Date: 20041125
Docket: IMM-488-04
Citation: 2004 FC 1660
Toronto, Ontario, November 25th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
BEHROUZ SOLEIMANIAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Soleimanian faced a test of his religious knowledge when he appeared before the Immigration and Refugee Board for the hearing of his claim to refugee protection. He claimed to have been a Shi'a Muslim and now faces persecution in Iran for converting to Christianity. The Board questioned him closely to determine whether he had in fact been Shi'a before professing his new faith. He failed the test.
[2] The Board found that he lacked basic knowledge of Shi'a history and the prophet Muhammad's family and therefore lacked credibility. Moreover, it held that documents offered as corroboration, a letter from a mosque and a copy of the registration of his parents' marriage, were not genuine but created to bolster the claim.
[3] The issues raised in this application for judicial review are:
Did the Board err in its findings regarding whether Mr. Soleimanian was not a converted Shi'a Muslim?
Did the Board err in its finding that the supporting documents were not genuine?
Did the Board err by failing to provide a separate section 97 analysis?
Did the Board err in its findings regarding whether Mr. Soleimanian was not a converted Shi'a Muslim?
[4] The applicant submits that the approach adopted by the Board in these proceedings was bizarre. The Board's questioning related solely to the Shi'a religion, rather than to the conversion that was at the heart of the claim. The finding that he was not credible because he lacked Islamic knowledge is patently unreasonable because there was no evidence that he ever had that knowledge. It is hardly surprising that someone who converts to another religion might not be a "good" Muslim. After all, he rejected Islam in favour of Christianity. The applicant suggests it would have been more reasonable for the Board to probe his knowledge of Christianity to determine whether the conversion was legitimate.
[5] The respondent argues that in the context of the decision as a whole, it is clear that the Board found that the applicant had not established that he was a convert because he did not establish that he ever was Shi'a. The Board's findings were reasonable. Given the testimony related to the extent and participation of the applicant up until the age of 15 in Muslim life and ritual, it was open to the Board to find it incredible that he lacked basic knowledge that any Shi'a should have. The fact that he had converted quite recently is irrelevant. A conversion does not erase a lifetime of indoctrination: Miranda v. Canada (Minister of Citizenship and Immigration) (1993), 63 F.T.R. 81.
[6] While I agree with the applicant that it might not be surprising that a 38-year-old male may not have a solid grasp of the tenets of the religion in which he was raised, I am unable to conclude that the Board's findings as to the applicant's credibility were patently unreasonable. It is apparent from the record of the hearing before the Board that it had special knowledge of the Shi'a faith. The questions posed to the applicant related to basic elements of that faith that would be familiar to anyone who had been raised in the religion. They were not questions that would require theological study to answer, but instead dealt with fundamentals that would be absorbed through attendance at local Mosques for religious festivals, as the applicant testified he did regularly to the age of 15.
[7] At the heart of the claim was the allegation of the conversion, resulting in persecution for apostasy. Without a credible basis to conclude that Mr. Soleimanian was ever a Shi'a, there is no credible basis to conclude that he would be persecuted because of his conversion. The genuineness of the conversion to Christianity or the applicant's knowledge of Christianity might certainly be at issue in some refugee claims, but in this case the inquiry never reached that point. It was open to the Board to reject the claim based solely on its finding that Mr. Soleimanian had never been a Shi'a, and so had not converted. Thus, he would not be exposed to persecution for that conversion.
Did the Board err in its finding that the supporting documents were not genuine?
[8] During the hearing before the Board, as a result of questions about the lack of evidence to support the applicant's claim, he and his then counsel offered to find and submit such documentation. Counsel undertook to write to a Mosque located close to where the applicant's family resided to obtain confirmation that they were Muslim. Following the hearing, counsel acceded to the applicant's concern that a letter from a Canadian lawyer would arouse suspicion and agreed that he would write to the Mosque.
[9] In a letter to the Board dated November 28, 2003, three weeks after the hearing, counsel submitted a copy of a document described as the applicant's parents marriage certificate in which their religion is described as Islamic. In addition, counsel submitted a document described as the letter sent by the applicant to the Mosque bearing an apparent endorsement from the Mosque confirming the applicant's religious status. There was no letterhead or contact information on the paper nor was the original envelope included.
[10] Counsel acknowledged in the November 28th letter that the Board might have concerns about the Mosque letter but stressed that the marriage certificate was a government-issued document and should be relied upon to establish that the applicant was born into a Muslim family.
[11] The Board rejected the applicant's explanation for having written to the Mosque himself and found that the letter and the marriage certificate were not genuine. With respect to the letter, the Board stressed the unsatisfactory form in which it was received. Regarding the purported marriage certificate, which to the court appears to be more in the nature of an entry in a marriage registry, the Board noted that an original had not been provided, it was handwritten and bore no date of issue.
[12] At the hearing in these proceedings, the applicant's present counsel conceded that the finding with respect to the Mosque letter was not patently unreasonable.
[13] The applicant submits, however, that the marriage certificate was an official document and so should have been accepted absent evidence that it was not genuine. The document was produced at the Board's request, so if there were concerns, the Board had a duty to ask for the original or advise of the concerns: Bie v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 576 (T.D.).
[14] There was no opportunity to present evidence about the form of marriage certificates issued 45 years ago or to present the original. The applicant was denied a meaningful opportunity to participate in the hearing because of this omission: Baker v. Canada (Minister of Employment and Immigration), [1999] 2 S.C.R. 817.
[15] The applicant cites a long line of authorities for the proposition that the Board has no expertise respecting foreign documents. It must base its finding on evidence: Ramaligam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 10; Chidambaram v. Canada (Minister of Citizenship and Immigration) 2003 FCT 66; Nika v. Canada (Minister of Citizenship and Immigration) 2001 FCT 656; Ratheeskumar v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1232; Osipenkov v. Canada (Minister of Citizenship and Immigration) 2003 FCT 57; Halili v. Canada (Minister of Citizenship and Immigration) 2002 FCT 999; Cheema v. Canada (Minister of Citizenship and Immigration) 2004 FC 224.
[16] The respondent argues that the marriage document was submitted after the concern about the applicant's Shi'a background was already on the record and the Board was entitled to find that the document did not alleviate its credibility concerns. The Board has expertise in determining the probative value to be given to documents: Kanyai v. Canada (Minister of Citizenship and Immigration) 2002 FCT 850; Gasparyan v. Canada (Minister of Citizenship and Immigration) 2003 FC 863 at para. 6; Hamid v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1293 (T.D.).
[17] It is not sufficient, where there are credibility concerns, the respondent argues, for the applicant to simply file a document and affirm that it is genuine. Some corroboration is necessary and the onus is on the applicant to prove the genuineness of the document: Hamid, supra. The onus is not on the Board to prove that the document is fraudulent: Kanyai, supra. The cases cited by the applicant are distinguishable as they involved original documents, not copies, as in the present case.
[18] In Sadeghi-Pari v. Minister of Citizenship and Immigration, 2004 FC 282, I found that the Board had no particular expertise or evidence before it to assist in determining the validity of Iranian documents and that the Board in that instance had erred in not giving the applicant an adequate opportunity to respond to its concerns about the document in question, a police summons. The facts in this case are quite different in that the impugned marriage certificate was tendered after a hearing in which the applicant's credibility had been seriously undermined by his inability to answer basic questions about the religion in which he claimed to have been raised. The applicant then offered to provide documentary evidence in support of his claim. The Board considered the documents offered and reached adverse conclusions respecting their validity. That finding was open to the Board and not, in my view, patently unreasonable.
Did the Board err by failing to provide a separate section 97 analysis?
[19] At pages 11 and 12 of the Board's reasons, there is what purports to be a section 97 analysis. The respondent conceded at the hearing that it "was not the best ever." I would go further to suggest that it amounted to no analysis whatsoever. The Board merely recited boilerplate about the content of section 97 and concluded with the statement that the risks described therein are not applicable to this claimant.
[20] The applicant argues that the analysis failed to provide adequate reasons and so amounts to a breach of fairness: Lee v. College of Physicians and Surgeons (2003), 66 O.R. (3d) 592 (Div. Ct.); Via Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (C.A.).
[21] The respondent contends that notwithstanding the weakness of the section 97 analysis, the applicant's lack of credibility was determinative for all grounds of protection._ Even if the Board did err, the error is not material in the context of this case, so there would be no purpose in remitting the matter to the Board for a redetermination: Bouaouni v. Canada (Minister of Citizenship and Immigration) 2003 FC 1211.
[22] This Court seems to have come to a consensus that a separate section 97 analysis is not required if there is no evidence that could go to establishing that the person is in need of protection: Brovina v. Canada (Minister of Citizenship and Immigration) 2004 FC 635; Islam v. Canada (Minister of Citizenship and Immigration) 2004 FC 1391; Nyathi v. Canada (Minister of Citizenship and Immigration) 2003 FC 1119; Ozdemir v. Canada (Minister of Citizenship and Immigration) 2004 FC 1008.
[23] In Bouaouni, supra, it was held that the Board addressed the documentation before it and that due to important contradictions in the claimant's evidence, the Board's negative credibility findings were such that there was "no other evidence" that could have led it to find that the claimant was a person in need of protection. Therefore, in that case, even though the Board erred in failing to specifically analyse the claim pursuant to section 97 of IRPA, the court held that the Board's conclusion that the applicant was not a "person in need of protection" pursuant to subsections 97(1)(a) and (b) was open to it on the evidence.
[24] In Kilic v. Canada (Minister of Citizenship and Immigration) (2004), 245 F.T.R. 52 (T.D.), I found that there was some evidence that, aside from the Convention refugee determination, the applicant would be subjected to cruel or unusual treatment or punishment because he was an absentee from conscription. In this case, there was no other evidence before the Board that Mr. Soleimanian is a person in need of protection. His claim rested entirely upon his assertion that he would be persecuted for apostasy. There was no alternative basis upon which to find that he was in need of protection under section 97.
[25] Accordingly, this application will be dismissed. No question of general importance was proposed and none will be certified.
ORDER
THIS COURT ORDERS that
1. The application is dismissed.
2. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-488-04
STYLE OF CAUSE: BEHROUZ SOLEIMANIAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 23, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: NOVEMBER 25, 2004
APPEARANCES BY:
Mr. Michael Crane
FOR THE APPLICANT
Ms. Amina Riaz
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michael Crane
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20041125
Docket: IMM-488-04
BETWEEN:
BEHROUZ SOLEIMANIAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Email this Content