CITIZENSHIP AND IMMIGRATION
Status in Canada
Convention Refugees
Judicial review of determination applicant not Convention refugee as person referred to in United Nations Convention Relating to the Status of Refugees, Art. 1F(a)—Applicant, Iranian citizen claims to fear serious harm, including torture, death for imputed political opinion, alleged membership in certain social group—Came from politically active family, opposes current Islamic regime—Suffers mental disabilities— Unable to afford psychiatrist, but doctor, member of Mujahedeem‑e‑Khalq (MKO) (group seeking secularization of Iran) gave applicant medical prescriptions, asked him to make video recordings of MKO broadcasts using satellite dish—These are illegal in Iran, so taping done covertly— Applicant ordered to appear before Islamic Revolutionary court but went into hiding—House searched, satellite dish discovered—Applicant fled Iran—Refugee protection claim in Australia denied—Came to Canada with aid of smuggling agent—Questioned by Canadian officials, gave false name, detained, later told truth, claimed refugee protection—Panel determined applicant member of MKO, terrorist organization guilty of crimes against humanity, not credible in professing ignorance of MKO’s terrorist activities, complicit in such activities—Inadmissible under Immigration and Refugee Protection Act, s. 98—Held by F.C.A. in Poshteh v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 511, question whether terrorist organization “member” is legal matter over which Immigration and Refugee Board should be given some deference, reviewable upon standard of reasonableness—Same standard applies to finding MKO terrorist organization—As panel specialized tribunal, credibility findings accorded exceptional deference—Panel had ample evidence to determine MKO terrorist organization, so designated by number of countries including U.S.A., Australia—Case law stands for proposition membership to be broadly interpreted, does not require direct participation in terrorist activities—Panel satisfied applicant’s activities sufficient to make him de facto MKO member, complicit in its activities—By videotaping, he learned, or was wilfully blind to, crimes being committed by MKO—Panel failed to explain why found applicant lacked credibility on key aspects of claim—On facts, not reasonable to find applicant complicit in MKO’s activities—Important fact that doctor, while active MKO member, was applicant’s doctor, so special relationship existed which may have given doctor level of control over applicant—This issue was not explored by panel—In view of above conclusions, unnecessary to consider panel’s interpretation of Convention, Art. 1F(a)—Application granted; matter sent back for redetermination—United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a)—Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 98.
Atabaki v. Canada (Minister of Citizenship and Immigration) (IMM‑8000‑04, 2005 FC 969, Noël J., order dated 11/7/05, 16 pp.)