Date: 20110623
Docket: IMM-5825-10
Citation: 2011 FC 755
Ottawa, Ontario, June 23,
2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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ARASH LATIFI BENMARAN
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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]
The
Court is asked to judicially review what were essentially credibility findings.
These findings led the Immigration Refugee Board (IRB) Member to deny the
Applicant’s claim for asylum, as he was not deemed to be a Convention refugee
or a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, LC 2001, c 27 (IRPA). The Applicant claims he
was a journalist in Iran who had denounced the government, thereby being
summoned to Court.
[2]
The
following elements formed the core of the IRB’s findings in regards to the
Applicant’s lack of credibility of his asylum claim:
a.
The
Applicant had filed an asylum claim in the United Kingdom, which was denied. The letter provided
in support indicated that reasons were attached. These were not provided and
the Applicant’s explanations were not deemed satisfactory. The IRB did not
believe that his claim was denied because he had entered on a student visa,
only to later be summoned to Court.
b.
The IRB
believed that the Applicant had worked for Soureh Cinema as a graphic
artist. He was not believed to have a career in journalism.
c.
The
information pertaining to the Applicant’s education was not consistent in all
the documentary evidence provided. The diplomas provided even related
attendance to a university which was never mentioned. The dates of studies were
also contradictory.
d.
The
discrepancies in the dates of attendance of various institutions were not
explained satisfactorily. For example, the IRB did not believe it would take up
to two years for a school to issue a transcript, much less one that would have
different dates of attendance than those alleged.
e.
The
documentary evidence never indicated part-time work at Soureh Cinema
before July 2004. The letter provided by Soureh Cinema only stated work
as a graphic artist, not a journalist.
f.
The
Applicant did not provide his accreditation card as a journalist, and the
omission was not adequately explained. The press card provided referred to the
Applicant’s nickname. The IRB found that, with his admitted knowledge in
computer graphic design, he could easily produce a fake version of these
documents.
g.
No copy of
the alleged articles written was provided. More precisely, the article
denouncing the disappearance of two journalists was not provided. The
descriptions of the contents of these articles were not adequate.
h.
The IRB
did not believe that the Applicant could submit an article directly to the
Internet, without any editorial approval.
i.
Hence, as
there were credibility concerns, the fact that no extrinsic documentation was
provided by the Applicant was reproached by the IRB.
[3]
The
Applicant alleges that the IRB breached the presumption of truthfulness of refugee
claimants set out in Maldonado v Canada (Employment
and Immigration), [1980] 2 CF 302 (FCA). Explanations were provided in
regards to the omission to bring forth documents, but it is argued that the IRB
omitted to consider the explanations in respect to many aspects of the negative
inferences made by the IRB. The discrepancies in the dates are downplayed, as
the Applicant provided the right information in the end. The IRB’s alleged
overzealousness is reproached. The Applicant also restates as true his version
of the facts, namely in regards to his work. The Applicant argues that it was
unreasonable to expect that he could provide copies of the articles written, as
these were withdrawn from the internet by the authorities. The Applicant states
that the IRB wrongly omitted his explanations. Furthermore, the IRB could not
contest the validity of official documents, as this was not within its area of
expertise.
[4]
The
Respondent contends that the decision’s credibility findings are reasonable.
The omission to provide the reasons for refusal from the United
Kingdom
is determinative, and allows the IRB to make negative inferences from other
discrepancies and omissions, as credibility was a central issue. The IRB’s
findings fall within the range of outcomes defensible in fact and law, and
should not be reviewed.
Analysis
[5]
The
IRB’s appreciation of a claimant’s credibility is a finding of fact. As such,
it is to be reviewed by the Court on the standard of reasonableness (Dr. Q.
v College of Physicians and Surgeons of British Columbia, 2003 SCC 19; Dunsmuir
v New Brunswick, 2008 SCC 9; Byaje v Canada (Citizenship and
Immigration), 2010 FC 90; Singh Nijjer v Canada (Citizenship and
Immigration), 2009 FC 1259). It is well established that the Court must
assess whether the decision falls within the range of acceptable outcomes
defensible in fact and law, and that deference must be shown towards the IRB in
regards to credibility findings, so long as these are reasonable, find basis in
the evidence and do not omit important elements of the evidence. Furthermore,
the assessment of an applicant’s credibility can be assisted by a lack of
documentary corroboration (Alonso v Canada (Citizenship
and Immigration), 2008 FC 683).
[6]
In
the case at bar, three determinative elements were central to the credibility
concerns of the IRB. The IRB’s findings in respect to these elements are
reasonable.
[7]
Firstly,
the Applicant’s omission to provide the reasons for the refusal of asylum in
the United
Kingdom
was impugned. It was not unreasonable for the IRB to require documentary
corroboration of his failed asylum claimed, especially as the reasons
apparently were 25-pages long and the Applicant only provided superficial
comments as to their contents. In light of the credibility concerns arising
from many aspects of the case, it was reasonable for the IRB to make a negative
inference from this fact (see Byaje, above and Sinnathamby v Canada (Citizenship
and Immigration), 2001 FCT 473 (FC)). The IRB might have even been
justifiably able to go further in this respect: it is curious that the
applicant would have the letter relating the negative decision, but not its
reasons.
[8]
Secondly,
the Applicant could not provide the articles he had allegedly written. While
this may not have been fatal, the IRB was not satisfied with the Applicant’s
description, or lack thereof, of the articles’ contents. Rather, the IRB took a
negative inference from both the omission to produce them and the omission to
speak meaningfully about their contents. The Applicant’s efforts to find the
documentation were not deemed sufficient, as were the explanations given. It is
well established that a lack of corroboratory documentation is relevant in
assessing credibility, and there is nothing in this case that the IRB’s assessment
was outside the range of acceptable findings that could have been made.
[9]
The
credibility concerns are further compounded by the Applicant’s lack of
credibility in regards to his alleged work as a journalist. He had omitted to
indicate part-time work with Soureh Cinema. His own documentary evidence
did not support his assertion of part-time work. There were discrepancies in
the dates of his work as a journalist, and even when he wrote his first
article. Furthermore, the documentary evidence finally provided in regards to
his education runs counter to the dates indicated in the information provided.
The explanation pertaining to delays in obtaining the diplomas is not
reasonable: surely delays may occur, but these would not presumably lead to
different dates of enrolment being confirmed. It was reasonable for the IRB to
reproach these facts in its assessment of the Applicant’s credibility.
[10]
A
reading of the transcript further indicates the appropriateness of these
negative credibility findings.
[11]
The
IRB omitted to mention the validity of the summons issued to the Applicant. It
did question the probative value of the arrest warrant. However, because
the IRB did not believe that the Applicant was a journalist, it was reasonable
for the IRB to not give any weight to the arrest warrant. The omission to refer
to the summons is not determinative, as the conclusion would presumably be the
same. This is consistent with the presumption of validity of foreign documents
highlighted in Ramalingam v Canada (Citizenship and
Immigration), [1998] FCJ no 10 (FCTD). In effect, the IRB’s decision in
respect to the arrest warrant is not similar to the case in Azziz v Canada
(Citizenship and Immigration), 2010 FC 663, as the documents in question
are not documents of civil status, and can be distinguished with those in Azziz.
[12]
Taken
as a whole, the IRB’s decision is reasonable: it considered the contradictory
and lack of documentary evidence; it relied upon its expertise as a trier of
fact; and made credibility findings which were reasonable.
[13]
The
application for judicial review is denied. No question is certified and none
was suggested by the Parties.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is denied. No
question is certified.
“Simon
Noël”
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