Docket No.: IMM-3198-01
Neutral Citation: 2002 FCT 936
Ottawa, Ontario, this 4th day of September, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
NAZANEN KHORASANI, TOURAG GHAJAR
and KHASHAYAR GHAJAR
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. This is an application for judicial review of a decision of the Convention refugee Determination Division of the Immigration and Refugee Board (the "Panel"), dated June 4, 2001, wherein it was determined that the applicants were not Convention refugees.
Facts
2. The applicants, Tourag Ghajar (the "male applicant"), Nazanen Khorasani, his wife (the "female applicant"), and Khashayar Ghajar, their son (the "minor applicant"), are all citizen of Iran. The female applicant and the minor applicant arrived in Canada on November 27, 1999, and claimed Convention refugee status the same day. The male applicant arrived on December 4, 1999, and claimed refugee status on December 8, 1999.
3. The male applicant claims a well-founded fear of persecution at the hands of the Iranian authorities on account of his perceived political opinion as a result of his collaboration with his father in-law who was an outspoken critic of the government regarding its policies towards truck drivers. The female applicant bases her claim on being family members of a person, the female applicant's father, who was sought by the Iranian authorities as an opponent of the regime. In addition to fearing persecution as a member of her husband's family, the female applicant claims that she also fears persecution in her own right, on the ground that the authorities knew she was providing sanctuary to her late father at a time when he was a fugitive from the authorities who were persecuting him. At the hearing, both adult applicants testified in support of their claims. The minor applicant relied on the testimony of his parents in support of his claim.
Summary of the alleged facts
4. The female applicant's father (the "father") did not return home from work on August 1, 1999. He was a truck driver and was an active and outspoken member of the Truck Driver's Association in Iran. This association attempted to inform the public about the lack of government action on some issues concerning truck drivers.
5. The father went missing for about five days, until he returned on August 6, 1999, at 4:30 a.m.. Instead of going to his home, he went into hiding at the female applicant's (his daughter) apartment. The father informed the male applicant that he was being followed by the authorities and that he feared for his life. He instructed the male applicant to deliver his briefcase containing classified and confidential documents to another contact in the Truck Driver's Association.
6. The evidence of the female applicant at the hearing is that on August 1, 1999, a friend of her father had called to advise her mother that a meeting of the Truck Driver's Syndicate had been raided, and that her father had managed to avoid arrest. In both the female applicant's and the male applicant's Personal Information Form ("PIF") it is stated that it was the father himself who had called to give this information. In the male applicant's PIF, it is also stated that the family became aware that his father-in-law was being sought by the authorities on August 6, 1999, and not on August 1, 1999.
7. The applicants' evidence is that on August 11, 1999, when they were coming back from grocery shopping, the father was being arrested in their apartment. The applicants hid at a friend's place to avoid being arrested. They stayed there for a few days until they were advised that the father had been killed on August 17, 1999.
8. The applicants attended the father's funeral. At the funeral, the male applicant alleges to have observed bruises on his father-in-law' s neck, ribs and legs. In a video made of the funeral, he also alleges that he saw bruising on the father's back. The male applicant claims that he left the funeral early because he got word that people were looking for the deceased's son-in-law and that after the funeral, the applicants went into hiding in Varamin, a suburb of Teheran, in the basement of an unfinished house where the conditions were horrible. Their evidence is that they remained there for about three months and on August 22, 1999, he left and carried out the instructions given by his late father-in-law and delivered the briefcase, and they returned to Varamin.
9. The female applicant and the minor applicant left Iran on November 25,1999 and the male applicant left the next day. The female and minor applicants left Iran with a smuggler and travelled through the Netherlands, Mexico, and arrived in Toronto, on November 27, 1999. The male applicant left Iran with a smuggler and journeyed through Turkey to New York, and then went on to Niagara Falls. He arrived in Canada on November 28, 1999, and claimed refugee status on December 8, 1999.
The Panel's Decision
10. The Panel concluded that the applicants had not established a well-founded fear in Iran and concluded that the applicants were not Convention refugees.
11. The Panel did not find the adult claimants' testimony to be credible or trustworthy and based its conclusion on several contradictions, omissions, and implausibilities it found in the adult claimants' testimony.
12. The following is a summary of the Panel's findings:
(i) The Panel found material discrepancies between the oral testimony of the two adult applicants as to the time they became aware that the father was being sought by the authorities as well as who informed them of the alleged incident. These discrepancies were specifically noted between the PIF narrative and the oral testimony and as well between the testimonies of the two adult applicants.
(ii) The Panel did not find adequate the male applicant's explanation as to why he omitted from his narrative the history of his family's difficulties as well as his previous encounters with the Iranian authorities.
(iii) The Panel noted that the female applicant's mother's house was not raided at all between August 1, 1999, the date of the alleged Truck Driver's Syndicate meeting and August 17, 1999, the alleged date of the father's death. The Panel observed that the female applicant's evidence is that her father had been sought since August 1, 1999. Both adult applicants testified that their apartment was raided by the authorities on August 11, 1999, and that the father was arrested during this raid. The Panel found that it was not plausible that the Iranian authorities would make no attempt to locate the father at his own home prior to raiding the applicants' apartment.
(iv) The Panel also found it implausible that the applicants would come out of hiding to attend the father's funeral as it was inconsistent with their alleged subjective fear of persecution at the hands of the Iranian authorities.
13. Based on its credibility finding, the Panel came to the following conclusions on the facts alleged by the applicants:
The panel has noted several contradictions, omissions and implausibilities it found persuaded that a Truck Driver's syndicate meeting attended by the female claimant's father was raided by the Iranian authorities on August 1, 1999. The panel is not persuaded, on a balance of probabilities, that the female claimant's father was arrested by the Iranian authorities at her apartment on August 6, 1999, and subsequently killed by them on August 11, 1999. The panel is not persuaded, on a balance of probabilities, that the principal claimant was sought by the Iranian authorities in the course of their alleged investigation of the Truck Driver's syndicate activities of his father-in-law. The claimants have not established a well founded fear of persecution in Iran.
... the panel is not persuaded that the claimants face a serious possibility of persecution if they were to return to Iran on account of any of the grounds enumerated in the Convention refugee definition.
Issues
14. The applicant raises the following issues:
(1) Whether the Panel erred by failing to consider the female applicant's evidence independent of the evidence of her husband and on its own merit?
(2) Did the Panel treat the female applicant's claim as subordinate to that of the male applicant by characterizing the male applicant as the "principal claimant" thereby denying the female applicant the right to equality before the law and equal protection of the law on the basis of her sex under subsection 15(1) of the Canadian Charter of Rights and Freedoms, Schedule B, Part I to the Canada Act 1982 (U.K.) 1982, c. 11?
(3) Was there confusion in the translation of the applicants' testimony, particularly with regard to specific dates, and if so, did the Panel err by attaching excessive weight to discrepancies in this evidence in its credibility findings?
(4) Did the Panel base its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it?
Analysis
15. I will deal with each of these issues in turn.
(1) Independent consideration of the female applicant's claims.
16. The applicants submit that the Panel subsumed the claim of the female applicant into that of her husband's, and failed to consider her evidence independently and on its own merit despite the fact that her claim had distinct elements independent of her husband's claim. It is noteworthy that the female applicant does not point to any specific element in her claim that would be distinct from those elements in the male applicant's claim.
17. It is submitted that while section 10 of the Convention Refugee Determination Division Rules, SOR/93-45, allows for the joinder of two refugee claims, this is not synonymous with treating the claims as identical. The applicants refer the Court to the case Rentem v. Canada (M.E.I.), (1991) 13 Imm. L.R. (2d) 317 (F.C.A.), where the claims of a husband and wife were joined, but the Board had failed to consider the evidence of the wife separately from that of her husband. In that case, the wife had experiences distinct from those of the husband and since the Board did not take these into account, but merely rejected her claim for the same reasons as those given for her husband, the Court concluded that the Panel had erred by not considering the elements of her claim.
18. In the case at bar, there is no evidence that the female applicant had distinct experiences from those of her husband. The respondent contends that it is clear from the record that both applicants feared persecution as a result of their ties to the father. The respondent notes that both applicants testified before the Board and were both specifically asked what they feared. After reviewing the applicants' hearing transcripts, I am in agreement with the respondent's submissions that the applicants' responses regarding the facts upon which they based their fear of persecution were essentially the same. In my opinion, the Panel did not deny the female applicant's right to be heard, as both claims were based on the same factual foundation. I conclude that the Panel did not err in joining the two refugee claims and I am satisfied that the female applicant's claim was fully and fairly heard.
(2) Charter claim
19. The applicants submit that the Panel denied the female applicant the right to equality before the law and equal protection of the law on the basis of her sex under ss. 15(1) of the Charter when it characterized the husband as the "principal claimant" and treated her claim as subordinate despite the fact that she had an independent claim with reasons to fear persecution independent of her husband. The female applicant contends that the Panel rejected her claim without further inquiry once her husband's claim was rejected. It is submitted that the manner in which the Panel handled the female applicant's claim by failing to consider her evidence and address her claim on its merits amounted to denying her constitutionally protected rights as a woman.
20. In response to the applicant's argument, the respondent submits that the Panel found that both applicant's lacked credibility. The female applicant's fear of persecution as somebody who has given sanctuary to her father who was wanted by the Iranian authorities was simply not believed.
21. I am of the view that the applicants' argument of a section 15 Charter violation cannot be sustained. There is simply no evidence to support the applicants' contention. The female applicant's claim was essentially based on the same facts as that of the male applicant and I am satisfied that all of her evidence was considered by the Panel.
(3) Effective Translation
22. The applicants submit that the Panel erred when it found "material discrepancies" between the testimonies of the applicants based on their recall of different dates as to when they found out that there had been a raid at the Truck Driver's Association meeting and that the father was being pursued by the authorities. They claim that, at the hearing, the interpreter had difficulty translating dates under the Iranian (Moslem) calendar to dates under the Canadian (Western) calendar. The applicants argue that these difficulties in translation gave rise to confusion in the minds of the Panel and since the Panel attached considerable weight to these dates, this led to improper negative credibility findings.
23. The respondent asserts that it is clear from the face of the record that the interpreter was able to effortlessly translate and convert the Iranian calendar dates to the Western calendar dates. Furthermore, the respondent states that the dates that were interpreted during the course of the hearing corresponded exactly to those that were set out in the applicants' PIFs. It is also noted that the translator of the PIFs was not the same individual who interpreted at the oral hearings, and also that the applicants swore to the accuracy of the contents of their PIFs.
24. The respondent further contends that the applicants must object to the quality of interpretation before the CRDD as a condition of being able to raise the quality of the interpretation as a ground of judicial review, and therefore the issue cannot be raised before this Court.
25. This issue was dealt with by the Federal Court of Appeal in Soliman Mohammadian v. Canada (MCI), [2001] 4 F.C. 85 (FCA). The Court held that when a claimant does nothing to indicate his concern with the quality of the interpretation, the Refugee Division has no way of knowing that the interpretation is, in any respect, deficient. At paragraph 18 of the decision, the Court stated:
... The claimant is always in the best position to know whether the interpretation is accurate and to make any concern with respect to accuracy known to the Refugee Division during the course of the hearing, unless there are exceptional circumstances for not doing so.
26. In the case before me, the applicants argue that the deficiencies in the translation only came to light after the hearing so they could not have brought the deficiencies to the Panel's attention. I do not accept this contention. In my view, since the alleged deficiencies dealt with dates of specific events, it would seem reasonable to me that such discrepancies would have been detected at the hearing and that the alleged deficiencies in translation be raised at that time.
27. Further, the applicants could have filed an affidavit from a translator setting out that the conversions from the Iranian dates to the Western dates were inaccurate. This was not done.
28. In any event, after reviewing the transcripts of the hearings, I am satisfied that there was not a problem with the quality of the interpretation. As I indicated earlier in these reasons, the dates interpreted during the hearing correspond precisely to those dates in the applicants' PIFs.
(4) Panel's assessment of the evidence
29. The applicants also raise the following issues with regards to the Panel's treatment of the evidence before it:
(i) That the Panel erred and failed to observe procedural fairness when it criticized the male applicant for not mentioning past persecution his family faced in Iran when he was still a child, and attached considerable weight to this;
(ii) That the Panel failed to observe procedural fairness and attached excessive weight to evidence that was not put to the claimants and to which the claimants did not have an opportunity to respond when it considered the following matters: the discrepancy between dates given by the male and female applicants regarding when they were told of the raid on the Truck Drivers' Syndicate; the allegation that the Iranian authorities raided the home of the applicants before the home of the female applicant's father; the confusion as to who called to inform of the raid on the Truck Drivers' Syndicate; and the reason for attending the funeral despite their fear of persecution;
(iii) That the Panel erred in its interpretation and application of the notion of subjective fear of persecution when it found that because the applicants attended the funeral of the female applicant's father they did not have a subjective fear of persecution;
(iv) That the Panel erred in law and misconstrued the evidence when it assessed the evidence concerning the death certificate of the female applicant's father and failed to give reasonable consideration to the circumstances surrounding the death;
(v) That the Panel erred in law when it assessed the significance of an omission in the female applicant's PIF, whereby she did not mention that her father had escaped arrest when the Iranian authorities raided the Truck Drivers' Syndicated.
30. It is generally recognized that the Refugee Division is best suited to determine questions of plausibility and credibility. Mr. Justice Décary in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, stated at paragraph 4 of his reasons:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
31. The Panel drew a negative credibility inference from the fact that the male applicant omitted certain facts from his PIF narrative. The male applicant omitted to write that his shop was raided the day after his father-in-law's arrest. Also not included in the male applicant's narrative is the history of his family's problems with the Iranian regime, nor the male applicant's previous encounters with the Iranian authorities. The Panel found these omissions to be significant.
32. The male applicant explains that his reason for omitting his family's history of problems with the regime on his PIF is that this is not what caused him to leave Iran and seek protection under the Convention. He testified that this information was not "relevant" to his case and therefore did not consider it significant. The male applicant consequently argues that the omission is reasonably explained and that the Panel erred in drawing a negative credibility inference therefrom.
33. I agree with the male applicant's submission. The Panel erred in drawing a negative credibility inference from this omission. These events, as recounted in his brother's PIF, occurred in the early 1980's when the applicant and his brother were 13 or 14 years of age. The evidence shows no significant events in the intervening years which would cause him to fear persecution by the authorities. It is therefore reasonable, after such a lapse of time, for the male applicant not to view these as significant events necessitating their inclusion in his PIF, particularly, when he admits that these events did not cause him to fear persecution and flea Iran.
34. The applicants allege that they were not confronted with concerns of the Panel and were not given a right or an opportunity to present evidence to respond to those concerns. Reference is made, inter alia, to the decision, Muliadi v. Canada (MCI), (1986) 2 F.C. 205 (FCA), where the Court stated that a Refugee Board decision is procedurally unfair if it is based on material that the applicant was not given an opportunity to respond to. In the case at bar, there is no evidence that the Panel based its decision on material that the applicant was not given an opportunity to respond to. The applicants further refer to Dasent v. Canada (MCI), (1995), 1 F.C. 720, in which the immigration officer had not confronted the applicant with the contradictions and prejudicial material in the immigration file in order to respond to have the negative material explained. Here again, I find no application for this case in the present context. There is no reference made in the decision that the Panel based itself on extrinsic or contradictory material, rather, the Panel based its findings on the PIFs, the applicants' testimony, and the male applicant's brother's PIF, essentially the applicants' evidence.
35. With respect to the argument that the applicants were not confronted with the Panel's credibility concerns, I agree with the respondent's submission that the Panel is under no obligation to alert an applicant, at the time of their hearing, of its concerns about weakness in testimony giving rise to implausibilities. [Appau v. Canada (MCI), (1995), 91 F.T.R. 225, and Akinremi v. Canada (M.C.I.), [1995] F.C.J. No. 808, online: QL].
36. I am of the view that, on the evidence, it was reasonably open for the Panel to conclude that the male applicant's decision to come out of hiding inconsistent with a subjective fear of persecution at the hands of the Iranian authorities at that time. If the authorities were indeed looking to arrest the male applicant, it would seem to me that a very likely place to find the applicant would be at his father-in-law's public funeral. To attend such an event, in the circumstances of this case, could reasonably lead a tribunal to conclude as the Panel did.
37. I am also of the view that the Panel did not err in the treatment of the evidence concerning the death certificate of the father.
38. I have carefully considered the applicants' arguments and I have reviewed the several contradictions and omissions upon which the Panel based its negative plausibility and credibility findings. As found earlier in these reasons, the Panel erred in drawing a negative inference from the male applicant omitting to include his earlier family problems with the regime in his PIF. However, given the Panel's other findings, which I determine to be reasonably open to it, I find this error not to be fatal to the Panel's decision.
39. With the exception of the one error outlined above, the Panel offered detailed reasons for its decision citing numerous contradictions, implausibilities and inconsistencies in the applicants' evidence which concerned central aspects of their refugee claim.
40. I am satisfied that, except for the error discussed in these reasons which I find not to be consequential, the Panel's findings are not perverse, capricious, manifestly unreasonable or unsupported by the evidence. The Panel's conclusion is reasonably open to it on the record.
41. For the above reasons this application for judicial review will be dismissed.
42. The parties, having had the opportunity to raise a serious question of general importance as contemplated by section 83 of the Immigration Act, have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS:
1. The application for judicial review of the decision of the Convention refugee Determination Division of the Immigration and Refugee Board dated June 4, 2001, is dismissed.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3198-01
STYLE OF CAUSE: Nazanen Khorasani et al. v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 7, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: September 4, 2002
APPEARANCES:
Davies Bagambiire FOR APPLICANT
John Loncar FOR RESPONDENT
SOLICITORS OF RECORD:
Davies Bagambiire FOR APPLICANT
1202-347 Bay Street
Toronto, Ontario M5H 2R7
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
2 First Canadian Place
Suite 2400, Box 36
Exchange Tower
Toronto, Ontario M5X 1K6