Federal Court Decisions

Date: 20020429

Docket: IMM-2032-01

Neutral citation: 2002 FCT 481

Ottawa, Ontario, this 29th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                              SAIED REZA HAKIMI

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review pursuant to subsection 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, in respect of the decision of a panel of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") dated April 4, 2001, wherein the Board determined that the applicant is not a Convention refugee.

[2]                 The applicant seeks an order setting aside the decision of the Board and referring the matter back for determination by a differently constituted panel in accordance with such directions as the Court considers appropriate.

Background

[3]                 The applicant, Saied Reza Hakimi, a citizen of Iran, claims a well-founded fear of persecution in Iran on the basis of his political opinion.

[4]                 The applicant claims to have been arrested by basijis in Valy-asr in October, 1988 for having an Armenian girlfriend, which did not meet the approval of the Iranian authorities. The applicant was handcuffed, beaten, punched and kicked, and detained for 24 hours.

[5]                 The applicant claims to have served two periods of compulsory military service in Iran in 1988 to 1989 and 1992 to 1994.

[6]                 In February, 1990, the applicant claims to have met Farshad at Azad University. The applicant and Farshad discussed how the regime treated youth with contempt.

[7]                 In May, 1990, the applicant claims to have been arrested a second time for having the same Armenian girlfriend. This time he received 75 lashes and was told never to see his Armenian girlfriend again. The applicant's father, who is a strict Moslem, was disapproving of the applicant's Armenian girlfriend. The applicant claims his father spit in his face, slapped and beat him when he found out about the Armenian girlfriend. The applicant's father left the applicant's mother in July, 1990 and remarried, without divorcing the mother.

[8]                 In spring, 1992, at the request of Farshad, the applicant distributed 20 copies of a flyer among university students. The flyers included anti-regime messages.

[9]                 In July, 1999, the applicant, along with Farshad and Farshad's cousin, Majid, attended a student demonstration in front of the Tehran University dormitory. The applicant did not return the following day, but returned to the same demonstration two days later.

[10]            On the second day that the applicant was at the student demonstration, Farshad was arrested. The applicant fled and stayed at his aunt's house. The applicant claims that the Iranian authorities had taken photographs of people who attended the demonstrations. The applicant claims a variety of his family members, including his mother and his father, were subsequently arrested and interrogated about the applicant's whereabouts.

[11]            The applicant fled the country with the help of a friend of his employer.

[12]            Aside from distributing the flyers and attending two days of demonstrations, the applicant claims to have not been a member of any anti-government group and not to have participated in any other anti-government activities. The applicant claims that his friends Farshad and Majid were involved in anti-government groups and are both likely still arrested, and both likely divulged information about the applicant to Iranian authorities.

[13]            The Board concluded, in part, as follows:

First, it is not credible that the authorities have sought him in as persistent a manner as he describes because he does not have the kind of personal political profile that would warrant such attention. He was never the member of any group. His overt activities were, at best, low-key. He associated with two friends whose own activities he had virtually no information about. There was no evidence before the panel that the authorities ever accosted these two friends during the several years he met with them. He only once distributed flyers, in 1992, and never suffered any repercussions on the heels of that activity. His only other activity was to engage in political discourse with friends and family. Between 1990 and 1999, Mr. Hakimi had no encounters with the authorities on account of his political opinion.

Second, his involvement in the two days of demonstrations can best be described as mere attendance. While he allegedly actively entered the fray on the first day, he was not picked up. On the second day, his participation consisted only of shouting slogans. Generally, the documentary evidence before the panel indicates that Iranian authorities took swift and strong action against the student demonstrators in July 1999. While numerous persons were picked up and detained, it appears that a significant number of them were subsequently released without further threat amounting to persecution. When read in its entirety, the evidence also suggests that those most at risk are perceived student leaders and political dissidents. Mr. Hakimi's profile does not situate him within the group of persons at risk

Third, the inquiries made by the authorities as he has described them are themselves not credible. Mr. Hakimi could not provide any degree of detail about what the authorities have asked his mother and why they might have detained and released her three times. This despite the fact that he claims to have spoken to her once a month.

[14]            This is the judicial review of the Board's decision.          

Applicant's Submissions

[15]            The applicant submits that the test for judicial review is whether the result by the decision maker might have been different.

[16]            The applicant submits that the decision was made before the hearing because the signatures appearing on the last page of the reasons is dated March 19, 2001.

[17]            The applicant submits that the Board's decision, when under reserve, is only rendered when it has been signed by both members. The applicant submits that the Board had not rendered a decision on March 20, 2001, and therefore ought to have considered Ms. Leggett's (the applicant's former counsel) written submissions, and failing to do so was a breach of fairness and natural justice.

[18]            The applicant submits that the Board erred by failing to take into account the perspective of the agent of persecution. The Iranian authorities may not realize that the applicant is only of "low profile" and may mistakenly believe he has a higher profile.

[19]            The applicant submits that the Board made a patently unreasonable error by impugning the applicant's credibility because he was not able to provide details of discussions between his mother and the authorities.

[20]            The applicant submits that the Board erred by not providing any rationale for preferring documentary evidence over the evidence of the applicant.

Respondent's Submissions

[21]            The respondent submits that the Board did not provide an invitation to make post-hearing submissions.

[22]            The respondent submits that the applicant's additional submissions were filed with the Board after the panel made its decision.

[23]            The respondent submits that as in the case of Tambwe-Lubemba v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1874, there is no evidence that the Board members ever saw the document at issue prior to signing the reasons. The respondent submits that the applicant's late submissions consisted of further argument which could have been made at the hearing and which were based upon evidence available to the applicant and his counsel at the hearing.

[24]            Although there is no time indicated on the "received" stamp or on the reasons, the respondent submits that the applicant provided the Board with the submissions too late and that the panel had made their decision and issued reasons before they received the additional submissions. As a result, the panel was functus at the time the submissions were received.

[25]            The respondent submits that the respondent did not act in contempt of the order of this Court granting leave in this case.

[26]            Issues

1.          What is the standard of review?

2.          Did the Board make the decision before the hearing?

3.          Did the Board exceed jurisdiction or err in law in that the Board reconvened the hearing in the absence of the applicant?

4.          Did the Board fail to consider submissions made post-hearing?

5.          Was the Board functus at the point that the post-hearing submissions were made?

6.          Did the Board breach representations made at the hearing and therefore breach the principles of natural justice?

7.          Did the Board err in determining that the applicant was not credible?

Relevant Statutory Provisions, Regulations and Rules

[27]            The definition of "Convention refugee" under the provisions of the Immigration Act, R.S.C. 1985, c. I-2, as amended, is:

Analysis and Decision

[28]            Issue 1

What is the standard of review?

The standard of review to be applied to the Board's credibility findings is patent unreasonableness (see Ndombele v. Canada (M.C.I.), [2001] F.C.J. No. 1690 (QL); 2001 FCT 1211. On issues with respect to the Board's jurisdiction the standard of review would be correctness. The issues are whether the Board erred by failing to consider the applicant's written submissions on the basis that the Board was functus when the submissions were received and whether the Board erred by reconvening in the applicant's absence.

[29]            Issue 2

Did the Board make the decision before the hearing?

The hearing was held on March 20, 2001. The front page of the decision shows two dates for the decision - March 20, 2001 (in Chambers) and March 29, 2001 (written reasons). As well, the last page of the written reasons show a date of March 19, 2001. I have reviewed the transcript of the hearing and I note that Exhibit R-1 was given its exhibit number at the beginning of the hearing on March 20, 2001. Exhibit R-1 is referred to by the number R-1 at page 2 of the Board's decision. This indicates to me that the decision was not made on March 19, 2001. I am satisfied that the reference to March 19, 2001 at the end of the decision was a typographical error.

[30]            Issue 3

Did the Board exceed jurisdiction or err in law in that the Board reconvened the hearing in the absence of the applicant?

The face of the decision shows that the decision was made in Chambers on March 20, 2001. The applicant states that this date shows that the Board reconvened the hearing on March 20, 2001, in the applicant's absence. I do not take this view of the matter. It seems to me that the Board probably met and made its decision on March 20, 2001 and the reasons for that decision were completed and signed on March 29, 2001. This was not an error on the Board's part. There is no indication anywhere in the material that the hearing was reconvened.

[31]            Issues 4 and 5

Did the Board fail to consider submissions made post-hearing?

Was the Board functus at the point that the post-hearing submissions were made?

I propose to deal with issues 4 and 5 together. The applicant filed further written submissions with the Board on March 29, 2001. The Board's written reasons are dated March 29, 2001. There is no indication anywhere in the record that these further submissions were before the Board prior to the Board's decision being signed on March 29, 2001. I have read the transcript of the hearing and nowhere did the then counsel indicate that it would be submitting any written representations. In fact, counsel stated that she did not want to make written submissions. The following exchange is at pages 51 and 52 of the transcript:

MUZZI                    Ten minutes, okay. I wasn't sure whether you had another case scheduled this afternoon? I know that your schedule is very crammed these days, so . . .

COUNSEL              Yeah, but I don't want written submissions.

MUZZI                    All right. That's fine. We're prepared to hear what you have to say, Ms. Leggett. Thank you.

[32]            I am satisfied that the Board did not consider the further submissions because it had rendered its decision by the time the further representations were received and was therefore functus.

[33]            In these circumstances, the Board did not make a reviewable error with respect to these issues.

[34]            Issue 6

Did the Board breach representations made at the hearing and therefore breach the principles of natural justice?

I am satisfied from a review of the transcript that the Board did not breach any representations made at the hearing. The only reference was to the provision of further evidence. There was no representation from the Board that it would be entertaining further submissions. At pages 7 to 8 of the transcript of the hearing, a Board member stated:

I guess during the course of your testimony, Mr. Hakimi, we will be assessing the credibility of your story, not just to determine whether you're telling the truth about what actually happened, but also to determine whether there are serious grounds for you to fear persecution. Okay?

And I guess just to finish that off, Ms. Leggett, if there's any current information, because we're now almost two years since the event, that would be - it would be helpful to know about that as well. . . .

[35]            In summary, I find that the Board did not breach any representations made during the hearing. No current information was submitted by the applicant during the hearing and the Board did not invite further submissions.

[36]            Issue 7

Did the Board err in determining that the applicant was not credible?

The applicant submits that the Board erred by failing to take into account the perspective of the agent of persecution. The Iranian authorities may not realize that the applicant is only of "low profile" and may mistakenly believe he has a higher profile. The Board concluded as follows:

I have considered all of Mr. Hakimi's particular circumstances, his past involvement with the authorities, his expression of opposition, and his participation in the demonstrations, separately and cumulatively in light of the documentary evidence, I find that he has failed to provide sufficient credible evidence of the Iranian authorities' interest in him in the past. He has also failed to provide sufficient credible evidence that there is a serious possibility that they will persecute him in the future for any Convention reason.

Accordingly, I conclude that Saied Reza Hakimi is not a Convention refugee.

[37]            The Board considered the Iranian authorities' interest in the applicant and found that there was not sufficient credible evidence that the applicant would be persecuted by them for any Convention reason. I am satisfied that the Board considered the appropriate factors.

[38]            The applicant raised other alleged errors to show that the credibility finding was in error. These include:

1.          Reasons for mother's three arrests not clear

I have read the transcript and I agree with the Board that the applicant could not provide any detail as to what the authorities had asked his mother and why the authorities would arrest and release his mother three times. Based on this evidence, the conclusion of the Board was not unreasonable.

2.          Mother and father not divorced

The Board stated in its decision that the applicant's mother and father were divorced. In fact, they were separated. This is an error, but it is not material to the credibility finding.

[39]            In summary, I am of the opinion that the Board's decision with respect to credibility is not patently unreasonable.

[40]            The application for judicial review is dismissed.

[41]            The applicant submitted the following proposed serious question of general importance for my consideration:

Is the Refugee Division under a duty to consider unsolicited post-hearing submissions that are provided to the Refugee Division the day that the reasons for decision are signed but before reasons for decision are signed?

[42]            I am not prepared to certify the proposed question as there is no evidence as to what time of day the further submissions were filed with the Board. Was there time to get the further submissions to the Board before the reasons were signed? The answer to the proposed question would not be determinative of the appeal.

ORDER

[43]            IT IS ORDERED that the application for judicial review is dismissed.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

April 29, 2002