Date: 20030416
Docket: IMM-5490-02
Neutral citation: 2003 FCT 441
Toronto, Ontario, Wednesday, the 16th day of April, 2003
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
ESMAIL HEMMATI KUMAR SOPHLY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Esmail Hemmati Kumar Sophly (the "Applicant"), a citizen of Iran, came to Canada in September 2000 and claimed refugee status on the basis of a well-founded fear of persecution at the hands of Iranian authorities on the grounds of his political opinion. In a decision dated September 19, 2002, the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") determined that he was not a Convention refugee. The Applicant seeks judicial review of that decision.
[2] The determinative issues in the Applicant's claim before the Board were credibility and well-foundedness. That Board found insufficient credible and trustworthy evidence to determine that the Applicant's fear of persecution was well-founded. Based on the totality of the evidence, the Board found that, on a balance of probabilities, there was less than a mere possibility that the Applicant would be persecuted on any of the Convention grounds if he were to return to Iran.
Issues
[3] The issue raised by this application can be stated as follows:
1. Were the Board's credibility findings and findings of fact patently unreasonable?
Analysis
[4] For the reasons that follow, I am the view that, read as a whole, the decision of the Board was not patently unreasonable. Accordingly, this application should not succeed.
Standard of Review
[5] Questions of credibility and weight of evidence are matters particularly within the Board's jurisdiction to decide (Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (C.A.) (QL)). As a result, the appropriate standard of review is one of patent unreasonableness, which means that findings of credibility must be supported by the evidence and must not be made capriciously or based on erroneous findings of fact (Aguebor, supra). Even if this Court would have reached a different conclusion based on the evidence, the Board's decision should not be overturned unless it was perverse, capricious or made without regard to the evidence before it (Grewal v. Canada (Minister of Employment and Immigration), [1983] F.C.J. No. 129 (C.A.) (QL) ; Ankrah v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 385 (T.D.) (QL); Oduro v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 560 (T.D.) (QL); Tao v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 622 (T.D.) (QL)).
[6] The Applicant raises 28 alleged errors in the decision. Having reviewed the record, I am of the view that a number of the specific submissions of the Applicant are clearly wrong in that they misconstrue the Board's decision or are contradicted by evidence on his Personal Information Form ("PIF"). With respect to the other alleged errors, I have chosen to discuss directly those alleged errors that are central to the decision of the Board or which might have been in made in error.
The Applicant's Political Relationship with Ali
[7] A major factor in the Applicant's case was his relationship with Ali Shamlou ("Ali"), a student activist. The Board found that the authorities were not interested in the Applicant because of his political relationship with Ali and that the two men were acquaintances, but not good friends. The Board based this finding, in part, on an inconsistency in the Applicant's evidence regarding how often he saw Ali. In the Applicant's submission, this inconsistency did not actually exist.
[8] On the basis of my review of the record, I am of the view that the Applicant's testimony with respect to his relationship with Ali was not consistent and supports the Board's conclusion that the Applicant and Ali were merely acquaintances and not good friends.
[9] The Applicant also submits that the Board erred by focussing on the Applicant's subjective perspective of his relationship with Ali, rather than the authorities' perception of that relationship. In my view, it was open to the Board to find that the authorities would not be interested Applicant because of his relationship with Ali. According to the Applicant's testimony, that relationship was not very close. The Applicant stated that he did not see Ali very often and did not know much about him, and that the Applicant was not very involved in student or political issues.
[10] The Applicant submits that there was no evidence to support the Board's finding that he and Ali were, at best, peripherally involved in the December 1997 meeting and that they were not perceived as a threat by university or security forces. The Applicant also submits that the Board's acceptance that he and Ali were interested in student issues and that they had participated in efforts designed to bring such issues to the attention of the university authorities clearly supported a finding of risk. This statement, in the view of the Applicant was inconsistent with the Board's finding that the Applicant did not come to the attention of the Iranian authorities.
[11] I agree with the Respondent's submission that the Board's findings were open to it on the record. In my view, it was open to the Board to find that the Applicant was not perceived as a threat by the authorities, given his low level of involvement in student issues. The Board's acceptance of the Applicant's interest in student issues is not inconsistent with this finding.
[12] Finally, the Applicant submits that whether he was knowledgeable about the Iranian Communist Labour Party (ICLP) was not an issue since he was arrested because of his perceived association with Ali and not his real involvement with that political party. In my view, a review of the Board's decision does not indicate that they made an issue out of his knowledge of the ICLP and, as a result, the Applicant has raised no error in this submission.
The Applicant's Escape from the Hospital
[13] In one important incident described by the Applicant, he alleged that he was taken to a detention centre, beaten and interrogated for one week. Near the end of that week, the Applicant fell unconscious and had to be taken to the hospital. He regained consciousness in the hospital bed, realized he was in a locked ward for prisoners at the Sepah Pasdaran Tabriz Hospital where he had trained and managed to escape.
[14] The Board found that the Applicant's allegations of his arrest on August 16, 2000 and subsequent escape from the hospital were not true. The Board based this finding on the Applicant's inconsistent testimony regarding the guard, the length of time that he was unconscious and its implausibility findings that the Applicant would be unconscious for such an extended period of time without repercussions to his cognitive, physiological, mental and medical health and that the prison ward would be left unguarded and unlocked.
[15] Having reviewed the record, I am satisfied that the Board's finding on this issue were open to it based on the Applicant's evidence. The Board identified a number of inconsistencies and implausibilities in the Applicant's escape story. It was not patently unreasonable for the Board to find the Applicant's escape story incredible.
The Cigarette Burns
[16] The Applicant raises a number of errors in the Board's conclusion regarding cigarette burns that he claimed to have received during his detention. These burns were referred to in the report of Dr. Block, filed by the Applicant in support of his claim.
[17] In the Applicant's submission, the Board erred by failing to consider the report of Dr. Block (Owusu-Ansah v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 442 (C.A.) (QL)), by finding contradictions that did not actually exist (Ahmed v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 968 (C.A.) (QL)), and by drawing an adverse inference from the Applicant's failure to mention the details of the burns in oral testimony when those details were contained in his PIF narrative which was before the Board.
[18] One conclusion in particular was referred to by the Applicant. The Board stated:
A further inconsistency is contained in the disclosed medical report, in which Dr. Block states that "at some point he lost consciousness and was hospitalized, and he told me that when he came to, he noted that the burn on his arm was blistered, and had been cleaned with betadine..." ...The claimant's evidence during the hearing does not mention these details of his injury to his left arm, nor the medical treatment of the burn and blisters. Rather, the claimant states that when he recovered from unconsciousness, he lay still with his eyes closed for more than one hour until his guard left the room, at which point he then made his escape.
[19] In my view, the problem with the Board's finding of inconsistency is that it was not raised with the Applicant. It is likely an error. However, it is clear from the Board's decision that the Board did not rely heavily on this inconsistency for its negative credibility finding.
Inconsistency in the Applicant's Evidence
[20] The Board found a number of inconsistencies between the evidence given by the Applicant at the Port of Entry ("POE") and in his PIF and oral testimony. In particular, at the POE, the Applicant stated that he was convicted of anti-government teaching and sentenced to ten years. The Applicant denied making this statement, saying that he told the officer that if he were caught he would face such a penalty, and blames the errors and inconsistencies on the lack of an interpreter. The Board found this explanation unsatisfactory given the detailed nature of the POE notes, which indicated that the Applicant was competent in English, and the Applicant's agreement to proceed without an interpreter.
[21] In the Applicant's submission, the Board also erred by admitting the POE notes as credible when they were clearly unreliable due to the absence of an interpreter.
[22] I do not agree with the Applicant. The Applicant was able to provide the immigration officer with detailed information at the POE, some of which is consistent with details in the Applicant's PIF. In addition, it is apparent from the Applicant's Affidavit that he understands English, as he was able to point out a translation error made by the interpreter at the hearing.
[23] Even if the Board did err in using the inconsistency between the POE notes and the rest of the Applicant's evidence as a basis for its adverse credibility finding, this would not be a reviewable error. The Board's adverse credibility findings were based on a number of inconsistencies, contradictions and implausibilities in the Applicant's evidence and the inconsistencies between the POE notes and the rest of the Applicant's testimony was not a central part of its conclusion.
Conclusion
[24] Having reviewed this decision in its entirety and the able submissions of counsel for the Applicant in respect of some 28 alleged errors, I am unable to conclude that the decision was patently unreasonable. This is not a situation as in Abdul v. Canada (Minister Citizenship Immigration), 2003 FCT 260, [2003] F.C.J. No. 352 (Q.L.) where the tribunal made serious errors on each of the three key credibility findings. Rather, in this case, almost all of the findings of the Board, and all of its determinations on the more serious issues, were reasonably open to it on the evidence.
[25] With respect to the assertions by the Applicant that many of his explanations were not referred to by the Board in its decision, I am unable to agree. The panel directly or indirectly referred to his explanations in its reasons with respect to all of its key findings.
Certified Question
[26] Neither party proposed a question for certification. None will be certified.
ORDER
This Court orders that this application for judicial review is dismissed. There is no question for certification.
"Judith A. Snider"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-5490-02
STYLE OF CAUSE: ESMAIL HEMMATI KUMAR SOPHLY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, APRIL 15, 2003
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: WEDNESDAY, APRIL 16, 2003
APPEARANCES BY: Mr. Alp Debreli
For the Applicant
Mr. Lorne McClenaghan
For the Respondent
SOLICITORS OF RECORD: Alp Debreli
Barrister & Solicitor
6 Adelaide Street East
Suite 710
Toronto, Ontario
M5C 1H6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030416
Docket: IMM-5490-02
BETWEEN:
ESMAIL HEMMATI KUMAR SOPHLY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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