Ottawa, Ontario, this 16th day of September, 2005
PRESENT: THE HONOURABLE MR. JUSTICE RUSSELL
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
THE APPLICATION
[1] This is an application for judicial review under s. 72(1) of the Immigration and Refugee Protection Act ("Act") S.C. 2001, c. 27, of the decision made by the Refugee Protection Division of the Immigration and Refugee Board ("Board"), dated July 30, 2004 ("Decision"). The Board found that the Applicant was not a Convention refugee, or a person in need of protection. The Board cited credibility and the lack of a well-founded fear of persecution as the decisive issues in the Applicant's case.
BACKGROUND
[2] The Applicant, Mohsen Shafeie Tahmoursati, is a 23-year-old citizen of the Islamic republic of Iran. He claims to fear persecution by the Iranian authorities, due to his political opinion, and his membership in a particular social group, specifically his family.
[3] The Applicant's claim is slightly confusing. He changed his story a number of times. He initially claimed that he was a member of the Student Democratic Movement of Iran, but later retracted the political affiliation when confronted with his prior testimony that he had lived in Holland from 1994 until he came to Canada in 2003. So the Applicant bases his political claim on a story that he later admitted he had made up, allegedly at the urging of the smuggler who helped him to reach Canada from Holland. He admits that his entire story regarding the political activism was false.
[4] The Applicant notes that his mother and two brothers are still in Holland, and that he left them to come to Canada. His mother made a political asylum claim when she arrived in Holland in 1994, claiming to be a monarchist. That claim was subsequently denied. The Applicant notes that his mother's claim was based on false statements. She was not a monarchist.
[5] The Applicant goes on to claim that he fears returning to Iran because he disobeyed his father. He claims that his father was disappointed in him because he would not live in a hezbollahi manner. In different hearings, the Applicant has claimed that his father is currently living in Iran and, alternatively, that his father was executed in 1999.
[6] The Applicant provided three letters from Holland: one from a refugee claimant; one from a social worker; and one from a lawyer. The letters refer to a visit his father made to Holland in 1997. They describe the father as abusive and threatening toward his wife and children. The father ordered the Applicant's mother, along with the Applicant and his brothers, to return to Iran. However, the Applicant's mother and brothers continued to live in Holland while the Applicant came to Canada in 2003, and claimed refugee status.
DECISION UNDER REVIEW
[7] The Board noted the many inconsistencies in the Applicant's testimony, as well as his admittedly false testimony, and found the Applicant not to be a credible witness. The Board concluded that the Applicant is not a Convention refugee, or a person in need of protection.
[8] The Board found that, given the Applicant's complete lack of credibility on the alleged facts of his claim, he had not met the onus placed on him in a refugee claim.
[9] The Board also found that, due to the inconsistencies, the constant changing stories, and the contradictions in the Applicant's testimony, the Applicant is not credible, and does not have a well-founded fear of persecution in Iran.
[10] Hence, the Board rejected the Applicant's claim for refugee protection.
ISSUES
[11] The Applicant raises the issue of whether the Board ignored evidence, or based its Decision on an erroneous finding of fact.
ARGUMENTS
The Applicant
[12] The Applicant argues that the Board ignored the following corroborative documents in making its Decision:
(a) The letter from the social worker in Holland;
(b) The letter from the lawyer;
(c) The letter from the refugee claimant in Holland; and
(d) An obedience order requiring performance of spousal duties from an Iranian court, which the Applicant's father obtained against the Applicant's mother.
[13] The Applicant submits that these documents were not referred to in the Decision, which reveals that the Board ignored this evidence, or at least considered the Applicant's evidence selectively.
[14] The Applicant goes on to note that the Board found it implausible that his mother did not make a claim for asylum in Holland based on domestic abuse. He submits that the Dutch refugee system does not accept spousal abuse cases as Convention refugees, and that the Dutch authorities were made aware of the domestic abuse suffered by his mother, his brothers, and himself. The Applicant argues that the Board erred in drawing a negative credibility inference from the finding that his mother did not claim asylum in Holland based on domestic abuse.
[15] When these errors are taken into account, the Applicant submits that the Board's remaining reasons for rejecting his claim are not sufficient to save the Decision.
The Respondent
[16] The Respondent argues that the Applicant has changed his story throughout his claim in Canada, and his inconsistent and contradictory stories led the Board to question the credibility of all information that the Applicant provided.
[17] In addition, the Respondent notes that the Applicant's mother put forth a claim for asylum in Holland that was based on false information.
[18] The Applicant manufactured a story of student activism in Iran, which was completely false. The Applicant later admitted that the story was completely made up at the urging of the smuggler who helped him get to Canada from Holland.
[19] The Respondent also notes that the Applicant lied about his point of origin when he arrived in Canada, claiming he had come from Iran rather than Holland.
[20] The Respondent argues that the Applicant's submissions are nothing more than an attempt to persuade the Court to re-weigh the evidence which was properly before the Board, which cannot be done unless the Board's findings are so unreasonable as to warrant intervention.
[21] The Respondent points out that, given the facts of this case, the Board relied upon inconsistencies and contradictions in impugning the credibility of the Applicant. The Applicant changed his story completely, and thereby undermined his own credibility.
[22] The Respondent submits that discrepancies between previous statements and the Applicant's personal information form ("PIF") can be used to impugn credibility (see Parnian v. Canada (Minister of Citizenship and Immigration) (1996), 96 F.T.R. 142).
[23] The Respondent also cites Blais J.'s decision in Solomon v. Canada (Minister of Citizenship and Immigration) 2004 FC 1252, at para. 9:
9. Given the two different tales, given the change in stories according to what might be more beneficial (by the applicant's own candid admission), it was reasonably open to the Board member to doubt anything the applicant was claiming.
[24] The Respondent notes that the Board rejected the Applicant's claim because he was unable to support it with credible evidence, and not because of his mother's failed false claim in Holland. The Respondent argues that the Applicant's credibility problems arose from his own statements to Canadian authorities, and out of the inconsistencies between his Port of Entry Notes, his PIF, and his oral hearing in support of his claim.
[25] With respect to the documentary evidence, the Respondent argues that the specific documents referred to by the Applicant (the letters and the order) were part of the totality of the evidence that was assessed by the Board in considering the Applicant's claim. The fact that the Board did not mention specific documents submitted into evidence is not an indication that the Board did not take those documents into account (see Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946).
[26] Overall, the Respondent submits that the Applicant has failed to establish that the Board ignored or misinterpreted the documentary evidence. He merely wants the Court to re-weigh the evidence that was considered by the Board. The Respondent says that questions of weight are within the jurisdiction of the Board as the trier of fact and cites Singh v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1451, at para. 11 where Snider J. said the following:
11. Disagreement with the manner in which the Board weighed the evidence is not a ground for judicial review. Further, the Board is not obligated to accept every explanation offered to it by the Applicant and is entitled to reject explanations that it finds to be not credible based on inconsistencies, contradictions or implausibilities (Aguebor, supra; Rathore v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 42 (T.D.) (QL)).
ANALYSIS
[27] The Applicant says that this is a classic case of the Board ignoring material evidence and arguments that directly refuted the Board's position that the Applicant lacked credibility and had not established a well-founded fear of persecution or risk if returned to Iran.
[28] The Applicant has shown himself to be cavalier with the truth and a professed devotee of expediency when it came to concocting his refugee narrative. Nevertheless, the Applicant says that he produced documentation to support one of his accounts of the persecution and risk he faced from his father and this evidence should have been addressed and dealt with by the Board in accordance with the principles established in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration (October 6, 1998), [1998] F.C.J. No. 1425 (F.C.T.D.) and the Federal Court of Appeal decision in Mahanandan v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1228 where Isaac C.J., in an oral decision, had the following to say:
¼
7. Before us, the Appellants contend that the Board failed to consider adequately or at all the objective basis of their fear. First, the Appellants say that the documentary evidence, which was considerable, if properly assessed, could well have enhanced the Board's appreciation of the objective basis of their claim. They say, secondly, that beyond a bare acknowledgment that the evidence presented at the hearing consisted of documentary evidence which constituted background information on Sri Lanka, the reasons of the Board were bereft of any further reference to the documentary evidence, let alone any consideration of their claim in light of that evidence. Next, they say that the Board's assessment of their claim might well have been different, if they had considered it in that light and, further, that by failing to do so, the Board fell into reversible error.
8. 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.
¼
[29] The Applicant also points out that the Board ignored the evidence he gave that the Dutch refugee system does not accept spousal abuse cases as Convention refugees. If this is the case, then the Board's conclusion that if his mother "had any domestic problems with her husband, she would have applied for political asylum in Holland based on her alleged problems with her husband, not based upon alleged Monarchist activities in Iran", should not have been used to raise a negative inference against him.
[30] The Board's principal conclusions are as follows:
(a) "I find the claimant's testimony is contradictory; therefore, it is not trustworthy..."
(b) "I find that the claimant's entire story was based on lies and it is not credible or trustworthy."
(c) "I find that the claimant has no problem with the Iranian authorities or with his father in Iran. The claimant will have no problem with the Iranian authorities or with his father or with his father's relatives, if he were to return to Iran."
[31] As regards the evidence adduced by the Plaintiff, the Board made the following comments:
(a) "After considering all the evidence and the credibility findings, as stated above, the claimant has not established that he has a well-founded fear of persecution if he were to return to Iran, based on his political opinion or being a member of particular social group, namely, being a member of a family who is allegedly involved in a (sic) domestic violence, or for any of the other grounds set out in the definition of a Convention refugee."
(b) "The claimant adduced no other information, nor does the documentation support a finding that he faces a serious possibility of persecution, should he return to Iran."
(c) "Therefore, given the lack of credibility of the material facts in his claim, and having reviewed all the evidence, the claimant failed to establish that he meets the higher threshold of harm or risk to his life or risk of cruel and unusual treatment or punishment, or to a danger, believed on substantial grounds to exist, of torture."
[32] So the gravamen of the Applicant's complaint is that, in reaching its conclusions, the Board failed to consider the corroborative documentary evidence that supported his fears concerning his father. This problem was further exacerbated by the Board's not considering his evidence about the unavailability of a spousal abuse claim in Holland.
[33] The Board makes it quite clear that it regards two areas of the claim as problematic:
The issues in the claim are the claimant's credibility as a central issue, as well as the well-foundedness of the claimant's fear of persecution, and whether he is a person in need of protection from the Iranian authorities, as a result of his political opinion or family problems.
[34] The political aspect of the claim was discounted by the Board, and for good reason. The Plaintiff admitted he had lied about his political activities.
[35] As regards his father, the Board does not deal specifically with the alleged corroborative evidence but decides against the Plaintiff on the grounds that "the claimant's testimony is contradictory; therefore, it is untrustworthy'" and "the claimant's entire story was based on lies and it is not credible or trustworthy."
[36] In my view, the Applicant is asking the Court to consider whether it was appropriate for the Board to merely reject the Applicant's narrative as regards his fear of persecution from his father on the basis of a finding that his testimony was untrustworthy, and his entire story was based on lies, without addressing specific corroborative evidence.
[37] My reading of Cepeda-Gutierrez and Mahanandan is that the Board may make a reviewable error if it fails to mention and analyse important evidence that points away from its own conclusions and the Court infers from this silence that the Board has made erroneous findings without regard to the evidence before it. In the present case, the corroborate evidence pointed to a different conclusion from that reached by the Board and, although the Board is not required to refer to every piece of evidence that is contrary to the Board's finding, the importance of the evidence put forward by the Applicant required that it be addressed. Put in another way, the nature of the evidence required the Board to go beyond a blanket statement that all of the evidence had been considered.
[38] The reason for this was the important explanation for the Applicant's past mendacity that was provided on re-direction:
COUNSEL: And why did you finally tell the truth?
CLAIMANT: Well, you confronted me with that, if I tell the truth I can get status here and I have a chance. So I told the truth.
COUNSEL: Now, you can understand the member's problem. You go to Holland with your mother, you engage in lies in Holland. You come to Canada, you lie to Immigration once, you lie to them twice. Why do we believe you now?
CLAIMANT: Well, simply because I'm telling the truth today and I have also done everything I could to support my story; the statements from Holland, the documents from the Embassy in Holland, and all the other documents I have provided you.
[39] The Applicant's explanation for the lies he had told in the past was that he did not know he could forward a domestic violence case in Canada and that, if he had told the truth, "I thought I would have been deported right away from the airport to Holland."
[40] In assessing credibility, the Board should have dealt with the evidence offered by the Applicant that he was now coming clean and telling the truth. The evidence he offered does address abuse by his father. The Board simply says that because the Applicant has told lies in the past, he is continuing to tell lies and cannot be believed.
[41] This may be true, and it may not be a patently unreasonable conclusion to reach on the evidence. But the Board does need to make it clear that it acknowledges and has reviewed the contradictory evidence that appears to corroborate the Applicant's explanation for his lies and his finally revealing the truth. That evidence was too important to leave to a blanket and perfunctory assertion that all of the evidence had been considered. The inference is that such evidence was disregarded because the Board found the Applicant's lies so repugnant (and they were) that it wasn't prepared to believe anything he said or consider any evidence he brought forward that might support his claim to be finally telling the truth.
[42] Similarly, with the well-foundedness of his claim, the Board states categorically that the "claimant adduced no other information, nor does the documentation support a finding that he faces a serious possibility of persecution, should he return to Iran."
[43] But the Applicant did adduce some information concerning the well-foundedness of his claim and the documentation refers to serious risk. Once again, the Court is not saying that, if fully considered, the evidence would support the claim. But it should have been addressed and the fact that it was not raises the inference that the Board did not consider it.
[44] The culture of lies that appears to have characterized the actions of the Applicant's mother in Holland and the Applicant's dealings with Canadian Immigration, however repugnant, did not absolve the Board of the responsibility of addressing important evidence and argument to support the Applicant's claim that he had not initially understood the basis upon which a refugee claim can be made in Canada and that, once he did understand, he had put the truth before the Board.
ORDER
THIS COURT ORDERS that
1. The Application is allowed and the matter is returned for reconsideration by a differently constituted board;
2. There is no question for certification.
"JAMES RUSSELL"
JUDGE
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: MOHSEN SHAFEIE TAHMOURSATI
V.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: JULY 12, 2005
REASONS FOR ORDER
AND ORDER THE HONOURABLE MR.JUSTICE
RUSSELL
APPEARANCES:
APPLICANT: MR.MICHAEL CRANE
RESPONDENT: MS.LISA HUTT
SOLICITORS ON THE RECORD:
MICHAEL CRANE
BARRISTER & SOLICITOR
TORONTO, ONTARIO
FOR APPLICANT
JOHN H.SIMS,Q.C.
DEPUTY ATTORNEY GENERAL
OF CANADA
FOR RESPONDENT