Maqdassy v. Canada (Minister of Citizenship and Immigration)

Between
Joyce Ruth Maqdassy, applicant, and
The Minister of Citizenship and Immigration, respondent

[2002] F.C.J. No. 238
2002 FCT 182
Docket IMM-2992-00

Federal Court of Canada - Trial Division
Toronto, Ontario
Tremblay-Lamer J.

Heard: February 14, 2002.
Judgment: February 19, 2002.
(18 paras.)

       Aliens and immigration — Admission, refugees — Grounds, well founded fear of persecution — Credible basis for claim — Evidence.

       Application by Maqdassy for judicial review of a decision by the Convention Refugee Determination Division denying her refugee status.  Maqdassy was a citizen of Iraq and the daughter of a British national.  Maqdassy claimed a fear of persecution in Iraq against her and her family due to prejudice against people with "foreign roots".  Maqdassy gave evidence of harassment and lost opportunities experienced by her family in Iraq.  Maqdassy left Iraq in July 1998 with one of her sons to go to Jordan, where her son obtained refugee status.  Maqdassy did not apply for refugee status in any country, despite travelling to several countries in this time period, until January 1999, when she applied in Canada.  After leaving Iraq, Maqdassy visited family in Jordan and Germany, and even returned to Iraq to sell her house before coming to Canada. The Board found that Maqdassy's actions were not consistent with a subjective fear of persecution.

       HELD:  Application dismissed.  There must have been credible evidence of fear of persecution in Maqdassy's own mind, or subjective fear, as well as evidence which proved there was a valid, objective basis for that fear through reports of events of persecution in Iraq.  Factors such as delay in having applied for refugee status and Maqdassy having returned to Iraq with no pressing reason to do so led to the Board's conclusion that the refugee claim was implausible.  The Board's decision was reasonable.

Counsel:

Max Chaudhary, for the applicant.
Alexis Singer, for the respondent.

REASONS FOR ORDER AND ORDER

1      TREMBLAY-LAMER J.:—  This is an application for judicial review of a decision of the Convention Refugee Determination Division (the "Board") wherein the applicant was found not to be a Convention refugee.

2      The applicant is a citizen of Iraq and also a British Overseas Citizen, such status having been derived from her late father who held British nationality.  British Overseas Citizens do not have right of abode in Britain.  The applicant claims Convention refugee status because of her British nationality, and her membership in a particular social group, namely, her family.

3      According to the applicant, a wave of discrimination started in 1973 against people with "foreign roots" in Iraq.  Her husband was harassed by government officials, and one of her sons was deprived of a scholarship to specialize as a surgeon.  Another son was deprived of his teaching position after a resolution was passed stipulating that in order to be able to teach, a person would have to be born to Iraqi parents.

4      Although she was never taken away by the authorities, the applicant decided to leave Iraq for Jordan with her son Osama in June 1998 after four of her sons had already left Iraq for other countries.  Osama was accepted as a refugee in Jordan.  However, the applicant did not make a claim in Jordan; instead she obtained her British Overseas passport and, four months after having arrived in Jordan, returned to Iraq to sell her house.

5      Before coming to Canada, the applicant went to Germany for 25 days to visit one of her sons, who had been granted refugee status in Germany.

6      The applicant came to Canada on September 16, 1998, upon the invitation of her son to attend his daughter's baptism.  After a few months, when her visitor's visa was about to expire, the applicant made a claim for refugee status on January 21, 1999.

7      The Board found that the applicant's actions were not consistent with a subjective fear of persecution.

8      Relying on Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.), the applicant submits that it may not be necessary to establish a subjective fear of persecution where it has been clearly shown that an objective fear exists.

9      I disagree.  I note that Yusuf, supra, was decided prior to Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 723, where the Supreme Court of Canada outlined what a claimant must do to establish fear of persecution, making it clear that both components of the test are required:

         [...] the test is bipartite:  (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen [v. Minister of Employment and Immigration (1984), 55 N.R. 129] at p. 134:                                                             

                   The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.           

10      As I pointed out more recently in Tabet-Zatla v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1778 at para. 6, the lack of evidence going to the subjective element of the claim is in itself sufficient for the applicant's claim to fail:

         The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition -- subjective and objective -- must be met.     

11      These comments were cited with approval in Vallipuram v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1519, and Fernandov v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1129.

12      In the present case, the Board found that the applicant's testimony with respect to her subjective fear of persecution was implausible because she re-availed herself of the protection of the very country where she feared being arrested and physically abused.

13      Further, the Board found that the failure to claim refugee status in other countries and the delay in claiming in Canada reflected negatively on her credibility.

14      The Board also drew a negative inference from the applicant's omissions from her Personal Information Form (PIF).  In Basseghi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1867, Teitelbaum J. held that all relevant and important facts should be included in one's PIF and that the oral evidence should go on to explain the information contained in the PIF:

         It is not incorrect to say that answers given in a PIF should be brief but it is incorrect to say that the answers should not be complete with all of the relevant facts. It is not enough for an applicant to say that what he said in oral testimony was an elaboration. All relevant and important facts should be included in one's PIF. The oral evidence should go on to explain the information contained in the PIF.                                                                                

15      I find that the implausibility findings made by the Board were not so unreasonable as to warrant the intervention of this Court (Aguebor v. Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).

16      It was reasonable for the Board to infer that the applicant would not have returned to Iraq if she had a well-founded fear of persecution.  In some cases, claimants have been found not to have re-availed themselves of state protection.  For example, in Shanmugarajah v. (Minister of Employment and Immigration), [1992] F.C.J. No. 583, the claimant, who had returned to his country of origin to take care of his ill mother, was found not to have re-availed himself of state protection.  However, in the case at bar, there was no such pressing reason for the applicant to return to Iraq (See Ali v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 558).

17      For these reasons, I find that the Board could reasonably conclude that the applicant's behaviour was inconsistent with the existence of a subjective fear of persecution.

18      Consequently, this application for judicial review is dismissed.

TREMBLAY-LAMER J.