were reasonably open to it.
[42] The panel concluded that the father's actions towards the intermediate claimant did not amount to persecution. Further, the panel considered the role of the intermediate claimant in the demonstrations and concluded that "...there is not more than a mere possibility that she would face detention for a considerable time, or other forms of persecution as a result of her perceived political opinions."
[43] The reasons demonstrate that the panel addressed the intermediate claimant's situation separately from that of the other claimants. The panel specifically referred to the very short term of her detention for questioning, the lack of other harassment and her non-involvement in the demonstrations or other political activity. Accordingly, I am of the view that the conclusions of the panel with respect to the intermediate claimant were reasonable.
The Junior Claimant
[44] The principle argument with respect to the junior claimant concerned the panel's finding that she did not risk persecution through a forced arranged marriage upon her return to Iran. Although there were several issues raised by the panel with respect to this particular claimant, a decisive one was the finding that it was not plausible, based on the age, education and independence of the junior claimant, that she would indeed be forced into marriage by her father. As stated above, findings of implausibility by the panel are to be accorded great deference by this Court.
[45] Without specifically referring to and addressing each of the subjective and objective components of the claim, the implausibility finding appears to be the foundation of the panel's decision.
[46] With respect to the subjective component, the panel clearly stated that aspects of the claimant's story related to the possible forced marriage were implausible. As set out in the reasons:
The panel finds it implausible that this claimant, who was 25, well-educated, urban, raised in a home with two other independent-minded women, with access to many supportive relatives and friends, was forced to live with her father against her will for eight months. The panel finds it implausible that the claimant did not consider any alternatives to the arranged marriage other than leaving Iran. The panel finds it even less plausible that this claimant could, in the future, be effectively forced into a marriage against her will, should she return to Iran.
This finding of implausibility was not patently unreasonable.
[47] The Applicants expressed concern with a portion of the balance of that paragraph that reads as follows:
Should her mother and older sister return to Iran, they could continue to provide a place for her to live and protection against her father's proposed marriage. If they do not, her brother, four maternal aunts and uncles and friends of her mother continue to live in Iran, and could provide similar protection.
[48] While I agree that there was no evidence before the panel to support these statements, I do not agree with the Applicants that they demonstrate that the panel was relying on the family of the junior claimant for protection in lieu of state protection. These comments were not necessary to the finding of the panel. I do not find that these statements, while possibly inappropriate, form a basis sufficient to overturn the decision.
[49] The panel reviewed the documentary evidence with respect to the existence of forced marriages in Iran. As acknowledged by the Applicants, there was not a large amount of such evidence. In other words, there was not sufficient documentary evidence to establish a clear culture or norm of forced marriages.
[50] In Ahmed v. Canada (Minister of Employment and Immigration.), [1993] F.C.J. No. 718 (T. D.) (QL), the Federal Court of Appeal held at paragraph 5 that "the mere declarations of the new four month old government" were not sufficient to show a "clear indication of the meaningful and effective change." However, I note that, in that case, the Appellant had established to the satisfaction of the panel that he was in danger, absent his ability to relocate and the declarations of the new government. There had been a regime in place that clearly put the Appellant in danger.
[51] That is not the situation in this case. There is little evidence that addresses the issue of forced marriage. The statement of the Ayatollah Ali Khomenei should be viewed as part of the documentary evidence, rather than as a statement that attempts to change any deeply rooted practice of forced marriages. His statement can be read together with the paucity of evidence related to forced marriages in Iran of women of the age of the junior claimant. In that context of the decision, the panel findings were not unreasonable.
[52] The Applicants expressed concern with one sentence contained in the middle of the discussion with respect to arranged marriages that states:
The panel finds that there is some doubt that authorities would, without question, support an arranged marriage.
[53] While unclear, I do not view this sentence as determinative. Read as a whole, the reasons leading to the final statement that "the panel finds, in the circumstances of this case, that the junior claimant does not have a well-founded fear of persecution resulting from the desire of her father to arrange a marriage for her" were reasonably open to it.
The Benefit of the Doubt Argument
[54] The Applicants argue that the panel erred in not giving the claimant the benefit of the doubt. The Supreme Court in Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, at paragraph 142, has cited with approval the following UNHCR Handbook's discussion of the benefit of the doubt principle:
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
[55] The doctrine is meant to apply to cases where a claimant's testimony is consistent with the documentary evidence, but there is little extrinsic evidence to back up their story. In other words, when a claimant's story is otherwise believable, the Refugee panel must give the claimant the benefit of the doubt that their story is true. The claimant, however, must still prove their case on a balance of probabilities (R v. Shwartz, [1988] 2. S.C.R 443.
[56] The Applicants do not specify in which respect the claimants should be given the benefit of the doubt. There is no evidence that the Board did not believe the claimants' story as told to them. Rather, they found that there was no objective fear of persecution. This is not a finding that would result in the application of the benefit of the doubt principle. Furthermore, with respect to the junior claimant, the panel did not find it plausible that she was detained by her father and would be forced into marriage by him. As stated in Chan, supra in the passage above and reiterated by the Federal Court in Ariayputhiaran v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1775 (T.D.) (QL), the benefit of the doubt principle does not apply to situations where the Refugee panel finds a story implausible.
CONCLUSION
[57] I would dismiss this appeal with respect to each of the three claimants.
Questions for Certification
[58] The Applicants put forward two questions for proposed certification. They are:
1. In relation to "Convention refugee" as defined in s. 2(1) of the Immigration Act, is it "persecution" if a claimant is required to agree in writing to inform the state regarding persons who are against the state?
2. In relation to "Convention refugee" as defined in s. 2(1) of the Immigration Act, can state protection be provided by relatives?
[59] The question of whether being required to agree in writing to inform on other persons is "persecution" is a finding that is extremely dependent upon the facts of the situation. Accordingly, I decline to certify that question.
[60] With respect to the second question, I have concluded that the question of whether state protection can be provided by relatives was not an issue that had to be decided in this case. Accordingly, I decline to certify that question as well.
ORDER
IT IS HEREBY ORDERED THAT:
This application for judicial review is dismissed.
"Judith A. Snider"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-1213-02
STYLE OF CAUSE: GHAHRAMANINEJAD SEDIGHEH
LADAN BOZORGZAD
NILOUFAR (NILOFAR) BOZORGZAD
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, FEBRUARY 4, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: TUESDAY, FEBRUARY 11, 2003
APPEARANCES BY: Mr. Micheal Crane
For the Applicants
Mr. Tamrat Gebeyehu
For the Respondent
SOLICITORS OF RECORD: Micheal Crane
Barrister & 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: 20030211
Docket: IMM-1213-02
BETWEEN:
GHAHRAMANINEJAD SEDIGHEH
LADAN BOZORGZAD
NILOUFAR (NILOFAR) BOZORGZAD
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER