Date: 20051109
Docket: IMM-9483-04
Citation: 2005 FC 1524
Ottawa, Ontario, November 9, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
ALIREZA ROOZBAHANI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] The Applicant, Alireza Roozbahani, applies for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated October 25, 2004, wherein he was determined to be neither a Convention refugee nor a person in need of protection.
[2] The Applicant seeks an order setting aside the Board=s decision and remitting the matter for reconsideration by a differently constituted panel.
2. Factual Background
[3] The Applicant is a citizen of Iran born on December 5, 1980. Inhis Personal Information Form (PIF), he alleges that, on July 9, 1999, he and his friends Amin and Babak, who were students at the University of Azad in Tehran, joined a student demonstration. The Applicant was arrested by the Iranian Revolutionary Guards also known as Sepah Pasdaran (Sepah), detained for two weeks in solitary confinement, where he was denied water, beaten and interrogated on his political beliefs, his family background and his political group affiliation. The Applicant states that he was made to sign a declaration of what he had said. The next day he was told to tell the truth, otherwise he would never again see his mother. He was also told that his parents had been arrested and were to be executed.
[4] The Applicant alleges that on July 23, 1999, he was made to sign an undertaking and told to report whenever called. He was told that if arrested again for political reasons, he would be executed. After his release, the Applicant learned that his father had been detained for two days. In November 1999, the Applicant was stopped by local basijies for not attending mosque, detained for two days and beaten so severely that he could not walk for a number of days.
[5] In early November 2002, the Applicant states that his mother was arrested after a raid at her hairdressing salon. His family was informed of her death on November 11, 2002. The Applicant is convinced his mother was killed because of her political opinions, however he does not know if she was a political activist.
[6] After these events, the Applicant states he became more involved in political activities in opposition to the Iranian regime. In February 2003, his friends Amin and Babak prepared a flyer which was critical of the government. The Applicant made copies at the stationary store where he worked, and they distributed the flyer among trusted friends. He distributed such flyers on at least five different occasions and hid a number of these flyers at his home. One of the flyers which the Applicant photocopied and distributed contained a speech by Dr. Aghajari, which was prohibited by the regime.
[7] In June 2003, while the Applicant was away in Karaj visiting his aunt, he was informed by his sister that the Sepah had raided their home, arrested their father, searched the house and found the Applicant=s flyers. The Applicant went into hiding. He learned that his friends had also been arrested and allegedly confessed to his involvement in distributing anti-regime and anti-clergy flyers.
[8] The Applicant fled Iran, transited through Turkey and Italy and arrived in Canada in October 2003.
[9] The hearing before the Board took place on June 16, 2004, and the negative decision was released on October 25, 2004. Leave to commence judicial review was granted on June 7, 2005.
3. The Decision under review
[10] In addition to the Applicant=s testimony, the following documentary evidence was adduced before the Board: the Applicant=s PIF; the Applicant's birth certificate, military exemption card, high school certificate and high school report; his mother=s birth certificate; announcement of his mother=s death; and documents on country conditions in Iran.
[11] The Board determined that there was insufficient credible or trustworthy evidence to support the allegations put forth by the Applicant. Based on his profile, the Board was not convinced that the Applicant would be of any interest to the authorities or that he would be at risk were he to return to Iran. In essence, the Board denied the Applicant=s claim since it found him not to be credible.
[12] The Board consequently determined that the Applicant was neither a Convention refugee nor a person in need of protection.
4. Issue
[13] The following issue is dispositive of the within application: Whether the Board=s negative credibility determinations are patently unreasonable?
5. Standard of Review
[14] It is well established that credibility determinations are the Aheartland@ of the Board=s jurisdiction and are reviewed against the norm of patent unreasonableness: Aguebor v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL); R.K.L. v. Canada(Minister of Citizenship and Immigration), [2003] F.C.J. No. 162 (QL). This Court will only interfere with findings of fact made in a perverse or capricious manner or without regard to the material adduced before the Board: paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7.
6. Analysis
[15] The Board found that there was insufficient credible or trustworthy evidence to support the Applicant=s allegation that he would be of any interest to the authorities. This finding was based on the following factors:
1. The Board did not believe that the Applicant would participate in the distribution of anti-regime flyers given his treatment by the authorities following his earlier participation in a student demonstration;
2. The Board did not believe that the Applicant=s mother was politically involved because her house had not been raided by the basijies. The Board further noted that there was no corroborating evidence that the Applicant's mother was dead;
3. The Board found that the Applicant produced no corroborating documentary evidence establishing that he was in Iran at the time of the alleged incidents;
4. The Board also determined, based on an information report to the Board's Research Directorate dated March 11, 1998, that there was insufficient evidence to show that the Applicant=s siblings were interrogated, and that his father was detained, interrogated, released and required to report weekly.
[16] I will deal with each of the above factors in turn.
[17] The Board stated that, given the treatment the Applicant alleges to have suffered in the hands of the authorities and the death threats he claims to have received, it is implausible that he would have participated in the distribution of anti-regime flyers and political discussions with his friends. The Board found the Applicant's conduct was not consistent with that of a person fearing for his life. The Board also disbelieved the Applicant=s contention that he distributed flyers for young people to understand the regime=s human rights abuses and the need to remove the regime from power. The Board found that he had fabricated these allegations since he testified that he did not belong to a particular political organization and that he did not know the origin of the flyers.
[18] To suggest that it is implausible that the Applicant would engage in activities against an oppressive regime, on the basis that he had been mistreated by the same regime and would be put in harms way, is patently unreasonable. In the words of Mr. Justice MacGuigan, in Giron v. Canada, [1992] F.C.J. No. 481 (QL): ASuch a gratuitous counsel of cowardice as the only standard of plausible behavior can hardly be taken as an objective reflection by the Board.@ In my view these words are applicable to the above plausibility finding of the Board. Further, 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.). Where the Board 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 (QL). The Board found that because of the death threats he received, the Applicant would have been too afraid to have anti-regime discussions with Amin and Babak or to photocopy the anti-regime flyers in the store where he worked. The Board was speculating in respect to the Applicant's activities in the circumstances. There is no evidence on the record to support this finding or the inference drawn or to doubt the truthfulness of the Applicant's evidence. I can only conclude, in the result, that this plausibility finding is erroneous.
[19] I am also of the view that the Board erred in disbelieving the Applicant's account in respect of the distribution of flyers because the Applicant was not a member of a political party and could not remember where the flyers came from. The Applicant explained why he was not a member of a political party and why he still pursued his political activities although they were dangerous. When pressed to explain why he did not belong to a political organization, the Applicant testified as follows:
Counsel: Why did you not join an organization, a political organization?
Applicant: Do you think this is like Canada? If I want to be a member of the Liberal political party, I call them and make an appointment and tell them I want to become a member of your organization? If they reject me, then I become a member of the Conservative Party? It=s dangerous. It=s impossible. For distributing a couple of flyers they were after me, and if you know the (inaudible) sentenced to death (inaudible) just for a few words of criticism they made against the state and religion (inaudible) under so much danger, and then you talk about organization memberships. It=s dangerous, it=s impossible to openly do this.
Counsel: So, when [Babak] and Amin brought you that flyer which said student movement, did you ask [Babak] and Amin can I join this?
Claimant: I think I was already contributing to that movement. You don=t necessarily have to be a member, as long as you do this, you contribute, you help them. It would be equal to being an active member of the organization, and there is no membership card.
[20] In its reasons, the Board did not address the Applicant=s explanation. There is no evidence on the record to suggest that belonging to a political party is a prerequisite to engage in political activities. Further, the Applicant's explanation, in the circumstances, is fully in accordance with logic and common sense. I find the Board's implausibility finding perverse, and in consequence, the Board erred in impugning the applicant's credibility.
[21] The Board also determined that since the mother's shop had not been raided by the basijies, she was not politically involved. While there may exist a correlation between political involvement and having one's shop raided, there is no evidence to support the proposition that a raid is a condition precedent for a finding of political involvement of a shop owner. It is plausible that the Applicant's mother was politically involved, as alleged by the Applicant, even though her shop was not raided. In the circumstances, the finding was not open to the Board since it is unsupported in the evidence and speculative. The Board erred by impugning the Applicant=s credibility on the basis of this erroneous finding.
[22] The Board also impugned the Applicant's credibility for his failure to produce his mother's death certificate, even though he claimed to have attended her funeral. The Board stated that since the Applicant did not provide his mother=s death certificate, which could have shown when she died and the cause of death, it determined that there was insufficient credible or trustworthy evidence to show that the Applicant was in Iran at the Atimes he alleges that he was in Iran@. The Board appears to base two of its factual findings on the Applicant's failure to produce his mother's death certificate; first, that he produced no corroborating evidence of his mother's death and second, that he was not in Iran when he said he was. In respect to the latter finding, it was open to the Board to consider the non production of the mother's death certificate as an element in its determination that the Applicant had failed to establish that he was in Iran at the material times alleged. With respect to the first finding, the record reveals there was other evidence produced in respect to the mother's death.
[23] The record shows that the Applicant did produce his mother=s birth certificate which bears her picture, lists all her personal information and is embossed with a stamp which reads ADeceased@. In addition to this document, the Applicant tendered a copy of the announcement of his mother=s death. Even if it is conceded that the documents adduced do not state the time and cause of death, the fact remains the documents corroborate the Applicant's evidence of his mother's death. Further, the Board acknowledges, at the outset of the hearing, having received these documents but the Board failed to explain why it rejected them. The record clearly establishes that the Applicant did produce corroborating evidence of his mother=s death contrary to the Board=s finding. In my view, the Board's finding of fact is perverse since it is made without regard to the material before it.
[24] The Board relied on an information report dated March 11, 1998, on the treatment by the Iranian authorities of relatives of Mojahedin supporters who left Iran to claim refugee status abroad. The author of the statement opined that it is unlikely that an individual would be arrested or harassed by the Iranian authorities because he is related to a Mojahedin supporter who sought refugee status outside of Iran. The Board relied on this dated report to find that the Applicant and his family would not be arrested or harassed by Iran authorities. This documentary evidence relied on by the Board is over 6 years old and relates to the Mojahedin, an organization unrelated to the Applicant or his family and which is mentioned nowhere in his claim. In my view, this questionable documentary evidence does not relate to the Applicant's circumstances, and does not contradict the Applicant's evidence. In the result the documentary evidence does not support the Board's finding and the Board could not rely on it to impugn the Applicant's credibility.
[25] The Applicant did not produce his fraudulent passport or his plane ticket. Nor did he produce his last pay slip from his employer. The Applicant explained that he did not have these documents. He explained that the smuggler took the passport and plane ticket and that he did not have a pay slip since he was paid in cash. It was proper for the Board to request corroborating evidence establishing that the Applicant was in Iran at the time of the alleged incidents. In its reasons, however, the Board did not expressly consider the Applicant's explanation for failing to produce his false passport, plane ticket and pay slip. The Board simply noted that the Applicant did not have the death certificate and found there to be insufficient credible evidence that the Applicant was in Iran at the times of the alleged incidents. In my view, the Board's conclusion is not warranted because of its numerous erroneous plausibility and credibility findings discussed above. In the circumstances, the Applicant's failure to produce the requested corroborative documentary evidence is insufficient to warrant the rejection of the Applicant=s claim.
[26] This Court held in Vodics v. Canada(Minister of Citizenship and Immigration), 2005 FC 783 at paragraph 11:
It is not difficult to understand that, to be fair to a person who swears to tell the truth, concrete reasons supported by cogent evidence must exist before the person is disbelieved. Let us be clear. To say that someone is not credible is to say that they are lying. Therefore, to be fair, a decision-maker must be able to articulate why he or she is suspicious of the sworn testimony, and, unless this can be done, suspicion cannot be applied in reaching a decision. The benefit of any unsupported doubt must go to the person giving the evidence.
[27] As I have shown above, the Board has failed to justify its credibility and plausibility findings with specific and clear reference to the evidence. A careful review of the record reveals that these findings are either based on a misapprehension of the evidence or unsupported in the evidence and in the result are erroneous. See Armson v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 800 (QL) and Miral v. Canada(Minister of Citizenship and Immigration), [1999] F.C.J. No. 254 (QL).
[28] This is a case where the benefit of any unsupported doubt must go to the Applicant. As discussed in the above reasons, the Board erred by basing its decision on a number of erroneous negative credibility and plausibility findings. The cumulative effect of these erroneous findings warrants the Court's intervention. In consequence, I find the Board committed a reviewable error by relying on these patently unreasonable determinations to find the Applicant generally not credible and to dismiss his refugee claim.
6. Conclusion
[29] For the above reasons, the application for judicial review will be allowed and the matter remitted to a differently constituted panel for reconsideration.
[30] The parties have had the opportunity to raise a serious question of general importance as contemplated by paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and have not done so. I am satisfied that no serious question of general importance arises on this record. I do not propose to certify a question.
ORDER
THIS COURT ORDERS that
1. The application for judicial review is allowed.
2. The matter is remitted to a differently constituted panel for reconsideration.
3. No question is certified.
"Edmond P. Blanchard"
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