Date: 20101231
Docket: IMM-2246-10
Citation: 2010 FC 1340
Ottawa, Ontario, December 31,
2010
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
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KHALEGH KHODABAKHSH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction and background
[1]
The
Refugee Protection Division (the tribunal) rejected on April 1, 2010 the claim
for asylum made by the Applicant, now 88 years of age, and a citizen of Iran. He sought
the protection of this country while he and his wife were visiting their two
daughters in Canada. While
visiting, their daughter Farah, the Applicant received a telephone call from
another daughter, Mahnaz who lives in Tehran. She informed her
father she had received a visit from the Iranian authorities who ordered her to
tell her father, when he returned to Iran, he must bring Farah with him, but
did not say why nor did the Iranian authorities inform Mahnaz what would happen
to him should he return without her. During that telephone conversation, Mahnaz
would have also informed her father the authorities were in his home twice had
been asking his neighbours where he was.
[2]
The
couple made a refugee claim in June 2007 but, unfortunately, the Applicant’s
wife died of cancer in Germany before their joint
claim was heard. At the Applicant’s asylum hearing both the Applicant and Farah
testified but with Farah excluded when her father was giving his testimony. He
was present during Farah’s testimony.
[3]
The
tribunal found that neither the father nor his daughter were credible. His
story was not believed. The tribunal did not believe the substance of
the Applicant’s fear which centered on the fact that Farah had converted to the
Baha’i faith before Farah left Iran in the 1980’s, conversion contrary to
Iranian law, and because of this, he feared arrest, detention and
interrogation. Farah’s evidence also centered her assertion that before
she left Iran in the 1980’s she had rented an apartment to an Iranian Baha’i
leader who had recently been arrested with six others in Tehran on February
2009 and were currently on trial for espionage. That fact fuelled the
Applicant’s fear of what would happen to him if he did not return to Iran with Farah.
II. The tribunal’s decision
[4]
After
setting out the Applicant’s fear, the tribunal began its analysis by stating:
[11] The main issue raised in
this claim is that of the credibility of the claimant. I find that there is
reason to doubt the claimant’s truthfulness. In particular, I noted
contradictions, inconsistencies and/or omissions in the claimant’s evidence.
The explanations provided by the claimant were not satisfactory in resolving
these.
[12] There were significant
discrepancies between the testimony of the claimant and that of his Baha’i
daughter, Farah, which gave me reason to doubt the truthfulness of this
claimant’s claim.
[Emphasis added]
[5]
The
tribunal noted three inconsistencies between the Applicant’s testimony and that
of his daughter:
a. On the issue
of when Farah converted, the Applicant stated she converted one year before
she left Iran in the
1980’s. He testified his neighbours knew of the conversion and “they would
confront him with disgust”. Farah, on the other hand, said she did not convert
until 1989 when in Canada.
b. On the issue
of when the Applicant’s wife was struck with cancer, the Applicant
testified the illness was diagnosed in Iran before
they came to Canada but Farah said
her mother was diagnosed with cancer 6 to 7 weeks after her arrival
here.
c. On the issue
of when the Applicant and Farah received the telephone call from Mahnaz, the Applicant
indicated that phone call came after his wife left for Germany while his
daughter said it came within a few weeks of their coming here and before
she left for Germany.
[6]
The
tribunal ruled:
[18] Taken collectively, these
differences would not be determinative of the credibility issue. Taken
together, these discrepancies are significant and concern a substantial aspect
of the basis upon which the claimant has based his claim. The significance of
these discrepancies are particularly important in light of the fact that
the critical parts of the evidence concerning 2009 events, which allegedly
created the claimant’s claim, are completely reliant upon the testimony of
the claimant as to what the other daughter in Iran had told them on one
occasion about events which are otherwise wholly uncorroborated by any other
source, documentary or otherwise. [Emphasis added]
[7]
Before
making this finding the tribunal had noted, although it was not mentioned in
the PIF, Farah had testified it may have come to the attention of the Iranian
authorities that before she left Iran many years ago, she had rented an
apartment to an Iranian Baha’i leader who had been recently arrested with
six others in Tehran in February 2009 and that she was wanted by the
authorities on this account.
[8]
During
the hearing, counsel for the Applicant raised the issue that the differences
between the testimonies were on account of his age. The tribunal said it was
alert to this fact ruling his age was not a factor since “after over an hour of
asking questions, it was clear to me that the claimant was especially alert for
his age and, as his counsel put it later, “sharp”.
[9]
The
tribunal then stated:
[20] With this background of
discrepancy, I must assess the reliability of the evidence about what had been
alleged had happened in Iran in early 2009, events unobserved directly by
either of the witnesses before me, based on hearsay from a daughter in Iran
concerning one alleged meeting she had with Iranian authorities, uncorroborated
by either telephone witness testimony from that daughter or any affidavit,
statutory declaration, or letter from her confirming the allegations.
Moreover, even the hearing of evidence of the daughter in Iran does not include any statement alleged
to have been made by the Iranian authorities as to why they wanted the claimant
to return with Farah or what would happen to him if he did not. Based on the
entirety of the testimony, I find that the evidence of the claimant and his
daughter is not credible or trustworthy.
[Emphasis added]
[10]
The
tribunal embarked on the next step of its analysis stating “in addition to
assessing the credibility of the subjective evidence of the claimant and Farah
“I must also consider the objective evidence as represented by country
reports”.
[11]
The
tribunal said counsel for the Applicant (who was different than counsel before
me) was explicitly asked by it to refer the tribunal to:
Any objective evidence that would indicate any
comparable situation as the situation which she posited as a lifelong Muslim,
threatened by the Iranian authorities because of his daughter who had not been
in Iran for over 20 years, had converted to the Baha’i faith in 1989 and a
citizen in this country in 1992 and had been informed by his daughter in
Iran the authorities ordered her to tell her father when he returned to Iran to
bring with him Farah without saying what could happen to him if he failed to do
so.
[Emphasis added]
[12]
The
tribunal noted counsel could not do so and “that she had tried hard” and added:
When asked if she could point to any
example where a relative of an Iranian who had converted to Baha’i outside of
Iran, never to return to that country, had ever been subjected to the
persecution, risk or danger alleged by this claimant and she could not.
[13]
The
tribunal then made reference to the US DOS 2009 International Religious Freedom
Report for Iran, official Baha’i sources and other leading human rights
organisations report that more than 200 Baha’is had been killed since 1979
(when the Shah was deposed) and 15 had disappeared and were presumed dead. The
report also said “at the end of 2009 at least 20 to 30 Baha’is remained in
detention because of their religious beliefs”. The tribunal also noted this
report indicated that “between 300,000 to 350,000 Baha’is live in Iran”. It
concluded:
[25] While the report notes the
unfortunate persecution of Baha’is, it (as do other country reports found in
the National Document Package) does give a context of the limited occasions of
the more severe forms of persecution of Baha’is in Iran. If accepted as factual, over the last
more than 30 years, less than 10 Baha’is per year have been killed. Only 20-30
of 300,000 to 350,000 are now in prison. These are actual adherents of the
faith who live in Iran. The balance of the country
reports contained in Exhibit 4.2 indicate that it is the leaders of the
Baha’i in Iran that are most at risk.
[My emphasis]
[14]
The
tribunal next referred to Farah’s testimony about the impact of her having rented
an apartment to a Baha’i leader in the 1980’s which had not being
mentioned in the Applicant’s PIF because according to her she Farah only
recently found out the man had been arrested in February 2009. The tribunal
ruled:
[…] Once again, there is nothing in the
objective evidence to indicate that the Iranian authorities have ever
pursued any person in any sort of similar situation who had provided anything
so mundane as access to an apartment to a Baha’I leader over 25 years ago. I
find that it is not probable that that is the case either with respect to Farah
or the claimant. [Emphasis added]
[15]
The
tribunal’s ultimate conclusion is expressed in these terms:
I cannot take from the objective
evidence or the subjective testimony the conclusion that it is probable that
the government of Iran has any serious interest in people such as Farah, much
less any interest at all in punishing her 88-year old Muslim father for any
reason whatsoever. I, therefore, reject the hearsay evidence and find that the
claimant has failed to establish on the basis of credible and trustworthy
evidence, that the Iranian authorities have made an order that he must force or
entice Farah to return to the country with him and that, if he does not, he
faces persecution, risks or danger. I, therefore, conclude that there is no
serious possibility that persecution or, a balance of probabilities, section 97
risks or danger would befall the claimant should he return to Iran without his daughter.
[My emphasis]
III. The
issues
[16]
Counsel
for the Applicant challenged the tribunal’s decision on three basis in the
context of the tribunal’s decision not to recognized his age was a factor in
the testimony he gave:
a. The
tribunal’s credibility finding is flawed because the inconsistencies it relied
on where irrelevant to the case (a) the date of Farah’s conversion is
irrelevant because the tribunal accepted she had converted to the Baha’i faith
(b) the time and place of the cancer diagnosis is irrelevant and, in any event,
the Applicant’s version is likely incorrect and there was evidence of a
hospital admission in Vancouver (see also page 72 of the Certified Tribunal
Record where she states “I have now been diagnosed with cancer (April 2009)) and
(c) on the issue whether the phone call from Tehran came before or after his
wife left for Germany, he argues that the Applicant’s testimony is clearly incorrect
because his wife was included in his original claim which was made as a result
of the phone call and therefore could have only come before she left for
Germany. The
daughter’s testimony is correct.
b. The Applicant
argues the tribunal was unreasonable in finding the Applicant’s claim for
future potential prosecution was improbable; and
c. The Applicant
was denied procedural fairness by not having the opportunity to respond to the
inconsistencies between his and his daughter’s testimonies.
IV. Analysis and Conclusions
A. The standard of Review
[17]
It
is settled jurisprudence that credibility findings are findings of fact which
attract significant deference to the fact-finder’s determinations. See Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12 where Justice Binnie
for the majority pointed in the case of federal tribunals to paragraph
18.1(4)(d) of the Federal Courts Act which provides that this Court may
quash a decision based on a finding of fact which is reached in a capricious or
arbitrary manner or without regard to evidence before it. Paragraph 18.1(4)(d)
is a legislative indicator how Parliament intended judicial review of
fact-finding by tribunals to operate (See Khosa at paragraphs 4, 45 and
46).
[18]
I
have carefully reviewed the transcript of the hearing. I am very conscious that
I am not to reweight the evidence before the tribunal and, in this case,
must find a palpable and overriding error of fact which is determinative of the
case before me. The burden on the Applicant is a heavy one except in the case
of denial of procedural fairness where the Court’s intervention is reduced to
the gauge of correctness.
B. Discussion and Conclusion
[19]
In
my view, this Court’s intervention is warranted for the following reasons.
[20]
Counsel
for the respondent is correct in saying that the crux of this case turns on
what was the basis for the tribunal’s credibility finding: was it based on
contradictions inconsistencies and omissions or was the credibility finding
based on an overall assessment by the tribunal of the implausibility of the
entire story.
[21]
Counsel
for the respondent argued the basis of the tribunal’s credibility finding was
the overall implausibility of the applicant’s story including a finding that
the phone call from Mahnaz was implausible although Counsel admits the tribunal
never drew an implausibility but an inference could be made it did.
[22]
With
respect I must disagree. The tribunal never made a finding that the applicant’s
story was implausible. The tribunal based its credibility finding on
contradictions, inconsistencies and omissions buttressed by the fact the story
was uncorroborated because Mahnaz never testified by telephone, never sent a
letter confirming her conversation with her father and her sister nor did she
provide an affidavit to which may be added its finding that the objective
evidence never indicated a similar situation leading to its conclusion, it was not
probable that the Iranian government would be interested in the applicant.
[23]
This
conclusion that the heart of the tribunal’s credibility findings rests on
contradictions and omissions leads to the tribunal making the following errors:
1. Breaching
procedural fairness by not providing the applicant or his daughter an
opportunity to respond to these inconsistencies (see Sarker v. Canada (Minister of
Citizenship and Immigration) [1998] F.C.J. No. 987 at paragraphs 13 and
14 (Sarker)).
2. The tribunal
omitted to consider the explanation given for lack of corroboration by Mahnaz
(see the Certified Tribunal Record 300 and 301 and Sarker, above, at
paragraph 67).
3. Failed to
explain why Farah’s testimony was found to be lacking credibility when the
evidence show her testimony on the three contradictions raised was the correct
response and it was the applicant whose testimony was off.
4. Insisting
that the document evidence reveal an exactly identical similar situated case
was unreasonable (see paragraph 11 of these reasons).
5. The
inconsistencies raised were largely irrelevant.
[24]
For
these reasons, this judgment review application is granted.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this judicial review application is allowed, the
tribunal’s decision is quashed and the applicant’s refugee claim is remitted
for redetermination by a differently constituted tribunal. No question of
general importance was raised.
“François
Lemieux”
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