Toronto, Ontario, April 30, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision by a visa officer, dated May 4, 2006, which denied the applicant permanent residence as a member of the “Convention refugees abroad” class.
[2] The applicant seeks an order quashing the decision and remitting the matter for redetermination by a different officer.
Background
[3] The applicant, Mohammad Sadegh Siami Asl, is a citizen of Iran who is currently residing in Japan. He alleged a fear of persecution in Iran on the basis of his political opinion and religion. The circumstances leading to the applicant’s claim were set out in his application for permanent residence as a Convention refugee abroad. While still in Iran, the applicant converted from Islam to the Baha’i faith in 1977, and was involved in the democracy movement. He was arrested in 1979 and sentenced to death for his political activities. However, he was released from prison upon the fall of the monarchy.
[4] The applicant continued his political activities and the Iranian authorities issued an indictment against him in 1981. He went into hiding and was employed as a truck driver. He transported democratic magazines in his truck, and was arrested in 1984 while visiting his parents. He was imprisoned for six months and was allegedly tortured. The applicant was released on bail in 1985 and was ordered not to leave Iran. His father’s home was put up as surety. He obtained employment driving trucks to various European countries from 1986 until 1990. He did not make any refugee claims while on these trips. The applicant explained that he had been asked by his manager not to seek asylum, as he would lose the truck and cargo.
[5] In 1990, the applicant received a summons from an Iranian Court and fled to Japan, where he lived for six years before claiming refugee status in 1996. The applicant explained that at the time, he had no knowledge of the Japanese language, or of the country’s legal system. He applied for a Canadian visa in the spring of 1996, which was refused. He also applied for refugee status in Japan, but his claim was refused on the basis that he had not filed his claim within sixty days of his arrival in the country. The applicant has appealed the refusal of his claim by Japan. The applicant was ordered deported from Japan in 1999 and was detained until 2000, when he was provisionally released. The applicant applied for refugee status in Canada while in detention, and his claim was denied for lack of credibility.
[6] The applicant claims that he converted to Christianity in 2003. He was detained by Japanese authorities in 2005, and applied for refugee status in Canada with help from Amnesty International. His application was sponsored by the Hospitality House Refugee Ministry in Winnipeg. The applicant claimed that he feared persecution in Iran on the basis of his political beliefs and religion. He claimed that the authorities were looking for him, and had destroyed his father’s house when he failed to turn himself in. On April 26, 2006, the applicant was interviewed by a visa officer. By letter dated May 4, 2006, the officer refused his application for permanent residence as a Convention refugee abroad. This is the judicial review of the officer’s decision.
Officer’s Reasons
[7] The officer assessed the application for permanent residence in Canada as a member of the Convention refugee abroad class, and determined that the applicant did not meet the requirements for immigration to Canada. The applicant did not indicate that he had difficulty understanding the interpreter during the interview.
[8] The officer first noted the criteria for Convention refugee status under section 96 of IRPA. Under section 145 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the Regulations), a foreign national is a member of the Convention refugee abroad class if this has been determined outside Canada by an officer. Under paragraph 139(1)(e) of the Regulations, an officer shall issue a permanent resident visa to a foreign national in need of refugee protection, if it is established that he is a member of a class under Division 1 of the Regulations. The officer was not satisfied that the applicant was a member of such a class, as there were inconsistencies in his claim, and he was unable to establish a well-founded fear of persecution.
[9] Under subsection 11(1) of IRPA, a foreign national must apply for a visa before entering Canada. A visa shall be issued if the foreign national is not inadmissible and meets the requirements of IRPA. The officer was not satisfied that the applicant met the IRPA requirements for the reasons noted above, and the application was refused. The officer’s notes state:
I reviewed the file carefully. Claim is not credible. While PA claimed having suffered discrimination since about 1979 and having been arrested in 1984, he travelled to Europe a few times between 1985 and 1990 but never took opportunity to claim refugee status. When asked to explain why did not claim refugee status and was returning to Iran, explanations provided are not credible.
Also PA came in Japan in 1990 but waited until 1996 before submitting a refugee application in Japan. Explanations provided for the delay are not credible.
While refugee application to Cda submitted in 2000 was based on the grounds he fear persecution as Bahai, his current application is submitted on the basis of his convertion [sic] to Christianity. In addition, claim that the house of his father was destroyed in government order because the house was on bail for PA’s escape is not substantiated.
The claim is not founded.
Settlement prospects are poor given age, lack of knowledge of any official language of Cda, no relatives in Cda.
Refugee claim not founded.
Application refused on eligibility.
Issues
[10] The applicant restated the issues at the hearing as follows:
1. Did the officer ignore a key piece of documentary evidence (the original baptismal certificate) in connection with the applicant’s conversion to Christianity?
2. Did the officer fail to correctly apply the law regarding religious conversion specifically with respect to sur place refugees?
Applicant’s Submissions
[11] The applicant submitted that several findings in the officer’s notes contained errors. It was submitted that the officer based his decision upon inconsistencies in his claim which did not exist. In the alternative, it was submitted that the inconsistencies were not disclosed to the applicant and he was not given the opportunity to respond to them. The applicant submitted that the officer breached the principles of natural justice and procedural fairness (see Malala v. Canada (Minister of Citizenship and Immigration), (2001) 201 F.T.R. 74, 103 A.C.W.S. (3d) 1200 (F.C.T.D.)), and failed to act according to section 13.1 of immigration manual OP5, which states:
Applicants should be questioned about the contradictions in their story. Moreover, any explanation provided by the applicant should be addressed by the officer and they must consider whether the explanation is reasonable in all circumstances. Also, any unresolved inconsistency or concerns regarding an explanation are to be raised by the officer.
[12] The applicant submitted that the officer failed to provide reasons for concluding that his explanation for not having claimed refugee status while in Europe was not credible. It was submitted that plausibility findings must be based upon facts indicating that a claimant’s story was outside the realm of possibility (see Valtchev v. Canada (Minister of Citizenship and Immigration) (2001), 208 F.T.R. 267, 107 A.C.W.S. (3d) 293 (F.C.T.D.)). It was submitted that the officer committed a similar error regarding his explanation for delay in making a claim in Japan. He explained that he was unfamiliar with the legal system and that after he found out that he could not obtain a Canadian visa, he made a claim in Japan. It was submitted that any delay was irrelevant, given that Japan accepted so few refugees.
[13] The applicant submitted that the officer erred in suggesting that he was not credible because his first application was based upon his fear as a Baha’i, and his second was based upon his conversion to Christianity. The officer seemed concerned that his conversion was not genuine due to the apparent inconsistency in the baptism date. The applicant submitted that the legal test for a fear of persecution on religious grounds was not the degree of commitment to the religion or the motive for conversion, but how the conversion would be viewed by the persecutor (see Sadeghi v. Canada (Minister of Citizenship and Immigration) (2002), 117 A.C.W.S. (3d) 798 (F.C.T.D.)). It was submitted that the officer applied the wrong legal test, for assessing a refugee claim based upon religious identity.
[14] The applicant submitted that the officer failed to properly review the evidence, as the original Japanese certificate stated that he had converted to Christianity in 2003. It was submitted that the officer failed to consider whether he might suffer persecution as a Baha’i and an apostate, even if his conversion to Christianity was not genuine.
[15] The applicant submitted that the officer ignored relevant documentary evidence, including Iranian court documents. It was submitted that the officer was under a duty to consider all of the evidence, particularly where it contradicted the decision-maker (see Orgona v. Canada (Minister of Citizenship and Immigration) (2001), 14 Imm. L.R. (3d) 273, 105 A.C.W.S. (3d) 123 (F.C.T.D.)). It was submitted that the officer erred in finding that he had no relatives in Canada, as his application indicated that he had an aunt in Vancouver. It was submitted that the officer also overlooked evidence regarding resettlement, such as his employment in Japan and adaptability. The applicant submitted that the officer ignored evidence that his father’s house had been destroyed.
Respondent’s Submissions
[16] The respondent submitted that there were inconsistencies and implausibilities in the applicant’s evidence. The applicant traveled to Europe many times between 1985 and 1990, but never sought asylum. It was submitted that it was implausible that he would not seek asylum if he feared persecution in Iran. The respondent noted that he had no trouble leaving Iran although he had been ordered not to leave the country following his release from prison in 1985. It was submitted that the applicant’s delay in claiming refugee status in Japan was inconsistent with his fear of mistreatment.
[17] The applicant’s baptism certificate indicated that he was baptised in 2005, while he said that he was baptised in 2003. During the interview, the applicant stated that he could not leave Iran because he did not have a passport; however, he also stated that he had traveled outside Iran as a truck driver and did not need a passport to do so. The applicant also stated that he had a commercial passport between 1985 and 1990. In addition, during the interview he stated that he worked as a truck driver in 1975, however, his application indicated that he was a teacher from 1975 until 1981.
[18] The officer found that the applicant’s credibility was weakened by his demeanour. The applicant hesitated when asked to explain his delay in leaving Iran, and was evasive when asked about his trial in Iran. He also failed to properly answer a question about his refugee status in Japan. Finally, the applicant did not bring all of his previous passports to the interview, as requested by the officer.
[19] The respondent submitted that the officer was entitled to find that the applicant’s evidence was not credible due to contradictions, inconsistencies and implausibilities in his testimony (see Jarada v. Canada (Minister of Citizenship and Immigration), 2005 FC 409). It was submitted that the Court should not disturb a credibility finding unless it was patently unreasonable, and the decision should be considered as a whole (see Ochakovski v. Canada (Minister of Citizenship and Immigration) (2004), 132 A.C.W.S. (3d) 557, 2004 FC 962).
[20] The respondent submitted that refugee claimants were expected to seek asylum at the first opportunity, and the officer was entitled to consider the applicant’s delay. It was submitted that the officer provided the applicant with a chance to explain these inconsistencies and implausibilities during the interview. The respondent noted the applicant’s statement that he did not want to cause trouble for his manager by claiming refugee status while travelling for work; however the manager helped him leave Iran to work in Europe when he was subject to a court order not to leave the country, and helped him flee in 1990. It was submitted that the officer fully considered the applicant’s explanation for having delayed his refugee claim.
[21] The respondent submitted that the officer was entitled to rely upon the English translation of the baptism certificate. It was submitted that the officer gave the applicant an opportunity to respond to the inconsistent dates, but the applicant did not indicate that the translation was wrong. The respondent submitted that the officer considered the applicant’s allegation that he would be at risk because of his religious beliefs. The officer doubted the applicant’s conversion to Christianity because he had difficulty answering questions during the interview. In addition, there was no evidence that the alleged conversion would come to the attention of Iranian authorities. The officer noted that the applicant’s allegation that he was at risk as a Baha’i had been considered during his first refugee claim. In addition, the officer found that his claim of being at risk as a Baha’i was not credible.
[22] The respondent submitted that a decision-maker did not have to refer to every piece of evidence before him and that the lack of reference to a particular piece of evidence did not mean that it had been ignored. The officer had reviewed the file carefully and found that the applicant’s actions since the Iranian court documents were issued in the 1980s were not consistent with a well-founded fear of persecution. It was submitted that the officer did not ignore evidence regarding the destruction of his father’s house, but concluded that these documents did not establish that the authorities were still interested in the applicant. It was submitted that the officer properly assessed evidence regarding his ability to resettle in Canada.
[23] The respondent submitted that the applicant was dissatisfied with the weight attributed to the evidence by the officer and that it was not the role of the Court to reconsider the evidence that was before the officer (see Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317, 36 A.C.W.S. (3d) 635 (F.C.A.)).
Applicant’s Reply
[24] The applicant submitted that the officer wrongly emphasized his ability to become established in Canada (a regulatory requirement), over his need for protection (a statutory requirement).
[25] The applicant noted that in addition to the typographical error regarding the date of his baptism, the officer overlooked the fact that the translated certificate indicated that it was signed on “August 23, 20”, which was an obvious error. It was submitted that the officer did nothing to remedy the deficiencies in the translated document. The applicant noted that the officer only asked three questions about his conversion to Christianity, and that he answered them correctly.
[26] The applicant submitted that in failing to adequately examine his claim of persecution on the basis of his religion, the officer failed to uphold his duty under subsection 3(2) of IRPA, which recognizes that the refugee program is primarily about saving lives and protecting people. It was submitted that the visa officer’s decision was owed little deference, as he did not have expertise in refugee matters.
[27] The applicant submitted that he had not provided inconsistent information about his employment in 1975. He had indicated that he was a teacher and sought employment as a trucker during the three month summer break.
[28] The applicant submitted that the respondent had referred to his demeanour during the interview in order to bolster the officer’s finding that he was not credible. It was noted that the officer never referred to the applicant’s demeanour in his letter of May 2006 or his decision, as found in the notes dated April 28, 2006. It was submitted that demeanour was not a credible gauge of credibility (see Lattmer v. Foster Tobacco Company, [1926] 1 D.L.R. 899 (O.S.C.(A.D.)). The applicant noted that he was a native Farsi speaker, who was speaking in Japanese, through an interpreter, to an English-speaking officer. It was noted that the officer only used the words “hesitated” and “evasive” once in his notes. Finally, the applicant submitted that the applicant answered questions about his Japanese refugee claim and indicated that his appeal was pending.
Analysis and Decision
Standard of Review
[29] A visa officer’s credibility and related factual findings are subject to review on the standard of patent unreasonableness (see Khwaja v. Canada (Minister of Citizenship and Immigration) (2006), 148 A.C.W.S. (3d) 307, 2006 FC 522).
Did the officer ignore a key piece of documentary evidence (the original baptismal certificate) in connection with the applicant’s conversion to Christianity?
Baptismal Certificate
The applicant submitted that the officer erred by basing his negative credibility finding upon erroneous information found in the translated baptismal certificate. Having reviewed the certificates, it appears that the English translation contains two typographical errors:
1. The original certificate indicated that the applicant was baptised on September 14, 2003, while the translated certificate indicated that he was baptised on September 14, 2005; and
2. The original certificate indicated that it was signed by the Pastor on August 23, 2005, while the translated certificate indicated that it was signed on August 23, 20.
The officer was concerned that the applicant’s conversion to Christianity was not bona fide. According to the officer’s notes, the applicant was asked why he said he was baptized on September 14, 2003, when the English translation of his baptismal certificate stated that he was baptized on September 14, 2005. The English translation of the applicant’s Japanese baptismal certificate accompanied his application for permanent residence, which was signed in August 2005. This would mean that the application contained a baptismal certificate which referred to a baptism that had not yet taken place.
[31] I am satisfied that an error was made when translating the certificate, as the original baptismal certificate shows that it was issued on August 23, 2005. To hold otherwise would mean that the Pastor issued a certificate for a baptism that had not yet taken place. Considered in this manner, there is no contradiction between the applicant’s testimony that he was baptized on September 14, 2003 and the date of baptism contained in the original baptismal certificate.
[32] The officer makes no reference to the original baptismal certificate in his CAIPS notes nor is it mentioned in his affidavit. In my opinion, the officer ignored relevant evidence regarding the applicant’s conversion to Christianity.
[33] In my view, it is important to consider that the baptismal certificate was the only piece of objective evidence submitted by the applicant in support of his conversion to Christianity. I believe that it was patently unreasonable for the officer to base his negative credibility finding upon his erroneous interpretation of the documents. Because I have no way of knowing what conclusion the officer would have reached regarding the applicant’s credibility had he considered the evidence contained in the original baptismal certificate, I must set aside the decision and refer the matter to a different officer for redetermination.
[34] Because of my finding on this issue, I need not deal with the other issues.
[35] Neither party wished to submit a proposed question of general importance for certification for my consideration.
JUDGMENT
[36] IT IS ORDERED that the application for judicial review is allowed and the decision of the officer is set aside and the matter is referred to a different visa officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set out in this section.
The Immigration and Refugee Protection Act, S.C. 2001, c. 27.:
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11.(1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
. . .
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. |
11.(1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et se conforme à la présente loi.
. . .
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. |
The Immigration and Refugee Protection Regulations, S.O.R./2002-227.:
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139.(1) A permanent resident visa shall be issued to a foreign national in need of refugee protection, and their accompanying family members, if following an examination it is established that
. . .
(e) the foreign national is a member of one of the classes prescribed by this Division;
. . .
144. The Convention refugees abroad class is prescribed as a class of persons who may be issued a permanent resident visa on the basis of the requirements of this Division.
145. A foreign national is a Convention refugee abroad and a member of the Convention refugees abroad class if the foreign national has been determined, outside Canada, by an officer to be a Convention refugee.
146. (1) For the purposes of subsection 12(3) of the Act, a person in similar circumstances to those of a Convention refugee is a member of one of the following humanitarian-protected persons abroad classes:
(a) the country of asylum class; or
(b) the source country class.
(2) The country of asylum class and the source country class are prescribed as classes of persons who may be issued permanent resident visas on the basis of the requirements of this Division.
147. A foreign national is a member of the country of asylum class if they have been determined by an officer to be in need of resettlement because
(a) they are outside all of their countries of nationality and habitual residence; and
(b) they have been, and continue to be, seriously and personally affected by civil war, armed conflict or massive violation of human rights in each of those countries.
148. (1) A foreign national is a member of the source country class if they have been determined by an officer to be in need of resettlement because
(a) they are residing in their country of nationality or habitual residence and that country is a source country within the meaning of subsection (2) at the time their permanent resident visa application is made as well as at the time a visa is issued; and
(b) they
(i) are being seriously and personally affected by civil war or armed conflict in that country,
(ii) have been or are being detained or imprisoned with or without charges, or subjected to some other form of penal control, as a direct result of an act committed outside Canada that would, in Canada, be a legitimate expression of freedom of thought or a legitimate exercise of civil rights pertaining to dissent or trade union activity, or
(iii) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group, are unable or, by reason of such fear, unwilling to avail themself of the protection of any of their countries of nationality or habitual residence.
(2) A source country is a country
(a) where persons are in refugee-like situations as a result of civil war or armed conflict or because their fundamental human rights are not respected;
(b) where an officer works or makes routine working visits and is able to process visa applications without endangering their own safety, the safety of applicants or the safety of Canadian embassy staff;
(c) where circumstances warrant humanitarian intervention by the Department in order to implement the overall humanitarian strategies of the Government of Canada, that intervention being in keeping with the work of the United Nations High Commissioner for Refugees; and
(d) that is set out in Schedule 2.
149. The Minister may, for the purpose of advising the Governor in Council of circumstances in a country that may justify amending Schedule 2, consult with the Department of Foreign Affairs and International Trade, the United Nations High Commissioner for Refugees, the provinces and non-governmental organizations with substantial knowledge of the country in question.
150. (1) An application for a permanent resident visa submitted by a foreign national under this Division must be made at the immigration office outside Canada that serves the applicant's place of residence and must be accompanied by either an undertaking or
(a) a referral from a referral organization;
(b) a referral resulting from an arrangement between the Minister and a government of a foreign state or any institution of such a government relating to resettlement; or
(c) a referal resulting from an agreement relating to resettlement entered into by the Government of Canada and an international organization or a government of a foreign state.
(2) A foreign national may submit a permanent resident visa application without a referral or an undertaking if the foreign national resides in a geographic area that the Minister has determined under subsection (3) to be a geographic area in which circumstances justify the submission of permanent resident visa applications not accompanied by a referral or an undertaking.
(3) The Minister may determine on the basis of the following factors that a geographic area is an area in which circumstances justify the submission of permanent resident visa applications not accompanied by a referral or an undertaking:
(a) advice from referral organizations with which the Minister has entered into a memorandum of understanding under section 143 that they are unable to make the number of referrals specified in their memorandum of understanding for the area;
(b) the inability of referral organizations to refer persons in the area;
(c) the resettlement needs in the area, after consultation with referral organizations that have substantial knowledge of the area; and
(d) the relative importance of resettlement needs in the area, within the context of resettlement needs globally.
151. An officer shall issue a temporary travel document to a foreign national who has been determined to be a member of a class prescribed by this Division and who
(a) holds a permanent resident visa or a temporary resident permit;
(b) does not hold a valid passport or travel document issued by their country of nationality or the country of their present or former habitual residence;
(c) does not hold a valid travel document issued by the United Nations or the International Committee of the Red Cross and is unable to obtain such a document within a reasonable time; and
(d) would be unable to travel to Canada if the temporary travel document were not issued.
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139.(1) Un visa de résident permanent est délivré à l’étranger qui a besoin de protection et aux membres de sa famille qui l’accompagnent si, à l’issue d’un contrôle, les éléments suivants sont établis:
. . .
e) il fait partie d’une catégorie établie dans la présente section;
. . .
144. La catégorie des réfugiés au sens de la Convention outre-frontières est une catégorie réglementaire de personnes qui peuvent obtenir un visa de résident permanent sur le fondement des exigences prévues à la présente section.
145. Est un réfugié au sens de la Convention outre-frontières et appartient à la catégorie des réfugiés au sens de cette convention l’étranger à qui un agent a reconnu la qualité de réfugié alors qu’il se trouvait hors du Canada.
146. (1) Pour l’application du paragraphe 12(3) de la Loi, la personne dans une situation semblable à celle d’un réfugié au sens de la Convention appartient à l’une des catégories de personnes protégées à titre humanitaire outre-frontières suivantes:
a) la catégorie de personnes de pays d’accueil;
b) la catégorie de personnes de pays source.
(2) Les catégories de personnes de pays d’accueil et de personnes de pays source sont des catégories réglementaires de personnes qui peuvent obtenir un visa de résident permanent sur le fondement des exigences prévues à la présente section.
147. Appartient à la catégorie de personnes de pays d’accueil l’étranger considéré par un agent comme ayant besoin de se réinstaller en raison des circonstances suivantes:
a) il se trouve hors de tout pays dont il a la nationalité ou dans lequel il avait sa résidence habituelle;
b) une guerre civile, un conflit armé ou une violation massive des droits de la personne dans chacun des pays en cause ont eu et continuent d’avoir des conséquences graves et personnelles pour lui.
148. (1) Appartient à la catégorie de personnes de pays source l’étranger considéré par un agent comme ayant besoin de se réinstaller en raison des circonstances suivantes:
a) d’une part, il réside dans le pays dont il a la nationalité ou dans lequel il a sa résidence habituelle, lequel est un pays source au sens du paragraphe (2) au moment de la présentation de la demande de visa de résident permanent ainsi qu’au moment de la délivrance du visa;
b) d’autre part, selon le cas:
(i) une guerre civile ou un conflit armé dans ce pays ont des conséquences graves et personnelles pour lui,
(ii) il est détenu ou emprisonné dans ce pays, ou l’a été, que ce soit ou non au titre d’un acte d’accusation, ou il y fait ou y a fait périodiquement l’objet de quelque autre forme de répression pénale, en raison d’actes commis hors du Canada qui seraient considérés, au Canada, comme une expression légitime de la liberté de pensée ou comme l’exercice légitime de libertés publiques relatives à des activités syndicales ou à la dissidence,
(iii) il ne peut, craignant avec raison d’être persécuté du fait de sa race, de sa religion, de sa nationalité, de ses opinions politiques ou de son appartenance à un groupe social particulier, ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays.
(2) Est un pays source celui qui répond aux critères suivants:
a) une guerre civile, un conflit armé ou le non-respect des droits fondamentaux de la personne font en sorte que les personnes qui s’y trouvent sont dans une situation assimilable à celle de réfugiés au sens de la Convention;
b) un agent y travaille ou s’y rend régulièrement dans le cadre de son travail et est en mesure de traiter les demandes de visa sans compromettre sa sécurité, celle des demandeurs ni celle du personnel de l’ambassade du Canada;
c) les circonstances justifient une intervention d’ordre humanitaire de la part du ministère pour mettre en oeuvre les stratégies humanitaires globales du gouvernement canadien, intervention qui est en accord avec le travail accompli par le Haut-Commissariat des Nations Unies pour les réfugiés;
d) il figure à l’annexe 2.
149. Le ministre peut, dans le but de conseiller le gouverneur en conseil sur la situation d’un pays qui peut justifier la modification de l’annexe 2, consulter le ministère des Affaires étrangères et du Commerce international, le Haut-Commissariat des Nations Unies pour les réfugiés, les provinces et des organisations non gouvernementales qui possèdent des connaissances approfondies sur ce pays.
150. (1) L’étranger fait sa demande de visa de résident permanent au bureau d’immigration hors Canada qui dessert son lieu de résidence et l’accompagne soit d’un engagement soit de l’une des recommandations suivantes:
a) une recommandation d’une organisation de recommandation;
b) une recommandation découlant d’une entente en matière de réinstallation conclue entre le ministre et le gouvernement d’un État étranger ou d’une institution de ce gouvernement;
c) une recommandation découlant d’un accord en matière de réinstallation conclu entre le gouvernement du Canada et une organisation internationale ou le gouvernement d’un État étranger. (2) L’étranger peut présenter une demande de visa de résident permanent sans joindre à celle-ci une recommandation ou un engagement s’il réside dans une région géographique que le ministre désigne, en vertu du paragraphe (3), comme une région dans laquelle les circonstances justifient que les demandes de visa de résident permanent puissent ne pas y être accompagnées d’une recommandation ou d’un engagement.
(3) Le ministre peut, en se fondant sur les facteurs ci-après, désigner toute région dans laquelle il estime que les circonstances justifient que les demandes de visa de résident permanent puissent ne pas être accompagnées d’une recommandation ou d’un engagement:
a) les organisations de recommandation l’ont avisé qu’elles étaient incapables de faire le nombre de recommandations prévues dans leur accord pour la région;
b) les organisations de recommandation sont dans l’impossibilité de faire des recommandations dans la région;
c) les besoins de réinstallation de personnes de la région, appréciés après consultation des organisations de recommandation qui possèdent des connaissances approfondies sur cette région;
d) l’importance relative des besoins de réinstallation de personnes de la région, compte tenu de ces besoins à l’échelle mondiale. 151. L’agent remet un titre de voyage temporaire à l’étranger considéré comme appartenant à une catégorie établie par la présente section qui, à la fois:
a) est titulaire d’un visa de résident permanent ou d’un permis de séjour temporaire;
b) n’a pas de passeport valide ni de titre de voyage délivré par le pays dont il a la nationalité ou dans lequel il a ou avait sa résidence habituelle;
c) n’a pas de titre de voyage valide délivré par les Nations Unies ou le Comité international de la Croix-Rouge et est incapable d’obtenir un tel document dans un délai raisonnable;
d) serait incapable d’entrer au Canada si le titre de voyage temporaire ne lui était pas délivré. |
OP5 Overseas Selection and Processing of Convention Refugees Abroad Class and Members of the Humanitarian-protected Persons Abroad Classes:
13.1…
Address applicant with credibility concerns
Applicants should be questioned about the contradictions in their story. Moreover, any explanation provided by the applicant should be addressed by the officer and they must consider whether the explanation is reasonable in all circumstances. Also, any unresolved inconsistency or concerns regarding an explanation are to be raised by the officer.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3669-06
STYLE OF CAUSE: MOHAMMAD SADEGH SIAMI ASL
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 20, 2007
APPEARANCES:
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Daniel K. McLeod
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Helen Park
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SOLICITORS OF RECORD:
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Preston Clark McLeod Vancouver, British Columbia
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John H. Sims, Q.C. Deputy Attorney General of Canada
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