Date: 20050727
Docket: IMM-4389-04
Citation: 2005 FC 1034
Ottawa, Ontario, this 27th day of July, 2005
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
PIRAN AHMADI POSHTEH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Piran Poshteh claims to have been a supporter of the Mujahedin-e-Khalq (MEK) in Iran. The MEK is an opposition group that has been outlawed by the Iranian government. Mr. Poshteh was found to be inadmissible to Canada as a refugee due to his MEK connections.
[2] However, an officer who performed a pre-removal risk assessment for Mr. Poshteh concluded that there was insufficient reliable evidence that the Iranian government would associate Mr. Poshteh with the MEK. Accordingly, there was little risk that he would be arrested, mistreated or tortured, as many MEK supporters are, if he were returned to Iran. Mr. Poshteh argues that the officer made serious errors in her analysis and asks me to order that another assessment be carried out. I agree that the officer erred and, therefore, will grant this application for judicial review.
I. Issues
[3] While Mr. Poshteh raised a number of issues, I will confine myself to just two:
1. Did the officer err in requiring Mr. Poshteh to produce written proof that the Iranian authorities are aware of his MEK connections?
2. Did the officer err in failing to consider the totality of the risk Mr. Poshteh would encounter on his return?
II. Analysis
A. Did the officer err in requiring Mr. Poshteh to produce written proof that the Iranian authorities are aware of his MEK connections?
[4] Mr. Poshteh claimed that he was arrested and detained for two weeks in 2002 after having distributed leaflets supportive of the MEK over the previous two years. He was then released on bail and fled Iran. He says that after his departure, the police went to see his mother to inquire about his whereabouts. The authorities claimed to have new evidence of his connection to the MEK. Mr. Poshteh surmised that they may have become aware of the fact that his father had been a MEK supporter. His father died while in detention in an Iranian prison.
[5] The officer accepted Mr. Poshteh's testimony that he had been arrested, detained and subsequently released on bail. However, she went on to conclude that, since Mr. Poshteh had been released on bail, the police must not have been interested in him. Therefore, she doubted that the police subsequently went looking for Mr. Poshteh at his mother's house.
[6] The officer discounted Mr. Poshteh's testimony about being sought at his mother's home because he had failed to produce "sufficient objective supportive evidence". The officer did not specifically find that Mr. Poshteh's testimony lacked credibility or that his version of events was implausible. In effect, the officer drew an adverse inference from Mr. Poshteh's failure to provide documentary proof to support his testimony.
[7] Generally speaking, an applicant's testimony cannot be rejected solely because of a lack of corroborative evidence: Ahortor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 705 (T.D.) (QL); Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (C.A.) (QL). Here, the officer accepted Mr. Poshteh's version of events, even without corroborative evidence, up to the point of his departure from Iran. She does not explain why his testimony from that point forward cannot be believed, except for her observation about a lack of corroborative evidence. In my view, the officer failed to observe the presumption that sworn testimony should be taken to be credible unless there is a good reason to doubt it: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.) (QL).
B. Did the officer err in failing to consider the totality of the risk Mr. Poshteh would encounter on his return?
[8] The officer realized that Mr. Poshteh might have some problems when he returned to Iran because he had left without proper travel documents. However, she concluded that these problems would, at most, result in minor punishment or a fine, not torture, a risk to life, or cruel and unusual treatment.
[9] However, the officer did not specifically consider the possibility that Mr. Poshteh might be singled out for particularly harsh treatment because he had absconded while on bail and left Iran illegally. This would surely increase the likelihood that he would come to the attention of the authorities when arriving in Iran and would expose him to a risk of mistreatment beyond what might be experienced by travellers with irregular documents. In my view, the officer failed to take account of the evidence before her.
[10] Therefore, I will allow this application for judicial review. Counsel requested an opportunity to make submissions on a certified question. I will consider any submissions filed within 10 days of this order.
JUDGMENT
THIS COURT'S JUDGMENT is that:
1. The application for judicial review is allowed; and
2. The parties have ten (10) days from the date of this order to propose a certified question.
"James W. O'Reilly"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4389-04
STYLE OF CAUSE: PIRAN AHMADI POSHTEH v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ON
DATE OF HEARING: April 28, 2005
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: July 27, 2005
APPEARANCES BY:
Ms. Elena Constantin FOR THE APPLICANT
Mr. Stephen H. Gold FOR THE RESPONDENT
SOLICITORS OF RECORD:
AVI J. SIRLIN
Toronto, On. FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Toronto, ON FOR THE RESPONDENT
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