Date: 20030121
Docket: IMM-1820-02
Neutral Citation: 2003 FCT 22
Between:
ESFANDYAR BOKAYI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "Board") dated April 4, 2002, determining him not to be a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
The applicant's hearing took place on November 27, 2001, and the Board rendered its decision on April 4, 2002. The Board stated its decision as follows, at page 6 of its reasons:
Having assessed the country documents as stated above, and taking into consideration all of the evidence adduced by the claimant, I have not found the claimant's testimony to be either trustworthy or credible. I do not accept that the claimant has a well-founded fear of persecution if he returns to Iran. As I have not found the claimant to be credible, I have only given consideration to the issues of personal identity, objective basis and credibility in the determination of this decision.
The Board supports its decision with the following reasons:
- the applicant's response to the production of original personal identification documents was extremely evasive and his oral testimony was neither plausible nor trustworthy;
- the Immigration and Refugee Board Documentation Centre was unable to find a record of the existence of the group Javid Iran;
- the applicant stated that ordinary people did not know about the organization and that the name "Javid Iran"did not appear on any of the material they distributed in Iran; and
- the applicant only knew twelve members of Javid Iran, and stated when asked why he did not know more, that "life went through some changes". He did not know if there was a membership list for Javid Iran.
The applicant submits that the Board made an unreasonable finding with respect to credibility. The Board is a specialized tribunal which can consider the plausibility and credibility of a testimony so long as the inferences which it draws from it are not unreasonable (Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)) and its grounds are explained clearly and comprehensibly (Hilo v. Canada (M.E.I.) (1991), 15 Imm.L.R. (2d) 199 (F.C.A.)). In this case, the Board's grounds were explained neither clearly nor comprehensibly.
On the issue of personal identity, the Board accepted that "it is possible the claimant is who he claims to be", on the balance of probability. However, in reaching that conclusion, it raised concerns about the applicant's credibility. It based these concerns on the fact that the applicant testified that the original military card and National Identity document, which, at a previous hearing date, he had said had been mailed to him, had been lost. The Board also stated that the applicant testified that his National Identification, military discharge card, library membership card and the title deed to the house in which he had half ownership had probably been destroyed in a boiler explosion at his sister's house, that he had been informed of this four to five months previously, and that he had not given this explanation on his previous hearing dates. On a close reading of the transcripts of the three hearing dates, it is clear that the Board based its concerns regarding the applicant's credibility on contradictions which do not exist. On July 17, 2001, the applicant testified that his mother and sister had sent him the originals of his ID booklet and military discharge card via registered mail, but that he had not yet received them. On November 27, 2001, he testified that these documents were lost in the mail and that he had been unable to trace them, despite repeated attempts. He further testified that his university documents were probably destroyed in the explosion. He stated that the title deed to the house would not have been passed on to his sister, but that all other documents would have been, after his departure from Iran, including his ID booklet, military card and library cards. He did not testify that the latter documents would have been destroyed in the explosion.
The Board has failed to provide adequate reasons for its finding that the applicant's testimony on the existence of Javid Iran was neither credible nor trustworthy. It has simply listed the applicant's responses to questions posed without explaining why it rejected them.
Throughout its reasons, the Board has simply given examples of documentary and testimonial evidence without directly addressing them. Instead, it states at the end of its decision that, taking into consideration all of the evidence, it does not find the applicant's testimony to be trustworthy or credible. This amounts to a general finding of non-credibility which the Board cannot make without explanation (Hilo, supra).
The Board does state that it found the applicant's "response to producing personal original identity documents to be extremely evasive and his oral testimony was neither plausible nor trustworthy". Although a finding of unresponsiveness and evasiveness in answering questions is virtually impossible to review (Samani et al. v. Minister of Citizenship and Immigration (August 18, 1998), IMM-4271-97), the Board has not made it clear that it is the applicant's testimony which was evasive. Instead, it appears to be his inability to produce the required documents which is considered evasion.
The applicant submits that the Board erred in law by assigning no weight to the documentary evidence submitted by his counsel. A tribunal is presumed to have considered the entirety of the evidence before it (Hassan v. M.E.I. (1992), 147 N.R. 317 (F.C.A.)). It is only necessary for a tribunal to refer to evidence directly relevant to the issue being addressed, and which would appear to be in conflict with its conclusion; the requirement for explanation of a rejection of evidence increases with the relevance of the evidence in question to the disputed facts (Cepeda-Gutierrez et al. v. Canada (M.C.I.) (1998), 157 F.T.R. 35).
In this case, the Board included excerpts from two documents in its reasons: Response to Information Request IRN33937.FE and Response to Information Request IRN37446.E. The first document makes no reference to Javid Iran. Although the Board has, again, failed to explain why it included this document, it seems to have been as proof that monarchist movements are no longer organized and active in Iran, and that most monarchists are now of advanced years. The applicant had provided a document which directly contradicts the evidence relied upon by the Board, in the form of a CNN article describing a protest by hundreds of anti-government demonstrators, mostly pro-monarchists. The Board erred in not addressing this relevant piece of evidence and explaining its rejection of it.
Consequently, because the Board made what amounts to a general finding of lack of credibility without clearly and comprehensibly explaining its reasons for doing so, and because the Board failed to mention a relevant piece of evidence in dismissing the applicant's claim, the
application for judicial review is granted and the matter is referred back for rehearing and reconsideration by a differently constituted tribunal.
JUDGE
OTTAWA, ONTARIO
January 21, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1820-02
STYLE OF CAUSE: ESFANDYAR BOKAYI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: December 11, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: January 21, 2003
APPEARANCES:
Ms. Nora Ng FOR THE APPLICANT
Ms. Pauline Anthoine FOR THE RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR THE APPLICANT
Vancouver, British Columbia
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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