Date: 20070905
Docket: IMM-4906-06
Citation: 2007
FC 886
Ottawa, Ontario, September 5, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
MOHAMMAD REZA ASHOFTEH YAZDI
MARYAM ASHOFTEH YAZDI
KIMIA ASHOFTEH YAZDI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The applicants, Mohammad Reza
Ashofteh Yazdi, his wife Mary Ashofteh Yazdi and
their daughter Kimia, are citizens of Iran. They
seek judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board dated August 9, 2006, wherein the presiding member
found that they are not Convention refugees or persons in need of protection.
For
the reasons below, I find that there are no grounds to interfere with that
decision and the application is dismissed.
[2]
As
described by the member in her reasons, the applicants claimed to fear persecution
from Iranian authorities “due to attributed immoral behaviour as landlords of
students who misbehaved in the absence of the landlords, but, for whose
behaviour [they were] held responsible.” The applicants were occupying a large
house owned by a distant relative who lived in Germany. To generate income they rented rooms to
students, initially only girls, but from 2002 on, to young men as well.
[3]
While the
applicants were away for a week in 2004, the young people, as youth are wont to
do, held a party. The police were called by the neighbours and they allegedly
found some compromising material suggesting activities of a sexual nature had
taken place on the premises. The applicants were accused of operating a brothel
and were advised by a lawyer to flee Iran.
They made their way to a port, and from there by cargo ship to Canada. The applicants claimed not
to have known the name of the ship, where it stopped from time to time over the
42 days of the voyage or where it was going until they disembarked in secret at
night at Vancouver on March 15, 2005.
DECISION:
[4]
The member
found that there was insufficient credible evidence to establish the claims. In
particular, she found that there was no documentary evidence to place the applicants
in Iran in 2004 and insufficient
evidence to prove that the alleged incident involving the students and the
police took place. There was no documentary evidence to confirm when the
applicants had left Iran. The member did not believe
that the applicants had travelled to Canada
in the manner they described. She found it implausible that the applicants
would not have been able to provide information that one would reasonably
expect to have about the boat trip if they were describing a lived experience
as opposed to a fabricated one.
ISSUES:
[5]
The sole
issue is whether the tribunal erred in its assessment of the applicants’
credibility.
ANALYSIS:
[6]
Findings
of credibility are
"quintessentially findings of fact": see Dr. Q. v. College of
Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at
paragraph 38. The standard of review is therefore patent unreasonableness: Chowdhury v.
Canada (Minister of Citizenship and
Immigration),
2006 FC 139 at para. 12.
[7]
The
applicants submit that the credibility findings based on their inability to
provide documents from Iran are patently unreasonable.
The member was required to consider the totality of the evidence. She failed to
properly consider the applicants’ explanations for their inability to provide
Iranian documentation and focussed on peripheral issues such as the presence of
Mrs. Yazdi’s parents in the United
States and the
implausibility of their description of the boat trip.
[8]
It is
clear from the member’s reasons that she didn’t believe that the incident
involving the students had taken place and was the cause of their flight from Iran. Where a central incident is not
believed, and that finding is not patently unreasonable, any other alleged error
made by the tribunal is of little consequence: Yang v. Canada (Minister of Employment and
Immigration),
[1995] F.C.J. No. 121 (QL)
[9]
In my
view, the member’s credibility findings were open to her on the evidence. The
applicants were unable to provide sufficient documentary evidence in support of
their claim that they were in Iran at the relevant time. The
principal applicant had no identification documents dated beyond 2001. A letter
from his former workplace, dated October 7, 2004, states that he “has been”
working at the company. At best that is ambiguous as to when the employment
terminated.
[10]
A letter
had been obtained, at the tribunal’s request, from the owner of the house
resident in Germany. The owner confirmed that he
gave the applicants permission to rent his rooms in 2000 but does not indicate
that he paid a fine to the Iranian authorities because of the students’
misbehaviour to recover his property, as claimed by the applicants. He had been
requested to provide any bills that had been paid on the Iranian property but
none were received, nor was the omission explained. The applicants had stated
that all bills for utilities and taxes were in the owner’s name and that they
had paid them on his behalf but they had no records to establish that. They had
no photographs of themselves in the home.
[11]
The member
noted that the letter from the home owner
was not sworn nor was the author available for cross-examination. The
applicants submit that these factors do not entitle the tribunal to disregard
the evidence: Fajardo v.Canada (Minister of Employment and Immigration)
1993 FCJ 915. But that is not what the member did. She took the letter into
consideration and assessed what it contained and did not contain. The weight to
be given to that evidence was well within the tribunal’s discretionary
decision-making power, and the Court should not reweigh the evidence: Suresh
v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para. 39.
[12]
Accordingly,
I find that the decision is not patently unreasonable and the application is
dismissed. No serious questions of general importance were proposed and none
will be certified.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the application is dismissed.
No questions are certified.
“Richard
G. Mosley”
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