Date: 20030905
Docket: IMM-3219-02
Citation: 2003 FC 1028
Ottawa, Ontario, this 5th day of September, 2003
Present: The Honourable Justice James Russell
BETWEEN:
AMIN MOHAMMADI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board (the "Board"), dated May 31, 2002 (the "Decision") which held that Amin Mohammadi (the "Applicant") is not a Convention refugee.
BACKGROUND
[2] The Applicant is a citizen of Iran. His claim was based on his fear of persecution in Iran because of, primarily, his political opinions or his perceived political opinions. He claimed to have been involved in the student demonstrations against the government at Tehran University on July 11, 1999.
DECISION UNDER REVIEW
[3] The Board's conclusion that the Applicant was not a Convention Refugee was based primarily on the finding that there were implausibilities in the Applicant's evidence. Essentially, the Board felt it had not been provided with sufficient credible or trustworthy evidence upon which to find that the Applicant, on a balance of probabilities, had a reasonable fear of persecution.
[4] In its Decision, the Board raised several implausibility findings with regard to the Applicant's story. The Respondent submits that several of those findings concerned fundamental facts upon which the Applicant's claim rested. In particular:
(a) The Applicant claimed that after the July 11, 1999 demonstration at Tehran University (in which he participated) he was afraid for his life because security forces personnel were throughout the University and the surrounding area and were arresting people thought to be involved in the demonstration. Nevertheless, the Applicant did not attempt to leave the area, but claimed to have gone to the Toraj bookstore (close to the University) after the demonstration;
(b) The Applicant testified that when he went to the Toraj bookstore after the demonstration the owner advised him to leave the area for his own safety and that he followed that advice. Nevertheless, the Applicant claimed that 3 days later he returned to the bookstore, while the area was still under surveillance, looking for his cousin, even though he and his cousin attended the demonstration separately and were not together during the demonstration;
(c) Considering the reputations of the various security forces involved in the break-up and subsequent investigation of the July 11, 1999 demonstration, and considering the role that the Applicant claimed to have played in that demonstration, the Board found it implausible that he would return to an area so close to where the demonstration had taken place to look for his cousin, who also would have been attempting to avoid arrest and detention;
(d) The Applicant claimed that the authorities had mistreated him for many years and that he spent time in the army. Nevertheless, the Applicant claimed that he was not harassed or assigned difficult tasks in order to punish him for his indifference to the regime. The only "sanction" he experienced was that he was not allowed to carry a weapon while in the military;
(e) The Applicant claimed that in 1994 his co-workers, who were supporters of the Mujaheddin, caused him to be arrested. During his alleged six week detention he claimed that he was severely tortured, physically and psychologically, causing him to be bedridden for three weeks. Furthermore, he claimed from 1993-1998 he was dismissed from each job that he had due to political reasons. Nevertheless, the Applicant claimed that neither he nor his family thought of leaving the country.
ISSUES
[5] The Applicant raises the following issues:
What is the appropriate standard of review to be applied to the Decision of the Board?
Did the Board err in law or exceed its jurisdiction in respect of the definition of persecution?
Did the Board err in determining the Applicant was not credible?
Did the Board err in determining the Applicant was not at risk?
Did the Board misconstrue the evidence of the Applicant in determining that he was not credible?
Did the Board violate the benefit of the doubt principle?
ANALYSIS
[6] The Court must first determine the appropriate standard of review for this case.
[7] In Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 the Federal Court of Appeal discussed the standard of review for Refugee Division decisions at paragraph 4 of its decision:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: Who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[8] The Court should not seek to re-weigh evidence before the Board simply because it would have reached a different conclusion. As long as there is evidence to support the Board's finding of credibility and no overriding error had occurred, the decision should not be disturbed.
[9] There are numerous aspects of the Decision that give rise to possible error but, in my opinion, it stands or falls on the way the Board handled the Toraj bookstore sequence and the Applicant's not leaving Iran sooner than he did.
[10] As regards the bookstore incident, the Applicant claims that the Board made a patently unreasonable finding when it found it implausible that the Applicant would return to the Toraj Bookstore (twice) after the July 11, 1999 demonstration took place to look for his cousin, Babbak, especially when they did not go to the demonstration together.
[11] The Respondent submits that the Board found the Applicant's evidence on this point implausible not only because he testified that he and his cousin were not together during the demonstration and that the two of them went to the demonstration separately, but also because the Applicant was advised by the Toraj bookstore owner to leave the area for his own safety immediately after the demonstration and again some three days later. Furthermore, the Respondent notes that the Applicant stated that he was aware that being in the vicinity of the university was dangerous because security forces were in the process of investigating the circumstances surrounding the demonstration and arresting people thought to have participated. The Respondent submits, therefore, in light of what the Applicant claimed to have known about what the security forces were doing in the area, and based on what he claimed to have done during the demonstration (i.e. active participation and the printing of flyers), and based upon the fact that he knew that his cousin would have been fearful of the security forces as well, the Board was reasonable in finding it implausible that the Applicant would have returned to the Toraj bookstore after the demonstration.
[12] To be precise, the Board concluded as follows about the bookstore incident:
...Given that the environment around the university was tense because people were being arrested and some were running away to avoid arrest, the panel finds it implausible that the claimant would go to the store in the midst of public unrest. If he was so fearful about the situation and had participated in the demonstration, the claimant would have just run away, instead of risking being where there was security, which would have arrested him.
The panel finds the claimant's testimony unreliable and untrustworthy. Despite having been told by the store owner to go away for his security, the claimant alleges he returned to the bookstore after three days, and the bookstore owner told him again to go away because Babbak, the claimant's cousin and his friends had told the security about the claimant's role in photocopying the flyer. When asked why the claimant returned to the bookstore three days after he had been told to go away for his own security, the claimant said he went back to look for his cousin, Babbak. The panel finds the explanation unsatisfactory because the claimant testified that during the demonstration he and his cousin were not together. The claimant said he and his cousin did not go to the demonstration together, they went separately. Therefore, the panel finds it puzzling that the claimant would go back to the bookstore, a place near the university where the demonstration had occurred, and was still under surveillance by security, which indicates a lack of subjective fear.
Given that security had been told that the claimant made photocopies of the flyer, if Sepah or Pasda had to live by their reputation of harassing, beating and torturing friends, or relatives of the suspects, as they are known for, Sepah, Pasdar or Hezbollahis could have closed the bookstore or beat the owner of the bookstore in order to find out about the whereabouts of the claimant. Further, security could have been looking for him since he worked there and lived on the second floor of the bookstore. Based on the above analysis, the panel finds the claimant's testimony is fabricated and not credible.
[13] The Applicant points out that the Board does not really confront and deal with the evidence presented by the Applicant on this issue; it merely rejects that evidence in vague and general terms at being "unsatisfactory" or uses its own hypothetical speculations about what might have happened.
[14] The Applicant referred me to the decision in Samani v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1178 (F.C.T.D.) where Hugessen J. indicated that "it is never particularly persuasive to say that an action is implausible simply because it may be dangerous for a politically committed person." This principle is important to understand, in combination with the reference to L. Waldman's Immigration Law and Practice in Blanchard J.'s decision in Divsalar v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 875 at para. 24, where he states "actions which might appear implausible if judged by Canadian standards might be plausible when considered within the context of the claimant's background."
[15] On the face of it at least, it is difficult to understand why the Board found the Applicant's description of how he went back to look for his cousin after the demonstration to be incredible. It seems plausible that the Applicant feared for his cousin's safety more than his own, and that the bonds of family loyalty may have led him to engage in risky behaviour that might otherwise be indicative of a lack of subjective fear. It is also possible that the Applicant's political convictions led him to engage in risky behaviour that may seem incredible to a Canadian observer.
[16] The Board, in its Decision, does not do a very good job of explaining why the Applicant's testimony was unconvincing in this respect. But a review of the tribunal record reveals the following sequence:
COUNSEL: Okay. Did you participate in any demonstrations?
CLAIMANT: Before?
COUNSEL: No, no. did you participate in any?
CLAIMANT: Yes.
COUNSEL: When?
CLAIMANT: 20th of the year of '78 which is the 11th of July of 1999 - it's one day after I was informed about demonstration by Babbak.
COUNSEL: Why did you participate?
CLAIMANT: Because I hated this regime and I wanted to see the downfall of this regime.
COUNSEL: Okay.
PRESIDING MEMBER: I'm a little confused here.
COUNSEL: (Inaudible) Chair?
PRESIDING MEMBER: I'm really confused. On one hand, you refused to even make copies and had to be forced to do that. Then on the other, you participated in these demonstrations. Please explain that.
CLAIMANT: At the beginning, yes, as I explained, when Babbak suggested it, I didn't want to. But after he talked to me, he convinced me that this is a right thing to do and the police won't behave here. And I participated in a peaceful demonstration or peaceful (inaudible). I was not planning on getting into struggle with anybody or fight with anybody. It was just a peaceful walk.
PRESIDING MEMBER: Counsel.
COUNSEL: And what did you do? So you participated on the - on July 11, 1999?
CLAIMANT: Yes.
COUNSEL: And what happened?
CLAIMANT: I joined the other students and they were yelling slogans. And all the students were asking is to know the people who were the cause of this mass killing or chain killing. And the people who attacked the dormitory, they wanted to know who they were. And they were asking (inaudible) and the Interior Minister to come out and participate. And they were just yelling against the regime and its doing and its dictatorship.
COUNSEL: Okay. And how long did you remain at the demonstration?
CLAIMANT: Approximately two hours.
COUNSEL: Okay. And why did you leave?
CLAIMANT: Because security forces and Hezbollah - they started attacking the students. They were using teargas. They were - they were shooting people. And they started attacking the demonstrators with their baton. And anybody that they could get their hands to them, they were arrested.
COUNSEL: Okay. And did Babbak remain at the demonstration?
CLAIMANT: I separated from - I don't know.
COUNSEL: Okay. And what did you do?
PRESIDING MEMBER: Did you say Babbak?
COUNSEL: Yeah.
PRESIDING MEMBER: So you don't know what happened to Babbak?
CLAIMANT: No.
COUNSEL: Okay. And what happened after that? Where did you go?
CLAIMANT: I went back to the store.
COUNSEL: Okay. And what happened?
CLAIMANT: And then the owner of the store told me that I really should take a few days off.
COUNSEL: Why?
CLAIMANT: It was chaos. I was shocked. I was frightened. And he felt under the circumstances that whatever was happened, it was better for me not to be there a few days.
COUNSEL: Okay. And where did you go?
CLAIMANT: I really didn't know anybody. And so I called my father and I got the address of one of his friends and I went there.
COUNSEL: Now - and where was your father at that time?
CLAIMANT: In the city of Neanku (ph.).
PRESIDING MEMBER: Why would you decide to go there (inaudible)? I'm not sure I understand. To go away at this point. You left - your home was supposed to be over the store.
CLAIMANT: Yes.
PRESIDING MEMBER: You wouldn't have known at this time that you'd be wanted.
CLAIMANT: I - yeah - no, I didn't know and I was not planning to do anything. But the owner told me - the owner of the store told me to stay away.
PRESIDING MEMBER: Why? Did you not ask him - why?
CLAIMANT: He told me that I see that it's getting dangerous because that store was very close to the university and the area.
PRESIDING MEMBER: All right.
MEMBER: So - the store was close to the university. And what was wrong with that?
CLAIMANT: Because he knew that I was participating in that demonstration.
PRESIDING MEMBER: Counsel, I'm sorry, but I need to clarify something else.
COUNSEL: Go ahead.
PRESIDING MEMBER: I have a few questions in this area. Why would he allow you to leave your job and go and participate on that demonstration.
CLAIMANT: I didn't tell him that I was going to go participate on that demonstration. I just - I just told him that I have to - there is something that I have to do.
PRESIDING MEMBER: But you just said, he knew you were in a demonstration.
CLAIMANT: When I went back to his store from my appearance and the (inaudible) that I had, he - I guess that he found out about it.
MEMBER: Did he ask you where have you been?
CLAIMANT: He asked me where I was and I told him.
PRESIDING MEMBER: But you just said he - you guess he found out.
CLAIMANT: At the beginning, yes.
***
COUNSEL: Okay. Now when you were on your way back to the store on July 13th, did you feel any fear? Were you still scared?
CLAIMANT: Yes.
COUNSEL: Okay. Why fear in your return to the store?
CLAIMANT: I really wanted to know had happened to Babbak.
COUNSEL: Okay.
PRESIDING MEMBER: Why would you have to go back to the store to find that out?
CLAIMANT: Because that was the store that Babbak and his friends used to go to this store to buy their books. And as I said, the owner of the bookstore was the relative of Babbak's friend.
PRESIDING MEMBER: And there was no other way to contact Babbak?
CLAIMANT: No. The only way I could have found out about Babbak was by phone - that the lines were disconnected.
[17] In relation to these passages, counsel for the Respondent points out that the Applicant provided contradictory testimony on crucial points: there were no arrangements to meet with Babbak at the bookstore; the owner had told him to leave; he says he came back to look for Babbak and he didn't just call the bookstore; no explanation was given as to why he might find Babbak at the bookstore; Babbak lived in the university dormitory and the lines that had been cut were the phone lines to Babbak's residence.
[18] Counsel for the Respondent urges me to recognize that there were inconsistencies and significant omissions in the Applicant's testimony that lay behind the Board's somewhat tentative conclusions to the effect that "the panel finds it implausible . . ." or "the panel finds the explanation unsatisfactory . . ." or "the panel finds it puzzling . . . ." It is trite law that the Refugee Division is entitled to decide adversely with respect to a claimant's credibility on the basis of contradictions and inconsistencies in the claimant's story. Moreover, the Refugee Division is entitled to make adverse findings regarding credibility on the basis of the implausibility of the claimant's testimony alone.
Sheikh v. M.E.I., [1990] 3 F.C. 238, 112 N.R. 61, 71 D.L.R. (4th) 604, 11 Imm. L.R. (2d) 81, (F.C.A.)
Leung v. M.E.I. (1990), 74 D.L.R. (4th) 313, 120 N.R. 391 (F.C.A.)
Alizadeh v. M.E.I., [1993] F.C.J. No. 11 (F.C.A.)
Ankrah v. M.E.I., [1993] F.C.J. No. 385 (F.C.T.D.)
Oduro v. M.E.I. (1993), 66 F.T.R. 106 (F.C.T.D.)
[19] Furthermore, the Federal Court of Appeal has held that negative decisions on a person's credibility are properly made as long as the tribunal gives reasons for so doing in "clear and unmistakable terms."
Hilo v. M.E.I. (1991), 15 Imm. L.R. (2d) 199, 130 N.R. 236 (F.C.A.)
[20] A review of the Tribunal Record convinces me that the Respondent is correct in this regard. Although in its Decision the Board does appear to speculate somewhat, the main point is that the Board "finds the claimant's testimony unreliable and untrustworthy" and "fabricated and not credible" in relation to the bookstore incident. The Board does not articulate these credibility concerns as well as it might have done, but I believe there is sufficient explanation in the Decision on this point and that there is sufficient evidentiary basis in the form of inconsistencies in the Applicant's narrative to avoid a reviewable error. It may not have been the decision that I would have made on the evidence, but it is not perverse and it does not warrant interference by this court.
[21] The second significant issue in the Decision is the Board's view that, if the Applicant's story of persecutory abuse were true, he and his family would have left Iran much sooner. The relevant parts of the Decision read as follows:
The panel finds that the claimant does not have a subjective and a well-founded fear of persecution in Iran. The claimant alleges that his problems with Hezbollahis began in 1980. He said he was suspended from school for three weeks for writing a composition in which he expounded freedom of religion and opinion; this resulted in his expulsion from school. The claimant alleges the Hezbollahis harassed him. He went to live with his uncle in Masjid Soleiman where he attended night school. Despite the change of school and area, he alleges the harassment continued, including being called a "traitor Bakhtiari." The claimant alleges he moved back to Ahwaz where he was later drafted in the military. The panel finds that the claimant did not make any attempt to leave the country during that time he alleges he was harassed.
Further, in his account of the military experience, the claimant did not give evidence of bad treatment in the military except the fact that the alleges he was not allowed to carry weapons. The panel finds it implausible that the regime drafted someone they did not trust, kept him for 24 months and did not harass him or assign him to difficult tasks in order to punish him for his indifference to the regime.
The claimant alleges that he had difficulties finding a job upon discharge from the military due to his political background. However, between 1993 and 1998 he worked at three different companies, and was dismissed from each one of them for alleged political reasons. At one of those three jobs he said he be friend co-workers who were supporters of Mujaheddin. The claimant said his association with those co-workers led to his arrest in 1994. He said he was severely tortured physically and psychologically; detained for six weeks and bedridden for three weeks. Upon return to work he was dismissed. The panel finds the claimant's testimony not credible in that the claimant and his family did not think of leaving the country after all that alleged abuse by the security and frustration of dismissal from work.
Counsel argues in her submission (page 7, paragraph 4)-that "the situation between September 25, 1994 and March 2000 are very different. We cannot expect citizens of a repressive regime to flee their country at any occasion. There has to be a possibility of further persecution for them to be granted Convention refugee status. The definition is forward looking." The claimant alleges that his family experienced nearly twenty years of harassment and torture. If the claimant had been subjected to a number of discriminatory or harassment acts, and while those acts may individually not be serious enough to constitute persecution, they might have cumulatively amounted to persecution. If the claimant had a subjective fear of persecution, it is reasonable to expect he would have left before 2000. The panel does not believe that there was past persecution of the family, because if there had been, the family could have either made attempts to, or could have fled their country before 2000. When asked why he did not leave the country, the claimant said, he did not leave because he did not have documents on him. The panel finds claimant's response, lack of attempts to leave the country, indicative of the lack of subjective fear given the alleged abuses, expulsion from school, torture, dismissal from employment, family arrests, detention, hospitalization and having been bedridden. Therefore the panel does not believe that the claimant was ever tortured, because, if the claimant had had the experiences he alleges, he would have made attempts to leave the country earlier than he did. Further, the panel believes, if the claimant had problems finding or keeping a job, it was not from his imputed political opinions, but from causes other than those in the PIF. The panel finds the credibility of the claimant wanting.
[22] The Applicant alleges various reviewable errors as regards this aspect of the Decision. In my opinion, the material points are:
1. The Board concedes a possible sequence of events that are not, when taken individually, persecutory. Therefore, it cannot, at the same time, say that the Applicant should have had sufficient subjective fear to leave Iran earlier than he did;
2. Different people react to events in different ways; the Applicant's credibility cannot be questioned merely because he remained in Iran longer than someone might have done. It is entirely arbitrary for the Board to say the Applicant should have left sooner;
3. As regards the Applicant's military experience, there was no evidence before the Board that people are exempt from military service because they are indifferent to the regime. The Applicant's account cannot be held to be implausible unless there was evidence of the implausibility. The Boards cites no such evidence or reasons for such a finding.
[23] The Respondent counters these arguments by saying that what lies behind these concerns of the Board is the key 1994 incident in relation to which the Applicant testified that, after being tortured, confined and bedridden, he still did not feel he needed to leave Iran. The relevant portions of the transcript on this issue read as follows:
PRESIDING MEMBER: Okay. Counsel asked you about the '94 incident. And you said you were accused at that time of - just a moment. I have my notes here. That you were told about Masud's sister . . .
COUNSEL: No, his father and mother were told about Masud's sister and Masud's father.
PRESIDING MEMBER: In 2000.
COUNSEL: Yeah. The father was told in 2000.
PRESIDING MEMBER: So there are the authority's accusations about 1994.
CLAIMANT: Yes.
PRESIDING MEMBER: Earlier when Counsel was questioning you as to why not leave at that time, I believe and I stand to be corrected, that you said at that time, they had no documents against you.
CLAIMANT: Yes.
PRESIDING MEMBER: And that's somewhat contrary to the Sepa's later - the authority's later statement that there were accusations against you from 1994. Would you explain that?
CLAIMANT: At that time, when I was arrested, it was because Masud and (Inaudible) were not arrested. Later on, when they were arrested, they found out about me.
PRESIDING MEMBER: All right. But it still - the question still remains because you were (inaudible) according to you, tortured during that time. Why would you not think of leaving then?
CLAIMANT: Because at that time, they didn't have anything on me. They were trying to make me to confess.
PRESIDING MEMBER: But that's not the issue though - whether they had something against you or not. The issue is the treatment of you. This sounds like persecution to me. And especially if they have nothing against you.
CLAIMANT: So what do you want me to say?
PRESIDING MEMBER: Why did you not leave - think of leaving then? You have (inaudible) background family background. Your experiences.
CLAIMANT: At that time, I did not feel being at risk 100%. Because regime - it was not clear to the regime that I am - I was a person against the regime. After that, whatever that students' demonstration, I believe that regime was sure that I was against them. And that was the time that I was sure if they ever get hold of me, if they ever arrest me, it's going to be it. And that's why I decided to get out of the country.
[24] The Applicant asserts that it is not now open to the Respondent's counsel to provide the Court with adequate reasons for the Decision that should have appeared in the Decision itself.
[25] The Applicant points out that the whole point of reasons in a decision is to allow the Applicant to know why his case has been refused. Implausibility findings have to be based upon reasonable inferences from the evidence actually before the Board. In the case at bar, the Board never really makes the kind of clear and unmistakable credibility findings that the case law says are required for the Board to reject the Applicant's testimony.
[26] In Akhigbe v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 332 (F.C.T.D.) Dawson J. set out certain principles which govern the treatment to be given to evidence before the Convention Refugee Determination Division:
12 At the same time, certain principles govern the treatment to be given to evidence by the CRDD. Some, relevant to this application, are:
i) When a claimant swears to the truth of certain allegations, a presumption exists that those allegations are true, unless there is reason to doubt their truthfulness. Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (F.C.A.);
ii) The CRDD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and is entitled to reject uncontradicted evidence if not consistent with the probabilities affecting the case as a whole. Aguebor v. Canada (Minister Of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.); Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (F.C.A.);
iii) While the CRDD may reject even uncontradicted testimony, the CRDD cannot ignore evidence explaining apparent inconsistencies and then make an adverse credibility finding. Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.);
iv) Where the CRDD finds a lack of credibility based on inferences, including inferences concerning the plausibility of the evidence, there must be a basis in the evidence to support the inferences. Miral v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 254 (F.C.T.D.);
v) In the absence of evidence to contradict the evidence of a claimant, it is an error for the CRDD to require documentary evidence corroborating the claimant's allegations. Ahortor v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R. 137 (F.C.T.D.); Lachowski v. Canada (Minister of Employment and Immigration) (1992), 18 Imm. L.R. (2d) 134 (F.C.T.D.); and
vi) The omission of a significant or important fact from a claimant's PIF can be the basis for an adverse credibility finding. Grinevich v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 444 (F.C.T.D.); Lobo v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 597 (F.C.T.D.).
[27] The appropriate standard of review relating to findings of credibility is that of patent unreasonableness, as indicated by Snider J. in Ozo v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 561 (F.C.T.D.):
10 The parties agreed that 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 v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.) (Q.L.); Singh v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 514 (C.A.) (QL); Muhammed v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 815 (T.D.) (QL)).
11 Although this Court may be equally well-placed to assess the plausibility of the Applicant's claim in light of the documentary evidence, it is not the role of the Court to re-weigh the evidence before the Board and the burden is still on the Applicant to show that the Board's inferences could not have reasonably been drawn (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 (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); Grewal v. Canada (Minister of Employment and Immigration), [1983] F.C.J. No. 129 (C.A.) (Q.L.); Muhammed, supra).
[28] When reviewed in its entirety on the issue of a lack of subjective fear of persecution, the Board's principal reason for rejecting the Applicants account is that, if he and his family had suffered what the Applicant said they had suffered, they would have left Iran much sooner.
[29] The jurisprudence of this Court establishes that where the Board finds a lack of credibility based on inferences, including inferences concerning the plausibility of the testimony, there must be a basis in the evidence to support the inferences. In my opinion, the Board in the case at bar fails to articulate a sufficient basis on the evidence for this key point. Behind the Board's conclusions in this regard lie a host of assumptions and speculations for which there is no real evidentiary basis. For the Board to have proceeded in this way was a reviewable error.
[30] Because these are the key issues in the Decision, I find them determinative of the application before me. Other matters of concern were somewhat peripheral to the Board's decision.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed, the May 31st, 2002 decision of the Immigration and Refugee Board is set aside and the matter is remitted for redetermination by a differently constituted panel; and
2. No questions will be certified.
"Justice Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3219-02
STYLE OF CAUSE: AMIN MOHAMMADI v. MCI
DATE OF HEARING: July 29, 2003
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER
AND ORDER BY: RUSSELL, J.
DATED: SEPTEMBER 5, 2003
APPEARANCES BY: Mr. Micheal Crane
For the Applicant
Mr. Michael Butterfield
For the Respondent
SOLICITORS OF RECORD: Mr. Micheal Crane
Barrister and Solicitor
166 Pearl Street
Suite 100
Toronto, Ontario
M5H 1L3
For the Applicant
Mr. Michael Butterfield
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
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