Docket: IMM-877-11
Citation: 2011 FC 1236
Ottawa, Ontario, October 31, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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AZADEH SADEGHI
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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, S.C. 2001, c. 27 (Act) for judicial review of the
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, dated 24 January 2011 (Decision), which refused the Applicant’s
application to be deemed a Convention refugee or person in need of protection
under sections 96 and 97 of the Act
BACKGROUND
[2]
The
Applicant is a citizen of Iran. She and her family are non-religious.
[3]
In
2004, she was held-up at the roadside by members of the Islamic Guidance Patrol
Unit 110 (IGP). She was ordered to get out of the car, hit in the face with a
walkie-talkie by Colonel Safania, and ordered to report to IGP headquarters.
When she reported the next day, she was held for several hours. During this
time, Colonel Safania sexually propositioned her and some female members of IGP
questioned her. She was eventually released, but had to pay a fine and sign some
kind of undertaking.
[4]
Some
time later, between late 2005 and early 2006, the Applicant organized a mixed
dinner party. After the party, several of the party-goers were questioned by the
Harasat – a security unit which monitors students’ behaviour – and revealed
that it was the Applicant who had organized the party. She was summoned by the Harasat
and forced to sign a document saying that she would voluntarily quit university.
When the Applicant’s father found out that she had left school, he was furious
and would not let her out of the house for some time.
[5]
In
2006 the Applicant met a young man called Riyaz whose mother was Baha’i. After Riyaz
and the Applicant went to a party, which was raided by the IGP, the Applicant
was accused by Colonel Safania of being Baha’i. She said she was not
Baha’i. After the raid, the Applicant was required to attend court, which she
did, and was fined by the authorities for her activities.
[6]
In
December 2007 or January 2008 the Applicant’s sister, a permanent resident of Canada, applied for
a work visa for the Applicant to come to Canada. The visa
was denied.
[7]
Also,
in May 2007, the Applicant met another man in Iran called Sami.
Sami had been expelled from university for political activities but he said he
was no longer politically active. In July 2007, Sami was arrested. On 23 July
2007, the Applicant was summoned to the Shiraz Intelligence Ministry. She went
with her father. After this visit with the authorities, the Applicant was
required to sign an undertaking that she would report to the Intelligence Ministry
whenever required. At this time, she saw Colonel Safania at the ministry. She had
noticed him following her in his car. After this meeting at the Intelligence Ministry,
her father was again furious and forced the Applicant to quit her job.
[8]
In
October or November 2007, the Applicant was called back to the Intelligence
Ministry. Colonel Safania threatened to destroy her life if she was not nice to
him. He also said she could be expected to be called into the Intelligence Ministry
again.
[9]
Through
a low-level contact in the Disciplinary Forces, the Applicant’s father
discovered that the Applicant was not blacklisted from leaving Iran, but that
she was at risk of being summarily arrested. To get her out of the country, the
father arranged a marriage to Ebrahim, a Kuwaiti man who was 21 years her
senior. Forced into marriage, the Applicant left her home in Iran for that of
her new husband in Kuwait.
[10]
After
she left Iran, the Applicant’s
father was arrested and detained for 24 hours by government agents. The agents
interrogated him, and asked where his daughter was and who she was with.
Because of this event, the Applicant felt she could not return to Iran and went
through with the marriage to Ebrahim.
[11]
After
they were married on 19 March 2008, Ebrahim sent the Applicant to the USA, intending
to follow after her once he had sorted out issues with his business. She
arrived in the USA in August 2008 on a visitor’s visa. After living
in the USA for a short
time, the Applicant told her husband she wanted a divorce. He told her that he
would not permit the divorce unless she abandoned her marriage portion of 5000
Kuwaiti Dinars.
[12]
After
living in the USA with her
maternal aunt and her aunt’s husband for five and a half months, the Applicant
was asked to leave their home. She travelled to Florida, where she
lived with her maternal uncle and his wife for three more months. She was asked
to leave her uncle’s home and so she returned to her maternal aunt’s and
contacted her sister. Near the expiry date of her visitor’s visa, the Applicant
asked several immigration lawyers in the USA how she
could stay there. One told her that she could regularize her status by marrying;
others told her that a refugee claim would be impossible because she had
residence status in Kuwait.
[13]
Although
she investigated the possibility of regularizing her status in the USA, the Applicant
did not claim refugee status while she was there. When her visitor’s visa
expired on 6 February 2009, she was arrested by the American authorities as an
over-stay. She was later released. She came to Canada and made her
refugee claim 1 June 2009, nearly four months after her status in the USA had expired.
[14]
On
her entry into Canada, the Applicant was interviewed and the
interviewing officer filled out form IMM 5611, the Claim for Refugee
Protection. An interpreter was present for this interview. The Applicant also
signed an acknowledgement on the form that said she understood its contents and
that any portions she did not understand had been explained to her. According
to the form, the Applicant fears persecution from Unit 110 (the IGP) in Iran and
in Kuwait she fears
persecution from her husband, Ebrahim.
[15]
The
RPD conducted its hearing on 21 January 2011. At the hearing, the Applicant was
represented by counsel. By consent, the hearing initially proceeded without an
interpreter, because the interpreter was delayed in arriving. When the
interpreter arrived, the hearing continued with his assistance. At the hearing,
the evidence before the RPD consisted of the Applicant’s identity documents
(Birth Certificate, Driver’s Licence, ID Card, Pre-university School Diploma,
University Degree, and Passport), the National Document Packages for Iran and Kuwait,
form IMM 5611, the Applicant’s Personal Information Form (PIF), and the
testimony of the Applicant. The Applicant’s counsel did not ask her any
questions after the RPD questioned her. Following the admission of evidence, counsel
made oral submissions.
DECISION UNDER REVIEW
Credibility
[16]
The
RPD rendered its Decision on 24 January 2011. The Applicant’s identity was
proven by her passport so the only issue for the RPD was whether she had a
well-founded fear of persecution.
[17]
The
only evidence before the RPD going to matters other than the Applicant’s identity
was her testimony and the National Documentation Packages for Kuwait and Iran. The Decision
turned on the Applicant’s credibility. The RPD found that the Applicant was not
credible for several reasons.
[18]
First,
the RPD found the Applicant was not credible because of discrepancies between
the information in form IMM 5611 and the Applicant’s PIF. The RPD noted that, in
form IMM 5611, she related the 2004 incident involving Colonel Safania, where
she was hit in the face with a walkie-talkie. The Applicant said in form IMM
5611 that she had been riding in the car with her sister. When relating the
same incident in her PIF, she wrote that she had been riding in the car with
her friend. In addition, the Applicant indicated in form IMM 5611 that the
incident occurred in 2003, while in her PIF she wrote that the incident had
occurred in the autumn of 2004.
[19]
At
the hearing, the PRD invited the Applicant to explain these inconsistencies.
She confirmed that the walkie-talkie incident had occurred in 2004 and that the
person who had been riding with her was her friend, Maha. The Applicant
suggested at the hearing that the error in the date and identity of the person
riding with her was the result of an error in translation. Counsel at the
hearing noted that form IMM 5611 had not been translated back to her, though
the RPD noted that there was an interpreter present when the form had been
filled out and that the Applicant had signed the acknowledgment on the form.
Based on the inconsistencies in the date of the event and the identity of the
person riding with her, the RPD drew an adverse inference of credibility.
[20]
The
RPD also based its assessment of the Applicant’s credibility on other differences
in content between form IMM 5611 and her PIF. The RPD noted that, while the walkie-talkie
incident and the events of the following day were present in both forms, the
narrative section of the PIF contained a much longer and more detailed account
of incidents the Applicant had suffered while in Iran. The RPD
rejected the Applicant’s explanation for the lack of detail in form IMM 5611
that the immigration officer had told her to keep her answers short. The RPD
concluded that the additional events in the PIF narrative were embellishments,
and so drew a further adverse inference of credibility.
[21]
The
Applicant’s credibility was not assisted by the lack of documentary evidence
before the RPD. Although she provided documents attesting to her identity,
which the RPD accepted, she did not provide documentary evidence of the arrests
and interrogations she said she experienced. The RPD did not draw a negative
inference from this lack of evidence; it noted, however, that the Applicant had
not taken the opportunity to shore up her credibility with evidence supporting
her story.
[22]
The
RPD rejected the Applicant’s assertion that she fears her father in Iran and that he
would force her to marry another man if she were divorced because it found that
she was not credible. The RPD did not accept that her father would force her
into a second marriage, even though she testified that she would do anything he
told her to. The RPD also found the Applicant’s explanation of why she had married
Ebrahim was not credible.
Subjective
Fear of Persecution
[23]
The
RPD found that the Applicant’s assertion of subjective fear of persecution in Iran was not
credible. This finding was based on the fact that the Applicant did not file a
claim for protection during the entire nine months she had lived in the USA. The RPD did
not accept the Applicant’s explanation for the delay, that she had been told by
lawyers in the USA that her claim would not be successful because of her Kuwait residence
status, or because she was married. The RPD found it implausible that she had
been given such advice. The RPD also rejected the Applicant’s assertion that
she did not file a claim for protection in the USA after her
visa expired because her sister, a permanent resident in Canada, had to
contact a Canadian lawyer for advice. The RPD said that it would not take four
months to obtain advice about coming to Canada to claim
refugee status.
[24]
The
RPD also found that the Applicant’s alleged fear of persecution not credible
because, during the four-month period in which she was illegally in the USA, she was
subject to detention and removal and yet did not attempt to secure her status. Had
she truly feared persecution, she would have regularized her status
immediately. The RPD noted that, even after her Kuwaiti residency expired,
which she claimed was a bar to her making a refugee claim in the USA, she still did
not attempt to seek refugee protection there.
[25]
The
RPD noted that counsel at the hearing asserted that gender claims were less
likely to be accepted in the USA than in Canada. The RPD,
however, rejected this as an explanation for the Applicant’s delay in filing a
claim in the USA, as the Applicant
herself did not raise this issue in her testimony or in either of the forms she
filled out. Subjective fear is concerned with the Applicant’s own internal thoughts
and motivations, so the RPD rejected counsel’s evidence as an explanation for
the Applicant’s failure to file claim in the USA because she
did not know that gender-based claims were less likely to be accepted.
Other
Motivation
[26]
The
RPD was also concerned that the Applicant had applied for visas to come to Canada on three
separate occasions and was rejected each time. The RPD concluded that the Applicant’s
motivation for coming to Canada was not her fear of persecution but her
desire to live in Canada.
ISSUES
[27]
The
Applicant raises the following issues:
a.
Whether
the RPD’s credibility findings based on the inconsistencies between her PIF and
form IMM 5611 were reasonable;
b.
Whether
the RPD’s findings regarding the failure to claim protection in the USA were
reasonable.
STATUTORY PROVISIONS
[28]
The
following provisions of the Act are applicable in these proceedings:
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Convention refugee
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.
Person in Need of Protection
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
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection
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Définition de «
réfugié »
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.
Personne à protéger
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.
(2) A également qualité de personne à protéger la
personne qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
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STANDARD OF REVIEW
[29]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9,
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[30]
Assessment
of the evidence and findings of credibility are areas within the RPD’s areas of
expertise and are, therefore, deserving of deference. They are reviewable on a
standard of reasonableness. See Ched v Canada (Minister of Citizenship and
Immigration), 2010 FC 1338 at paragraphs 9 and 11, Yener v Canada
(Minister of Citizenship and Immigration), 2008 FC 372 at paragraph 28 and Mugu
v Canada (Minister of Citizenship and Immigration), 2009 FC 384 at
paragraph 33. The standard of review applicable to the first issue is
reasonableness.
[31]
In
Correira v Canada (Minister of
Citizenship and Immigration), 2005 FC 1060, Justice John O’Keefe found
that a finding of delay was reviewable on the reasonableness simpliciter
standard. Further, Justice Robert Barnes found that a finding of delay was a
question of fact to be evaluated on the patent unreasonableness standard in Mesikano
v Canada (Minister of
Citizenship and Immigration), 2007 FC 922. As the Supreme Court of
Canada collapsed these two standards into a single reasonableness standard in Dunsmuir,
above, at paragraph 45, the standard of review with respect to the second issue
is reasonableness.
[32]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paragraph 59. Put another way, the Court should intervene only if the Decision
was unreasonable in the sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
ARGUMENTS
The Applicant
[33]
The
Applicant argues that the RPD erred when it based its findings on
inconsistencies between form IMM 5611 and her PIF. She says that the
inconsistencies arose because of an error in translation at the time that form IMM
5611 was completed. Because form IMM 5611 was not translated back to her at the
time it was completed, any findings based on such inconsistencies are
unreasonable. Since the RPD based its negative credibility findings upon
inconsistencies between the two documents, those findings must also be
unreasonable. The Decision is unreasonable because it is based on unreasonable
findings.
[34]
The
Applicant also argues that the RPD committed an error when it found that there
was no explanation for her failure to claim refugee status in the USA. Her failure
to file a claim in the USA does not show a lack of subjective fear because it
was true that a claim in the USA would likely not succeed. The advice she
received from the American lawyers that her claim for refugee status would not
likely succeed was good advice, so this fully explains her failure to file a
claim while she was in the USA. Her failure to file a claim in the USA was
objectively reasonable, given that gender-based claims such as hers are
unlikely to succeed there. Since her failure to file in the USA was
reasonable, it was unreasonable for the RPD to conclude that she did not have a
subjective fear of persecution based on a failure to file.
[35]
The
Applicant asserts that the issue of the relative success of gender-based claims
in the USA relative to Canada was before
the RPD, but it failed to consider this evidence. Counsel at the hearing raised
this issue in her oral submissions and the RPD had an academic article before
it on gender-based asylum claims in the USA.
The Applicant’s
Further Memorandum of Argument
[36]
The
Applicant further argues that her counsel’s submissions on the treatment of
gender-based claims in the USA should have been considered by the RPD as
evidence that was before it. She relies on Ferguson v Canada (Minister of
Citizenship and Immigration), 2008 FC 1067, at paragraph 29 where
Justice Russel Zinn said that:
Legal counsel are officers of the court
with well established duties and responsibilities, including the responsibility
not to misstate facts or mislead. In my view, statements of fact made by
counsel may constitute evidence in informal proceedings such as a PRRA
application and they may be given weight. In these instances, counsel is not a
witness, it is counsel’s client that is the effective witness – counsel is merely
making a statement on the client’s behalf.
[37]
The
exchange between Applicant’s counsel and the RPD member at the hearing on the
success of gender-based claims in the USA was evidence that
should have been considered by the RPD. The RPD failed to consider this
evidence so its Decision is unreasonable.
The Respondent
[38]
The
Respondent says that the findings of the RPD were reasonable on the evidence
before it and should not be disturbed. There were inconsistencies between the
two forms and there was no documentary evidence to corroborate the incidents described
in the Applicant’s PIF. It was reasonable for the RPD to draw an adverse
inference of credibility based on these inconsistencies.
[39]
The
Respondent also argues that the RPD did consider the success of gender-based
claims in the USA and the
evidence arising out of the exchange between counsel and the member, but there
was no expert evidence before the RPD on this issue. The conclusion of the RPD concerning
the legal advice the Applicant received was reasonable. Further, since the
Applicant did not adequately explain her failure to file a refugee claim while
she was in the USA, it was reasonable for the RPD to find that
this was fatal to her claim in Canada. All the conclusions made by the RPD were
based on the evidence before it and were reasonable, so they should not be
disturbed.
ANALYSIS
[40]
Given
the background to this case and, in particular, the Applicant’s tardiness and
lack of effort in seeking protection in the USA and Canada, I can certainly
understand the RPD’s doubts about the Applicant’s lack of subjective fear, and
I would not intervene in this matter except for the following two reasons
which, in my view, render the decision unsafe and unreasonable and require that
the matter be returned for reconsideration.
[41]
First
of all, the RPD makes a specific finding that the contents of form IMM 5611
were not translated back to the Applicant. The RPD then relies upon
discrepancies between form IMM 5611 and the Applicant’s PIF narrative as part
of its general negative finding on credibility:
However, given that there are two
significant inconsistencies, the fact that the claimant also indicated that a
mistake could be an explanation, and other difficulties, noted below, with the
Port of Entry information and the claimant’s credibility generally, the Panel
does not accept the claimant’s explanation. From these substantial indirect
inconsistencies the Panel makes a negative inference as to credibility.
[42]
The
Applicant explained that discrepancies were possibly the result of some mistake
in translation but, of course, because she did not have form IMM 5611 translated
back to her for confirmation at the material time, she could say nothing more
than this.
[43]
Form
IMM 5611 was not prepared by the Applicant or anyone acting for her so that,
because it was not translated back to her, she had no opportunity to indicate
whether the document was truly reflective of what she had to say. She also conceded
that there were parts of her narrative that she did not make part of form IMM
5611 because the interviewing officer told her to keep her response short. It
is also significant, I think, that the document itself instructs applicants to keep
their answers short. The form states “Please answer in a few words. You will
have the opportunity to explain all the facts related to your claim to the
Immigration and Refugee board of Canada.”
[44]
The
Respondent concedes that if the finding that form IMM 5611 was not translated
back to the Applicant was the only basis for the Decision, then there would be
grounds for complaint. The Respondent argues, however, that other findings of
the RPD result in a global negative credibility finding that supports the lack
of subjective fear ground for refusing the claim.
[45]
My
reading of the Decision, however, and in particular paragraph 19, suggests to
me that the “two significant inconsistencies” that arise from the discrepancies
between the PIF narrative and form IMM 5611, as well as the finding on
“embellishment” set out in paragraph 21 of the Decision, are very much part of
the grounds for the general negative credibility finding. That being the case,
I think the Court cannot ignore the fact that form IMM 5611 was not translated
back to the Applicant and that she was not given an opportunity to confirm that
it accurately reflected her claim.
[46]
I
believe that, on the facts of this case, it was unreasonable for the RPD to
rely upon and use the inconsistencies and “embellishments” against the
Applicant when she was not given the opportunity to know whether form IMM 5611 accurately
described her position. As Justice Michael Phelan pointed out in Xu v Canada (Minister of
Citizenship and Immigration), 2007 FC 274 at paragraph 14:
I will not conclude that the CIC has an absolute obligation to
read back interview notes to ensure accuracy. There may be good reason for not
doing so including having spontaneous rather than tailored responses. However,
in not having some form of objective record of what was actually said in the
interview, the process is open to attack. In a world of digitalized recording,
it might be possible to avoid these types of issues completely.
[47]
In
addition, I do not think the finding of a lack of subjective fear can support
the whole Decision. As this court has pointed out, subjective fear is required
for section 96 persecution but not for section 97 risk. See Li v Canada
(Minister of Citizenship and Immigration), 2005 FCA 1, [2005] FCJ No 1 at
paragraphs 31-33, Guerra v Canada (Minister of Citizenship and Immigration),
2011 FC 319, at paragraph 6 and Shah v Canada (Minister of Citizenship and
Immigration), 2003 FC 1121, at paragraph 16.
[48]
In
my view, after finding a lack of subjective fear, the RPD does not then go on
to deal with section 97 risk.
[49]
The
Respondent argues that, in effect, section 97 risk is dealt with in paragraph
35 of the Decision where the RPD looks at forward-looking risk at the hands of
the Applicant’s father and her position as a divorced woman in Iran. What is
left out of account, however, is the risk from the authorities in Iran that is
clearly a significant part of the Applicant’s narrative and her fear of return.
This omission also renders the Decision unreasonable. See Bouaouni v Canada
(Minister of Citizenship and Immigration), 2003 FC 1211 at paragraph 41, Gnanasekaram
v Canada (Minister of Citizenship and Immigration) 2007 FC 297 at paragraph
10, Kandiah v Canada (Minister of Citizenship and Immigration), 2005 FC
181 at paragraphs 14-18, and Amare v Canada (Minister of Citizenship and
Immigration), 2008 FC 228 at paragraphs 9 and 10.
[50]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1. The
application is allowed. The decision is quashed and the matter returned for
reconsideration by a differently constituted RPD.
2. There is no
question for certification.
“James
Russell”
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