Date: 20061219
Docket: IMM-1155-06
Citation: 2006
FC 1528
OTTAWA, ONTARIO, December 19,
2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
SHAHRYAR
SHARIFI KALANGESTANI
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Background
[1]
Shahryar
Sharifi Kalangestani (the “Applicant”) is a citizen of Iran. He fears
persecution in Iran on the basis of his political opinion.
[2]
He
stated in his first Personal Information Form (PIF) signed September 26, 2005,
that the government of Iran wanted to arrest him because they believed he was
doing political activities, that his family had many problems with the regime, and
that one of his brothers was killed by the regime. In his second PIF, he
alleges that from 1991 to 2005, he was harassed and had to endure repressive
measures by the Iranian authorities.
[3]
He
alleges that his current troubles started when he provided a satellite dish to
individuals close to the regime opponent Dr. Hassan Massali. Later on, these
individuals were allegedly arrested on charges of programming
anti-revolutionary programmes. They disclosed information about the Applicant
who was then considered a collaborator and was pursued by the Ministry of
Information and Security. In fear of being arrested and jailed, the Applicant
decided to leave Iran in August 14, 2005, and came to Canada via Turkey and France.
[4]
The
Immigration and Refugee Board
of Canada, (the “Board”) found him not to be credible and turned down
his claim by reason of contradictions in his testimony and omissions and
divergences between his statements to the Immigration Officer at the
Port-of-Entry (“POE”), the Schedule I form, and his two PIFs. Particular
mention was made of the fact that in the POE he stated never to have been
arrested, while in the second PIF he claimed to have been arrested four times.
Issues
[5]
The
Applicant seeks to set the Board’s
decision aside by
way of judicial review by arguing three points:
a) The letter written by Dr. Hassan Massali
(“Massali letter”), a representative of National Alliance Front Abroad, should
not have been rejected;
b) It was patently unreasonable
for the Board to find a lack of credibility based on the differences between
the first and second PIF given that it was explained his brother, who has
little English knowledge, had prepared it using the POE notes; and
c) The translation of the POE
interview was conducted over the phone and the completed form was not read and
translated back to him over the phone.
Standard of Review
[6]
It is settled law that findings of the Board regarding a claimant’s
credibility are findings of fact that are subject to judicial review according
to the standard of patent unreasonableness (Aguebor v. Canada (Minister of
Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)).
[7]
In
my view, this application cannot succeed for the following reasons.
Point a) Massali Letter
[8]
The
substantive portion of the Massali Letter states:
I am informed that Mr.
Shahryar Sharifi Kalangestani was cooperating with a group in Gilan (North
Iran) for freedom & democracy and against Mullahs dictatorship in Iran. Mr. Shahryar Sharifi Kalangestani [sic]
I got the information that some of his “contact persons” were arrested and the
security forces of Islamic Republic of Iran was trying to arrest Mr. Shahryar
Sharifi Kalangestani[. Because] of suppression in Iran, he was forced to leave the country. He
has asked for political refugee in Canada.
I get my
information through our organization and contact persons.
(A.R.
at 16.)
[9]
The
Applicant submits that the Board erred when it rejected the Massali Letter
because even if the Applicant’s evidence was found not credible, the Board
still had the obligation to determine whether the supporting documents were
credible.
[10]
In
considering the relevance of the letter and the weight that it should be
afforded, a few general rules should be established. First, proceedings before
a Refugee Board are of a particular nature such that the only evidence before
the Board is evidence adduced by the Applicant. Section 170(g) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, provides that the
Refugee Protection Division “is not bound by any legal or technical rules of
evidence”
Second, Justice Nadon in Hamid v. Canada (Minister of
Employment and Immigration), [1995] F.C.J. No. 1293 at para. 20 (F.C.T.D.)
(Q.L.) found that once the Board decides that the applicant is not credible it
will logically follow that the Board will not give much probative value to the
documents provided by the Applicant. Justice Nadon states at para. 21 [emphasis
added]:
21 Consequently,
in my opinion, the applicant's assertion that the Board is bound to analyze the
documentary evidence "independently from the applicant's testimony"
must be examined in the context of the informal proceedings which prevail
before the Board. Once a Board, as the present Board did, comes to the
conclusion that an applicant is not credible, in most cases, it will
necessarily follow that the Board will not give that applicant's documents much
probative value, unless the applicant has been able to prove satisfactorily
that the documents in question are truly genuine. In the present case, the
Board was not satisfied with the applicant's proof and refused to give the
documents at issue any probative value. Put another way, where the Board is
of the view, like here, that the applicant is not credible, it will not be
sufficient for the applicant to file a document and affirm that it is genuine
and that the information contained therein is true. Some form of corroboration
or independent proof will be required to "offset" the Board's
negative conclusion on credibility.
[11]
Hamid makes it clear that what is
required is some “form of corroboration or independent proof”, but this is
absent with regards to the Massali Letter. We only have the word of the
Applicant himself that the letter is genuine.
[12]
In
addition, whether the Massali Letter was taken into account or not does not
help the Applicant because the knowledge that Massali has regarding the events
contained within the two PIFs is from third parties and not substantiated;
i.e., there is no indication either way where the information was obtained from.
It does not reveal that those were the events that actually occurred, but only that
this was the information he was able to obtain from unspecified sources. In
fact, the only detail that the Massali Letter may have been able to establish
was the fact that the Applicant was “cooperating with a group in Gilan (North
Iran).”
Point b) The PIFs
[13]
The
Board found that the Applicant changed almost his entire PIF by adding
information that the Applicant did not mention to the Immigration Officer. The
Applicant argues that the negative credibility finding was patently
unreasonable since it was explained that his brother, who has little English
knowledge and is not a legal counsel, had prepared the first PIF using the POE
notes. Given that his brother is not an experienced counsel, the Applicant may
not have had adequate advice as to what should be stated within the PIF (Yilmaz
v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1498). However, that would only
explain minor variations, but not whole sale or major changes, as the case is
here.
[14]
The
Applicant argues that there are discrepancies because his “brother appears to
have used the information as written in the POE notes to complete the
PIF” (A.R. at 85). However, this is not necessarily true. For example, in the
Immigration Officer’s notes it is written that the Applicant answered “no” to
the question of whether he had ever been arrested/detained by the
police/military in any country. Yet the first PIF clearly states that in fact,
the Applicant had been sought/arrested/detained by the police/military.
Therefore, this explanation does not sufficiently explain away the discrepancy.
[15]
Furthermore,
as was made clear during the hearing, it was the Applicant who prepared the
first PIF with help from the brother.
Question: And both documents
were translated to you from English to Farsi?
Applicant: Second one, yes. The
one which I filled with my brother, the first one I did it with help of my
brother, and the second one with the help of interpreter of my lawyer
(Minutes of Hearing of
Immigration and Refugee Board’s Refugee Division, Tribunal Record at 160 [emphasis
added].)
[16]
At
no time did the Applicant state that he was unaware of the information
contained in the first PIF when it was submitted. Also, the Applicant does not
dispute the other discrepancies relating to his address and employment. The
only explanation provided was that he made a mistake and did not understand the
importance of being precise. In his first PIF, he did not mention that he owned
a store, which incidentally was where he was arrested for drinking.
[17]
Given
the cumulative effect of the inconsistencies and omissions and the totality of
the evidence, it was reasonable for the Board to find a lack of credibility on
the basis of the discrepancies between the PIFs (Mirza v. Canada (Minister of Citizenship and Immigration), 2004 FC 252).
Point c) The POE Interview
[18]
The
Applicant maintains that any discrepancies as a result of any statements he
made at the POE interview should be discounted because of the circumstances
surrounding the interpretation. The Applicant should have raised the concern regarding
the quality of the interpretation at the POE interview if this was a concern
that needed to be addressed at the time.
[19]
It
was reasonably open to the Board to make a negative credibility finding based
on the discrepancy between his POE response that he was not being sought
by the police or military in Iran and his oral testimony and his PIFs that
he was being sought by the intelligence and security forces in Iran. It was also
reasonably open to the Board to find a lack of credibility when the Applicant
stated at the POE interview that he had never been arrested or detained by the
police or military, but then later admit that in fact, he had been arrested or
detained. These are clearly inconsistent statements and no explanation was provided from the Applicant that the Panel found
was reasonable.
[20]
The
circumstances of the interpretation do not aid the Applicant in overcoming the
negative credibility finding because first, it is not disputed that translation
services were provided. Second, whether or not he was detained or sought are
simple enough questions. He answered them negatively. I find it difficult to
accept the Applicant’s contention that these are difficult intricate questions
that require legal advice before answering or that they are likely to be
confused in translation. Failure to read back the translated form, while preferable,
is not a requirement that will render a decision reversible when it is absent.
[21]
In
my view, there was ample evidence to support
the Board's credibility finding and I can find no obvious defects in the
Board’s decision that would render it unreasonable, let alone patently
unreasonable. Accordingly, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be
dismissed.
“Konrad
W. von Finckenstein”
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