Date: 20020610
Docket: IMM-1246-01
Neutral citation: 2002 FCT 653
Ottawa, Ontario, this 10th day of June, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
JOOBIN ABDOLREZA DIVSALAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board of Canada (CRDD) dated February 14, 2001, in which the applicant Joobin Abdolreza Divsalar was determined not to be a Convention refugee.
FACTS
[2] The applicant, a 32 year old citizen of Iran, claims a well-founded fear of persecution on the basis of his perceived political opinions. He also has a brother and sister who have been accepted into Canada as Convention refugees.
[3] The applicant's evidence is that his father was a well-known land owner at the time of the Shah and that, after the revolution, some of the family lands were confiscated. The applicant claims that he was harassed at school because his father was well-known and considered a feudal landowner.
[4] The applicant also writes in his Personal Information Form (PIF) that, because of an essay he had written which was critical of the regime, he was expelled from school.
[5] In 1988, the applicant claims to have been arrested because he had not reported for military service. As a result he was questioned and sent to a hardship post, denied weapons training and made to do menial work. He claims that on one occasion all his possessions were searched, and when he complained of this search was taken to the Political Ideology Section where he was questioned and beaten and detained for three nights. A military tribunal then sentenced him to four and a half months imprisonment for insulting Islam.
[6] After his military service, the applicant opened a cosmetics business with a friend and was later married. The couple had a son in 1994. In March of 1995, the son began to choke and had to be rushed to the hospital. However, allegedly due to the ill-will which the applicant faced in the community, the applicant claims that the child was not properly attended to at the hospital. The child was unconscious upon arrival at the hospital. The attending physician said that it was too late and that he could not do anything then left to go to prayers. The child died. The applicant lost his temper. He was subsequently beaten and injected with a tranquillizer. He awoke in a cell where he was questioned before being allowed to return home to complete the funeral arrangements for his son. The applicant was then detained and questioned for a further twelve days. He was asked questions about his brother and sister who had fled the country. He was eventually released after signing an undertaking that prohibited him from speaking out against the regime.
[7] The CRDD did not indicate any difficulty accepting this part of the applicant's story.
[8] The CRDD had difficulty, however, accepting the culminating incident which occurred in July 1999, and which appears to have prompted the applicant to flee from Iran. The following narrative which recounts this incident is found in the applicant's PIF:
After my military service I had opened a cosmetics business with a friend. In 1997 we hired a student, Adel Moulavi, who worked for us part-time. On 22 Tir (July 13) he took my car which was also used as a company car to go and pick up cheques from our customers. He did not return by evening and we became worried. I called the customers and were told he had never arrived. His brother had no idea where he was. The next day I contacted a customer, Mehdi, who was a clerk in the Justice department and asked him if there had been any report of a car accident involving our car. He said he would check. That evening he came and told us that Adel had been arrested and the authorities had allegedly found anti-regime flyers in the car. The clerk advised us not to be seen.
I immediately called my wife's cousin in Khoy and went there. My wife was in Mazandaran at the time. After a few days I learned that pasdars had raided our house and were asking the neighbours about me. I thereupon called an old family friend who told me my parents home had also been raided and that my father and sister had been detained and my mother interrogated. After my wife returned home, she too was arrested and detained for 10 days. She was released and ordered to report weekly and was prohibited from leaving the city. I called Mehdi on his cell phone and he advised me to leave the country because the regime knew all about my past difficulties and was convinced I had been active with Adel. My business partner Omid, who had been away at the time, was questioned for one week after his return and the shop closed down.
In September I went to the home of my wife's relatives in the outskirts of Khoy. My wife's uncle had relatives involved in the smuggling business. I remained there until the beginning of Mehr (September) at which time I was taken across the mountains and into Turkey illegally.
[9] The applicant's part-time employee was arrested on July 13, 1999, the fifth day of the student protests that had begun on July 8. The country documentation confirms that this demonstration was large scale and caused significant disruption in Tehran. The demonstration continued to grow and included many non-students. At least 4 students were killed, 300 were wounded and 400 were taken into detention according to the "Department of State Report."
[10] The applicant's evidence is that the smuggler had planned that he should obtain an international driver's licence and drive to Turkey as an aid to a driver of a Tractor Trailer transporting goods to Turkey. This plan however changed and the applicant eventually walked across the border near a small village.
DECISION OF THE CRDD
[11] The CRDD found the applicant's story regarding the events of July 13, 1999, surrounding his departure from Iran not plausible or credible and concluded that the applicant is not a Convention refugee.
[12] The CRDD accepted some of the applicant's evidence but rejected other evidence. The CRDD found the following credible:
· The applicant's identity was accepted;
· The applicant's brother and sister were found to be Convention refugees in Canada in 1990 and 1991, respectively, based on a well-founded fear of persecution based on political opinion. Their claims, however, have no substantive connection to the applicant's claim, but for his allegation that he is perceived by Iranian authority to have a political opinion opposing the government;
· The applicant's child died and the applicant was subsequently detained when he accused officials in relation to the death; and,
· While detained the applicant was interrogated, which included interrogation concerning his two siblings who had been found to be Convention refugees.
ISSUES
1. Did the CRDD fail to assess the credible evidence before it to determine the well-foundedness of the applicant's fear of persecution?
2. Did the CRDD commit a reviewable error in its assessment of the evidence before it with regard to the well-foundedness of the applicant's claim and in particular:
(a) Are the CRDD's findings on credibility and plausibility made in a perverse or capricious manner or without regard to the evidence before it?
(b) Did the CRDD draw improper inferences or ignore or misconstrue the evidence before it?
ANALYSIS
[13] A preliminary argument is made by the applicants that the CRDD erred in failing to assess the credible evidence before it to determine whether or not the applicant faces a risk upon return to Iran.
[14] The applicant contends that the circumstances that led to his siblings obtaining refugee status and his own detention in 1995 were factors that put him at risk. This evidence survived the CRDD's credibility screening and the CRDD erred in failing to assess this credible evidence to determine whether or not the applicant faces a risk upon return.
[15] It is useful to reproduce the CRDD's assessment of this evidence at pages 7 and 8 of its Reasons:
The panel disagrees. Having found that the events of July 13, 1999 and subsequently, on a balance of probabilities, did not occur as alleged by the claimant, we cannot find that his alleged fear of persecution is well founded. We accept that the claimant was unhappy in Iran, especially after the unfortunate and tragic death of his child, and the detention in 1995 that followed, but this does not make the claimant a Convention refugee.
[16] The respondent argues that since the applicant presented no evidence that he or any member of his family had problems with the regime because of his brother and sister since his detention in 1995 until July 1999, it was reasonable for the CRDD to dismiss this argument.
[17] I am of the opinion, in the circumstances of this case, that it was reasonable for the CRDD to infer that the applicant's fear that may have existed at the time of the 1995 incident is no longer reasonable given that there is no evidence of any incident since the 1995 detention until the July 13, 1999 events that would justify a fear of persecution.
[18] I am satisfied that the CRDD did assess the credible evidence before it namely, "...the unfortunate and tragic death of his child and the detention in 1995 that followed..." as mentioned in its reasons. The CRDD concluded that the claimant was "unhappy in Iran", but was not a Convention refugee because of this evidence.
[19] I am of the view, considering all of the evidence that was before the CRDD, that this conclusion was reasonably open to it and that it did not commit an error in its expressed reasons on this issue that would justify the intervention of this Court.
[20] I have, however, grave concerns with regards to the other findings of the CRDD dealing with credibility and, in particular, its plausibility findings.
[21] Before proceeding to consider the credibility and plausibility findings of the CRDD, I think it useful to review the applicable standard of review for such findings.
[22] The jurisprudence of this Court has clearly established that the CRDD has complete jurisdiction to determine the plausibility of testimony, so long as the inferences drawn are not so unreasonable as to warrant intervention, its findings are not open to judicial review. [See Aguebor v. Minister of Employment and Immigration] (1993), 160 N.R. 315, pp. 316-217 at para. 4.]
[23] There is also authority that would see a Court intervene and set aside a plausibility finding where the reasons that are stated are not supported by the evidence before the panel. In Yada et al. v. Canada (Minister of Employment and Immigration) (1998), 140 F.T.R. 264, Mr. Justice MacKay, at page 270 para. 25, wrote:
Where the finding of a lack of credibility is based upon implausibilities identified by the panel, the court may intervene on judicial review and set aside the finding where the reasons that are stated are not supported by the evidence before the panel, and the court is in no worse position than the hearing panel to consider inferences and conclusions based on criteria external to the evidence such as rationality, or common sense.
[24] Further, it is accepted that a tribunal rendering a decision based on a lack of plausibility must proceed with caution. I find it useful to reproduce the following passage from L. Waldman, Immigration Law and Practice, (Markham: Butterworths Canada Ltd. 1992) at page 8.10, paragraph § 8.22 which deals with plausibility findings and the impact of documentary evidence that may be before the tribunal:
§ 8.22 Plausibility findings should only be made in the clearest of cases - where the facts as presented are either so far outside the realm of what could reasonably be expected that the trier of fact can reasonably find that it could not possibly have happened, or where the documentary evidence before the tribunal demonstrates that the events could not have happened in the manner asserted by the claimant. Plausibility findings should therefore be "nourished" by reference to the documentary evidence. Moreover, a tribunal rendering a decision based on lack of plausibility must proceed cautiously, especially when one considers that refugee claimants come from diverse cultures, so that actions which might appear implausible if judged by Canadian standards might be plausible when considered within the context of the claimant's background.
[25] I will now deal in turn with the CRDD's findings of lack of credibility based on implausibilities.
[26] The CRDD based a number of its non-plausibility findings on the documentary evidence that there were widespread street riots that had spread beyond the University at the time of the July incident alleged by the applicant. In essence, the CRDD concluded that Tehran was in turmoil and that the applicant's story was simply not plausible in this context, and in particular made the following findings:
(i) The CRDD found that it was not credible for the applicants to "...simply ask about a car accident when hundreds of students have been detained and Tehran itself was in turmoil."
(ii) The CRDD also found it was implausible in this context that Adel's family would not have initiated some action regarding his disappearance and also found it incredible that Adel's family would not have him back in touch with the applicant if Adel had been arrested as alleged.
(iii) The CRDD also found that, given the context in Tehran, in that 1500 people were arrested and processed, it stretched credulity to suggest that Mehdi (the clerk at the Department of Justice) could obtain information and details of the investigation in just a few hours.
[27] It is undisputed that Adel was not involved in the student demonstrations and it is also clear that the CRDD made no such finding. The car Adel was driving belonged to the applicant and when he did not return, the applicant inquired as to whether he had been involved in a car accident. In my view, such an inquiry is plausible. Even if one accepts that Tehran was in turmoil on that day, if the applicant or Adel were not directly involved in the students' demonstrations, and there is no evidence to this effect, I fail to see how the applicant's inquiry, into whether his employee driving his car was involved in an accident, to be implausible.
[28] There is no evidence that Adel's family had any information about his arrest. Indeed, there is evidence that detainees are kept incommunicado. [United States Department of State, Country Reports on Human Rights Practices for Iran 1999.] In my view there is simply insufficient evidence to support the CRDD's finding that it was not plausible that Adel's family did not take action or had not gotten back to the applicant. For the family to do so, there must be evidence that it had knowledge of the arrest and there is none. The finding is based on speculation and cannot stand.
[29] There is also, in my view, no evidence upon which the CRDD can base its finding that it was not plausible for Mehdi to obtain information and details of the investigation in just a few hours. There is no evidence to suggest that an insider, an employee in the Department of Justice, could not find out the identity of an arrested person. It would appear to me that this could be quite plausible. I also agree with the contention of counsel for the applicant that the fact that Mehdi provided incomplete information (i.e. did not know the location where Adel was detained), is hardly a basis to find that the information was never provided or wrong in the absence of evidence to the contrary.
[30] The CRDD also found that it was not plausible that the authorities would not have visited the claimant during the 24 hours that elapsed before the claimant allegedly fled, especially during a period of intense crackdown on dissidents. This finding is at odds with other findings, particularly where the CRDD found that because of the chaos in Tehran, the authorities were busy arresting hundreds of students, is it not also plausible that they may not have had the time to chase down the employer of a detainee in 24 hours. On the evidence, I therefore find that this plausibility finding was not reasonably open to the CRDD.
[31] The CRDD found that the applicant was contradictory in that he stated that his father and sister had been detained, but that in oral evidence they had not been detained just questioned. I am of the view that there is evidence to support this finding. In his PIF, the applicant clearly wrote that his father and sister were detained and that his mother was interrogated. It is clear that the applicant made and understood the distinction.
[32] I am also of the view, however, that this contradiction is not sufficiently serious or material in the context of all the evidence to warrant rejection of the claim or justify a finding of general lack of credibility. [See Djama v. Canada (Minister of Employment and Immigration), 5 June 1992, action No. A-738-90 (C.A.).]
[33] The CRDD based its decision on one further finding of implausibility. It found that the applicant's evidence was implausible because the international driver's licence, obtained for the purpose of leaving Iran, is valid only in Turkey if presented with his Iranian driver's licence. The evidence shows that the applicant did not have his Iranian driver's licence with him, it was sent to him later along with other documents by his sister. Based on specialized knowledge and with particular reference to international driver's licences and Turkey, the CRDD drew a negative inference from the applicant's failure to have carried his licence with him.
[34] Based on the specialized expertise of the tribunal on country conditions, I am of the view that this finding would be reasonably open to it were it not for the explanation offered by the applicant. The applicant explained that the original plan that he would cross the boarders as an alternate driver was never implemented. He did not require the international driver's licence. Indeed, the evidence shows that he crossed the boarder on foot. This evidence is undisputed. In the end, the use of the international driver's licence and the requirement to have his Iranian licence with him never came into play. I question the materiality of this finding and, given all of the evidence, I conclude that it is not sufficiently material to afford it the import that would warrant a general finding of lack of credibility or rejection of the claim.
[35] I am also in agreement with the applicant's contention that the CRDD's conclusion that, "...nor does it make sense that it (the international driver's licence) was made in Khoy" is unmotivated. No reasons are offered as to why it makes no sense that it was made in Khoy. I am of the view that this negative credibility finding, to stand, should have been sufficiently motivated with clear reasons and it was not. [See Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm L.R. (2d) 199 (F.C.A.)]
[36] Based on its negative plausibility findings, the CRDD concluded that the claimant fabricated his story and ultimately found that the events of July 13, 1999, and subsequently, on a balance of probabilities, did not occur as alleged by the applicant, and found that his alleged fear of prosecution is not well-founded.
[37] I am of the view, and so conclude, that many of the plausibility findings discussed above were not reasonably open to the CRDD. My reasons for this conclusion were canvassed earlier in my analysis of the plausibility findings. I am also of the view that the contradictions found by the CRDD were not material or of such import as to warrant a general finding of lack of credibility or rejection of this claim.
[38] Had the CRDD not erred in making these findings of implausibility, the tribunal may have concluded differently with respect to the applicant's claim particularly in view of earlier events which occurred in 1995 and which were found to be credible by the CRDD. The CRDD's findings of implausibility were made without regard for evidence before it and are therefore perverse and warrant the intervention of this Court.
[39] This application for judicial review will therefore be allowed and this matter will be sent back for re-hearing before a differently constituted panel.
[40] The applicant submits the following proposed question for certification.
Can a decision of the Refugee Division be based only on [sic] a finding or findings relating to the circumstances surrounding the obtaining of an International Driver's Licence, which document was obtained for the purpose of fleeing the country of persecution?
[41] I have read the written submissions of both parties on the proposed question. I conclude that the proposed question does not arise on the facts of this case and would not be a question determinative of any appeal in this matter. The question will not be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed and the matter is sent back for re-hearing before a differently constituted panel.
"Edmond P. Blanchard"
Judge
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1246-01
STYLE OF CAUSE: JOOBIN ABDOLREZA DIVSALAR v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 24, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: June 10, 2002
APPEARANCES:
Michael Crane FOR PLAINTIFF / APPLICANT
Amina Riaz FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Micheal Crane FOR PLAINTIFF/APPLICANT
166 Pearl Street, Suite 200
Toronto, Ontario M5H 1L3
Morris Rosenberg FOR DEFENDANT/RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Exchange Tower
1 First Canadian Place
Box 36, Suite 3400
Toronto, Ontario
M5X 1K6