Date: 20031113
Docket: IMM-6144-02
Citation: 2003 FC 1342
BETWEEN:
MOHAMMAD MEHRDADIAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] What differences are there amongst an error in a finding of fact which is palpable and overriding, one which is patently unreasonable and one made in a perverse or capricious manner or without regard for the material before it? This question must be considered, if not answered, in the context of this application for judicial review.
[2] The applicant is a citizen of Iran. He has asked to be considered a Convention Refugee because he has a well-founded fear of persecution at the hands of the Iranian authorities by reason of his political opinion. He also claims to be a person in need of protection in that he would be in danger of being tortured or at risk of being subjected to cruel or unusual treatment or punishment if he were sent back to Iran.
[3] The Immigration and Refugee Board, Refugee Protection Division ("the Board") rejected his claim on both counts. The basis of the applicant's alleged fear is that, while he was a ranking government official, he participated in an anti-government rally in July 2000. He learned from a co-worker that he had been seen and would likely be arrested. He went into hiding and with the aid of a smuggler came to Canada.
[4] The Board did not believe that he had participated in the July 2000 rally. It followed that his alleged fears were groundless.
[5] This Court has been asked to grant a judicial review of that decision. There is a wealth of jurisprudence to guide this Court's review of a decision of the Board. The law is aptly summarized by Iacobucci J. in the recent decision of the Supreme Court of Canada in Law Society of New Brunswick v. Ryan, 2003 SCC 20, where he said in paragraph 1:
According to the governing jurisprudence, a court reviewing the decision of an administrative tribunal should employ the pragmatic and functional approach to determine the level of deference to be accorded to the decision in question. The appropriate level of deference will, in turn, determine which of the three standards of review the court should apply to the decision: correctness, reasonableness simpliciter, or patent unreasonableness.
[6] The Ryan case should be read with the parallel decision handed down the same day, Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19.
[7] As enunciated in Ryan at paragraph 27:
The pragmatic and functional approach determines the standard of review in relation to four contextual factors: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purposes of the legislation and the provision in particular; and (4) the nature of the question -- law, fact, or mixed law and fact (Pushpanathan, supra, at paras. 29-38; Dr. Q., supra, at para. 26).
[8] In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, it was held that the deference to be shown to the Immigration and Refugee Board on questions of law was correctness.
[9] However, the question in this case, at least at this stage, is one of fact. It has been held in cases such as Aguebor v. Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.) that a finding of fact of the Board must stand unless it is patently unreasonable. It was said by Mr. Justice Décary at paragraph 4:
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.
[10] Thus, it was held by Kelen J. in Tubacos v. Canada (Minister of Citizenship and Immigration) (2002), 23 Imm. L.R. (3d) 60, at paragraph 6:
... The standard of review for questions of fact and law is patently unreasonable, whereas for questions of pure law it is correctness.
[11] The patently unreasonable test was also applied by Martineau J. in R.K.L. v. Canada (Minister of Citizenship and Immigration) 2003 FCT 116, a case in which the Board simply disbelieved the applicant's story.
[12] Much of the jurisprudence which deals with review of findings of fact is in the context of an appellate court's review of the findings of a trial judge. A court of appeal should not interfere unless there is a "palpable and overriding" error. Perhaps the leading Canadian case is Stein v. the Ship "Kathy K", [1976] 2 S.C.R. 802, which has been cited time and time again, including in Dr. Q., supra, and in Housen v. Nikolaisen, 2002 SCC 33.
[13] A "palpable and overriding" error has been compared with the standard of reasonableness simpliciter in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748. Iacobucci J. said at page 778:
The standard of reasonableness simpliciter is also closely akin to the standard that this Court has said should be applied in reviewing findings of fact by trial judges. In Stein v. "Kathy K" (The Ship), [1976] 2 S.C.R. 802, at p. 806, Ritchie J. described the standard in the following terms:
. . . the accepted approach of a court of appeal is to test the findings [of fact] made at trial on the basis of whether or not they were clearly wrong rather than whether they accorded with that court's view of the balance of probability. [Emphasis added.]
[14] Sopinka J. had this to say about patent unreasonableness in United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at pages 340, 341:
...A patently unreasonable error is more easily defined by what it is not than by what it is. This Court has said that a finding or decision of a tribunal is not patently unreasonable if there is any evidence capable of supporting the decision even though the reviewing court may not have reached the same conclusion (Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, at pp. 687-88)...
[15] One of the cases referred to in the Kathy K, supra, is Powell and Wife v. Streatham Manor Nursing Home, [1935] A.C. 243 (H.L.(E.)). Viscount Sankey said at page 250:
The judge of first instance is not the possessor of infallibility and, like other tribunals, there may be occasions when he goes wrong on a question of fact; but first and last and all the time, he has the great advantage which is denied to the Court of Appeal of seeing the witnesses and watching their demeanour.
[16] As noted by Evans J. (as he then was) in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35:
14. It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual. Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made "without regard to the evidence"...
The Facts as Alleged
[17] The applicant worked as a manager of government housing foundation for 13 years. In 1998 he was enrolled in a Management Government employee training program at the University in Tehran. By then, he had become disenchanted with the government and had associated himself with the reform movement, had begun discussing the need for reform with several work colleagues and joined student protest activities. In July 1999 he participated in a student rally near and about the University, which was in response to a raid by revolutionary guards in which some students were killed or injured. Upon his return to the office a few days later the person in charge of security said that he had been seen by the Deputy Director of Security. The applicant denied verbally and in writing that he had been involved and undertook that he would not participate in any anti-government activities in the future. A week later he was told he could no longer continue his training program at the University, and some 5 months after that he was demoted.
[18] In July 2000 he participated in another rally to commemorate that raid. Before returning to work he called a friendly security guard who informed him that a warrant for his arrest had likely been issued. He went into hiding, some days later made it to a friend's villa outside Tehran, and later with the aid of a smuggler escaped and made his way to Canada.
The Facts as Found
[19] The Board considered his evidence to be a pack of lies. Responses were said to be vague, evasive, implausible, inconsistent, contradictory and with detail omitted. It did not accord with the information the Board had on Iran.
[20] I was invited by the applicant's counsel to find a single instance in which the applicant was evasive. I have found none.
[21] The Board found the applicant vague as to where he was during the course of the demonstration in 1999. On the contrary, given that the protestors were marching, and were joined by other protestors from side streets, his evidence was cohesive and clear no matter whom the questioner. He was not holding a ticket to the theatre - Row G, seat 7.
[22] It was found implausible that he would not have been arrested in July 1999 for participating in a revolutionary demonstration. It is important to note that although he was suspected of having participated, he denied participation.
[23] He was criticized with respect to his belief for the reason for his demotion several months later. It may well be of course that he was demoted for another reason, such as incompetency. He made it perfectly clear that he was not told why he was demoted. He was asked, just as in an examination for discovery in a civil case, to provide his knowledge, information and belief. He was entitled to his belief that he was demoted because of suspected political activities.
[24] The Board said:
He also testified, although not mentioned in the PIF narrative, which is an omission, that he was allegedly identified by some members of his workplace. He was asked who those members of the workplace he alleges identified him, he said they were members of the Secret Police.
[25] In his PIF he identified the men in question and said they worked for the Ministry of Intelligence. There was no omission. For whom else would the secret police work?
[26] His evidence was said to be vague with respect to the different "official" and "unofficial" security personnel or intelligence agents abounding in Iran. On the contrary, his evidence was clear. They were all part of a Ministry of Fear. The applicant's knowledge of this area of the Iranian government far surpassed the reports the Board had.
[27] After he left Tehran, but before he escaped the country, he communicated with his wife, but through the intermediary of a friend. The Board found his information as to the treatment of his wife to be insufficiently clear. If any blame is to be laid it is on the friend who posed the questions to the wife, and not upon the applicant.
[28] After leaving Iran, the applicant stated in his port-of-entry information that he was an administrative manager of the housing foundation, but in his personal information form he said his position was that of a manager-clerk. According to the Board:
When he was confronted with this inconsistency he said that he did not understand the question properly. In his submission, counsel stated that the claimant put down the highest position he attained when he was working in the foundation. I find the explanation not satisfactory, and I find the claimant's evidence to be inconsistent and contradictory.
[29] On the contrary, the response was perfectly reasonable. In the one form which required a job history he gave that history. According to the Canadian Oxford dictionary one of the meanings of "occupation" is "a person's temporary or regular employment; a business, calling, or pursuit." The applicant considered himself a professional manager, and he was. There is absolutely no merit to this alleged discrepancy.
[30] It may well be that the applicant was lying, and was not at the July 2000 demonstration. Perhaps his demeanour gave him away. However, if he was a two-bit thespian flubbing his lines the Board should have said so. It did not. The Board claims to have applied the principal set out in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (C.A.), that there is a rebuttable presumption that a claimant has sworn the truth. However, this is a case of do as I do, not do as I say. The Board must give valid reasons for discrediting testimony (Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144, on-line: QL; Attakora v. Canada (Minister of Employment and Immigration (1989), 99 N.R. 168 (F.C.A.); Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1990), 8 Imm. L.R. (2d) 106 (F.C.A.)). Here, the Board failed to do so.
[31] This clearly is a case where the Board may have got it wrong. The finding with respect to credibility was not based on any evidence. The applicant is entitled to a new hearing.
DISPOSITION
[32] This Court is entitled to grant relief under section 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, if the Board:
...based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[33] The decision of the Board in this case falls into that category. It is not necessary for me to plumb the differences between an error which is palpable and overriding with one which is patently unreasonable. The difference has to be one which the Privy Council has characterized as being "slight in fact but clear in law" (Quebec Railway, Light, Heat and Power Co. v. Vandry, [1920] A.C. 662 as per Lord Sumner at page 677).
[34] The applicant shall have a new hearing before a differently-constituted panel.
[35] There is no serious question of general importance to be certified pursuant to section 74 of the Act.
"Sean Harrington"
JUDGE
Ottawa, Ontario
November 13, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6144-02
STYLE OF CAUSE: MOHAMMAD MEHRDADIAN
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 4, 2003
REASONS FOR ORDER : HARRINGTON J.
DATED: NOVEMBER 13, 2003
APPEARANCES:
Mr. Douglas Lehrer FOR APPLICANT
Ms. Negar Hashemi FOR RESPONDENT
SOLICITORS OF RECORD:
VanderVennen Lehrer
45 Saint Nicholas St.
Toronto, ON, M4Y 1W6 FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT