Date: 20021024
Docket: IMM-1981-02
Neutral citation: 2002 FCT 1079
Ottawa, Ontario, this 24th day of October, 2002
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
MORTEZA SOHRABI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review filed pursuant to s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"). The applicant seeks judicial review of a determination of the Convention Refugee Determination Division ("CRDD") that the applicant is not a Convention refugee.
ISSUES
[2] Did the CRDD err in law and in fact, in determining that the applicant was not credible?
[3] Did the CRDD fail to deal with a ground of persecution?
FACTS
[4] The applicant, a citizen of Iran, arrived in Canada on September 18, 2000. The applicant had left Iran in April 2000. He then spent time in Turkey and Bulgaria during the summer of 2000 before arriving in Toronto on a flight from Hamburg, Germany.
[5] The applicant submitted his Personal Information Form ("PIF") to the Immigration Refugee Board ("IRB") on November 15, 2000. The applicant prepared a narrative in response to Question # 37 of the PIF, which asks for all the significant incidents which caused him to seek protection outside his country of nationality, and any protection that he sought from authorities of his country. In the narrative, he describes his fundamentalist Islamic upbringing, his military service, his forced marriage and his arrest and torture at the hands of "bearded civilians" at a place he referred to as "the Komiteh" (Tribunal record, page 18). Apparently, his purchase of a satellite dish was the reason for the arrest.
[6] The applicant proceeded to describe his attendance at group therapy sessions, to which he had been referred because of his depression. He became friends with two of the students, who had approached him regarding demonstrations in opposition to the regime in power in July 1999, and for help with the production and distribution of flyers.
[7] He learned from a neighbour that his business had been raided and that several members of his family had been arrested. His wife had apparently denounced him and his family, claiming that the applicant was anti-Islam and a disgrace to the family.
[8] After this incident which, according to the applicant, occurred in August 1999, the applicant made arrangements to be removed from Iran by a smuggler. The smuggler, according to the applicant's PIF and testimony before the CRDD, retained the applicant's authentic passport and subsequently issued a false passport to the applicant, which the smuggler later took back and destroyed.
DECISION AT ISSUE
[9] The CRDD released its decision on March 28, 2002.
[10] The CRDD noted that the applicant claimed refugee protection on the ground of his perceived political opinion. The applicant told the CRDD that he met two other students while at the group therapy sessions referred to above, and that they involved him in various activities of an activist nature. The CRDD panel noted that although he became close friends with them, he could not furnish details as to their participation in the group. This undermined the applicant's credibility in the view of the panel.
[11] With respect to the student demonstrations in 1999, the panel found that the applicant waffled between whether he met his two friends, Saman and Hamid, on the Saturday of the weekend the events took place or the Sunday, and was ambivalent as to whether student leaders or national or city leaders were the ones demanding reasons for the raid on the university.
[12] The applicant was also reproached for not being able to answer the panel's question as to whether or not more protests were being planned, and whether that was the reason Saman and Hamid requested additional help to produce flyers. The applicant stated that he spoke only to his business neighbour, Cyrus, rather than talk to members of his family directly to obtain updates on their situations, such as the arrest of his brother and father. All of his conversations with Cyrus were on his cellular telephone. He did not provide an explanation that was satisfactory to the CRDD as to why he would not speak to members of his family directly.
[13] The last section of the reasons issued by the CRDD described the applicant's responses to questions posed by the Immigration Officer ("IO") at the Point of Entry ("POE"). The CRDD found that the applicant failed to mention the root causes of his departure from Iran at this interview, and that this omission undermined his credibility.
[14] The CRDD concluded that the various gaps in his credibility, taken together, eroded overall the merits of his claim. It was based on the findings summarized above that the panel determined that the applicant was not a Convention refugee.
SUBMISSIONS
Applicant
[15] The applicant submits that the CRDD failed to deal with a ground of persecution; namely, that the applicant was at risk because the family of his wife wanted to harm him. The allegation that he was arrested and subsequently tortured because his wife reported that he had purchased a satellite dish was not addressed by the CRDD.
[16] The reasons for the attendance on Saman and Hamid at the group therapy sessions is an irrelevant detail which was not pertinent to their political opinions or those of the applicant, or the problems that he claims to have faced in connection with those activities. The applicant cites jurisprudence supporting his position that the CRDD erred by making credibility decisions based on elements that were not relevant to the substance of his claim.
[17] The CRDD erred in finding, based on minor mistakes in the recollections of the applicant with respect to the student demonstrations, that his version of events was not credible. It was also wrong to use hindsight to judge how significant an event the July 1999 demonstration was, since such significance had not been anticipated prior to the event.
[18] The CRDD makes scant reference to the fact that the applicant failed to mention initially in his PIF that he was mistreated but later amended his PIF to include that fact. The CRDD did not indicate what it made of that fact. This is an error, as the CRDD is required to note more than the simple fact that there was an amendment; panels of the CRDD regularly impugn the credibility of claimants who fail to amend their PIFs.
[19] The CRDD erred in holding that the applicant was being evasive when he indicated that he did not know about student demonstrations that were being planned following July 1999. It is not because an applicant does not know the answer to a question that he or she is being evasive.
[20] The CRDD erred in stating that the applicant did not provide a plausible explanation for not leaving Iran earlier, without noting what his explanation was. To say that a claimant's explanation is not satisfactory, without an elaboration with respect to how it is unsatisfactory, is a capricious finding. With respect to the delay in leaving Iran, being in hiding and making arrangements to be smuggled are factors that can cause difficulties in leaving a country and ought therefore to have been considered.
[21] The CRDD erred in finding a discrepancy in that the applicant did not mention the root of his problems; namely, the association with the two students, when in fact the POE notes show that he did mention that factor at that time.
[22] Alternatively, the CRDD erred in providing inadequate reasons. Also, the CRDD failed to deal with the issue of interpretation and the role that the interpretation could have played in what got onto the record. It is insufficient merely to mention an explanation and to state that it is being rejected.
[23] The drawing of inferences is not within the exclusive domain of the CRDD; it is an exercise in common sense which this Court can undertake.
[24] If the applicant's evidence is otherwise consistent with documentary evidence, then the applicant must be given the benefit of the doubt with respect to elements of evidence that the applicant has not been able to provide. This was not done here, and that constitutes an error in law and in principle.
[25] The applicant invokes Selvakumaran v. Canada (Minister of Citizenship and Immigration), 2002 FCT 623, in support of its submission that the CRDD made an unreasonable decision with respect to its adverse credibility findings. It is not because the applicant cannot provide the most recent documentation available that the applicant is devoid of credibility.
[26] Even if the CRDD has made a pure finding of fact and even if there is a slim basis in the evidence for a finding, the Court may interfere. Such was the finding in Canada (Minister of Citizenship and Immigration) v. Smith, [1999] 1 F.C. 310 (T.D.).
Respondent
[27] The duty of the CRDD is not only to consider the evidence but also to weigh its value, so it was open to the CRDD to decide that the evidence of the applicant was not credible and did not support his claims. Also, the central elements of his claim arose from his association with two students, so it would be reasonable for the panel to expect him to know more than he did about what brought them to the sessions and about the nature of their plans and activities, as well as who the leaders were.
[28] The respondent cites jurisprudence to underscore the principle that the CRDD must be presumed to have considered all the evidence that was presented, and does not have to mention every element in its reasons. The applicant alleged a fear of persecution based on his perceived political opinion and because of concerns about relatives, but did not substantiate those allegations.
[29] Where the CRDD finds that the applicant lacked credibility, it is entitled to draw an adverse inference. The CRDD has the right to make findings based on implausibilities, common sense and rationality, and it is up to the applicant to rebut credibility findings. The respondent goes on to state other grounds on which the CRDD is entitled to make adverse credibility findings, and states that on these grounds it was open to this panel to render the decision that it made.
[30] The CRDD was entitled to consider the delay of the applicant in leaving Iran in making its finding. Without evidence to the contrary, the eight-month delay in seeking asylum is a valid basis for finding that the applicant's fears of continuing and future persecution are not credible, as long as that is not the sole or decisive factor in the decision.
[31] With respect to the standard of review, the decision of the CRDD is reasonable and must stand. The CRDD had the benefit of seeing and hearing the applicant, and its inferences and conclusions are open to it based on what is on the record. It is not because the evidence is confusing that a different, or lower, standard of review should be applied.
[32] In short, the applicant has not met his burden of demonstrating a basis for the intervention of this Court.
ANALYSIS
Credibility
[33] The applicant cites Shaheen v. Canada (Minister of Citizenship and Immigration), 2001 FCT 670, in support of his submission that the CRDD errs if it makes a decision based on irrelevant evidence. He further supports this contention by citing Wei v. Canada (Minister of Citizenship and Immigration), 2002 FCT 285, where the Court took a panel of the CRDD to task for making credibility findings based on matters irrelevant to the substance of a claim.
[34] It is well established that the Court is not to substitute what its findings of fact would have been in the place of those that the CRDD made. At the Federal Court of Appeal, Decary J. noted the following in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.):
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. [emphasis added]
[35] In the case at bar, the record is rife with contradictions that go to the heart of the applicant's activities and the nature of his associations with those who involved him in those activities. These can hardly be considered irrelevant. To the extent that one claims to have spent much time in the company of particular individuals, one is expected to know those individuals. Also, if one is involved in activities which were the subject of much planning beforehand and some publicity after the fact, one should know such things as when the events took place and the leaders of those involved.
[36] In addition, contrary to Shaheen, supra, where the claimant offered valid explanations for the contradictions between what appeared in her PIF and what she told the panel at her hearing, the explanations offered by the applicant in the present case consisted largely of contradicting counsel or panel members when presented with statements that he had made earlier in the hearing that conflicted with what he had just said. For example, at page 91 of the Tribunal record, the applicant states that "they" wanted to know why the university was being raided. The following exchange took place:
Presiding Member: ...what leaders are we talking about? Student leaders or country leaders?
[Applicant]: No, country leaders.
[37] The following exchange ensued at page 92:
Member: Which leaders? Which leaders are you talking about?
[Applicant]: For example, the head of the city council... Or some of the university professors...
Counsel: So a number of well-known people are saying that there were regime agents behind these raids and they want to know who they are.
[Applicant]: No, I said the students wanted to know. I didn't say the leaders.
Counsel: Okay, sir, originally you said many of the leaders stated and when we asked you who you were referring to, you said the country leaders. And then you said people like the head of the city council and professors.
[Applicant]: Things are very mixed up.
[38] With all due respect, these contradictions are very pertinent, and are not microscopic. If the panel wanted to be microscopic, they could have dealt with additional contradictions in the information offered by the applicant at the POE interview, in his PIF and at the hearing. To state that he was coming to Canada because he was involved in demonstrations and that his cousin was arrested because the applicant himself was being sought by authorities, then to state at the hearing that he was not asked about such matters, is a flagrant contradiction that the panel was within its rights to raise.
[39] In Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (F.C.A), Robertson J.A. wrote at page 315:
[...] This Court has repeatedly held that if the credibility of the claimant is in issue, the Board is under an obligation to give reasons, in clear and unmistakable terms, in support of its finding; [...]
[40] Various examples in the body of the decision illustrate that this panel clearly discharged this obligation. At first the applicant did not know why the two students, Saman and Hamid, attended the sessions that the applicant attended, then he was able to give details about Saman's involvement. He met the students on the Saturday of the weekend in which the protests were taking place, then said that the demonstrations took place two days later, on Sunday, which he really meant as two days: Sunday and Monday.
[41] It is unnecessary to examine all of the examples raised by the panel. The applicant may be correct in its view that any one of these inconsistencies, on its own, would not cross the de minimis threshold as a relevant consideration with respect to a finding of credibility. However, the panel canvassed a variety of factors related to the applicant's contentions regarding the demonstration, the arrests of family members, his treatment by his wife and his family, and his delay in leaving Iran in arriving at its conclusion with respect to credibility. Clearly, this is not a finding with which this Court is entitled to interfere.
[42] This Court has recognized that the CRDD has the necessary discretion to assess the credibility of the testimony of people who claim refugee status. This has been decided by Teitelbaum J. in Antonipillai v. Canada (Minister of Citizenship and Immigration), (IMM-2724-98, March 22, 1999); [1999] F.C.J. No. 382, at para. 9 (T.D.) (QL):
There is no question that the Board has all the necessary discretion to assess the credibility of the testimony of people who claim refugee status, and may have regard to a multitude of factors in so doing. The board may base its findings on internal contradictions, inconsistencies and evasive statements, which are the "heartland of the discretion of triers of fact", and other extrinsic factors such as rationality, common sense and judicial notice, but those findings must not be made in a perverse of capricious manner or without regard for the material before the Board: Sbitty v. Canada (M.C.I.), (IMM-4668-96, December 12, 1997), Shahamati v. M.E.I., (F.C.A.) (A-388-92, March 24, 1994).
[43] A patent unreasonableness standard of review applies to these findings of fact, and I cannot find that they were patently unreasonable. The credibility findings will therefore not be disturbed.
Failure to consider a ground of persecution
[44] The applicant impugns the decision of the panel for not indicating its view with respect to the credibility of the applicant regarding the persecution that he feared at the hands of his wife's family. In fact, the panel did mention, at page 3 of its decision, that the family of the claimant's wife intimated that the applicant should be punished by death for being a combatant against Islam. The panel proceeded to recite the applicant's explanation of how he knew this, and questioned the veracity of his assertion that he learned everything from his neighbour in business. It cannot therefore be said that the panel failed to consider this ground of persecution; it considered it and made a credibility finding accordingly.
[45] For all of these reasons, the application for judicial review is dismissed. Counsel did not suggest a serious question of general importance, therefore no question is certified under subsection 83(1) of the Immigration Act.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No serious question of general importance is certified.
_________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1981-02
STYLE OF CAUSE : MORTEZA SOHRABI and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Toronto, Ontario
DATE OF HEARING : October 1, 2002
REASONS FOR ORDER : THE HONOURABLE JUSTICE BEAUDRY
DATED : October 24, 2002
APPEARANCES :
Micheal Crane FOR THE APPLICANT
Deborah Drukarsh
Department of Justice FOR THE RESPONDENT
SOLICITORS OF RECORD :
Micheal Crane FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario