Digests

Ghasemian v. Canada (Minister of Citizenship and Immigration)

IMM-5462-02

2003 FC 1266, Gauthier J.

30/10/03

12 pp.

Judicial review of Refugee Protection Division of Immigration and Refugee Board (Board) applicant not Convention refugee nor person in need of protection-- Applicant, citizen of Iran, alleging well-founded fear of persecution by reason of membership in particular social class (victim of spousal abuse), and on basis of religion as converted to Christianity while in Canada--Now risking severe punishment including death as apostate if returns to Iran--Had first claimed refugee status under false name--Board not satisfied sufficient or trust worthy evidence upon which to make positive determination--Application allowed--Board did not fail to evaluate spousal abuse claim--Board found applicant had failed to establish subjective fear within meaning of Immigration and Refugee Protection Act, s. 96--Board did not make reviewable error when found that, in particular circumstances of case including fact credibility had been greatly diminished by misrepresen-tation for first refugee claim and excessive delay in making her claim, applicant had not established subjective element of her claim as abused spouse--With respect to claim under Act, s. 97 as person in need of protection as result of conversion to Christianity, crime of apostate, case of Shah v. Canada (Minister of Citizenship and Immigration), 2003 FC 1121; [2003] F.C.J. No. 1418 (F.C.) applied--Court therein held Act, s. 97 not requiring subjective fear of persecution but rather determination that removal would subject applicant to danger of torture, death or cruel or unusual treatment or punishment --Once established that crime of apostate severely punished in Iran, that applicant publicly baptised, Board had to consider whether would be viewed as apostate by Iranian authorities and chances of her being punished as convert had to be assessed--In failing to consider this aspect of claim, Board made reviewable error--Board also erred when looked at her motive for conversion and applied wrong test by rejecting claim on basis not made in good faith (did not convert for purely religious motive)--Application of Danian v. Secretary of State for the Home Department, [1999] E.W.J. No. 5459 (QL) where Court found that even though claim based on outspoken political opinions, allegedly made for sole purpose of supporting claim, tribunal still had obligation to determine whether would face persecution if returned to country of origin--Opportunistic claimants still protected under Convention if they can establish genuine, well-founded fear of persecution for Convention ground--Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 96, 97.