Date: 20010226
Docket: IMM-1070-00
Citation: 2001 FCT 116
BETWEEN:
SHAHRAM FIRUZI MAGHAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
A. BACKGROUND
[1] This judicial review application made by Shahram Firuzi Magham (the applicant), a citizen of Iran, challenges a March 12, 1999 decision of the Refugee Division of the Immigration and Refugee Board (the "Tribunal"), which found him not to be a Convention refugee for two reasons.
[2] First, the Tribunal found his evidence not to be credible and trustworthy, citing four instances:
(a) his inability to explain a contradiction between his PIF and Exhibit 7(c) concerning the circumstances of ceasing his employment as an auditor with Iran's Ministry of Economy and Finance;
(b) a contradiction between his PIF and his oral testimony why he was attacked in February 1999;
(c) a contradiction between his PIF assertion of supporting the Monarchist cause in Iran and his oral testimony which the Tribunal characterized as "ambivalent about his support for the monarchist movement"; and
(d) the circumstances of his leaving Iran from Tehran's airport using his own passport and through the payment of a bribe. The Tribunal based its findings on documentary evidence (a response to an IRB request).
[3] The second reason the Tribunal gave for rejecting his claim "[I]n the alternative that the claimant's evidence is found credible", was whether he had an objective basis for his fear. The Tribunal, on this point, concluded the applicant had failed to provide credible evidence supporting the objective basis for his fear of persecution.
[4] The Tribunal referred to the applicant's PIF where he narrated "how his friend Arzhang who was involved in the passing of facsimile copies of the book on the Prophet Mohammed, written by Ali Dashty, was arrested".
[5] The Tribunal then referred to a response to an information request from the IRB and concluded "[T]he documentary evidence does not support the claimant's allegation that the Islamic regime would actively pursue people suspected of possession and dissemination of the banned publication".
[6] The Tribunal then added that, if the claimant lost his job over his conviction, "it is reasonable to expect him to produce documents to corroborate his allegation". It noted the claimant testified, after he left Iran, his family had received a summons for him to appear in Court for copying and distributing copies of the book "The Twenty-Three Days" which is banned.
[7] The Tribunal said the summons was not included in the post-hearing documents sent by his counsel. The Tribunal expressed its view as follows at page 7:
The importance of the summons is such that it would have provided corroborating evidence the claimant was indeed being sought by the regime for his anti-religious activities. If there was a summons, it would have been sent to the claimant along with the identity documents since it was vital to proving that he was being sought by the authorities.
[8] This judicial review was heard at the same time as the applicant's judicial review in IMM-1069-00 seeking to quash a determination by a Post-Claim Determination Officer ("PCDO") he was not a member of the Post-Determination Refugee Claimant Class in Canada ("PDRCC") as well as a judicial review by the applicant in IMM-1071-00 against a finding by an Immigration Counsellor there were insufficient humanitarian and compassionate grounds to grant an exemption permitting inland processing of his application for permanent residence.
B. ANALYSIS
[9] Counsel for the respondent conceded two of the four credibility findings of the Tribunal could not withstand scrutiny. She agreed the finding the applicant was unable to explain a contradiction concerning the circumstances of his ceasing to be employed with the Iranian Government could not stand because he was not confronted with that contradiction. She also conceded, examining the transcript as a whole, the applicant explained in his oral testimony why he was attacked in February 1996.
[10] Two other credibility findings remain which counsel for the respondent says were legally sound.
[11] I agree with counsel for the applicant that there is no basis in the record for the finding the applicant was ambivalent about his support for the Monarchist movement. The applicant did testify he was not a Monarchist but he added he accepted it (the Movement) as an opposition front. The applicant was not challenged on this clarification of what he had written in his PIF which did not say he was a member of the Monarchist party or that he was associated with them.
[12] The Tribunal's last credibility finding relates to his leaving Iran through Tehran airport slipping away by his friend bribing an airport official. As noted, the Tribunal found the bribe allegation not credible relying on documentary evidence in the form of a statement by a Mr. Farrell who said it would be unlikely to be able to bribe an official at the airport.
[13] It is a well-know proposition the Tribunal may prefer documentary evidence over the oral testimony of a refugee claimant. The problem here, as counsel to the applicant presented it, is the Tribunal also had contrary documentary evidence which stated bribery was endemic in the public service. The Tribunal also had a critique of Mr. Farrell's position. The Tribunal did not weigh this contradictory documentary evidence and as a result, I find its conclusion on this point faulty; it constitutes a reviewable error.
[14] As a result, none of the credibility findings made by the Tribunal stand.
[15] Counsel for the respondent tried to uphold the Tribunal's decision on the basis its finding the applicant had no objective basis to fear persecution if he returned to Iran had not been challenged. For several reasons, the Tribunal's finding on this point must be set aside.
[16] First, the Tribunal's finding that he presented non credible and untrustworthy evidence of necessity impacted on its assessment of whether he met the objective test. Second, the Tribunal's consideration on this point only dealt with one of his Convention ground ie persecution on religious grounds and third, there is evidence in IMM-1069-00 which while technically not be admissible in these proceedings (but which I cannot ignore) of his being convicted by the Court in Iran, evidence provided the PCDO after the Tribunal had rendered its decision and not included in the applicant's counsel post-hearing filing because it was not then available to him.
C. Disposition
[17] For all these reasons, this judicial review application is allowed, the decision of the Tribunal is set aside and the matter is referred back to a differently constituted panel for reconsideration. No certified question arises.
(Sgd.) "F. Lemieux"
Judge
February 26, 2001
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1070-00
STYLE OF CAUSE: Shahram Firuzi Magham
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: February 14, 2001
REASONS FOR ORDER OF LEMIEUX, J.
DATED: February 26, 2001
APPEARANCES:
Mr. Anthony Norfolk For the Applicant
Ms. Helen Park For the Respondent
SOLICITORS OF RECORD:
Anthony Norfolk
Barrister & Solicitor
Vancouver, BC For the Applicant
Morris Rosenberg
Deputy Attorney
General of Canada For the Respondent