Date:
20120924
Docket:
IMM-577-12
Citation:
2012 FC 1115
Ottawa, Ontario, September 24, 2012
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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AHMJAD MEZBANI
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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
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] of a decision of an
Immigration Officer (the Officer) of the High Commission of Canada in
Islamabad, Pakistan. By letter dated November 23, 2011, the Officer refused the
applicant’s application for permanent residency visa, finding that the
applicant was neither a member of the Convention refugee abroad class nor a member
of the country of asylum class under sections 145 or 147 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [Regulations].
Factual
Background
[2]
Mr.
Ahmjad Mezbani (the applicant) is an Iranian citizen currently living in Pakistan without legal status. The applicant was in an orphanage from April 2003 until
January 2004 when he was released to his older brother’s care, Ohmeed Mezbani
(Ohmeed).
[3]
The
applicant has three (3) married sisters currently living in Iran. The applicant claims they are safe because they are married. His fourth sister, Elham
Mezbani (Elham), is divorced and allegedly currently imprisoned in Iran, arrested in connection with Ohmeed’s democracy work (Applicant’s Record, p 46). The
applicant’s two (2) brothers, Ohmeed and Saeed Mezbani (Saeed), are now
deceased.
[4]
Saeed
was imprisoned in early June 2000 for starting a protest after the public
hanging of six young persons. Saeed was allegedly tortured and beaten in
prison. He was released in March 2005 and went to live with Ohmeed and the
applicant in Ahwaz, Iran. Following her divorce in autumn 2005, the applicant’s
sister Elham also went to live with Ohmeed, Saeed and the applicant.
[5]
In
February 2006, Ohmeed became involved with the Arab Democratic Party by
attending meetings and distributing flyers describing democracy and human
rights. In March 2006, the applicant and his sister Elham attended a
demonstration. They were arrested by the Cepah (a police body in Iran that enforces religious and political codes) and taken to the interrogation centre.
The applicant was interrogated and beaten for two (2) days. The applicant also
claims to have been beaten three (3) times using the “joujeh-kabob” method,
whereby his hands and feet were tied to a metal rod secured horizontally between
two (2) chairs, thus allowing the police to hit him with a cable while the rod
is rotated. He also claims to have been beaten with cables and whips while in
his cell.
[6]
In
May 2006, the Cepah allegedly came to the applicant’s house demanding to see
Ohmeed. Ohmeed was not at the house, and the Cepah asked that he report to them
as soon as he returned. Fearing the Cepah, the applicant left the house to find
Ohmeed and Saeed and warn them. They borrowed money from their elder sister and
had her husband drive them from Ahwaz to Shiraz. From there they took a bus to
Zaheydan near the Pakistani border where they prepared to arrange border
crossing. Two (2) days later, worried about Elham whom they had left behind,
Saeed went back to Ahwaz to get her. After four (4) days had passed since Saeed
had left, Ohmeed and the applicant discovered that the Cepah had already
arrested Elham and had arrested Saeed shortly after his return to Ahwaz. They decided to cross the border.
[7]
On
May 28, 2006, the applicant crossed the border into Pakistan with his brother
Ohmeed and arrived in Quetta, Pakistan, on May 29 where they registered with
the UNHCR. The applicant and his brother Ohmeed were denied official UN refugee
status in November 2006. Subsequently, a Canadian church group (United Church
of Canada – Two Rivers Pastoral Charge) accepted to sponsor them. The applicant
and his brother Ohmeed moved from Quetta to Islamabad in April 2007 in order to
be closer to the Canadian embassy.
[8]
In
late October 2007, during a short stay in the hospital due to kidney pain, the
applicant’s brother Ohmeed died unexpectedly. A funeral was organized in their
home town of Ahwaz. Saeed, who was then imprisoned, was able to obtain a three
(3)-day pass from the prison so he could attend. With the help of relatives, he
fled and made his way across the border to Pakistan. Saeed joined the applicant
in Islamabad where they lived together. Saeed eventually registered with the
UNCHR on February 7, 2008.
[9]
On
March 10, 2008, the applicant submits that he came home to find Saeed’s body in
their apartment. The autopsy revealed drug poisoning and the apartment door had
been locked. Saeed had presumably committed suicide.
[10]
The
applicant alleges that the situation of refugees such as himself in Pakistan is precarious. The applicant claims that a return to Iran would be dangerous: he
could be arrested for leaving without permission and accused of spying and
selling Iranian secrets to Pakistan. He also states that his situation would be
worse if the Cepah realized he was previously arrested and detained for
attending a demonstration. The applicant claims the Cepah would consider him as
being involved with Ohmeed’s political activities (distributing democracy
flyers) and Saeed’s escape from prison because they are family.
[11]
The
applicant was interviewed by the Officer at the High Commission of Canada in Islamabad, Pakistan, on September 29, 2011.
Impugned
Decision
[12]
The
Officer’s decision was rendered by way of a letter dated November 23, 2011.
There are also CAIPS notes in support of his decision. The Officer expressed
concerns with regards to the applicant’s identity and credibility, and as such
determined that he did not meet the requirements for immigration to Canada. The Officer stated from the outset that the applicant did not indicate that he had
difficulties in understanding the interpreter who was present at the interview.
[13]
The
Officer noted that the applicant was unable to recount his age or give a
timeline of events during the interview. He further noted that the applicant
had initially said that he was too young to remember details of his brother’s
problems, but later attributed them to political activities. The Officer
concluded that this was contradictory. The Officer also found no good grounds for
the applicant’s stated fear that he would be perceived as part of the political
activities in which his brother was involved.
[14]
The
Officer stated the criteria for a person in the country of asylum class and a
convention refugee and concluded that the applicant met neither. He concluded
that he was not satisfied that there was a reasonable chance they would be
persecuted, nor that there was “good grounds for yours (sic) fear of
persecution should you all return to the country of your origin”.
Issues
[15]
The
issues raised in this case are as follows:
a. Was
the applicant treated fairly, particularly with regards to the adequacy of the
interpretation?
b. Was
the Officer’s assessment of credibility reasonable?
Statutory
Framework
[16]
Several
provisions of the Act and the Regulations are applicable in the present case.
They are included in the Annex.
Standard of
Review
[17]
The
parties agree that the standard of review as it pertains to procedural fairness
is that of correctness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 [Dunsmuir]; Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 43, [2009] 1 S.C.R. 339). For such issues, the
Court will not show deference to the decision-maker, but will rather undertake
its own analysis of the question (Dunsmuir, above, at paras 50 and 129).
On the other hand, when deciding whether an applicant is a member of the
Convention refugee abroad class, the officer is entitled to deference since it
is a mixed question of fact and law – therefore, the standard of reasonableness
applies (Kamara v Canada (Minister of Citizenship and Immigration), 2008
FC 785, 168 ACWS (3d) 372; Sivakumaran v Canada (Minister of Citizenship and
Immigration), 2011 FC 590, [2011] FCJ No 788 (QL); Dunsmuir, above).
[18]
Thus,
in this case, the question pertaining to the adequacy of the interpretation
will be reviewed on a standard of correctness since it concerns procedural
fairness. All other issues pertaining to assessments of credibility and
evidence are reviewable on a standard of reasonableness.
Analysis
a. Was
the applicant treated fairly, particularly with regards to the adequacy of the
interpretation?
[19]
The
applicant submits that the Dari interpretation which was provided at the
interview was a breach of procedural fairness because he requested a Persian
interpreter, and does not express himself well in Dari. The respondent argues
that the applicant should have raised the issue during the interview, and
because he didn’t, he is now barred from raising it before this Court.
[20]
The
documents submitted by the applicant show that he had indicated the preferred
language of “Farsi (Persian)” for the interview on his Application for
Permanent Residence in Canada (Applicant’s Record, p 32). At paragraph 6 of his
affidavit, the Officer indicates that it is standard practice to have the
receptionist at the High Commission of Canada take the documents from incoming
applicants and ask their language of preference for the interview (Respondent’s
Record, p 4). As exhibit A to his affidavit, the Officer submits a scanned copy
of the applicant’s letter upon which is handwritten “SJV – Dari” (Respondent’s
Record, p 6).
[21]
The
Officer’s CAIPS notes indicate: “Interpreter: FMG – DARI” and “Confirmed
preferred language and understanding between interpreter and applicant” (Applicant’s
Record, p 79) and the Officer’s affidavit states that “Mr. Mezbani confirmed
his wish for the interview to be conducted in Dari.” (Respondent’s Record, p 4,
at para 10). The Court notes that the Officer was not cross-examined on his affidavit
and no evidence to the contrary was adduced to refute the Officer’s statement.
[22]
The
applicant raises Xu v Canada (Minister of Citizenship and
Immigration), 2007 FC 274, 155 ACWS (3d) 930, where, as in the present
case, the interview was not recorded in its original form and is simply
recorded by way of the officer’s notes of the English interpretation. However,
in that case, the earliest opportunity to raise a discrepancy between what was
said and what was noted down was after the applicant had the opportunity to see
the notes due to the translator’s shortcomings. The case at bar is to be
distinguished from the case in Xu, above, since Xu was purely a
case of mistranslation – the interpreter spoke the applicant’s language. In the
present case, the applicant knew right away that his interpreter was not
speaking Persian, but Dari (Applicant’s Record, Applicant’s affidavit, p 8,
para 10).
[23]
In
Zaree v Canada (MCI), 2011 FC 889 at paras 8-9, [2011] FCJ No 1097 (QL),
Justice Martineau made the following observations and the Court agrees:
[8] … where problems of interpretation could be
reasonably addressed by the refugee claimant at the time of the hearing, there
is an obligation to address them then and not later, in judicial review
proceedings. …
[9] In practice, translation problems may be apparent
and easily detectable during the hearing; this is the case when the errors
committed occur initially, meaning that they appear in the refugee claimant’s
mother tongue, which the refugee claimant can detect when he or she is
communicating with the interpreter. However, translation problems may also
occur later on: the interpreter may fully understand and speak the
refugee claimant’s mother tongue, but may improperly translate his or her
account into the language of the hearing. This situation is more harmful and
translation problems may not be detected at the hearing by a refugee claimant
who does not speak, or who understands very little of, the language of the
hearing (English or French). In such cases, it is unreasonable to expect him or
her to have complained of flawed translation at the hearing.
[Emphasis added]
[24]
Given
the evidence in the present case, the Court is of the opinion that the issue of
interpretation could reasonably have been addressed by the applicant at the
beginning of the interview, or even when the Officer asked him if he could
understand English because the applicant was answering before the questions
were translated (Applicant’s Record, p 82). The applicant had the obligation to
voice any objection with regards to the interpretation during the interview (Mohammadian
v Canada (Minister of Citizenship and Immigration), [2000] 3 FC 371, 96
ACWS (3d) 116, aff’d 2001 FCA 191 [Mohammadian], and Zaree,
above) but failed to do so. While the Court sympathizes with the fact that the
applicant was scared, he nonetheless had to address this issue as soon as
possible. Because he did not, and effectively continued with the interview, he
cannot raise the argument before this Court at the judicial review stage. Given
the Court’s conclusion on this issue, there is no need to address the
applicant’s Charter argument.
b. Was
the Officer’s assessment of credibility reasonable?
[25]
The
Officer drew a negative conclusion with regards to the applicant’s credibility,
specifically because of his answers regarding his date of birth, and his
general recounting of the timeline of events.
[26]
For
the reasons that follow, the Court finds that the conclusions as to credibility
are not reasonable. While it is true that assessing credibility is within the
expertise of the officer (Aguebor v Canada (Minister of Employment and
Immigration) (FCA), (1993), 160 NR 315, 42 ACWS (3d) 886 [Aguebor]),
particularly because he or she is there in person when the applicant answers
the questions, the negative conclusions must nevertheless be supported by the
evidence (see Mboudu v Canada (Minister of Citizenship and Immigration),
2012 FC 881, [2012] FCJ No 973 (QL)).
[27]
The
Officer stated that the applicant made contradictory statements with regards to
his age. The applicant’s year of birth is reported on his forms as being 1990
(Applicant’s Record, p 32). The applicant repeats twice during the interview
that he is twenty-one (21) years old, which is consistent with a 1990 year of
birth because the interview took place in 2011 (Applicant’s Record, p 82). He
also makes consistent statements about his age by stating he was seventeen (17)
when his brother died in 2007 (again, consistent with a 1990 year of birth;
Applicant’s Record, p 84) and turning eighteen (18) “this month”, a statement
made in the additional information submitted as part of Schedule 2, dated March
12, 2008 (also consistent with a 1990 year of birth, Applicant’s Record, pp 47
and 57).
[28]
In
the CAIPS notes, the Officer states that the applicant said he was fourteen
(14) when he came to Pakistan (Applicant’s Record, p 84). In fact, the
applicant stated he was 14 or 16 (Applicant’s Record p 82). The age of sixteen
(16) is in fact consistent with a year of birth of 1990 since he crossed the
border in May 2006, as shown on the UNCHR papers. The only contradictory
statement made by the applicant is an answer given using the Persian calendar
where he stated year 1368 as his year of birth, and the officer added in
parentheses “(1989) (22 YRS OLD)” (Applicant’s Record, p 82), and while it is
true that the NARA card provided by the applicant appears to contain errors,
the applicant said “give it to me and I will explain” (Applicant’s Record, p
83), but he was not offered an opportunity to provide his explanation to the
Officer.
[29]
The
Officer also notes a contradiction where the applicant would have initially
said that “he was too young to know the details of the problems his brother was
into”, only to later state specific political allegiances (Applicant’s Record,
p 84). The Court also finds that this conclusion is unsupported. The Officer
asked the applicant “WHY DID YOU LEAVE?”, not what his brother’s problems were
(Applicant’s Record, p 83). The answer that followed, “I was too young. I don’t
know, I came with my brother”, is in response to the inquiry of why he also
left.
[30]
Another
inconsistency in the Officer’s negative credibility finding concerns the year
when the applicant arrived in Pakistan. While the Officer states: “SIR YOU SAID
YOU CAME IN 2007” (Applicant’s Record, p 83), the applicant in fact never said
he came in 2007. Throughout the interview, he had consistently stated coming to
Pakistan in 2006.
[31]
The
Officer stated that the applicant’s brother and sisters remained behind (in Iran) without harm or threat, thus showing that the applicant has no “good grounds” to fear going
back to Iran. The Court finds this conclusion unreasonable in light of the
evidence provided by the applicant that his only two brothers were deceased by
the time of the interview (there was therefore no “brother” to speak of in Iran) and that his only unmarried sister was imprisoned. The applicant clearly stated that
his other sisters were safe because they were married and no longer “related”
to him and his brothers. The Officer’s conclusion that he was not satisfied
that “there are good grounds for yours [sic] fear of persecution should you all
return to the country of your origin” (Applicant’s Record, p 5,
[Emphasis added]) casts much doubt on whether the Officer consulted the
narrative provided by the applicant which clearly outlines his two brothers’
deaths.
[32]
When
discussing the possibility of returning to a different part of Iran, the applicant expressed fear that he would be treated as a spy for having lived in Pakistan. When the Officer challenged him, saying that there were “THOUSANDS OF AFGHANIS
WHO GO FROM PAKISTAN TO IRAN ALL THE TIME”, the applicant remarked that he in
fact was Irani, not Afghani.
[33]
Finally,
the Officer seems to ignore the account submitted by the applicant that his
sister was apprehended solely for her relation to Ohmeed, and subsequently
imprisoned. This information is relevant in adding plausibility to the
applicant’s fears should he return to Iran.
[34]
In
light of all the above, and while the Court agrees with the respondent that, as
a general principle, the Officer is entitled to a significant degree of
deference, in the case at bar, the Court cannot but find that the Officer’s
errors and inconsistencies – when taken as a whole – render his decision
unreasonable and not defensible in respect of facts and law. The application
for judicial review will be allowed.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application for judicial review is allowed, the decision of the Officer is
quashed and the matter remitted to a different Officer for reconsideration.
2.
There
is no question for certification.
“Richard
Boivin”
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