Date: 20060530
Docket: IMM-6797-05
Citation: 2006 FC 660
Vancouver,
British Columbia, May 30, 2006
Present:
The Honourable Mr. Justice Martineau
BETWEEN:
SADEGH
DUST PARAST
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicant is contesting the lawfulness of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated September 26,
2005, that he is not a “Convention refugee” or a “person in need of protection”
within the meaning of sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27.
REFUGEE CLAIM
[2]
The
applicant is a citizen of Iran. In his Personal Information Form (PIF), he
alleges that he converted to Mormonism in 2003 after meeting one Sohail Panahi.
Following his conversion, he changed his name and made an effort to propagate
his new religion in his country by distributing photocopies of the Book of
Mormon at various meetings and gatherings. In May 2004, he was wanted by the
Iranian authorities. He managed to hide but three of his friends were arrested,
imprisoned and then executed. Afterwards, he consulted counsel and learned that
Muslims who convert to another religion were at risk of being executed. He
decided to flee his country. With the help of a smuggler, he first went to
Turkey in October 2004. From there he took the train to Italy and then to
Germany. He left Germany by boat on November 6, 2004, and arrived in Canada on
November 16, 2004, using a Norwegian passport.
IMPUGNED DECISION
[3]
In
the impugned decision, the Board determined that the applicant had not
submitted any credible evidence to support his story. The Board decided that
the applicant had no evidence of the actual date that he left Iran, or evidence
of the route he took to arrive in Canada. The Board also determined that the
applicant was entirely lacking in credibility based on the numerous
inconsistencies noted between his testimony, his story and the immigration
officer’s notes at the port of entry. Further, the Board was also of the
opinion that the applicant had not adduced any evidence attesting to his
presence in Iran between 2003 and 2004 or any document supporting the fact that
he had converted to the Mormon religion.
GROUNDS FOR JUDICIAL REVIEW
[4]
The
applicant submits as the primary ground for judicial review that he did not
have the opportunity at the hearing to submit relevant evidence to the Board,
because of the fraudulent advice of his former counsel. At that time, counsel
had strongly advised him not to tell the Board about the following facts,
failing which the Canadian government would remove him, namely that:
-
He
did not leave Iran in October 2004 but rather in July 2000;
-
He
then sought refugee protection in Switzerland, but his claim was later denied;
-
He
was baptized in the Mormon Church in Switzerland in June 2001.
[5]
The
applicant submits that his former counsel made a serious error in advising him
to lie and to hide the existence of his stay in Switzerland. In the applicant’s
opinion, he did not do anything wrong, other than heed the advice of his former
counsel. Indeed, in the beginning of November 2005, the applicant, through
his new counsel, filed a complaint against his former counsel with the Syndic
of the Barreau du Québec. If not for the fraudulent actions of his former
counsel, the applicant is of the opinion that the Board would have allowed his
refugee claim. On November 14, 2005, the applicant filed his application
for leave for judicial review before this Court.
ANALYSIS
[6]
The
applicant has not persuaded me that the Board’s decision should be set aside.
[7]
First,
I note that the lawfulness of the impugned decision is not seriously disputed
here. In this case, the applicant had the opportunity to submit evidence and to
argue his point of view at a hearing properly convened for this purpose, where
witnesses could be heard. Relying on the numerous inconsistencies and the lack
of reasonable explanations from the applicant, the Board could reasonable find
that the applicant’s story was not credible.
[8]
It
is clear here that the Board considered all of the evidence submitted by the
applicant at the hearing. Bear in mind that in support of his refugee claim,
the applicant filed inter alia, two letters to support the fact that he had
converted to the Mormon religion. In a letter dated
February 16, 2005, Bruno Cornil, bishop of the Church of Jesus Christ
of Latter-day Saints in the Hochelaga parish in Montréal, recognizes that the
applicant undertook to take missionary lessons for an official baptism. A
second letter, undated and prepared by a Church Elder, attests to the same
facts. The Board could reasonably determine that the documents in question were
insufficient to establish that the applicant did in fact convert to the Mormon religion.
[9]
The
applicant said that in the summer of 2005 he wanted to change counsel. However,
he decided that it was preferable not to do anything after his former counsel’s
assistant informed him that Citizenship and Immigration Canada (CIC) did not
look kindly on changes of counsel. After that, the applicant returned to see
Bishop Cornil to tell him all of the details of his story, including his
journey to Switzerland. He does not say precisely when this meeting took place.
In any event, in a letter dated December 6, 2005, two months after the impugned
decision, the Bishop attests that on June 3, 2001, the applicant was baptized
in Switzerland in accordance with recognized Mormon tradition.
[10]
Judicial
review is a means of examining the Board’s decision in light of the evidence
before it at hearing, to decide if there were reasons warranting the review of
the initial decision. I need not decide whether the refugee claim would have
been allowed by the Board if the additional evidence that the applicant now expects
to file had been filed at the hearing that took place in July 2005: see Asafov
v. Canada (Minister of Employment and Immigration), [1994]
F.C.J. No. 713 (F.C.T.D.) (QL).
[11]
The
applicant must accept the consequences for his choice of counsel and for his
deliberate decision to lie about his personal situation. It is only in the most
exceptional circumstances that the Court considers the incompetence of counsel.
According to the case law, evidence of counsel’s incompetence must be so clear
and unequivocal and the circumstances so deplorable that the resulting
injustice caused to the claimant is blatantly obvious: see Dukuzumuremyi v.
Canada (Minister of Citizenship and Immigration), 2006 FC 278 at
paragraph 9, [2006] F.C.J. No. 349 (QL); Drummond v. Canada
(Minister of Citizenship and Immigration) (1996), 112 F.T.R. 33 at
paragraph 6 (F.C.T.D.).
[12]
The
incompetence of the applicant’s former counsel was not established before this
Court. Specifically, it was not established that the failure to submit another
letter from Bishop Cornil was due to a lack of competence of the
applicant’s former counsel. If the applicant did not agree with his former
counsel’s strategy, then he should have found a new representative and, if need
be, asked that the hearing be postponed.
[13]
In
this case, the applicant’s lie, which was supposedly prompted by the advice of
his former counsel, did not have the effect of depriving him of the right to be
heard: see Bhullar v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 652 (F.C.T.D.) (QL). In fact, the applicant deliberately
and knowingly gave false testimony, inter alia regarding the date that
he left Iran and the route that he took to come to Canada, and clearly he did
so in order to obtain a favourable decision on his refugee claim. The applicant
also concealed from the Board that he had lived in Switzerland for four years
and that he had unsuccessfully claimed refugee protection there.
[14]
It
is clear that the applicant would not be before this Court had the Board believed
his story. He would not be alleging that he had been improperly advised or
misrepresented by his former counsel. When an applicant addresses the Court to
have a discretionary order issued, as is the case here, his conduct must be
beyond reproach: see Jaouadi v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1347 at paragraph 17, [2003]
F.C.J. No. 1714 (QL); Kouchek v. Canada (Minister of Citizenship
and Immigration), [1995] F.C.J. No. 323 at paragraph 6 (F.C.T.D.)
(QL); E.L.D. v. Canada (Minister of Citizenship and Immigration), 2005
FC 1475 at paragraph 55, [2005] F.C.J. No. 1812 (QL); Mutanda v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1101 at paragraph
16, [2005] F.C.J. No. 1353 (QL). In this matter, the applicant admits that
he lied before the Board. This wrongful conduct is in itself sufficient to
dismiss the application for judicial review, especially since the applicant’s
lie went on for several months.
[15]
Indeed,
as I pointed out in Jaouadi, at paragraph 19:
. . . The Court is not prepared to
accept that a refugee claimant who has fabricated a story on the advice of a
former representative can seek a new hearing before a panel of different
members simply on the basis that he has been badly advised by that person. The applicant
cannot profit here from his own turpitude. It must be borne in mind that the
applicant has taken an oath to tell the complete truth. He must accordingly
bear full responsibility for any perjury he may have committed before the
panel.
[16]
In
passing, I would add that in my opinion the impugned decision, overall, is not
patently unreasonable in the circumstances.
[17]
This
application for judicial review must therefore be dismissed.
ORDER
THE COURT
ORDERS that the application for judicial review be
dismissed. No question of general importance was raised and no question will be
certified.
“Luc
Martineau”
Certified true
translation
Kelley A. Harvey, BCL,
LLB
Email this Content