Digests

Hatami v. Canada (Minister of Citizenship and Immigration)

IMM-2418-98

Lemieux J.

23/3/00

14 pp.

Judicial review of refusal of Convention refugee status--Applicant's claim based on political opinion, membership in particular social group, family and husband's activities--Applicant citizen of Iran--When husband's first cousin staying with them in Teheran, Revolutionary Guards arresting cousin, husband, applicant--Applicant detained one day, husband detained 50 days--Thereafter Revolutionary Guards returning to home every five to eight days, arresting husband for further interrogations--Applicant, husband, son fleeing Iran--CRDD holding applicant demonstrating neither subjective nor objective fear of persecution--No transcript of proceedings before CRDD available--Judicial review allowed--Whether lack of transcript on judicial review proceeding amounting to denial of natural justice because foreclosing ground for review depending on whether other effective means to rebuild missing record so as to enable reviewing court to know what went on at hearing before administrative tribunal: Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793--One way of rebuilding record by way of affidavits of parties before tribunal--Applicant filed affidavit in support of judicial review proceedings; respondent chose not to cross-examine on affidavit, not filing counter-affidavit--Respondent accepting applicant's affidavit as constituting evidence before tribunal when made decision--On this basis, Court knows what went on at hearing for purposes of review--No issues of credibility, no findings of contradictions, inconsistencies--To establish fear of persecution, claimant must subjectively fear persecution; fear must be well-founded i.e. fear must be evaluated objectively: Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593--As to objective component, relevant factors including conditions in applicant's country of origin, laws of that country, manner in which applied--Two principles taken from Chan: (1) tribunal's determination of well-founded fear of persecution must be based on evidence before it; cannot be based on speculation, assumptions; (2) relevant, direct documentary evidence in form of country conditions may be significant element in claimant's case to establish objectively claimant's subjective fear--No evidentiary basis upon which tribunal could reasonably conclude applicant not having genuine subjective fear of persecution--Subjective fear clearly established in PIF--Tribunal misconstrued evidence by (1) basing consideration of fear of persecution on one instance husband detained for 50 days, when in fact continued persecution motivating family to flee Iran; (2) speculating cousin still at large when no evidence released; if cousin captured, why were authorities still interested in husband?--Tribunal made findings in absence of any consideration of documentary evidence as to human rights abuses, persecution of relatives of political dissidents, how Iran treats returnees who had left illegally--Differently constituted tribunal to reassess claim.