Date: 20060604
Docket: IMM-3800-05
Citation: 2006 FC 440
Ottawa, Ontario, April 6, 2006
PRESENT:
THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
MOHAMMAD
REZA ARABALIDOOSTI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
Sworn testimony is
presumed to be true in the absence of reasons to doubt the truthfulness of that
testimony (Maldonado
v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302, at
paragraph 5). A Board ought
not to take extreme measures to seek inconsistencies in testimony in order cast doubt on the
credibility of the evidence (Attakora v. Canada (Minister of Employment and
Immigration), [1989] F.C.J. No. 444 (QL)). However, when testimony contains
significant inconsistencies about relevant facts, this will be sufficient to
support an adverse inference concerning the credibility of that testimony (Waheed
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 329, [2003]
F.C.J. No. 466, at paragraphs 39-40).
The panel may consider testimony and documentary
evidence to determine credibility. The panel must also determine the weight it
attributes to documentary evidence.
The Board is entitled to consider the
evidence, testimonial and documentary, as a whole in order to determine its
credibility: Mostajelin v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 28 (F.C.A.) (QL). As discussed above, the Board was within
its rights to make the determination that it did with respect to the credibility
of the applicant. Having done that, the Board was entitled to determine the
probative value that would or would not be given to documents offered in
support of the testimony of the applicant.(Waheed, supra)
NATURE OF THE JUDICIAL PROCEEDINGS
[2]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) of the decision of
the Refugee Protection Division of the Immigration and Refugee Board (Board)
dated May 26, 2005, by which it was decided that the applicant was not a
refugee or a person in need of protection within the meaning of sections 96 and
97 of the Act.
FACTS
[3]
The
applicant, Mohammad Reza Arabalidoosti, is a citizen of Iran. After having
studied in the United States from 1993 to 1997, Mr. Arabalidoosti returned to
Iran and worked for a newspaper by the name of Jame’eh va Daneshgah.
From December 1997 to February 2000, he worked for this newspaper as executive
director, writer and head of public relations. He was subsequently the
executive director of another newspaper, called Africa Studies, until he
fled Iran in the summer of 2000.
[4]
Spurred on
by the suicide of a student in Iran, Mr. Arabalidoosti suggested the founding
of a national students’ union with the objective of holding the administration
responsible for its acts and giving rights and powers to the students. Mr.
Arabalisdoosti explained this proposal to Dr. Javid Jasbi, a politician and
member of the newspaper editorial committee, and was criticized for it.
[5]
Shortly
thereafter, Mr. Arabalidoosti noticed that his home was under surveillance. He
therefore left the country for a short period of time, hoping that the
situation would calm down. While he was visiting India for two weeks, a student
revolt took place in Iran, for which a student union was blamed. In addition,
Mr. Arabalidoosti’s picture was published in the newspaper as a leader of the
opposition abroad.
[6]
This
situation left Mr. Arabalidoosti afraid of remaining in Iran, because in
similar cases, Islamic extremists commit assassinations on the basis of the
pictures they see, as they consider these persons to be satanic.
[7]
He
obtained a student visa for the Netherlands and, with the help of his father, a
retired general, Mr. Arabalidoosti succeeded in leaving the country in August
2000. He did not claim refugee status in the Netherlands. In January 2001, he
went to the United States, where he claimed refugee status in September 2001.
His claim for refugee status in the United States was dismissed in September 2003.
On October 13, 2004, Mr. Arabalidoosti came to Canada, where he claimed refugee
protection.
IMPUGNED DECISION
[8]
The Board
dismissed Mr. Arabalidoosti’s claim, alleging that he did not establish
credible evidence of his fear or the risks of return. The Board concluded that
Mr. Arabalidoosti was not credible and was not a Convention refugee or a person
in need of protection under sections 96 and 97 of the Act.
[9]
The Board
did not believe that Mr. Arabalidoosti had difficulties in Iran by reason of
his employment at the Jame’eh va Daneshgah newspaper, because the
evidence he adduced concerning his employment was inconsistent on several
points.
[10]
Moreover,
the Board was of the opinion that, because Mr. Arabalidoosti did not apply for
refugee status at the first opportunity in the Netherlands or when he arrived
in the United States, he showed a lack of real fear of persecution in Iran.
ISSUES
[11]
Did the
Board make a reviewable error in concluding that the applicant was not a victim
of the oppressive government of Iran?
ANALYSIS
Standard of Review
[12]
The
standard of review applicable in this case is that of patent unreasonableness,
because the nature of the issue, that is, the assessment of Mr. Arabalidoosti’s
credibility and the Board’s expert knowledge call for a high degree of judicial
deference (Al-Shammari v. Canada (Minister of Citizenship and Immigration),
2002 FCT 364, [2002] F.C.J. No. 478 (QL), at paragraphs 10-11; Aguebor v.
Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL)
(F.C.A.), at paragraph 4; R.K.L. v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 116, [2003] F.C.J. No. 162 (QL), at
paragraphs 7-9.)
Did the Board make a reviewable error in
concluding that the applicant was not a victim of the oppressive government of
Iran?
[13]
The claim
for refugee protection made by Mr. Arabalidoosti is based on a crucial fact:
his involvement in the Jame’eh va Daneshgah newspaper and the proposal
to found a student union he presented to Dr. Javad Jasbi, a politician and
member of the newspaper editorial committee. The contradictions and
inconsistencies in Mr. Arabalidoosti’s evidence cast doubt on this alleged
involvement.
[14]
Mr.
Arabalidoosti gave a long explanation in Question 31 of his Personal
Information Form (PIF), which nevertheless omitted an essential event: he had
been stripped of his duties and privileges as executive director of the
newspaper in June 1999. Far from being a side event, this was directly
connected with the basis of his refugee protection claim. The Board could
validly take this into consideration and dismiss the explanation to the effect
that the PIF was already sufficiently long. No matter how long the answers
given in the form may be, they must contain, as mentioned in Question 31, all
the essential facts of the refugee protection claim.
[15]
In spite
of all this, Mr. Arabalidoosti allegedly continued to work at the newspaper
until February 2000, when it was officially closed. However, in another part of
his testimony, Mr. Arabalidoosti stated that the newspaper had never
closed. Whether closed or not, Mr. Arabalidoosti nevertheless received a
letter of recommendation allowing him to continue his studies from the person
who supposedly stripped him of his duties as executive director. Whether or not
this person was a hypocrite, the fact remains that the signatory of the letter
supported the Iranian regime, and the Board could not understand how he could
help a dissident broadcast his ideas.
…Thus, the claimant failed to explain why
Ali Abbaspour and Javad Jasbi, who were on the side of the oppressive Iranian
regime, would help a dissident of the regime and say that he was still an
executive of the newspaper, although his power and privileges were taken from
him five or six months earlier. Consequently, the panel does not believe that
the claimant was antagonized by Javad Jasbi because of his alleged proposal of
the formation of the union (Reasons of the panel, at page 3).
[16]
Two
essential conclusions of the Board are connected with this excerpt: the first
one, questioning the activities of Mr. Arabalidoosti at the newspaper, and the
second one, questioning the reasons for which Javad Jasbi allegedly became his
enemy.
[17]
Mr.
Arabalidoosti contradicted himself about the period during which he acted as
executive director. To Question 7 of his PIF, he answered that his employment
officially ended at the end of 1999. However, he also stated that he had been
stripped of his duties in June 1999, six months earlier. His explanation did
not clear up the contradiction, especially considering the fact that the
American immigration judge who heard Mr. Arabalidoosti’s refugee protection
claim in the United States wrote that Mr. Arabalidoosti had held this
employment until he left Iran in August 2000. In his written submissions, Mr.
Arabalidoosti criticized the American immigration judge, but at the same time
relied on the conclusion reached by the same judge according to which his
testimony was considered credible. He cannot pick and choose parts of the
decision which suit his argument and dismiss those which undermine it. In the
absence of evidence to the contrary, it is to be presumed that the immigration
judge correctly reported the facts that were presented. Mr. Arabalidoosti did
not consider it appropriate to prove the contrary by submitting excerpts from
the evidence adduced before the American jurisdiction. Therefore, the Board
could conclude that there was a contradiction concerning the period during
which Mr. Arabalidoosti worked for this newspaper.
[18]
On the
basis of this same decision, the Board concluded that Mr. Arabalidoosti
contradicted himself about the reasons for which he left Iran. In his refugee
protection claim made in the United States, Mr. Arabalidoosti alleged having
written draft texts criticizing Dr. Javad Jasbi. However, his claim for
protection in Canada was based on the proposal he allegedly made to Dr. Javad
Jasbi to found a student union. Once again, before the Board, Mr. Arabalidoosti
blamed the American immigration judge for not having accurately reported the
evidence that had been submitted.
[19]
In his
memorandum and his affidavit, Mr. Arabalidoost offered a slightly different
version of this explanation. He stated that the American immigration judge
mentioned the proposal to found a student union. However, it appears from the
decision rendered by the American immigration judge that, contrary to what Mr.
Arabalidoosti stated in the refugee protection claim he submitted in Canada,
the suggestion to found a student union had not been made directly to Javad Jasbi
but was part of the ideas Mr. Arabalidoosti had described in his drafts.
Therefore, Mr. Arabalidoosti gave a new explanation which should have been
submitted to the Board.
[20]
Sworn testimony is
presumed to be true in the absence of reasons to doubt the truthfulness of that
testimony (Maldonado
v. Canada (Minister of Employment and Immigration), [1980]
2 FC 302, at paragraph 5). A
Board ought not to take extreme measures to seek inconsistencies in testimony in order cast
doubt on the credibility of the evidence (Attakora v. Canada (Minister of
Employment and Immigration), [1989] F.C.J. No. 444 (QL)). However, when
testimony contains significant inconsistencies about relevant facts, this will
be sufficient to support an adverse inference concerning the credibility of
that testimony (Waheed v. Canada (Minister of Citizenship and Immigration),
2003 FCT 329, [2003] F.C.J. No. 466, at paragraphs 39-40).
[21]
Considering
the conclusions reached about the inconsistencies in Mr. Arabalidoosti’s
testimony, the Board was not required to mention the letter from Mr.
Arabalidoosti’s father in which he related the facts of which he had knowledge.
This undated letter, which does not contain any mention of the place where it
was written, is self-serving evidence, in that it was written at the request of
Mr. Arabalidoosti for the purposes of his refugee protection claim and has no
probative value.
The respondent submits that it is not an
error for the Board to explain why it gave no weight to documents offered in an
attempt to substantiate allegations found not to be credible. That submission
is valid but not necessary. The Board determined, at page 5 of its reasons,
that it was rejecting such evidence as the letter issued to the applicant by
the PPP in 2001 because the claims which the applicant sought to substantiate
with that letter were found not to be credible. The Board did not believe that
the 1993 collision was related to efforts by the PML to harass or threaten the
applicant. It therefore stated the following:
[...] The claimant's sole supporting
evidence of his thesis of the 1993 plot against his person consist (sic)
of a PPP letter dated February 16, 2001 and obviously issued upon the
claimant's (applicant's) request. This self-serving evidence can not (sic)
be given much probative value considering that the claimant's allegations are
not credible nor (sic) plausible.
Prior to this portion of the reasons, the
Board explained its reasons for finding that the allegations of the applicant
was not credible or plausible. It was therefore entitled to reject the
documentation in support of those allegations. (Waheed, supra,
paragraph 42)
[22]
As decided
in Ozdemir v. Canada (Minister of Citizenship and Immigration),
2001 FCA 331, [2001] F.C.J. No. 1646 (QL), at paragraphs 9 to 10,
such evidence does not have to be mentioned.
Decision-makers are not bound to explain
why they did not accept every item of evidence before them. Much depends on the
significance of that evidence when it is considered in light of the other
material on which the decision was based: see Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35.
Nor will a reviewing court infer from the
failure of reasons for decision specifically to address a particular item of
evidence that the decision-maker must have overlooked it, if the evidence in
question is of little probative value of the fact for which it was tendered, or
if it relates to facts that are of minor significance to the ultimate decision,
given the other material supporting the decision.
[23]
The
newspaper excerpt must be dealt with in the same way because it is a text,
written in Dutch; therefore, the connection with Mr. Arabalidoosti was not
made.
This Court has repeatedly held that a
claimant must establish a credible link between his claim and the objective
situation prevailing in a country in order to be granted Convention refugee
status (Canada (Secretary of State) v. Jules, (1994), 84 F.T.R. 161).
Accordingly, it will not suffice for an applicant to present evidence showing
problems encountered by some of this fellow-citizens. He must also establish a
connection between his claim and the objective situation in his country. I am
satisfied that such a connection could be based on the evidence contained in
the record. I consider that the Refugee Division erred in not taking the
objective situation in Iraq into account. (Al-Shammari v. Canada (Minister of
Citizenship and Immigration) 2002 FCT 364, [2002] F.C.J. No. 478 (QL), at
paragraph 24)
[24]
In Waheed,
supra, at paragraph 41, Mr. Justice Michel Beaudry affirmed that the
panel may consider the testimony and documentary evidence to assess
credibility. The panel must also determine the probative value given to
documentary evidence.
The Board is entitled to consider the
evidence, testimonial and documentary, as a whole in order to determine its
credibility: Mostajelin v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 28 (F.C.A.) (QL). As discussed above, the Board was within
its rights to make the determination that it did with respect to the
credibility of the applicant. Having done that, the Board was entitled to
determine the probative value that would or would not be given to documents
offered in support of the testimony of the applicant.
CONCLUSION
[25]
Mr.
Arabalidoosti contradicted himself on essential facts of his refugee protection
claim. The Board drew its conclusions on the basis of the evidence it had. Mr.
Arabalidoosti did not show that the Board committed a patently unreasonable
error. He only showed that the evidence could have been interpreted
differently. This Court must show much greater judicial deference to findings
of fact. Accordingly, the application for judicial review must be dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application be
dismissed;
2. No serious question of general importance be
certified.
“Michel M.J. Shore”
Certified
true translation
Michael
Palles
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