Khazaei v. Canada (Citizenship and Immigration), 2013 FC 13

 

 

Date: 20130109

Docket: IMM-4276-12

Citation: 2013 FC 13

Montréal, Quebec, January 9, 2013

PRESENT:    The Honourable Mr. Justice Shore

 

 

BETWEEN:

	REZA KHAZAEI SHIRIN SHEIKH HARANDI
		Applicants
	and
	THE MINISTER OF CITIZENSHIP AND IMMIGRATION
		Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

I. Overview

[1]               The Refugee Protection Division may reasonably draw an adverse credibility inference from an applicant's failure to present evidence supporting his or her claim if the account is devoid of credibility on key issues, stemming from clear inconsistencies and implausibilities. In Morka v Canada (Minister of Citizenship and Immigration), 2007 FC 315, Justice Luc Martineau held that in certain circumstances it is reasonable to ground an adverse credibility finding on an absence of documentation to support an applicant's allegations (at para 18).

 

II. Introduction

[2]               The Applicants seek judicial review of a decision by the Refugee Protection Division [RPD], wherein it was determined that they are not Convention refugees or persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001 c 27 [IRPA]. In particular, the principal Applicant challenges the RPD’s general adverse credibility assessment and its finding that he and his spouse are not at risk because they are persons who have applied for refugee protection in Canada.

 

III. Judicial Procedure

[3]               This is an application for judicial review of the decision of the RPD, dated April 12, 2012, pursuant to subsection 72(1) of the IRPA.

 

IV. Background

[4]               The principal Applicant, Mr. Reza Khazaei, is an Iranian citizen who was born in 1949. His spouse, Ms. Shirin Sheikh Harandi, is also an Iranian citizen who was born in 1952. 

 

[5]               The principal Applicant’s spouse belongs to the Sufi sect of Shia Islam and alleged a well-founded fear of persecution on that basis before the RPD.

 

[6]               In 1999, the principal Applicant was allegedly arrested and detained for holding a party that authorities considered “un-Islamic”.

 

[7]               In 2000, the son of the Applicants fled Iran for the United Kingdom, where he was granted refugee status on the basis of his sexual orientation. Their daughter fled Iran for the United Kingdom in 2001, where she was also granted refugee status because she was scheduled to face a trial on charges related to attending a party. The principal Applicant claims that he deposited a guarantee to obtain his daughter’s conditional release, which he forfeited when she fled Iran.

 

[8]               In 2002, the principal Applicant was allegedly detained by intelligence officials for expressing negative opinions regarding the Iranian regime at a social gathering. 

 

[9]               In 2004, the principal Applicant allegedly withdrew from a contract he was negotiating as he was warned that he would face problems.

 

[10]           In 2009, the Applicants participated in demonstrations protesting the results of the Iranian presidential election.

 

[11]           In October 2009, intelligence officials allegedly arrested the principal Applicant, detained him for three days, beat him, and interrogated him for his participation in the demonstrations and his children’s political opposition to the Islamic regime.

 

[12]           The principal Applicant believes that a business rival, Najafi, reported his remarks in 2002 to intelligence officials resulting in his arrest; and, furthermore, threats to his person led to the termination of a contract in which he was engaged in 2004, and, finally, to his arrest in October of 2009.

 

[13]           The Applicants began to consider leaving Iran; the principal Applicant’s spouse actually made an application to renew her passport and allegedly paid a bribe to expedite its issuance after an unusually long delay.

 

[14]           In November 2009, intelligence officials allegedly questioned the principal Applicant and searched his home.

 

[15]           The Applicants allegedly fled Iran. The principal Applicant, after having learned from an airport contact of a friend that he would be stopped if he attempted to leave Iran, paid a bribe to facilitate safe exit. The Applicants arrived in Montreal on May 2, 2010. 

 

[16]           In July 2010, the Applicants applied for refugee protection after allegedly having learned from a business contact that the Iranian authorities had been looking for them and that they had become subject to new political charges by the Iranian regime.

 

V. Decision under Review

[17]           The RPD did not accept that the Applicants were Convention refugees or persons in need of protection on the basis of an adverse credibility finding. In particular, the RPD did not believe that the Applicants had a well-founded fear of persecution by reason of being members of a particular social group (people whose children live abroad and are considered to be opponents of the Islamic regime) or for their perceived political opinion.

 

[18]           The RPD did not consider credible the Applicants’ allegation that they were harassed and persecuted because their children lived abroad and were considered opponents of the Islamic regime. Pursuant to the facts, between December 2003 and October 2008, the Applicants had visited their children abroad four times, all of which led the RPD to find that negative consequences did not flow from their children’s political activities.

 

[19]           The RPD did not find it credible that the principal Applicant was arrested, detained and interrogated in October 2009. The evidence suggested that the Applicants had participated in political demonstrations protesting the 2009 presidential election. Many Iranians participated in these demonstrations and it was unlikely the Applicants would be particularly targeted. The principal Applicant’s credibility was also impugned subsequent to his having testified that he was forced to sign an undertaking which he had not mentioned in his Personal Information Form [PIF].

 

[20]           The RPD also took the view that the principal Applicant should have filed corroborating evidence of his arrest and detention in October 2009. The RPD pointed to the principal Applicant’s secretary (who allegedly notified his spouse of his detention and with whom the principal Applicant was in contact after leaving Iran) as a possible source of corroborating evidence.

 

[21]           In the RPD’s view, the principal Applicant was also unable to support his allegation that intelligence officials were the persons who had detained him in October 2009. At the hearing, the principal Applicant could not explain why intelligence officials would target him; and, he admitted that Najafi could actually have hired the persons detaining him.

 

[22]           Without corroborating evidence, the RPD did not accept as plausible that the principal Applicant learned he would be prevented from leaving Iran from an airport contact of a friend or that he had a business friend who informed him in respect of political charges against him. The RPD expected that the Applicants could have filed attestations from unrelated third parties to support these allegations (for example, the friend with the airport contact or his business friend). They could have supported allegations that their neighbours in Iran and the building manager of their condo had been questioned by authorities in their regard with a need for similar attestations.

 

[23]           The RPD drew a negative inference from the attestations that the Applicants did present. According to the RPD, this demonstrated that they understood the importance of providing corroborating evidence. Neither attestation, however, had any probative value on the principal Applicant’s arrest and detention in October 2009 or on the details of their flight from Iran. Statements by their son on these issues were hearsay and without probative value.

 

[24]           The RPD did not accept the principal Applicant’s explanation that he did not obtain an attestation from his business friend since he “was in a sensitive position and would not feel safe if asked to furnish a written attestation” (Decision at para 16).

 

[25]           In its credibility analysis, the RPD also reasoned that the Applicants lacked subjective fear because they had, in fact, delayed applying for refugee protection for almost three months subsequent to their arrival in Montreal. Their explanation that they hoped to return to Iran lacked credibility because it was inconsistent with their allegation that Iranian authorities had sought to prevent them from fleeing Iran in addition to the Applicants’ allegations specified from paragraphs 5 to 16 above.

 

[26]           On the principal Applicant’s spouse’s fear of persecution due to her Sufi faith, the RPD found that there was not a reasonable chance or serious possibility that she would be persecuted on a balance of probabilities. The RPD reasoned that the principal Applicant’s spouse had testified that she had never suffered personally, that she attended mosque in Tehran three times every week without negative consequences, that she took precautions, and that restrictions on the practice of religion are not as severe in Tehran as in other cities.

 

[27]           Finally, the RPD did not accept that the Applicants would be at risk in Iran by having claimed refugee protection in Canada. The RPD noted one piece of country condition evidence stating that “it is difficult to gauge the treatment of returnees or how they are perceived by the regime” (Decision at para 20).

 

VI. Issues

[28]           (1) Were the RPD’s credibility findings unreasonable?

(2) Was the RPD unreasonable in finding that the Applicants would not be at risk because they had applied for refugee protection in Canada?

 

VII. Relevant Legislative Provisions

[29]           The following legislative provisions of the IRPA are relevant:

 

VIII. Position of the Parties

[30]           The principal Applicant argues that the RPD’s credibility analysis was unreasonable and that it was also unreasonable to find that he and his spouse are not Convention refugees or persons in need of protection because they applied for refugee protection in Canada.

 

[31]           According to the principal Applicant, the RPD was unreasonable in inferring from his and his spouse’s visits to the United Kingdom that they were not at risk because of the political opinions of their children. The Applicants submit that there was no evidence before the RPD that the Iranian authorities knew before October 2009 that their children were living in the United Kingdom or had claimed refugee protection there.

 

[32]           The principal Applicant further argues that his failure to describe the undertaking in his PIF is a minor detail that should not have affected the RPD’s credibility analysis.

 

[33]           In the principal Applicant’s view, the RPD was unreasonable in drawing a negative credibility inference from his failure to present attestations because there was no obligation to present such evidence and it would have been impossible to obtain. The principal Applicant refers this Court to Rule 7 of the Refugee Protection Division Rules, SOR/2002-228, which provides that claimants must present acceptable documents establishing identity and other elements of the claim and, if they do not, claimants must explain why they were not presented and what steps were taken to obtain them. The principal Applicant argues that attestations do not fall within the scope of documents required by Rule 7. Moreover, it was unreasonable to expect that such evidence could be obtained because all individuals who could corroborate the principal Applicant’s account lived in Iran. Communication with such individuals could be intercepted by Iranian authorities, thereby subjecting them to risk.

 

[34]           The principal Applicant also asserts it was unreasonable for the RPD to infer from the attestations of their son and a fellow adherent to Sufism that he and his spouse understood the importance of attestations and should have obtained others in that regard. The principal Applicant argues that these other attestations came from persons who did not live in Iran and would not be placed at risk in providing attestations.

 

[35]           The principal Applicant argues that the RPD’s request for corroborating evidence was unreasonable since it did not specify which aspects of his claim require corroboration.

 

[36]           The principal Applicant submits that he did not testify that the people who detained him were agents of Najafi and that he believes that Najafi may have incited Iranian authorities to investigate his behaviour.

 

[37]           On whether his delay in claiming refugee protection demonstrates a lack of subjective fear, the principal Applicant argues that such a delay is not determinative and that his explanation for the delay was credible. The principal Applicant claims that his decision to apply for refugee protection was motivated not by the efforts of the Iranian authorities to prevent him from leaving Iran but rather by the political charges against him. In his view, the RDP ought to have recognized this distinction.

 

[38]           Finally, the principal Applicant contends that the RPD was unreasonable in finding that he and his spouse are not Convention refugees or persons in need of protection because they applied for refugee protection in Canada. The conclusion that there was no cogent evidence on how Iranian authorities perceive failed refugee claimants was inconsistent with country condition evidence. The principal Applicant argues that the RPD ignored this evidence and was obligated to explain why it received no weight.

 

[39]           The Respondent counters that the RPD’s credibility analysis was reasonable given the inconsistencies in the principal Applicant’s testimony. The Respondent argues that it was reasonable to determine that the Applicants would not have been able to re-enter Iran after visiting the United Kingdom if Iranian authorities had suspected them or their children of political dissidence. Whether or not the authorities knew that their son and daughter lived in the United Kingdom would not detract from this conclusion. It was also reasonable to find that the widespread participation of Iranians in the protests against the 2009 presidential election suggested it was highly unlikely that the principal Applicant was particularly targeted in October 2009. Finally, it was reasonable for the RPD to consider the principal Applicant’s account of the circumstances surrounding his departure from Iran as implausible.

 

[40]           The Respondent also contends that the RPD was reasonable in requiring corroborating evidence. Citing Mejia v Canada (Minister of Citizenship and Immigration), 2009 FC 1091, the Respondent submits that the RPD was reasonable in requiring corroborating documentary evidence due to the inconsistencies in the principal Applicant’s testimony. The Respondent refers this Court to Encinas v Canada (Minister of Citizenship and Immigration), 2006 FC 61, for the proposition that the RPD is entitled to draw a negative inference from an applicant’s failure to provide corroborating evidence.

 

[41]           Finally, the Respondent argues that the RPD was reasonable in finding that the Applicants would not be at risk in Iran subsequent to their application for refugee protection in Canada. According to the Respondent, the RPD assessed the country condition evidence and found it inconclusive on this issue.

 

IX. Analysis

Standard of Review

[42]           The standard of review applying to the RPD's findings on credibility and subjective fear is that of reasonableness (Kaur v Canada (Minister of Citizenship and Immigration), 2012 FC 1379). Reasonableness also applies to the RPD’s finding that the principal Applicant and his spouse would not be at risk as failed refugee claimants (Wa Kabongo v Canada (Minister of Citizenship and Immigration), 2008 FC 348).

 

[43]           Since the standard of reasonableness applies, this Court may only intervene if the Board’s reasons are not “justified, transparent or intelligible”. To satisfy this standard, the decision must also fall in the “range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).

 

(1) Were the RPD's credibility findings unreasonable?

[44]           The RPD may reasonably draw an adverse credibility inference from an applicant's failure to present evidence supporting his or her claim if the account consists of a lack of credibility on key issues, stemming from clear inconsistencies and implausibilities. In Morka, above, Justice Martineau held that in certain circumstances it is reasonable to ground an adverse credibility finding on an absence of documentation to support an applicant's allegations (at para 18).

 

[45]           In response to the principal Applicant's claim that he had no obligation to present supporting affidavits or attestations from third parties, an applicant has the burden of proving that he or she is either a Convention refugee or a person in need of protection (Nagamuthu v Canada (Minister of Citizenship and Immigration), 2012 FC 1195 at para 12). In certain circumstances, as in this case, this may require claimants for refugee protection to present supporting documents.

 

[46]           The Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (HCR/1P/4/Eng/REV.1 Reedited, Geneva, January 1992, UNHCR 1979) [Refugee Handbook] provides the following guidance on when supporting documentation may be required:

[196]    It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

 

...

 

[203]    After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to "prove" every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.

 

[204]    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts. [Emphasis added].

 

[47]           In sum, the position of the Refugee Handbook is that supporting documentation may not be required of a claimant for refugee protection from countries from which it may be difficult to do so, but, should a claimant's account be devoid of credibility or plausibility, it requires substantiating documentation. Recognizing that (as the Refugee Handbook observes) refugees may face difficulties in assembling information to substantiate their claims, it may, nevertheless, be wholly reasonable for the RPD to require an applicant, whose account lacks credibility and plausibility, thus devoid of inherent logic to produce third party attestations in place of other documentation.

 

[48]           It must be specified that there was no evidence before the RPD that the authorities were aware of the political activities of their children by the time of their last visit to the United Kingdom in September and October of 2008 (Tribunal Record [TR] at p 32). The principal Applicant testified that the authorities knew the political activities of their children took place in the United Kingdom but it was unclear from his testimony when these activities occurred:

Q.        Did they ask you to sign an undertaking and put up a guarantee?

 

A.        I signed something, yes. I signed an undertaking that I would not take part in any demonstrations and they also talked about the situation by my children in front of the Iranian embassy in London, they also talked about that. And, I was told that they also filmed them and photographed them. [Emphasis added].

 

(TR at p 362).

 

This belies the principal Applicant’s argument that there was no information before the RPD that the authorities knew his children were living in the United Kingdom; however, since this testimony was offered in the context of the principal Applicant’s description of his involvement in the 2009 protests, it is likely that the situation described above was also in relation to the 2009 protests. As there was no evidence before the RPD to suggest that the authorities were aware of the political activities of their children at the time the Applicants visited the United Kingdom, this particular aspect of the credibility analysis is inconclusive.

 

[49]           Notwithstanding these findings, is the RPD’s overall credibility analysis still reasonable? The above were the only two questionable aspects to the RPD's credibility finding. While inconclusive, in and of themselves, to draw negative credibility inferences from the failure to present attestations and the visits to the United Kingdom, this Court’s task is to determine the overall reasonableness of the RPD's credibility analysis. In Abid v Canada (Minister of Citizenship and Immigration), 2012 FC 483, Justice Martineau held that this Court must focus on the overall reasonability of the RPD's decision and errors must be determinative to affect the overall reasonability of the RPD's decision (at para 22).

 

[50]           The adverse credibility assessment was premised on other findings of inconsistencies and implausibilities that are reasonable. First, at the principal Applicant’s admission, there was widespread participation in the protests of the 2009 presidential election (TR at p 361). Moreover, the principal Applicant testified that he was not a “ringleader” and only one of “millions” of protestors (TR at p 361). Although there was documentary evidence that “[h]hundreds of ordinary people who took to the streets to voice their views or concerns about the election were also caught up in the arrests” (TR at p 111), it would be reasonable to find it implausible that he would be particularly targeted a month after the protests in the summer of 2009. The RPD was also reasonable in rejecting the principal Applicant’s explanation in his PIF and testimony that he may have been targeted due to the machinations of his business competitor, Najafi, who had alleged ties to the Islamic regime in Iran (TR at pp 24 and 361). Second, the inconsistency between the principal Applicant's PIF and testimony on the undertaking is minor but it would be reasonable to draw an adverse inference from it in light of the general implausibility of this incident. Finally, it would be reasonable to doubt the principal Applicant's account of the information he received from the alleged airport source of his friend that he would be prevented from exiting Iran. It would be possible and acceptable to conclude that it was highly unlikely that the principal Applicant would have received such intelligence.

 

[51]           The reasonability of the RPD's credibility findings is compounded by the principal Applicant's delay in claiming refugee protection. Delay is not itself a decisive factor (Huerta v Canada (Minister of Citizenship and Immigration) (1993), 157 NR 225, [1993] FCJ No 271 (QL/Lexis) (FCA) at para 4) but where an applicant's credibility has been generally impugned, it can establish a lack of subjective fear (Rodriguez v Canada (Minister of Citizenship and Immigration), 2012 FC 1291 at para 62). The principal Applicant’s claim that he decided to apply for refugee protection upon learning of the alleged political charges against him does not satisfactorily explain this delay. If the alleged events did compel him to flee Iran, it would be reasonable to conclude that he would not intend on returning to Iran once he left. In this context, the principal Applicant’s delay would reasonably lead to an inference of lack of subjective fear.

 

[52]           Assessed from the perspective of overall reasonability, the RPD's adverse credibility finding was reasonable. Although the RPD was potentially unreasonable in requiring third party attestations under the circumstances discussed above, these aspects of the RPD’s credibility analysis, however, were not determinative. Yet, other aspects of the RPD's credibility analysis were clearly determinative and meet the standard of reasonableness (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para 16-18).

 

(2) Was the RPD unreasonable in finding that the Applicants would not be at risk because they had applied for refugee protection in Canada?

 

[53]           The RPD was also reasonable in finding that the Applicants would not be at risk because they had applied for refugee protection in Canada.

 

[54]           The principal Applicant referred the RPD to three pieces of country condition evidence on this issue. The first, a country condition report from the Australian government, states that “[i]t remains uncertain as to whether either the Iranian authorities or paramilitaries aligned to the regime impute returnees with anti-government or anti-Islamic Republic political views simply for applying for protection abroad” (TR at p 268). The second, a report by Amnesty International, stating that “[f]ailed asylum seekers also risk arrest if they return to Iran, particularly if forcibly returned, where their asylum application is known to the authorities” (TR at p 267). The third, an Organisation Suisse D’Aide aux Réfugiés report, cites a newspaper editorial by a former Iranian Supreme Court judge stating that failed refugee claimants may be prosecuted for fabricating allegations of persecution. Although the above would certainly not substantiate the RPD’s finding in respect of the Applicants, the principal Applicants’ lack of credibility and plausibility of key overriding factors, most certainly does.

 

[55]           The Applicants' challenge to this reasoning asks this Court to re-weigh the evidence. In Arbelaez v Canada (Minister of Citizenship and Immigration), 2012 FC 1129, Justice Elizabeth Heneghan held that this Court will not intervene where the RPD has assessed and weighed conflicting pieces of country condition evidence (at para 13). In the present case, the RPD weighed the admittedly sparse information in the country condition reports and concluded that the Applicants would not be at risk of persecution for having made an application for refugee protection. The RPD decision is based on its failure to qualify for refugee protection on the basis of a lack of credibility due to allegations that were devoid of inherent logic as demonstrated in the inconsistencies and implausibilities therein. This Court cannot interfere by re-weighing that evidence.

 

X. Conclusion

[56]           For all of the above reasons, the Applicants’ application for judicial review is dismissed.

 

JUDGMENT

 

THIS COURT ORDERS that the Applicants’ application for judicial review be dismissed. No question of general importance for certification.

 

 

“Michel M.J. Shore”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                         IMM-4276-12

 

STYLE OF CAUSE:                        REZA KHAZAEI

                                                            SHIRIN SHEIKH HARANDI  v

                                                            THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

 

 

PLACE OF HEARING:                  Montréal, Quebec

 

DATE OF HEARING:                    January 8, 2013

 

REASONS FOR JUDGMENT

AND JUDGMENT:                         SHORE J.

 

DATED:                                            January 9, 2013

 

 

 

APPEARANCES:

 

Claudette Menghile	FOR THE APPLICANTS
Margarita Tzavelakos	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Claudette Menghile Attorney Montréal, Quebec	FOR THE APPLICANTS
William F. Pentney Deputy Attorney General of Canada Montréal, Quebec	FOR THE RESPONDENT