Date: 20010412
Docket: IMM-3364-00
Neutral citation: 2001 FCT 322
Between:
EBOLFAZL SULTANI VELASHDJERDI
Applicant
AND
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
[1] The applicant, Ebolfazl Sultani Velashdjeri, is a citizen of Iran who claimed refugee status based on fear of persecution by reason of his political opinion. His claim was rejected by the Convention Refugee Determination Division (the Board), which held on April 11, 2000, that the applicant's claim had no credible basis, under subsection 69.1(9.1) of the Immigration Act (the Act).
[2] Counsel for the applicant argued four errors of law, only one of which need be addressed for the purposes of this case.
[3] Counsel for the applicant filed a notice to appear dated October 30, 1999, issued by the Revolutionary Justice Department, as Exhibit P-6. The English translation of that notice reads as follows:
Motive: to proceed with your file at the Court. In case of absence, an arrest warrant would be issued.
[4] The applicant had the original of that document with him at the hearing.
[5] The applicant had written in his PIF that he was a member of the "Guardians of Eternal Iran" (NID) and produced a copy of a book entitled [TRANSLATION] Heir of the Property of Kian written by Dr. Nassim.
[6] The Board made the following observation:
This book told the story of Mr. Passandideh, the adoptive brother of Khomeini, who claimed that Khomeini was of Sikh Indian origin and that his parents had come to Iran by ship.
Since the religious leader in Iran must be of Iranian origin, Ayatollah Khomeini could not assume power in Iran. According to the claimant, this book was banned on the same basis as the Satanic Verses of Salman Rushdie.
The claimant photocopied part of this book in the basement of his house, and hid it in shoe boxes. These copies were distributed to members of the NID.
...
Between September 20 and 22, 1999, while the claimant and his mother were away from their house, three individuals went to the house and discovered the papers and the photocopier in the basement.
[7] Counsel for the applicant submitted that the Board erred in law by failing to rule on the documentary evidence relating specifically to the applicant, that is, a document that corroborated his testimony that he is wanted by the Iranian authorities.
[8] Counsel for the applicant said that the documentary evidence establishes that the revolutionary courts in Iran commit the worse abuses.
[9] In his memorandum, applicant's counsel wrote the following:
[TRANSLATION]In their decision, the panel makes reference to that specific documentary evidence only when it quotes Exhibit A-5, a document completed at the port of entry listed as Exhibit E in the applicant's affidavit. That document in fact reads as follows:
Is the Police or Army looking for you in your country? Yes (x) No ( ) Why? Because you received a paper to go to court and they came to his house.
At page 4 of its decision, the panel wrote:
In Exhibit A-5,1 the port of entry document, he based his claim on the fact that he fled his country because his mother had received a notice to appear2 requesting him to appear before the Court of Teheran, because of his involvement in the five-day student demonstration in February 1999, at the University of Teheran.
At no point in their analysis did the panel refer to that evidence, although it goes to the heart of the applicant's claim: it was because of that document that the applicant made the decision to flee Iran. That is what he said at the port of entry and it is also what he wrote in his PIF. In the last paragraph of his answer to question # 37 in his PIF, the applicant stated:
We decided to meet somewhere in the north of the city and that they took me to a park in the suburbs where I hid for a week. According to the information that my mother had given the colonel, a warrant had been issued to me and two police officers had given it to my mother who was directed to hand me over to the authorities. According to the colonel, my life was in serious danger, I absolutely had to flee Iran ..."
Given the importance of that document, it is implausible that the panel would refer to it in their decision without ruling as to its content or its probative value or weight. The Board's failure to consider in its analysis evidence that related specifically to the claimant, which, moreover, corroborated his testimony and went to the heart of his claim constitutes a reviewable error. The applicants submit that this position is firmly supported by the decisions of this Court.
[10] There is extensive authority in the decisions of this Court for the proposition that the Board's failure to address, in its analysis, specific and personal documentary evidence that appears to corroborate important aspects of an applicant's claim is grounds for intervention (see Numbi v. Minister of Citizenship and Immigration, IMM-1378-98, February 17, 1999, (T.D.), McGillis J.; Bains v. Canada (Minister of Employment and Immigration) (1993), 20 Imm. L.R. (2d) 296, at page 300; Khawaja v. Minister of Citizenship and Immigration, IMM 5385-98, July 28, 1999, (T.D.), Denault J.).
[11] I would also cite Mahanandan v. Minister of Employment and Immigration,
A-608-91, August 24, 1994, (C.A.). The Chief Justice wrote:
We agree. Where, as here, documentary evidence of the kind in issue here is received in evidence at a hearing which could conceivably affect the Board's appreciation of an Appellant's claim to be a Convention refugee, it seems to us that the Board is required to go beyond a bare acknowledgment of its having been received and to indicate, in its reasons, the impact, if any, that such evidence had upon the Applicant's claim. As I have already said, the Board failed to do so in this case. This, in our view was a fatal omission, as a result of which the decision cannot stand.
[12] The respondent cited Woolaston v. M.E.I., [1993] S.C.R. 102; Hassan v. M.E.I. (1992), 147 N.R. 317 (C.A.) and Florea v. M.E.I., A-1307-91, June 11, 1993, (C.A.) to support two propositions: (1) the fact that the Board failed to mention the document does not indicate that it failed to have regard to it; (2) the Trial Division decisions cited by the applicant impose a more onerous burden than has been imposed by the Supreme Court of Canada and the Federal Court of Appeal. I cannot accept the respondent's arguments.
[13] The Woolaston case involved testimony recorded in the transcript of proceedings; the Hassan case involved documentary evidence from Amnesty International; and in Florea, the Federal Court of Appeal did not specify the nature of documents.
[14] In my view, the case law cited by the respondent does not invalidate the principle cited by the applicant.
[15] For these reasons, the application for judicial review is allowed and the matter is referred back to a different panel of the Board.
"François Lemieux"
Judge
Ottawa, Ontario
April 12, 2001
Certified true translation
Sophie Debbané, LL.B.
Date: 20010412
Docket: IMM-3364-00
Ottawa, Ontario, Thursday, April 12, 2001
Present: The Honourable Mr. Justice François Lemieux
Between:
EBOLFAZL SULTANI VELASHDJERDI
Applicant
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
For these reasons, the application for judicial review is allowed and the matter is referred back to a different panel of the Board.
"François Lemieux"
J U D G E
Certified true translation
Sophie Debbané
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-3364-00
STYLE OF CAUSE: EBOLFAZL SULTANI VELASHDJERDI v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 4, 2001
REASONS FOR ORDER BY LEMIEUX J.
DATED: April 12, 2001
APPEARANCES:
Annie Bélanger FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Annie Bélanger
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General FOR THE RESPONDENT