Judgments

[1994] 2 F.C. 42

A-1252-92

Parisa Namitabar, Parviz Namitabar (Applicants)

v.

Minister of Employment and Immigration of Canada (Respondent)

Indexed as: Namitabar v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Tremblay-Lamer J.—Montréal, October 20; Ottawa, November 5, 1993.

Citizenship and Immigration — Status in Canada — Convention refugees — Application for judicial review of Refugee Division’s decision applicants not Convention refugees — Applicants from Iran — Female applicant sent home from school, threatened with expulsion for criticizing requirement of wearing chador (piece of cloth used as cloak, veil) — Twice brought before komiteh for disobeying clothing code — Sentenced to ten strokes of whip or fine second time — Failure of woman to wear chador criminal offence in Iran punishable by 74 strokes of whip — Refugee Division finding partial lack of credibility based on inconsequential omissions, and holding as wearing of chador law of general application in Iran no persecution, discrimination — Refugee Division erred in ambiguous conclusion applicant lacking credibility — Also erred in not noting, in some circumstances, law of general application can be applied so as to be persecutory — Penalty for breach of clothing code disproportionate — Inflicted without procedural guarantees — Context of harassment and intimidation herein for which disobedience of clothing code political act giving rise to valid fear of persecution connected with political opinion — In country where oppression of women institutionalized, any independent view or act opposed to clothing code seen as opposition to established theocratic regime — Refugee Division also erred in dismissing 13-year-old brother’s claim without any discussion of circumstances — Each family member’s claim must be considered on own merits.

CASES JUDICIALLY CONSIDERED

APPLIED:

Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.); Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.); Kassim v. Canada (Minister of Employment and Immigration), A-700-92, Wetston J., order dated 9/9/93, T.D., not yet reported.

REFERRED TO:

Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199; 130 N.R. 236 (F.C.A.); Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.).

AUTHORS CITED

Harnes, R. P. G. and Ngaire Woods, Oppression of Iranian Women and Refugee Status, Auckland, Australia, 1986.

APPLICATION for judicial review of the Refugee Division’s decision that the applicants were not Convention refugees, as the female applicant was found to lack credibility and the finding that, as the requirement in Iran that women wear a chador is a law of general application there was neither persecution of nor discrimination against the female applicant who had been punished for criticizing that requirement. Application allowed.

COUNSEL:

Annie Bélanger for applicants.

Michèle Joubert for respondent.

SOLICITORS:

Payette, Bélanger, Fiore, Montréal, for applicants.

Deputy Attorney General of Canada for respondent.

The following is the English version of the reasons for order rendered by

Tremblay-Lamer J.: This is an application for judicial review from a decision of the Refugee Division that the applicants are not Convention refugees.

FACTS

The applicants Parisa Namitabar, twenty-one years old, and her brother Parviz Namitabar, thirteen years old, are Iranian nationals. The female applicant claimed refugee status on the ground that she feared persecution for her political opinion and membership in a particular social group. The male applicant based his application on his sister’s claim.

The female applicant’s uncle was an officer in the Shah’s army. Her uncle and father were both well known as opponents of the Khomeini regime. In July 1978, during a period marked by increasing and widespread violence, her father, an electrical technician, died as a result of being electrocuted at his job. The female applicant was only seven years old, but she has always believed that her father’s death was not an accident but was related to his support of the Shah.

After the revolution which installed the Khomeini regime in power, the applicant’s family was the subject of harassment from her neighbours and the Hezbollas.

The applicant is opposed to the wearing of the chador. She alleged that she had criticized this practice in her theology courses. She was threatened with expulsion from school and was sent home for a day because of her statements.

She was brought before the komiteh twice for disobeying the clothing code. On the first occasion, in 1977, she was sixteen and was accompanied by her brother Parviz and her mother. The daughter and mother were questioned and orally reprimanded for wearing the chador improperly.

Her second appearance was three years later. The applicant and her friend were seized in a shop where they had intended to buy hair products. The komiteh accused them of anti-Islamic conduct and sentenced them to ten strokes of the whip or a fine of 10,000 tamans each. Their respective families paid the fines.

On September 1, 1991 the applicant met a friend, Zahra, in a Teheran restaurant. Parviz was with her. Zahra had some pamphlets from the Moujahedeen group in her possession. When she gave the applicant the pamphlets for distribution a neighbour who knew the applicant and her family apparently saw her and heaped abuse on her. Overcome with fear, the applicant ran out of the restaurant to hide at a girlfriend’s home with her brother. The girlfriend’s father then took steps for them to leave Iran.

On October 7, 1991 they went to Turkey and on October 10 took an airplane to Canada where they claimed refugee status the day they arrived.

DECISION OF REFUGEE DIVISION

The Refugee Division found a partial lack of credibility on the part of the female applicant based on omissions which it admitted were not serious.

These omissions [it said] are not serious but in the context of a claim which is singularly lacking in substance the Board attaches some importance to them and feels that they compromised the claimant’s credibility.

As regards the wearing of the chador, the Refugee Division considered that in the case at bar this was an Islamic law generally applicable in Iran and accordingly there could be no question of persecution or even discrimination against the applicant.

ANALYSIS

1.         Parisa Namitabar

Did the Refugee Division err in concluding that there was a partial lack of credibility on the part of the female applicant and that a law imposing a clothing standard could not constitute persecution since it was generally applicable legislation?

CREDIBILITY OF APPLICANT AND WEIGHING OF EVIDENCE

I consider that the panel made an error in arriving at an ambiguous conclusion that the applicant lacked credibility. The Refugee Division had a duty to give its reasons in clear and unambiguous language.[1] Nowhere in the decision did it say that the applicant was not credible. The Refugee Division simply mentioned that her credibility was compromised by certain omissions which it admitted were not serious. It is a matter for some concern that omissions which are not serious could compromise the applicant’s credibility.

As to the weighing of the evidence, the panel found that the applicant’s claim lacked substance since it was her mother who had been summoned by the revolutionary guards, yet the evidence presented at the hearing indicated that it was indeed the applicant. In my opinion, this error was conclusive in the assessment of the claim and I do not feel that the panel could have found a lack of substance in the claim if it had taken into account that the summons was issued to the applicant and not to her mother.

PERSECUTION

Although I am not persuaded that this is a generally applicable law since the provision on the wearing of veils applies only to women, I feel that even if one were to come to a different conclusion the Refugee Division erred in finding that this could not be persecution.

In Zolfagharkhani v. Canada (Minister of Employment and Immigration),[2] MacGuigan J.A. indicated the guidelines that should be used to determine whether persecution exists in the case of generally applicable legislation. He noted at page 552 that:

(1) The statutory definition of Convention refugee makes the intent (or any principal effect) of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution.

(2) But the neutrality of an ordinary law of general application, vis-à-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required.

(3) In such consideration, an ordinary law of general application, even in non-democratic societies, should, I believe, be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some other reason persecutory.

(4) It will not be enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Convention ground.

In the case at bar I consider that the panel erred in not noting that in some circumstances a law of general application can be applied so as to be persecutory. First, the documentary evidence in the record indicates that a failure to wear the chador is regarded in Iran as a criminal offence punishable by 74 strokes of the whip.

Linden J.A. said in Cheung v. Canada (Minister of Employment and Immigration)[3] which dealt with the compulsory sterilization of women in China who already have a child, at page 323:

Even if forced sterilization were accepted as a law of general application, that fact would not necessarily prevent a claim to Convention refugee status. Under certain circumstances, the operation of a law of general application can constitute persecution. In Padilla v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 1 (F.C.A.), the Court held that even where there is a law of general application, that law may be applied in such a way as to be persecutory. In Padilla, the Court ruled that a Board must consider extra-judicial penalties which might be imposed …. Furthermore, if the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less persecutory.

In my opinion it is too easy to cover persecution with an appearance of legitimacy. To my mind there is no question that a penalty of 74 strokes of the whip for a breach of the clothing code is disproportionate. Further, this penalty is inflicted without any procedural guarantees. The authorities who arrest women not wearing chadors can apply the penalty without appearing before a judge “since the crime is self-evident”.[4] The documentary evidence disclosed that:

Special squads roam the streets, arrest unveiled, half-veiled or mal-veiled women, flog them and keep them a few days without informing their family. (The Socio-cultural Context to Refugee Claims made by Women: Case Studies: Women from Iran, Shahrzad Mojab, CRDD Workshop on Women refugee claimants, June 21, 1990, p. 7);

Women caught without a scarf, an “impious act” to the Islamic government, are taken before an Islamic court where they are generally whipped (“Des Comités surveillent les femmes iraniennes”, Le Devoir, August 6, 1991);

Others are taken before Islamic revolutionary tribunals: trials before such tribunals are apparently often a matter of a few minutes, as the accused has no right to be defended by counsel, summoned exculpatory witnesses or appeal the verdict or sentence handed down by the tribunal (Amnesty International, written statement to the 46th session of the United Nations Committee on Human Rights, January 1990).

As to the reservation expressed by Marceau J.A. in Valentin[5] regarding a situation in which the applicant infringes generally applicable legislation without already having been the subject of persecution, in the situation now before the Court the evidence disclosed that there was a context of harassment and intimidation for which her failure to observe the clothing code could be regarded as a political act giving rise to a valid fear of persecution. The applicant criticized the requirement that the chador be worn in her theology courses and accordingly was sent home for a day and threatened with expulsion. She was brought before the komiteh twice for breaches of the clothing code. Although on the first occasion the applicant was only verbally reprimanded, the second time she was sentenced to ten strokes of the whip which she was able to avoid by paying a fine. In addition to this list of incidents is the documentary evidence, which is overwhelming in its description of a general situation in Iran in which women are oppressed.

This climate of oppression is such that in August 1991 the Attorney General of Iran [translation] “promised death to Iranian women who refused to cover themselves from head to foot as required by Islamic law.” (“Malaise et dissensions à Téhéran”, Le Monde, August 17, 1991.)

POLITICAL OPINION

In order to qualify for refugee status an applicant who risks being subject to persecution must establish that the risk of persecution is connected with one of the five grounds listed in the definition, namely race, religion, nationality, membership in a particular social group or political opinion.

I consider that in the case at bar the female applicant has demonstrated that her fear of persecution is connected with her political opinion. In a country where the oppression of women is institutionalized any independent point of view or act opposed to the imposition of a clothing code will be seen as a manifestation of opposition to the established theocratic regime.

Although membership in a particular social group was relied on by the female applicant, I do not feel it is necessary to deal with this since only one of the grounds listed will suffice.

CONCLUSION

For these reasons the application for judicial review is allowed in the case of the female applicant and the matter is referred back to a panel of different members.

2.         Parviz Namitabar

The Refugee Division also erred in its response to the male applicant’s claim. There is nothing in the panel’s decision to indicate that it examined the validity of the applicant’s claim. The Refugee Division dismissed the applicant’s claim without any discussion of his particular circumstances.

As my brother Wetston J. recently said in Kassim v. Canada (Minister of Employment and Immigration):[6]

A joint hearing culminating in denial of refugee status in respect of one family member’s claim need not preclude a positive finding in respect of the other, provided each claim is considered on its merits.

It is possible in the case at bar that the applicant fears being persecuted for grounds relating solely to his family, that is on account of the political opinion of his sister and certain incidents that occurred when he was with her, or these grounds cannot give rise to a valid fear of persecution if he eventually returns; but the Refugee Division said nothing on this point.

In the circumstances the application for judicial review is also allowed in the case of the male applicant and the matter is referred back to a panel of different members.

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