Date: 20070608
Docket: IMM-6150-06
Citation: 2007
FC 615
Ottawa, Ontario,
June 8, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
REZA RAFIPOOR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Reza Rafipoor (the Applicant) is a
citizen of Iran who seeks
protection in Canada on the
grounds that he fears persecution by the
Iranian regime because he is accused of being a student
activist. In a decision dated November 6, 2006, a panel of the Refugee
Protection Division of the Immigration and Refugee Board (the Board) denied his
claim. The credibility of the Applicant was central to the decision.
Specifically, the Board concluded that the Applicant had failed to demonstrate
that:
- he was wanted by
the Iranian authorities;
- he was in Iran during the period that he alleged
having had problems;
- he left Iran illegally; and
- he is unlikely
to have serious problems with Iranian authorities upon his return to Iran.
[2] The Applicant seeks judicial review of the
decision.
Issues
[3] In oral submissions before me, the
Applicant argued in respect of the following issues:
- Did the Board
breach the rights of the Applicant to a fair hearing by providing
inadequate translation?
- Did the Board
make material errors or fail to properly consider: (a) the times of the
flights checked by the customs official; and (b) the fact that the
Applicant had remained in the bathroom at the airport for some time where
there was no evidence of cameras and patrols?
- Did the Board
err by finding that the Applicant would have no problems upon his return
to Iran if he lied to
Iranian officials about making a refugee claim?
Analysis
Issue #1:
Translation
[4] The issue of whether the Applicant’s right
to a fair hearing was breached is subject to review on a correctness standard.
[5] During
the hearing there was some interaction among the parties on the subject of the
date when the Applicant left Iran. The Applicant, testifying in Farzi, utilized
the Iranian calendar to respond to a question. The interpreter apparently had
some difficulty with whether the year stated should be 2004 or 2005. Counsel
for the Applicant drew the attention of the Board to the possible error and
commented that:
I am just requesting that the
year, the English year be converted into the Iranian calendar year when the
claimant is being questioned. Because 2005 or 2004 is not a calendar he’s used
to.
[6] After
this comment, the Board reposed the question to which the translation was given
that he had left Iran in 2005. At this point, the Board commented that:
Okay. So it was
2005 and not 2004. Okay, I will let Mr. Leduc continue. There is credibility
question I’m sure Mr. Leduc will touch.
[7] The Applicant argues that the inadequate
translation rises to the level of a breach of s. 14 of the Charter (Mohammadian
v. Canada
(Minister of Citizenship and Immigration), 2001 FCA
191, [2001] 4 F.C. 85). Further, he submits that there was no waiver of the
right to an adequate translation and that the issue of dates was a critical
element of the Board’s decision.
[8] I cannot agree. Firstly, I am not
persuaded that, in the end result, this is a translation error of the nature
contemplated by Mohammadian, above. Although there was some confusion,
it appears to have been sorted out with the assistance of counsel for the
Applicant. This is a far cry from the problem that existed on the facts of Mohammadian,
where the ability of the Iranian Kurdish claimant to communicate through a
Turkish or Iraqi Kurdish interpreter was in question. In the case before me,
there appears to be no assertion that, overall, the quality of interpretation
was inadequate. Rather, the concern is with the translation of a very small
portion of the hearing.
[9] Secondly, I am satisfied that the
Applicant’s counsel effectively waived the Applicant’s rights to raise the
issue of translation. As noted above, counsel was very aware of the apparent
problem and stepped in to assist with ascertaining the dates. Had the concern
of the Applicant or his counsel risen to the level of putting the integrity of
the hearing into dispute, surely counsel would have acted to bring this
forward. Counsel did not do so. In my view, there was waiver.
[10] Further, even if there was a translation
error on the date, the date under discussion and the Board’s comment that it
was a “credibility question” was not material to the Board’s decision. Indeed,
it is not even mentioned.
[11] The other translation errors noted by the
Applicant were either minor or made by the refugee protection officer. As noted
in Mohammadian, above, translation does not have to be perfect.
Issue #2:
Assessment of the evidence
[12] Generally speaking, the Board based its
decision on three main findings: the Applicant was not wanted by the Iranian
authorities, he had not shown that he was in Iran when he said he was and he
did not leave Iran illegally.
The Applicant only alleges errors with respect to the second of those matters.
On the question of the Applicant’s whereabouts before coming to Canada, the
Board described a number of concerns with the Applicant’s story and came to the
conclusion that the Applicant “probably left Iran sometime after 1998 for the
U.S. and spent some time there before coming to Canada in 2005”. In other
words, the Applicant had not satisfied the Board that he was in Iran when he was allegedly experiencing
persecution by the Iranian authorities.
[13] The standard for a Board’s decision
regarding credibility is patently unreasonableness. The finding in question should
not be set aside unless it has been made “in a perverse or capricious manner or
without regard to the material before it” (s. 18.1(4)(d), the Federal Courts
Act, R.S.C. 1985, c. F-7).
[14] The Board bases the conclusion at issue on a
number of factors, and, in part, relies on an exchange of e-mails among customs
and immigration officials on the night of his arrival. During its analysis, the
Board states that an official “checked the planes that arrived before, around
21:00 and none had a passenger with a Greek passport”. The Board also notes the
comments of an immigration officer that “the claimant could not wander . . .
too long in the airport after crossing the gate because of the security patrols
and the cameras everywhere in this area”.
[15] The Applicant submits that the Board erred
when it stated that the custom’s officer checked the planes “before” 21:00;
however, the emails show that the officer checked the planes “after” 21:00.
This is significant because, according to the Applicant, this corroborates the
Applicant’s contention that he arrived on a flight which arrived before 21:00.
The Applicant also notes that he was also in the bathroom for a period of time
and there was no evidence of cameras or patrols in the bathrooms. On the basis
of these two alleged errors, clearly made without regard for the evidence, the
Applicant asserts that the decision should be overturned. I do not agree.
[16] In my view, the error in stating the time as
“around 21:00” rather than “after 21:00” does not materially change the overall
situation of the Applicant. There are sufficient other facts taken into account
by the Board to support the conclusion that he did not arrive via the route
that he described. With respect to whether there were cameras in the bathroom,
it was reasonably open to the Board to assume that a statement that there were
“cameras everywhere” would include in the bathrooms at the airport. Finally,
even if I were to conclude that both of these were errors, it is unlikely that
this would lead to a conclusion that this particular conclusion or, more
importantly, the decision as a whole was patently unreasonable.
Issue #3: Risk
on return to Iran
[17] Having concluded that the Applicant was not
wanted by the authorities in Iran, that he had not satisfied the Board that he
was in Iran during the period he alleged having had problems and that he did
not leave Iran illegally, the Board turned to the possibility that he would
suffer problems with the Iranian authorities upon his return to Iran:
Hence, after
carefully reviewing the documentary evidence on Iranian returnees, we estimate
that, in the case of the claimant, it is unlikely that he would have any
serious problem with the Iranian authorities upon his return to his country. We
read in the UK assessment
report on Iran that usually a
person who gets back will be asked why she or he was abroad. If the answer is
along the lines of “I just tried to find a job”, they will most likely be
allowed to go home to their families. Generally speaking, it does depend on
what kind of documentation exists on the returnees. Because Mr. Rafipoor did
neither demonstrate to the satisfaction of the tribunal that he is wanted by
the authorities, that he is an opposition or a student activist or that he left
Iran illegally, we therefore do not believe that he would be arrested or that
he would suffer cruel and unusual treatment or punishment upon his arrival in Iran.
[18] The Applicant submits that it was an error
for the Board to determine that, if the Applicant returned to Iran, he could lie and thereby, not get
into trouble. The Applicant cites Donboli v. Canada (Minister of Citizenship and Immigration), 2003 FC 883, in support of his argument that it is an error for
the Board to advocate misrepresentation and failure by the Board to consider
evidence of extra-judicial sanctions for an illegal exit.
[19] In
my view, Donboli is not directly relevant to the facts and the decision
before me. In Donboli, the error was not that the Board had counseled
the claimant to lie. Rather, Justice Dawson stated that the Board “erred in
failing to consider whether Mr. Donboli would risk severe or extra-judicial
treatment at the hands of a repressive regime as a result of his illegal exit
from the country”. The panel’s observation that Mr. Donboli had a good cover
story was, in her view, a demonstration of that failure.
[20] It
follows that, before me, the question is whether, in spite of the admittedly
ill-advised use of the “I just tried to find a job” quote, the Board considered
whether the Applicant was at risk upon his return. I am satisfied that it did.
The Board referred to the documentary evidence from the UK and also to the fact
that detention would depend on the kind of documentation or “record” the
authorities had on the Applicant. The Board noted that there is insufficient
evidence that he was wanted by the authorities or that he had been a student
activist. Thus, not considering him to be such a person of interest, the
authorities would not have reason to detain the Applicant. As I have noted, it
was ill-advised of the Board to use the above quote which came directly from
the UK documentation. However, it does not, in my view, amount to an error,
given that the Board reviewed the evidence before it and addressed the issue of
the risk to the Applicant, as a failed refugee claimant, upon his return to Iran.
Conclusion
[21] For these reasons, the application for
judicial review will be dismissed. Neither party proposed a question for
certification and none will be certified.
ORDER
This Court
orders that:
- The
application for judicial review is dismissed; and
- No question of
general importance is certified.
“Judith
A. Snider”
____________________________
Judge
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