[1995] 1 F.C. 767
IMM-654-93
Dolat Pour-Shariati (Applicant)
v.
The Minister of Employment and Immigration (Respondent)
Indexed as: Pour-Shariati v. Canada (Minister of Employment and Immigration) (T.D.)
Trial Division, Rothstein J.—Toronto, November 1; Ottawa, December 15, 1994.
Citizenship and Immigration — Status in Canada — Convention refugees — Judicial review of decision applicant not Convention refugee — I.R.B. not raising, considering indirect persecution —Convention refugee basis for admission to Canada not to be broadened to include persons not having well-founded fear of persecution in own right — Immigration Act, ss. 46.04, 2 adequately dealing with fear of persecution based on family membership.
This was an application for judicial review of an Immigration and Refugee Board decision that the applicant, an Iranian, was not a Convention refugee. The applicant’s son fled Iran, fearing implication in anti-government activities. The applicant had been questioned about her son, asked whether she was associated with subversive organizations, and chastised for permitting her children to become involved in subversion. There was no evidence of persecution. The applicant submitted that the Board erred by failing to apply the indirect persecution principle. The concept of “indirect persecution,” put forward in a work by Grahl-Madsen, was adopted by the Associate Chief Justice in Bhatti v. Canada (Secretary of State). It is premised on the assumption that family members are likely to suffer great harm when their close relatives are persecuted. It encompasses situations ranging from witnessing the suffering of loved ones to remaining in the country of origin without the economic and social support of a certain family member.
Held, the application should be dismissed.
Bhatti unjustifiably broadens the Convention refugee basis for admission to Canada to include persons who do not have a well-founded fear of persecution in their own right. Immigration Act, subsections 46.04(1) and (3) deals with landing of Convention refugees and their dependants. Dependants who might otherwise be obliged to return to their country of origin because they could not establish an independent claim to refugee status, will (unless disqualified for specified reasons) be allowed to remain in Canada. Parliament has determined which family members qualify for admission and landing, i.e. dependants, and the Court must not expand the scope of the family for immigration purposes. The definition of Convention refugee in subsection 2(1) includes a well-founded fear of persecution by reason of “membership in a particular social group.” A family can constitute a “particular social group,” so that family members who are not dependants may claim Convention refugee status by reason of membership in a family in which another member is a Convention refugee, or where there is evidence that other members have been subjected to persecution, even if they have not been personally subjected to persecution. The existing statutory law dealing with refugees adequately addresses situations in which persons establish a well-founded fear of persecution by reason of membership in their family. Furthermore, the cases referred to in Bhatti did not support the broad definition of indirect persecution set forth therein.
In view of conflicting Trial Division case law, the following question should be certified: “Is indirect persecution as described in Bhatti v. The Secretary of State, A-89-93, September 14, 1994 (F.C.T.D.) (not yet reported) a basis for a claim to Convention refugee status where there is no evidence of direct persecution against an applicant and if so, is the CRDD required to assess whether there is evidence of indirect persecution when an applicant does not raise the issue before it?”
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1) “Convention refugee” (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), (3), 46.04(1) (as enacted idem, s. 14; S.C. 1992, c. 49, s. 38), (3) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 38).
CASES JUDICIALLY CONSIDERED
NOT FOLLOWED:
Bhatti v. Canada (Secretary of State), [1994] F.C.J. No. 1346 (T.D.) (QL).
CONSIDERED:
Surujpal v. Minister of Employment and Immigration (1985), 60 N.R. 73 (F.C.A.); Madelat v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 49 (C.A.) (QL); Ioda v. Minister of Employment and Immigration (1993), 65 F.T.R. 166; 21 Imm. L.R. (2d) 294 (F.C.T.D.); Arguello-Garcia v. Minister of Employment and Immigration (1993), 64 F.T.R. 307; 21 Imm. L.R. (2d) 285 (F.C.T.D.); Saez v. Minister of Employment and Immigration (1993), 65 F.T.R. 317; 21 Imm. L.R. (2d) 15 (F.C.T.D.).
REFERRED TO:
Al-Busaidy v. Canada (Minister of Employment and Immigration) (1992), 16 Imm. L.R. (2d) 119; 139 N.R. 208 (F.C.A.); Taheri v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 389 (C.A.) (QL); Minister of Employment and Immigration v. Mark (1993), 151 N.R. 213 (F.C.A.); Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739(C.A.).
AUTHORS CITED
Grahl-Madsen, Atle. The Status of Refugees in International Law, Vol. 1. Leyden: A. W. Sijthoff, 1966.
APPLICATION for judicial review of a decision that the applicant was not a Convention refugee. Application dismissed.
COUNSEL:
Paul Vandervennen for applicant.
M. Lori Hendriks for respondent.
SOLICITORS:
Paul Vendervennen, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Rothstein J.: This is a judicial review of a February 10, 1993 decision of a panel of the Immigration and Refugee Board which found the applicant, a citizen of Iran, not to be a Convention refugee.
Applicant’s counsel makes five arguments:
(1) In oral argument, applicant’s counsel argued that the Board erred in finding that the applicant had no basis to fear persecution because she was old and impaired. He said the evidence demonstrated that the applicant was in similar circumstances to other older women who had been persecuted.
The most favourable interpretation of the evidence to the applicant is that older, impaired women are not immune from persecution. That is insufficient to satisfy the Convention refugee test. It was not the applicant’s submission that older impaired women, as a class, were subject to persecution. The applicant still must establish that she has a well-founded fear of persecution for reasons other than her age and impairment.
(2) Applicant’s counsel says that the panel erred in placing reliance on the fact that the applicant had a safe exit from Iran with a legal passport. He says the passport was issued in mid-1984 before the applicant experienced any difficulties and that there was no evidence relating to the nature of the applicant’s exit from Iran.
Counsel for the respondent points out that the applicant had been asked at her examination under oath whether she left Iran legally and she said she did. The applicant’s PIF stated that the applicant required an exit visa which was issued at the beginning of 1987. She also points out that the documentary evidence indicates that Iranians who are suspect politically are not able to leave Iran.
I am satisfied on the evidence that the panel made no error in placing emphasis on the fact that the applicant left Iran legally and safely and inferring from this that there was no more than the most remote possibility that the applicant would suffer persecution should she return to Iran.
(3) Applicant’s counsel says the panel failed to appreciate why the applicant left Iran in 1987. He says it was due to the arrest of two of the applicant’s son’s friends and the concern that these arrests would result in the authorities becoming aware of the political activities of the son. Counsel for the applicant says the panel ignored these reasons for the applicant leaving Iran.
Respondent’s counsel points out references in the panel’s reasons which clearly indicated that it did consider the events in relation to the son. Further, the evidence before the panel indicates that the applicant’s son said that the applicant was questioned in 1986 about his whereabouts, but she refused to tell them where he was; however there is no evidence of repercussions against the applicant because she did not tell the authorities where he was. Although the panel seems to have discounted this evidence as justifying the applicant’s Convention refugee claim, there is nothing to suggest that the panel failed to take into account the reasons why the applicant says she left Iran in 1987.
(4) Applicant’s counsel says that the panel placed too high a standard on the question of whether the applicant had established a well-founded fear of persecution.
The panel throughout its decision appears to use the correct standard. I am not satisfied that there is any merit in this argument.
(5) Applicant’s counsel relies on Bhatti v. Canada (Secretary of State), [1994] F.C.J. No. 1346 (T.D.) (QL) per Jerome A.C.J. He says that in Bhatti, the concept of indirect persecution was first explicitly identified. He submits that the panel in the case at bar erred by failing to apply the indirect persecution principle to the applicant’s circumstances.
In Bhatti, the learned Associate Chief Justice held that “[t]he concept of indirect persecution is premised on the assumption that family members are likely to suffer great harm when their close relatives are persecuted.” He also held that the harm experienced as a result of indirect persecution can “manifest itself in many ways ranging from the loss of the victim’s economic and social support to the psychological trauma associated with witnessing the suffering of loved ones.” He went on to quote from a book by Atle Grahl-Madsen, The Status of Refugees in International Law, Vol. 1 (Leyden: A. W. Sijthoff, 1966) at pages 423-424. A portion of this quote reads:
… if the head of the family is put to death, placed in a detention camp, or deprived of his possibilities of earning a living, the members of his family will be seriously affected.
…
It seems that a person may justly claim well-founded fear of persecution if he may prevail in his country of origin only at the cost of losing the head of the family or some other family member, or of losing the bread-winner’s capacity to earn a decent livelihood. The persecution in such a case is not to be taken more lightly because it is ‘indirect’.
Finally, Jerome A.C.J. held:
These cases demonstrate that the theory of indirect persecution has indeed been recognized in Canadian refugee law. The theory is based on a recognition of the broader harm caused by persecutory acts. By recognizing that family members of persecuted persons may themselves be victims of persecution, the theory allows the granting of status to those who might otherwise be unable to individually prove a well-founded fear of persecution. Applying this theory to the case at bar, it becomes evident that the Board has erred in failing to consider the adverse effects experienced by the applicants as a result of the persecution of Mr. Bhatti. Having accepted that the latter had been persecuted, the Board was required to consider whether the circumstances were such that the applicants were also deserving of protection.
The concept of “indirect persecution” in Bhatti is defined in very broad terms. It can encompass situations ranging from a person witnessing the ill-treatment of loved ones to the experience of a person who is obliged to stay in his or her country of origin, without the economic and social support of a certain family member. It is suggested that the principle of family unity justifies the indirect persecution concept.
I confess to having difficulty reconciling the concept of indirect persecution as set forth in Bhatti with the provisions of the Immigration Act, R.S.C., 1985, c. I-2, and the principles that have developed in relation to the issue of Convention refugee status. In my respectful view, the Bhatti approach to indirect persecution unjustifiably broadens the Convention refugee basis for admission to Canada, to include persons who do not have a well-founded fear of persecution in their own right.
Subsections 46.04(1) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 38] and (3) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 38] of the Immigration Act deal with the landing of persons who have been determined to be Convention refugees, and their dependants:
46.04 (1) Any person who is determined by the Refugee Division to be a Convention refugee may, within the prescribed period, apply to an immigration officer for landing of that person and any dependant of that person, unless the Convention refugee is
(a) a permanent resident;
(b) a person who has been recognized by any country, other than Canada, as a Convention refugee and who, if removed from Canada, would be allowed to return to that country;
(c) a national or citizen of a country, other than the country that the person left, or outside of which the person remains, by reason of fear of persecution; or
(d) a person who has permanently resided in a country, other than the country that the person left, or outside of which the person remains, by reason of fear of persecution, and who, if removed from Canada, would be allowed to return to that country.
…
(3) Notwithstanding any other provision of this Act, but subject to subsections (3.1) and (8), an immigration officer to whom an application is made under subsection (1) shall grant landing to the applicant, and to any dependant for whom landing is sought if the immigration officer is satisfied that neither the applicant nor any of those dependants is a person described in paragraph 19(1)(c.1), (c.2), (d), (e), (f), (g), (j), (k), or (l) or a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of
(a) more than six months has been imposed; or
(b) five years or more may be imposed.
Without wishing to make too broad a generalization, it seems that subsections 46.04(1) and (3) would account for the large majority of persons who might otherwise fit the indirect persecution category as defined in Bhatti. Specifically, dependants who might otherwise be obliged to return to their country of origin because they could not establish an independent claim to refugee status, will (unless disqualified for specified reasons) be allowed to remain in Canada. Section 46.04 reflects the principle of family unity. It is true that it is limited to dependants and does not include members of an extended family such as parents of adult children. However, such a limitation in the legislation does not justify the development of a common law notion of indirect persecution to account for family unity situations not covered by the section. Parliament has determined which family members qualify for admission and landing, i.e. dependants, and it is not the role of the Court to expand the scope of the family for immigration purposes beyond that which Parliament has determined to be appropriate.
There is then a well-founded fear of persecution by reason of “membership in a particular social group,” found in the definition of Convention refugee in subsection 2(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1] of the Immigration Act, which may qualify an applicant as a Convention refugee. It is well established that a family can constitute a “particular social group.” See Al-Busaidy v. Canada (Minister of Employment and Immigration) (1992), 16 Imm. L.R. (2d) 119 (F.C.A.) and Taheri v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 389 (C.A.) (QL). Thus, even though members of an extended family may not be dependants of a Convention refugee, they may still have grounds to claim their own Convention refugee status by reason of membership in a family in which another member is a Convention refugee, or at least where there is evidence that other members have been subjected to persecution.
The family as a “social group” basis for seeking Convention refugee status is not based on the principle of family unity but rather on the evidence of persecution of the family as a social group. When “membership in a particular social group” is applicable to a family, it may allow members of an extended family to claim Convention refugee status even if they have not been personally subjected to persecution. But this is not indirect persecution. It is simply evidence that by reason of membership in a family, persons may have a well-founded fear of persecution in the future if they are forced to return to their country of origin.
For these reasons, I am of the view that the existing statutory law dealing with refugees adequately addresses the concept of family unity situations in which persons are able to establish a well-founded fear of persecution by reason of membership in their family. I see no justification for a broad concept of indirect persecution as set forth in Bhatti.
In addition, I have reviewed the cases referred to in Bhatti. I am not satisfied that the cases referred to support the broad definition of indirect persecution set forth in Bhatti. The cases referred to were Surujpal v. Minister of Employment and Immigration (1985), 60 N.R. 73 (F.C.A.); Madelat v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 49 (C.A.) (QL); Ioda v. Minister of Employment and Immigration (1993), 65 F.T.R. 166 (F.C.T.D.); Arguello-Garcia v. Minister of Employment and Immigration (1993), 64 F.T.R. 307 (F.C.T.D.); and Saez v. Minister of Employment and Immigration (1993), 65 F.T.R. 317 (F.C.T.D.).
Before turning to the cases themselves, I would observe that a Convention refugee claimant must demonstrate a well-founded fear of persecution in the future to support a Convention refugee claim. In making a claim for Convention refugee status, an individual will often advance evidence of past persecution. This evidence may demonstrate that he/she has been subjected to a pattern of persecution in his/her country of origin in the past. But this is insufficient of itself. The test for Convention refugee status is prospective, not retrospective: for example, see Minister of Employment and Immigration v. Mark (1993), 151 N.R. 213 (F.C.A.), at page 215. The relevance of evidence of past persecution is that it may support a well-founded fear of persecution in the future. However, it is a finding that there is a well-founded fear of persecution in the future that is critical.
The only case in which a Convention refugee claimant will be able to attain Convention refugee status despite the absence of a well-founded fear of persecution in the future, is where the claimant’s past persecution was of such an appalling nature that even a change of circumstances in the country of origin, removing the potential for future persecution, will not defeat the Convention refugee claim. Persons in this category will be recognized as Convention refugees on humanitarian grounds, as set out in Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739(C.A.), at page 748.
I turn now to the cases referred to in Bhatti. Surujpal involved two applicants, a husband and wife. The evidence pertained primarily to the husband. The wife’s grandfather was murdered by the police in an apparent search for the husband. The term “indirect persecution” is not found in the decision. While the decision is not explicit on the point, it seems as if the evidence of persecution of the husband and killing of the grandfather indicated that the wife would be in danger herself. When it is remembered that the concept of a well-founded fear of persecution is forward-looking, and that past persecution is relevant to indicate what could transpire in the future, it seems that Surujpal simply stands for the proposition that evidence of past persecution of other family members may be a basis for an applicant’s own well-founded fear of persecution in the future.
In Ioda, the applicant was a Latvian Catholic. Her husband was a Belorussian Jew. The applicant and her family had been subjected to various forms of harassment by both Russians and Latvians as a result of her mixed (by nationality and religion) marriage. The applicant had been threatened and actions were taken against her husband and child. The school authorities would do nothing to protect the child. Dubé J. found that in considering cumulative acts, persecution may be found in actions directed against members of an applicant’s family. I, too, am satisfied that in the context of cumulative acts amounting to persecution, acts against family members may be taken into account. But it seems to me that these cumulative attacks against the applicant and her family are evidence of the fate that could befall the applicant if she is not recognized as a Convention refugee and is sent back to her country of origin. This is not indirect persecution.
The decision of the Federal Court of Appeal in Madelat is very short. However, it also seems to have been a case of cumulative acts of harassment by the Iranian government against the applicant and her family. Again, I do not think that this involves any new concept of indirect persecution but rather evidence of what might have befallen the applicant had she been forced to return to Iran.
In Saez, the applicant’s sister was a leader of the Shining Path, a revolutionary movement in Peru. The sister was tortured, then assassinated and a brother was also tortured. The applicant said she felt caught between the expectations of the Shining Path, formerly led by her sister, and the suspicion of her by the local government authorities. Dubé J. found that these facts would substantiate a claim of subjective fear by the applicant. In my view, Saez is authority for the proposition that previous persecution of family members can be good evidence for a claim of a well-founded fear of persecution in the future by an applicant, on the ground of membership in a particular social group—the applicant’s own family.
In Arguello-Garcia the applicant had suffered detention and physical and sexual abuse by the military authorities in El Salvador. The applicant’s brother and family had been murdered by the National Guard. The mother, who saw the murders, died of shock three days later. The question in this case was whether the change of circumstances in El Salvador, as found by the Board, eliminated the basis for the applicant’s refugee claim. On the basis of subsection 2(3) of the Immigration Act and Obstoj, to which I referred earlier, there is now recognized a special and limited category of persons who have suffered such appalling persecution that their experience alone is a compelling reason not to return them. In Arguello-Garcia, it was determined that the applicant had compelling reasons arising out of past persecution for refusing to avail himself of the protection of El Salvador. In this limited “Obstoj” type of case, fear of persecution in the future was unnecessary. Atrocious past persecution suffered by members of the applicant’s family and by himself was sufficient to enable the applicant to claim Convention refugee status. If this could be termed “indirect persecution,” it is a very limited application of the concept and would not, in my respectful view, support the broad approach set forth in Bhatti.
In the case at bar, the evidence before the panel was that the applicant’s son fled Iran because his friends had been arrested and there was a concern that they had documents that would implicate the son in anti-government activities. The son testified that the Iranian authorities were looking for him. The applicant herself had been questioned about her son but she had given the authorities no information. The applicant had also been questioned as to whether she had been associated with subversive organizations, and was chastised for permitting her children to become involved. However, the applicant suffered no repercussions following this questioning. There is no evidence of anything approaching persecution in her case. Nor did applicant’s counsel argue that this case is one in which the Obstoj principle would apply.
Having considered all the cases referred to in Bhatti, and the provisions of the Immigration Act, to which I have referred, I do not see how indirect persecution as described in Bhatti arises. I conclude therefore that the panel in the case at bar did not err by not considering the question of indirect persecution or by not raising indirect persecution in the proceedings before it.
For all of the foregoing reasons, this judicial review must be dismissed.
At the hearing of this matter, counsel for the applicant requested that I certify a serious question of general importance for determination by the Federal Court of Appeal. In view of conflicting opinions in the Federal Court Trial Division, I think it would be appropriate to state such a question in this case. A determination of this question could have a bearing on the outcome of this case in that if the indirect persecution concept, as outlined in Bhatti, is applicable, the panel in this case would have erred and the matter should then be sent back for redetermination.
I would certify the following question:
Is indirect persecution as described in Bhatti v. The Secretary of State, A-89-93, September 14, 1994, (F.C.T.D..) (not yet reported) a basis for a claim to Convention refugee status where there is no evidence of direct persecution against an applicant and if so, is the Convention Refugee Determination Division required to assess whether there is evidence of indirect persecution when an applicant does not raise the issue before it?