Birgani v. Canada (Citizenship and Immigration), docket IMM-2569-96

     IMM-2569-96

BETWEEN:

     MOZAFAR ARZANI BIRGANI,

     ATOUSA ARZANI,

     ARSHAM ARZANI,

     ARMIN ARZANI,

     FANOUS ALI SHIRI,

     Applicants,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

HEALD, D.J.:

     This is an application for judicial review of a decision of the Convention Refugee Division of the Immigration and Refugee Board (the "Board") wherein the applicants herein were determined not to be Convention refugees.

THE FACTS

     The applicants are citizens of Iran. They entered Canada on September 7, 1994, claiming Convention refugee status. The principal male applicant claimed refugee status for reasons of political opinion and membership in a particular social group. The female applicant and the minor applicants (the "children") based their claim on membership in a particular social group, namely, the family.

     The applicants claimed that the Iranian authorities became interested in them after the principal male applicant's cousin, one Ali Baba Arzani fled Iran because he feared being killed by the authorities as a result of his activities as a communist leader. In February of 1994, the principal male applicant was detained for a week and beaten by the Hezbollah in the course of their search for Arzani. In March of 1994 and again in June of 1994, he stated that he was once more detained and beaten by the Hezbollah. On the June, 1994 occasion, he was accused of being a communist. He also stated that he was kept under surveillance by the authorities during this period. His further evidence was that he was then demoted in his employment because the Hezbollah had informed his employer that he was not only a dangerous man, but an enemy of the revolution as well. He also testified that during this same time period, the Hezbollah visited and ransacked the female applicant's boutique in their continuing search for Arzani. The male applicant arranged with a smuggler to get the family out of Iran. The female applicant obtained a Canadian visitor's visa in April of 1994 to visit her ailing sister in Canada. However, she did not go directly to Canada but left Iran with her husband and children on July 29, 1994. The family spent some time in Turkey and Spain before eventually arriving in Canada in early September, 1994.

THE BOARD'S DECISION

     The Board concluded that there was no credible or trustworthy evidence upon which it could properly determine the applicants to be Convention refugees. The Board also found that even if the male applicant's evidence had been credible, the fear of persecution claimed by the applicants was, nevertheless, not well-founded. Accordingly, the Board determined that the applicants were not Convention refugees.

THE ISSUES

1.      Did the Board err in law in making adverse findings of trustworthiness and credibility?

2.      If the Board did indeed err in law with respect to the adverse findings concerning trustworthiness and credibility, then, does the Board's further determination concerning the absence of a well-founded fear of persecution, also amount to an error in law?

ANALYSIS

1.      Adverse Findings of Trustworthiness and Credibility

     The Board was required to express any negative findings of credibility in clear and unmistakable terms.¹ The Court should not interfere with the decision of a Board of this nature where credibility or plausibility has been assessed provided the decision a quo was properly founded on evidence or did not ignore evidence.

     It is the position of the applicants that the Board's negative findings with respect to the credibility of the applicants is a consequence of faulty interpretation during the hearing before the Board. In support of this submission, they rely on the affidavit of Arash Shenian.² In his affidavit, he states that he is a university student in Canada and that he is proficient in both the English and Farsi languages. He deposed that he listened to the eleven tapes of the proceedings before the Tribunal. He stated that one of the interpreters at the hearing "often translated answers made by the claimants in Farsi that were clear and unequivocal so that the answer did not make any sense in English.".³ He further deposed that when the panel "...asked very broad, general questions, and her translations of the questions into Farsi did not convey the broad meaning, I also noted that the interpreter often took a long time to translate back answers".⁴

     Contrary to Mr. Shenian's opinion, the record of proceedings reveals that the services of three accredited professional interpreters were engaged at the applicants' refugee hearing. Each of those interpreters swore as to the accuracy of the interpretation performed by them. Additionally, the Board, in its reasons, shows its understanding and concern for the fact that the applicants' testimony was given through an interpreter.⁵ My perusal of the record persuades me that neither the applicants or the Board experienced any difficulty with the quality of the interpretation during the four days of proceedings before the Board.⁶ The transcript further establishes that neither the applicants' counsel or the applicants themselves made any objection to any aspect of the interpretation throughout the proceedings. It seems clear to me that the two principal applicants. understood the interpreters and likewise, the interpreters understood the applicants.

     Counsel for the applicants referred to the decision of the Federal Court of Appeal in Mosa v. M.E.I.⁷ as authority for the view that it is not necessary for a party to the proceedings to complain about interpretation problems during the course of the hearings. In my view, the facts in Mosa were quite different from the circumstances at bar. In Mosa supra, the inaccurate interpretation had precluded a particular line of questioning going to the very essence of the refugee claim. Accordingly, prejudice to the applicant was clearly shown on the facts of that case. That is not the situation here. Faulty interpretation can affect assessments of demeanour. In such cases, a breach of natural justice would result. However, here, there is nothing on the record which raises any question as to the Board's ability to properly assess the testimony of the applicants from the perspective of demeanour and credibility. For the reasons given supra, I have concluded that the translations in this case were properly done and, accordingly, the applicants were not prejudiced in any way.

2.      Well-Founded Fear of Persecution

     Since I have concluded supra that the Board did not err in making adverse findings of trustworthiness and credibility, it is not necessary to deal with the Board's further findings of insufficient evidence to establish a well-founded fear of persecution. Nevertheless, I will comment briefly on this ground of review. The applicants left Iran via Mehrabad Airport. The Board concluded from this circumstance that if the applicants were truly wanted by the authorities, and had been labelled as an enemy of the state and were under surveillance, they, in all likelihood, would have experienced much difficulty and intense scrutiny on their departure through the airport.

     There was no evidence to suggest that there were any such difficulties. It is apparent from the record that the Board simply did not believe the applicants story with respect to their departure. In my view, such a conclusion was reasonably open to the Board and in so deciding, the Board did not commit reviewable error.⁸

CONCLUSION

     For the above reasons, I have concluded that the within application for judicial review must be dismissed.

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CERTIFICATION

     Neither counsel suggested certification of a serious question of general importance pursuant to Section 83 of the Immigration Act. I agree with that view of the matter. Accordingly, no question is certified.

                         Darrel V. Heald

                         Deputy Judge

Ottawa, Ontario

May 9, 1997

__________________

     ¹      See Boye v. Canada (Minister of Employment and Immigration) (1993) 160 N.R. 315 (F.C.A.).

     ²      Applicants' Application Record - Tab 3.

     ³      Applicants' Application Record - Tab 3, page 26.

     ⁴      Applicants' Application Record - Tab 3, page 27.

     ⁵      Applicants' Application Record - Tab 2, page 11.

     ⁶      The transcript of Oral Evidence - Page 292.

     ⁷      (April 19, 1993) A-992-92.

     ⁸      Compare Wilberforce v. M.E.I. (IMM-2110-96) F.C.T.D., April 16, 1997.