2011 FC, 2011 FC 1130

Date: 20111004 Docket: IMM-7032-10 Citation: 2011 FC 1130 BETWEEN: AHAD VALAEI-BAKHSHAYESH Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [ 1 ] Mr. Valaei-Bakhshayesh, an Iranian citizen, came to Canada in 2004 to seek refugee status; not that he feared persecution should he be returned to Iran , but rather that he feared persecution should he be returned to Denmark .

Thus became a blatant attempt to asylum shop, an attempt which is not yet over. [ 2 ] As an Iranian, he was declared ineligible by the Immigration and Refugee Protection Board of Canada [IRB] to claim refugee status because he had already been accorded that status in Denmark . He then applied for a pre-removal risk assessment [PRRA] on the basis he should not be returned to Denmark because of then current conditions. That decision was negative, and his application for leave and judicial review thereof was dismissed. [ 3 ] He then claimed to have lost status in Denmark due to prolonged absence from that country.

He applied for and was given a second PRRA, this time in relation to Iran . That assessment was also negative. He applied for and obtained leave to have that decision judicially reviewed. This is that review. [ 4 ] Although I shall grant judicial review, there are many disturbing elements and gaps in the record. The matter shall be referred back for re-determination in accordance with the directions set out herein. To put this matter in context, a timeline would be helpful. TIMELINE 1979-1984 [ 5 ] Mr. Valaei-Bakhshayesh served in the Iranian Air Force.

1979 [ 6 ] The Shah of Iran was deposed. 1984 [ 7 ] Mr. Valaei-Bakhshayesh left Iran for Turkey , allegedly because he could no longer accept the policies of the new regime. Unable to obtain status in Turkey , he was directed to Denmark by the United Nations High Commissioner for Refugees. He was found to be a Convention refugee and eventually became a permanent resident of Denmark . 24 March 2004 [ 8 ] Mr. Valaei-Bakhshayesh arrived in Canada and sought refugee status. 22 November 2006 [ 9 ] Two-and-a-half years later, he was found ineligible to claim refugee protection in accordance with section 101(1) (

d) of the Immigration and Refugee Protection Act [IRPA]. That

section provides that a claimant is ineligible to be referred to the Refugee Protection Division of the IRB if he has been recognized as a Convention refugee by another country “ and can be sent or returned to that country ”. [My emphasis.] [ 10 ] The record does not indicate that he applied for leave and judicial review of that decision. 27 April 2009 [ 11 ] Another two-and-a-half years later, a negative PRRA decision was issued with respect to Denmark . 27 November 2009 [ 12 ] Mr.

Valaei-Bakhshayesh’s application for leave and judicial review of the negative PRRA was dismissed. 16 October 2010 [ 13 ] He sought and obtained a second PRRA based on a potential return to Iran . That assessment was also negative and is the subject of this judicial review. THE NEGATIVE PRRA [ 14 ] As a stand-alone decision, I hold the assessment to be unreasonable. The basis of the application was Mr. Valaei- Bakhshayesh’s bold assertion in an affidavit that he has lost permanent resident status in Denmark, and that he would be at risk in Iran .

The officer stated: “the evidence before me does not support that the applicant has attempted to determine whether avenues of recourse are available to him regarding the re-instatement of his Danish permanent residency.” With respect, there is no hard evidence that Mr. Valaei-Bakhshayesh lost his permanent resident status in Denmark in the first place or even if so, that he has lost his status there as a Convention refugee. [ 15 ] Nevertheless, the officer went on to assess the risks facing Mr.

Valaei-Bakhshayesh should he be returned to Iran . [ 16 ] At the heart of the officer’s decision was her finding that there is no evidence that Mr. Valaei-Bakhshayesh is being sought by the Iranian authorities. While that finding is reasonable (the standard of review being reasonableness – Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 ), it is not the question which should have been asked. No doubt he has been out of sight and out of mind of the Iranian authorities for more than 25 years. The question is how would Mr. Valaei-Bakhshayesh, a successful refugee, be treated on return?

That analysis was not really done. He claims that he would be persecuted because he joined the Air Force while the Shah of Iran was still in power. Assuming he was at risk in 1984, he may or may not have been at risk when the PRRA decision was rendered in 2010. It seems to me that the Iranian regime of 1984 should have been compared with the regime of 2010. [ 17 ] As a result, I find the decision unreasonable. DISCUSSION [ 18 ] In November 2006, the IRB held that Mr.

Valaei-Bakhshayesh was ineligible for consideration in Canada as a Convention refugee because he had been recognized as such in Denmark and could be returned to that country. He asserts that this is no longer the case due to his prolonged absence from Denmark . If that assertion is true, the situation is of his own making. In any event, all Mr. Valaei-Bakhshayesh says is that he lost his status as a permanent resident. He does not state one way or another whether he lost his status as a Convention refugee. [ 19 ] Unfortunately, the 2006 decision of the IRB is not in the record before me.

However, it is common ground between the parties that the ineligibility decision was based on section 101(1) (

d) of IRPA , rather than

section 98 which provides that a person referred to in

Article 1E of the U.N. Convention is neither a Convention refugee nor a person in need of protection.

Article 1E thereof provides that the Convention does not apply to a person recognized in the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. The focus in

section 101, unlike

section 98, is on refugee status, not permanent residency, or nationality, status. [ 20 ] Mr. Valaei-Bakhshayesh should not have been allowed a second PRRA without his status in Denmark being clarified. The questions which should be put to the Danish authorities are both whether he has lost his permanent status there, and whether he has lost his status as a Convention refugee and would not be permitted to return. [ 21 ] It may well be that the PRRA with respect to Iran , and the judicial review thereof, is moot.

For instance, in the case of a refugee claim by someone with dual nationality if it is found that the applicant is not at risk in one country, it is not necessary to assess the second country. [ 22 ] If due diligence was carried out by the authorities, there is no indication thereof in the record. I see a potential for great mischief. Suppose it had been held in the PRRA under review, or may be held in the new PRRA I have ordered, that Mr. Valaei- Bakhshayesh would be at risk of persecution were he to be returned to Iran.

Would that mean that he would be entitled to remain in Canada even though it may well be that he is entitled to return to Denmark ? What if a new PRRA, like the current PRRA, determines that he would not be at risk in Iran ? If he is entitled to return to Denmark , there has been a considerable waste of time, resources and money. Consequently, the second PRRA must begin with an analysis of his right, if any, to return to Denmark .

If he can return, that is the end of the matter. [ 23 ] There are a number of cases which are not precisely on point, but which nevertheless underscore the rationale behind IRPA . [ 24 ] In Canada (Minister of Citizenship and Immigration) v Zeng , 2010 FCA 118 , 402 NR 154 , the Court of Appeal wrestled with

a decision based on

section 98 of IRPA and the

Article 1E exclusion clause. The applicants, Chinese citizens, enjoyed permanent residentstatus in Chile, a status which they alleged they lost. [25] In speaking for the Court, Madam Justice Layden-Stevenson pointed out at paragraph 19 that “asylum shopping isincompatible with the surrogate dimension of international refugee protection.” The Minister had argued that the refugee claim processis not intended to provide a route to better protection when there is existing and available protection elsewhere. One concern in that casewas that if

Article 1E was applied to asylum shoppers who could not return to the third country, the potential for removal from Canada tothe home country without the benefit of a PRRA would exist. If this were to occur, Canada might run afoul of its internationalobligations. [26] However, in this particular case, Mr. Valaei-Bakhshayesh was provided not with just one, but with two PRRAs. [27] Mindful that the case dealt with

Article 1E of the U.N. Convention, rather than

section 101 of IRPA, the decision of Mr.Justice Rothstein, as he then was, in Mohamed v Canada (Minister of Citizenship and Immigration), (FC), 127 FTR241, [1997] FCJ No 400 (QL), illustrates the underlying philosophy of international protection. In that case, the applicant’s refugeeclaim in Sweden had been rejected but nevertheless she had been granted permanent resident status there on humanitarian grounds. Evenso, she sought protection in Canada because she claimed to have abandoned Sweden as her domicile and lost her permanent residentstatus. Mr.

Justice Rothstein said at paragraphs 8 and 9: [8] Applicants' counsel makes the argument that the applicants' status in Sweden is subject to expiry. Therefore they do not have theright of a national envisaged by

section E of

Article 1 of the Convention. However, the evidence is that having been granted permanentresidence status in Sweden, it is only the certificate that must be periodically renewed. There is no evidence that permanent residencestatus in Sweden is subject to some form of arbitrary cancellation. [9] This case raises the disturbing question of asylum shopping. If applicants' counsel were correct in his domicile argument,applicants could, at their own will, reject the protection of one country by unilaterally abandoning that country for another. Indeed, thatis what has occurred here.

The Geneva Convention exists for persons who require protection and not to assist persons who simply preferasylum in one country over another. The Convention and the Immigration Act should be interpreted with the correct purpose in mind. [28] Mohamed was relied upon by Mr. Justice Mosley in Wangden v Canada (Minister of Citizenship and Immigration), 2008 FC1230, [2008] FCJ No 1541 (QL), appeal on a certified question dismissed, 2009 FCA 344, [2009] FCJ No 1540 (QL). It was held thatthe applicant was ineligible to make her refugee claim in Canada pursuant to section 101(1)(

d) of IRPA, the same

section which is inplay in the case at hand. [29] Another instructive decision is that of Wassiq v Canada (Minister of Citizenship and Immigration), 112 FTR 143, [1996] FCJNo 468 (QL). That case dealt with Afghani applicants who had been granted refugee status in Germany. Ten years later they came toCanada and argued that their German residency permits had expired. As Mr. Justice Rothstein stated: [10] In Canada (Attorney General) v.

Ward, (SCC), [1993] 2 S.C.R. 689, La Forest, J. notes at page 726: Refugee claims were never meant to allow a claimant to seek out better protection than that from which he or she benefits already. I would observe that if, by reason of their absence from Germany and sojourn in Canada, the applicants are, in effect, entitled torenounce the protection they received from Germany and claim protection from Canada, such a result is anomalous.

In substance, itgives persons who have Convention refugee status in one country the right to emigrate to another country without complying with theusual requirements, solely by reason of their unilateral renunciation of the protection initially given to them by the first country. In effect,this means that they can "asylum shop" amongst countries who are signatories to the Geneva Convention and "queue jump" normalimmigration waiting lists to the country of their choice. If this is the case, the applicants, who resided in Germany for ten years, maysimply abandon Germany for Canada.

They would have greater rights to emigrate to Canada than persons of German nationality. That isneither fair nor logical. CERTIFIED QUESTION [30] A draft of these reasons was circulated to the parties so as to give the Minister the opportunity to propose a serious question ofgeneral importance for certification. Counsel has informed the Court that the Minister does not propose a certified question, and noneshall be certified.

ORDER FOR REASONS GIVEN; THIS COURT ORDERS that: 1. The application for judicial review is granted. 2. The decision rendered by the pre-removal risk assessment officer is set aside and the matter is referred back to another pre- removal risk assessment officer for redetermination. 3. There is no serious question of general importance to certify. “Sean Harrington” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7032-10 STYLE OF CAUSE: AHAD VALAEI-BAKHSHAYES v MCI PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: September 13, 2011 REASONS FOR ORDER AND ORDER: HARRINGTON J. DATED: October 4, 2011 APPEARANCES :

Joseph S. Farkas FOR THE APPLICANT Neal Samson FOR THE RESPONDENT SOLICITORS OF RECORD : Joseph S. Farkas Law Firm Barristers & Solicitors Toronto , Ontario FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT