Date:
20130124
Docket:
IMM-4382-12
Citation:
2013 FC 73
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
January 24, 2013
PRESENT: The
Honourable Mr. Justice Martineau
BETWEEN:
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FARIDEH NOUHI
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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]
The
applicant, a citizen of Iran, fears persecution in her country because of her
perceived political opinions and her membership in a particular social group. She
is challenging the legality of a decision of the Refugee Protection Division of
the Immigration and Refugee Board (panel), dated April 12, 2012, rejecting
her claim for refugee protection.
[2]
The
existence of a subjective fear is not really at issue and the panel did not
seriously call into question the story found in the applicant’s Personal
Information Form (PIF) although there are doubts as to the veracity of certain
allegations on which we will return later in these reasons. Essentially, the
panel found that the applicant is not at risk of persecution in Iran since her
son is already in prison and her daughter, who lives in Iran, was not arrested
by the police.
[3]
The
decision under review must be reviewed on the reasonableness standard. The
issue in this case is whether the panel’s implausibility findings and negative
inferences are reasonable and are based on the evidence as the respondent
claims or, rather, whether they are purely gratuitous, speculative and
unreasonable as the applicant argues.
[4]
The
allegations that must be taken as proved are relatively straightforward. The
female applicant is 66 years old. She is the mother of a son, Ali, who
lived with her in Iran, and two daughters, Maryam and Fatemeh, the former
living in Canada and the latter in Iran. In June 2009, Ali participated in
popular demonstrations challenging the result of the presidential elections. In
mid‑September 2009, two of her son’s friends, Babak and Hamid, came
to hide in her residence. The police arrived to arrest them and, at the same
time, it also arrested the applicant when her son was absent. The applicant was
questioned by the police about her son and was released the same night. Three
days later, she was again questioned about her son. In the months that
followed, the applicant received various telephone threats, always relating to
her son. The applicant arrived in Montréal on May 26, 2010, with a
temporary resident visa and she made her refugee claim on August 31, 2010.
Soon after, her son was arrested and he has been incarcerated since then. However,
the Iranian authorities allowed Fatemeh to visit him in prison. The authorities
continued show interested in the applicant.
[5]
It
is true that the panel may make “reasonable findings based on implausibility” (Huang
v Canada (Minister of Citizenship and Immigration),
2012
FC 1004, at para 30, [2012] FCJ No 1090),
but there is nothing in all the evidence on the record to support the panel’s
negative inferences and findings of implausibility, when the applicant’s entire
testimony and the other documentary evidence on the record are considered. In
my opinion, several of the panel’s findings are gratuitous or speculative and
the grounds found at paragraphs 7 to 10 of the decision do not support a
finding that the rejection of the refugee claim is an acceptable outcome in
respect of the evidence and the applicable law. Intervention is warranted in
this case.
[6]
Therefore,
in finding that the applicant was released the day of her arrest, most likely
because the Iranian authorities found that the applicant was not complicit in
the decision to offer shelter to people who wanted to escape the Iranian
authorities, the panel ignored the applicant’s reasonable explanations and the
medical evidence on the record. It seems that the applicant indeed experienced
discomfort in detention that, according to the applicant’s story, prompted her
release, which is plausible in this case.
[7]
However,
the finding of absence of risk is very much based on the fact that up until
then, the applicant’s daughter, Fatemeh, had not been detained. Again, the
panel did not consider the evidence on the record. It should be remembered that
the fugitives, Babak and Hamid, were found and arrested at the applicant’s
home, not at her daughter’s home. Further, the documentary evidence indicates
that the family members of a person detained for political reasons—like the
applicant’s son—are still at risk of being arrested or harassed, especially
when pressure is being exerted on a political prisoner. Mothers are often
targeted. Let us not forget that Ali is incarcerated in Evin prison, a prison for
political prisoners, which the panel seems to have disregarded.
[8]
The
panel also relied on the fact that the applicant was able to leave Iran on
May 26, 2010. Nevertheless, the panel seems at the same time to have
disregarded the documentary evidence that it is quite rare for the Iranian government
to prevent its nationals from leaving the country, while the applicant does not
have the profile of individuals that the Iranian authorities prevent from
travelling abroad. In its very cursory analysis, the panel also did not
consider that the Iranian authorities have continued to harass the applicant
after her release and ask questions about her.
[9]
The
panel also drew a negative inference from the fact that Fatemeh did not state explicitly
in her letter—fully corroborating the applicant’s testimony—that the
authorities questioned Ali about the applicant, which also appears to me to be
unreasonable. There is no apparent inconsistency between the applicant’s testimony
and Fatemeh’s letter, although according to the uncontradicted evidence on
record, in August 2010, the authorities
told Fatemeh that they wanted to interrogate the applicant about Babak and
Hamid and that the her record was still open.
[10]
Although
the Court enjoys some measure of discretion to supplement defective or insufficient
reasons, it must still be satisfied that, on the whole, the panel’s reasoning
holds and relies on the evidence on the record. That is not the case here. In
this case, the panel raised no inconsistencies in the applicant’s story in the
PIF or her testimony. The panel’s reasoning relies exclusively on what appeared
to it to be implausibilities. Further, the version given on these specific
points by the applicant also seem plausible and her testimony as a whole is not
generally being called into question by the panel.
[11]
While
the applicant also raised several other grounds for interference, it remains
that the cumulative errors or omissions outlined above are determinative and
are sufficient to set aside the panel’s decision, which is unreasonable in this
case. It does not seem appropriate for me to substitute myself for the panel to
find my own new arguments to reject the refugee claim, which would be
equivalent to rewriting the impugned decision. In the interests of justice, a
new decision of the refugee claim by a different decision-maker seems
necessary. Of course, the panel will have the opportunity, if it wishes, to
rule again on the credibility of the applicant’s story and the personalized
risk that she may encounter in light of her specific profile and objective
elements found in the documentary evidence.
[12]
For
these reasons, the application for judicial review will be allowed. No question
of general importance was raised in this case.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the application for judicial review
is allowed. The decision of the Refugee Protection Division of the Immigration
and Refugee Board is set aside and the matter is referred back to a differently
constituted panel so that a new hearing may be held and a new decision on the
applicant’s refugee claim be made. No question is certified.
“Luc Martineau”
Certified true
translation
Catherine Jones,
Translator
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