Date: 20110627
Docket: IMM-3614-10
Citation: 2011
FC 780
Ottawa, Ontario,
June 27, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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MEHDI SHIRIDOKHT TOURAJI
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act), for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated May 18, 2010, wherein the Board determined that the
applicant was not a Convention refugee or a person in need of protection under
sections 96 and 97 of the Act.
[2]
The applicant requests that the decision of the Board be set aside
and the claim remitted for redetermination by a different member of the Board.
Background
[3]
Mehdi
Shiridokht Touraji (the applicant) is a 26 year old citizen of Iran.
[4]
While
working at a photo shop in Tehran, the applicant alleged that he took pictures and videos of
weddings and parties that were illegal under Iranian law. On June 18, 2009, the
applicant was at a funeral in Tabriz, Iran,
when his mother informed him that officers had been looking for him and had
detained his brother. His father was also detained upon returning to Tehran. The applicant alleges
that the photo shop was robbed during this time and the police intercepted the
applicant’s videos of the illegal parties. The applicant states that he was
accused of being anti-regime and that his father and brother were required to
sign undertakings to report him.
[5]
The
applicant also noted in his Personal Information Form (PIF) that he attended
anti-regime demonstrations and filmed attacks by Iranian authorities.
[6]
The
applicant was smuggled into Turkey in July 2009.
[7]
The
applicant arrived in Canada on October 21, 2009. He
filed an IMM5611 form at the port of entry, claiming refugee protection in
which he stated that he is being sought by the authorities because “photos have
been published” and also that he was claiming protection in Canada because “some films
were printed” and “people were arrested.”
Board’s Decision
[8]
The
determinative issue for the Board was credibility.
[9]
The
Board highlighted that all of the events leading to the applicant’s fear of
persecution occurred within one month, June 2009. For this reason, the Board
expected that the applicant’s evidence would for the most part be internally
consistent.
[10]
However,
the Board found the applicant inconsistent in his account. The main concern for
the Board was that the applicant indicated on form IMM5611 that photos from the
photo shop had been published and films printed. In the hearing, he indicated
that images from the video were never published or printed and that he did not
make paper copies of the images from the videos. He stated that the images were
deleted as soon as they were given to clients. The Board found the applicant’s explanation
to this inconsistency to be non-responsive.
[11]
The
Board also found that the applicant mentioned late in the hearing that still
photos were taken from the videos. The Board found this to be embellishing of
the evidence.
[12]
The
Board drew a further negative inference as to credibility because the applicant
did not mention in his IMM5611 documentation that he feared being targeted for
his participation in anti-regime rallies. He added this as part of his fear in
his PIF and at the hearing. However, he also stated at the hearing that the
rallies were not part of the problem.
[13]
The
final concern for the Board was the lack of corroborative evidence. The Board
found that the applicant had provided no documentary evidence corroborating:
- That he
was in Iran until
July 5, 2009;
- That he
was in Istanbul for two
and a half months;
- That his
uncle was a brigadier general in the Sepah and travels with President
Ahmedinijad;
- His
uncle’s existence or relationship to the applicant;
- The
existence of the photo shop or that the applicant had worked there;
- Evidence
of campaign photos made in the shop;
- Photos
from anti-Islamic events;
- His trip
to Tabriz;
- His
father and brother’s detentions and release;
- The
alleged robbery of the photo shop; and
- That he
was wanted by the authorities.
[14]
The
Board noted it could not reasonably expect the applicant to obtain evidence corroborating
all of these facts. However, in conjunction with the inconsistencies in his
story, the Board drew a negative credibility inference because the applicant
was unable to provide any corroborating documentary evidence.
Issues
[15]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the Board err is
its assessment of credibility?
Applicant’s Written Submissions
[16]
The
applicant submits that the Board made several errors of fact leading to its
negative credibility finding.
[17]
The
applicant argues that the Board misunderstood the applicant’s comments at the
hearing that videos were not printed or published and took this as contradicting
the applicant’s statement that photos were printed. The applicant also states
that he never said that photos were not printed during the hearing. The
applicant submits that a translation error of the word published lead to
confusion by the Board and the negative inference. The Board erred in finding
that the applicant first mentioned that photos were being printed during the
hearing, as this was mentioned in the PIF. The applicant also stated in his PIF
that he was involved in anti-regime rallies in his PIF.
[18]
The
applicant submits that the Board only asked him to corroborate three areas, his
time in Istanbul,
identification of his uncle and business cards from his shop. The Board did not
consider the applicant’s explanations for why he did not have this evidence. The
Board further failed to ask the applicant why there were not documents of his
residency in Iran. The
applicant also argues that the Board erred in not allowing the applicant to
present post-hearing corroborating evidence. The applicant submits that
generally the types of evidence the Board required from the applicant were
unreasonable.
Respondent’s Written Submissions
[19]
The
respondent submits that the Board’s credibility findings were reasonable. The
applicant failed to provide credible testimony in support of his claim. The
Board noted multiple specific examples of the applicant’s inconsistent
testimony, which the applicant was unable to explain in a satisfactory manner.
This was particularly important given the short period of time in which the
events occurred. The Board was in the best position to gauge the credibility of
the applicant and draw the necessary inferences.
[20]
The
respondent further submits that the Board was also entitled to draw a negative
inference from the lack of corroborating evidence. The applicant did not
provide any corroboration for his assertions. The onus was on the applicant to
establish his claim under subsection 100(4) of the Act and Rule 7 of the Refugee
Protection Division Rules, SOR/2002-228. Given his problematic
testimony, the Board was entitled to make an adverse credibility finding due to
the complete absence of documentary corroboration.
Analysis and Decision
[21]
Issue
1
What is the appropriate
standard of review?
Assessments
of credibility are essentially pure findings of fact and it was Parliament’s express
intention that administrative fact finding would command this high degree of
deference (see Khosa v Canada (Minister of
Citizenship and Immigration), 2009 SCC 12 at paragraph 46). This Court
must not substitute its assessments for those of the Board unless the applicant
can demonstrate that the findings of fact were made in a perverse or capricious
manner without regard to the material before it (see Siad v Canada (Secretary of State),
[1997] 1 FC 608 (FCA) at
paragraph 24).
[22]
Issue
2
Did the Board
err is its assessment of credibility?
The Board found that the applicant was inconsistent in his
IMM5611 form, his PIF and his oral testimony before the Board.
[23]
There is no doubt that
inconsistencies and contradictions can be held against the applicant and can
support a finding of a lack of credibility.
[24]
I have reviewed the contents of the IMM5611
form, the PIF and the applicant’s oral testimony before the Board. I am
satisfied that the applicant provided explanations for most of the suggested
inconsistencies.
[25]
By way of example, the applicant has offered an
explanation for the confusion between “published” and “printed”. The confusion
with respect to these terms appears to have permeated different areas of the
Board’s decision. As well, there was an explanation dealing with photographs.
The applicant also explained what created the concern from Iranian authorities.
He explained why in his IMM5611 form he only mentioned activities at the
bookstore. These explanations were not satisfactorily addressed by the Board in
the decision and I have no way of knowing what the Board’s conclusion with
respect to credibility would have been had they been considered.
[26]
The Board
also found that the applicant was unable to provide any corroboration, by way
of documentary evidence, of the events that happened to him in Iran. There were certain events for which it
was impossible to obtain corroborating evidence according to the applicant’s
testimony. In fact, the Board agreed that some of the information needed to
corroborate the applicant’s evidence could not have been obtained. The Board
stated at paragraph 24 of its reasons:
The Panel has noted that some of the
above information could reasonably have been expected to have been obtained by
the claimant, some not.
[27]
The Board,
however, did not state in the decision how many of the corroborating documents
could not be obtained. Without this information, it is impossible to determine how
the lack of corroborating documents negatively impacted applicant’s
credibility. As well, I would note that some of the documents said to be needed
for corroboration purposes were out of the country and out of the control of
the applicant. With respect to this type of document, the Federal Court of
Appeal in Owusu-Ansah v Canada (Minister of Employment and Immigration), 98 NR 312 stated:
Finally,
how in reason can the failure to produce at a hearing in Canada documentation which someone else, in another country, had
given “some indication” would be forthcoming reflect adversely on the
Applicant’s credibility? In my opinion, it cannot. My opinion would be the same
as long as the documentation is outside Canada and the Applicant’s control.
[28]
For the
above reasons, I am of the view that the Board’s decision is unreasonable and
must be set aside. The matter is to be referred to a different panel of the
Board for redetermination.
[29]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[30]
IT IS
ORDERED that the
application for judicial review is allowed and the matter is referred to a
different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, SC 2001, c 27
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72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
. . .
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1) A person
in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
. .
.
96.A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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