Date: 20000511
Docket: IMM-1153-99
Between:
FARIBORZ PARTOWMOGHADAM,
Plaintiff,
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
LEMIEUX J.
| A. INTRODUCTION |
[1] Fariborz Partowmoghadam ("the plaintiff") is a citizen of the Islamic Republic of Iran ("Iran") who is claiming refugee status on account of his alleged political opinions and membership in a particular social group and for reasons relating to religion. He alleged that he had a valid fear of persecution by the Iranian authorities, who objected to his support of a dissident Iranian organization ("Komuleh"), and because he was facing unfounded charges of adultery.
[2] In this application for judicial review the plaintiff is asking the Court to review the decision by the Refugee Division ("the tribunal") on February 8, 1999 refusing to grant him refugee status.
| B. TRIBUNAL"S DECISION |
| (a) Review of alleged facts |
[3] Between May 1988 and May 1998 the plaintiff was working in Dubaï in the United Arab Emirates and had temporary residence status. In August 1997 he met his ex-girlfriend, Fatemeh, by chance in Dubaï. A few days later they resumed their relationship and she allegedly told him she had married a fundamentalist currently working at the Iranian consulate. She told the plaintiff her husband was a [TRANSLATION] "filthy person".
[4] Fatemeh subsequently visited the plaintiff at his apartment several times. One day her husband burst into the plaintiff"s residence looking for his wife. He struck both of them and subsequently left the premises, threatening to kill the plaintiff. The following day the plaintiff was summoned to the Iranian consulate.
[5] The consul told him that the authorities had been informed of his Sunni origin and the fact that he sympathised with the Kurdish Komuleh organization. The consul also accused him of deceiving and raping Fatemeh and said he had to be punished for this. After these charges, he was given a month to report to Iranian legal authorities for the problem to be settled.
[6] The plaintiff argued that a few months after these events two attempts were made on his life. In his opinion, the source of his problems could only be Fatemeh"s husband or persons opposed to the Sunnis. The plaintiff said in a telephone call to Iran he learned from his father that he had received a letter from the Islamic legal authorities ordering him to appear before them. He said he was also told that Fatemeh had been stoned for adultery.
[7] Since his visa would shortly expire and his employer refused to renew it, the plaintiff then left the United Arab Emirates for Canada, where he landed on May 20, 1998.
| (b) Tribunal"s conclusions |
[8] In the tribunal"s opinion the plaintiff did not discharge his burden of proof by showing that he had a valid fear of persecution. In its view, the plaintiff was not credible or trustworthy. In its reasons, the tribunal indicated:
| [TRANSLATION] |
| The claimant"s testimony did not prove to be direct and open, but instead vague and evasive. Certain statements and explanations regarding major points in his claim were found to be improbable, intrinsically suspect or otherwise unsatisfactory. Accordingly, the RD could not give the claimant the benefit of the doubt. |
[9] The tribunal"s findings resulted in part from their assessment of the documentary evidence indicating that [TRANSLATION] "in Iran Sunnis are a minority religious group which is the subject of discrimination, sometimes even persecution, by the Shiite-inspired regime". The tribunal added [TRANSLATION] "accordingly, it is plausible for the claimant, as he claimed, not to participate in the activities of his Shiite compatriots, financially support an opposition Kurdish organization and be specifically targeted because of his Sunni status".
[10] After acknowledging that the claimant"s explanations of the differences in the religious beliefs between Sunnis and Shiites [TRANSLATION] "appeared to be satisfactory", the tribunal nevertheless noted the following improbabilities:
| (1) first, the tribunal noted the plaintiff"s inability to identify any of the spiritual leaders in Iran or to identify the Sunni spiritual leader arrested and killed in 1996 by government agents when he returned from the United Arab Emirates; the tribunal concluded (at p. 9 of the plaintiff"s record): |
| [TRANSLATION] |
| He ascribed his lack of knowledge to the fact that he had been living in Dubaï for several years and had no interest in the matter. The claimant"s explanation was unsatisfactory and intrinsically suspect, as it did not agree with the facts alleged in general. Further, considering the geographic proximity of Dubaï to Iran and the fact that the claimant went back to Iran annually for a month"s holiday, the tribunal does not see how he could claim to be unaware of the name or names of the Sunni spiritual leader who was targeted by the regime. In these circumstance, the RD concluded that this part of the claimant"s testimony lacked credibility; |
| (2) secondly, the tribunal did not believe that the plaintiff supported the dissident Kurdish organization Komuleh, which the documentary evidence identified as the Kurdish branch of the Communist Party in Iran; the tribunal noted the fact that the plaintiff was not familiar with either the ideology or philosophy of Komuleh, despite the fact that he helped it financially and had a friend who was both Kurdish and a Sunni; the tribunal characterized the explanation given as unsatisfactory and concluded as follows: |
| [TRANSLATION] |
| The Refugee Division (RD) finds it hard to understand how the claimant could be completely unaware of the political and ideological direction of the organization with which he claimed to sympathize, especially as the organization is communist-inspired. A person does not have to be really interested in politics in order to be minimally aware of the political direction of an organization with which he sympathizes and which he finances. It is strange that his Kurdish friend Reza never told him about these facts. The claimant"s testimony about his alleged support of a Kurdish opposition organization is lacking in credibility and improbable; |
| (3) thirdly, the plaintiff was questioned about the specific days and dates referring to the key events: the tribunal noted that the plaintiff was able to provide dates and months but unable to indicate specifically what days in the week the principal event took place; the tribunal cited several examples, including the following: |
| [TRANSLATION] |
| He remembered that he met with his friend Fatemeh on August 6, 1997, but did not remember what day of the week it was. He recalled that she called two days later to arrange a meeting the following day and agreed to go to his place three days after the meeting, but no more. However, he did not hesitate to say that he never met his girlfriend on weekends, that is Friday, and in fact saw his girlfriend for the last time on September 5, 1997. |
| When the fact that September 5 was a Friday was put to him, he changed his mind and said that it was the 5th, or about the 5th, of September. In the same vein, although the claimant recalled very clearly the dates and times when his house was burnt and he was shot at, he was unable to indicate the day of the week when these key events occurred. |
| When questioned about when he stopped working in Dubaï, the claimant fell into vague and evasive testimony . . . |
| The RD finds it hard to believe that the claimant"s memory could be so faulty about certain aspects of the principal events. In the tribunal"s view it is intrinsically suspect that he could forget about all these days at issue, when he appeared to be fully able to remember dates, and at the same time was unable to specify the dates and day in the week when he terminated his employment in Dubaï; |
| (4) fourthly, the tribunal could not understand why a notice to appear was sent to the plaintiff"s father in Teheran rather than to himself in Dubaï, and indicated that it was surprising to see that the plaintiff was told of this notice by his father in a call he allegedly made to inform the latter of the fact that he had been shot at the same day, namely December 15, 1997; on this point, the tribunal said: |
| [TRANSLATION] |
| When the fact that the notice was issued on December 16 was put to him, the claimant altered his testimony to say that it was on or about December 15/16, and the fact that the notice did not indicate the reasons for the appearance leads us to attach no evidentiary value to it. For the reasons mentioned above, we conclude that this part of the claimant"s testimony is not is any way credible. |
| C. PLAINTIFF"S AFFIDAVIT |
[11] The plaintiff filed an affidavit in support of his application for judicial review, two points in which are worth noting. First, the plaintiff stated that he mentioned at the hearing that he is of the Sunni denomination but does not practise his religion. He also stated that he mentioned that the hearing that he was not interested in politics and was not aware of the Komuleh"s activities, except those involving the humanitarian aid which it gave the Kurds. Second, on the question of dates the plaintiff indicated that he used the Persian calendar to remember certain events but, at the same time, since the Gregorian calendar is used in Dubaï, he organized his affairs using this calendar. He stated that at the hearing the interpreter did not have his conversion table to convert the dates in the Persian calendar to the Gregorian calendar and the interpreter said several times that it was an approximate conversion.
| D. ANALYSIS |
[12] The tribunal"s decision clearly indicated the improbabilities noted by it and why it did not believe the plaintiff"s testimony. Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.) held that the tribunal has complete jurisdiction to determine the plausibility of testimony, gauge the credibility of an account and draw the necessary inferences, so long as the inferences drawn by the tribunal are not so unreasonable as to warrant the Court"s intervention.
[13] Further, Shahamati v. Minister of Employment and Immigration, [1994] F.C.J. No. 415 (F.C.A.), held that in determining the credibility of an account or testimony the tribunal can rely on common sense and rationality. I note that in its reasons the tribunal also raised contradictions in the plaintiff"s testimony, a key factor in analysing credibility.
| (1) Problem of exact dates " two calendars |
[14] The tribunal disregarded the notice of appearance issued by the Iranian authorities on the grounds that the plaintiff altered his testimony. Further, the tribunal found it to be intrinsically suspect that the plaintiff would forget the day in the week on which certain principal events occurred. In reaching this conclusion, the tribunal cited very specific dates.
[15] However, at the hearing the tribunal was informed that there was a problem with the specific dates. The plaintiff answered the questions with the aid of an interpreter and used the Persian calendar to recall certain events which the interpreter converted to the corresponding dates in the Gregorian calendar. For example, at p. 444 of the certified record the interpreter, addressing the presiding member, indicated the following:
| [TRANSLATION] |
| Here, Mr. President, sir, he . . . I have to . . . I have to tell you that in fact, sir, he spoke of the twenty-six of the ninth month, but as I did it without . . . without a calendar, I said the . . . the fifteenth when in reality it could be . . . |
[16] At p. 415 of the certified record the interpreter indicated to the president: [TRANSLATION] "and again, I am giving you an approximate date".
[17] In Tung v. Minister of Employment and Immigration (1991), N.R. 388, in which the quality of interpretation was at issue, Stone J. indicated at para. 13:
| In my opinion, the appellant was entitled, through the interpreter, to tell the story of his fear in his own language as well as he might have done had he been able to communicate to the Board in the English language. Natural justice demanded no less. Manifestly, however, he was unable to do so upon points of key importance to his claim because of the poor quality of the translation. I have no doubt that this circumstance prejudiced the appellant in the proceedings below as it does here where we are expected to review important aspects of the Board"s decision on a record which is plainly deficient. |
Recentlly, in Mohammadian v. Minister of Citizenship and Immigration (IMM-6500-98), March 10, 2000, my brother Pelletier J. undertook to analyse the precedents in cases of deficient interpretation before a tribunal. According to those precedents, it is necessary for (1) the problem to have been raised before the tribunal, and (2) the defects in interpretation to be sufficiently serious to cause harm.
[18] In the case at bar, after reviewing the transcript, I have come to the conclusion that it was not reasonable for the tribunal to infer contradictions and improbabilities regarding the notice of summons to the plaintiff and the plaintiff"s inability to provide exact dates for important events, since the tribunal itself did not know those exact dates.
| (2) Is plaintiff a Sunni? |
[19] Admitting that the documentary evidence showed that Sunnis are a minority religious group in Iran which is persecuted by the Shiite-inspired government and that the plaintiff"s explanations of the differences in religious beliefs between Sunnis and Shiites seemed satisfactory, the tribunal nevertheless appeared to conclude that the plaintiff is not a Sunni.
[20] The plaintiff explained why he could not identify a Sunni spiritual leader in Iran or the one arrested by government agents in 1996. He testified that in Dubaï he only prayed on Fridays and was not interested in events affecting his religion, adding at p. 459 of the certified record [TRANSLATION] ". . . well, you know, it"s because I am a Sunni that I have to be aware of everything that is happening. I had so many problems . . .".
[21] The tribunal should have dismissed the plaintiff"s testimony on this point clearly and precisely. Its conclusion is ambiguous and does not meet the requirements laid down in Mahathmasseelan v. Minister of Employment and Immigration (1991), 37 N.R. 1 (F.C.A.).
[22] Further, the members of the tribunal could not reject the plaintiff"s testimony as a whole solely on the basis that he did not know the names of certain spiritual leaders. In Owusu-Ansah v. Canada (M.E.I.) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.), the Federal Court of Appeal came to this conclusion in similar circumstances.
| (3) Support for Kurdish organization |
[23] According to his testimony, the plaintiff mentioned his support for the Kurdish organization Komuleh, support which however was limited to a financial contribution (transcript of record, pp. 407 and 431). The tribunal found his testimony [TRANSLATION] "lacking in credibility and improbable".
[24] In my view, this finding by the tribunal is unreasonable on the ground that the inferences drawn by it are not based on the evidence and are speculative in nature.
[25] According to the tribunal, the plaintiff should have known the political direction of Komuleh [TRANSLATION] "especially as the organization is communist-inspired". With respect, the tribunal could not draw this inference: the fact that the organization was communist, or was not, does not contradict the plaintiff"s testimony, as he indicated he had very little interest in politics and justified his contribution on humanitarian grounds. The inference that the tribunal found it [TRANSLATION] "strange that his friend Reza never told him" is also speculative in nature.
| E. CONCLUSION |
[26] For these reasons, this application for judicial review is allowed and the plaintiff"s claim must be reconsidered by a tribunal with different members. No certified question was submitted.
| François Lemieux J U D G E |
Ottawa, Ontario
May 11, 2000
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: IMM-1153-99 |
| STYLE OF CAUSE: FARIBORZ PARTOWMOGHADAM |
v.
MCI
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: JANUARY 7, 2000 |
| REASONS FOR ORDER BY: FRANÇOIS LEMIEUX J. |
| DATED: MAY 11, 2000 |
APPEARANCES:
| STÉPHANIE VALOIS FOR THE APPLICANT |
| FRANÇOIS JOYAL FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| STÉPHANIE VALOIS FOR THE APPLICANT |
| Morris Rosenberg FOR THE RESPONDENT |
Deputy Attorney General of Canada