Date: 20060210
Docket: IMM-2872-05
Citation: 2006 FC 176
Ottawa, Ontario, the
10th day of February 2006
PRESENT:
THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
ASHKAN
MIRZAIE FASHAMI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision by
the Refugee Protection Division of the Immigration and Refugee Board (the
panel) on April 14, 2005, in which Farid Osmane concluded the applicant
was neither a Convention refugee nor a person in need of protection within the
meaning of sections 96 and 97 of the Act.
ISSUES
[2]
The case
at bar raises two questions:
1. Did the
panel make an error justifying this Court’s intervention when it found that the
applicant was not credible?
2. Was the panel biased?
[3]
For the
following reasons, the answer to the first question is in the affirmative. In
view of the answer to the first question, it is not necessary to answer the
second.
BACKGROUND
[4]
The
applicant is a citizen of Iran. He was born at Tehran on April 2, 1982.
[5]
The
applicant alleged that he feared persecution by the Iranian authorities on
account of an incident which took place at Tehran on July 8, 2004.
[6]
The
applicant and his friend Ata intervened when they saw a man being beaten by two
other persons in the street. In the confusion, the victim fled and one of the
attackers pursued him. The applicant and Ata continued to scuffle with the
other assailant and the applicant thought the latter hurt his head when he
fell. He said that it was only then that he realized that the assailant had a
pair of handcuffs attached to his belt, which led him to conclude he was a
plainclothes officer. The applicant and Ata immediately fled.
[7]
The
applicant later learned that Ata had been arrested. As he feared the same thing
would happen to him, the applicant left his residence to hide from the Iranian
authorities.
[8]
On July 9,
2004, the authorities searched the applicant’s residence. As he was not found
on the premises, they arrested his father. During his detention, the
applicant’s father learned that the men the applicant and Ata had been fighting
the evening before were government agents and that the victim was a political
opponent. The applicant’s father also learned that the Iranian authorities
suspected the applicant and Ata of conniving with this political opponent.
[9]
The
applicant’s father was eventually released, but was again questioned by the
authorities and summoned to appear before the Revolutionary Court as part of
the investigation into the applicant. His lack of cooperation with the
authorities cost him his job.
[10]
The
applicant arrived in Canada on August 6, 2004 and immediately filed a claim for
refugee protection.
[11]
His
application was heard on January 26, 2005 and dismissed on April 14, 2005.
IMPUGNED DECISION
[12]
The panel
dismissed the application’s claim for refugee protection on the ground that he
was not credible when he alleged he had a reasonable fear of persecution by the
Iranian authorities.
[13]
In its
reasons, the panel noted several inconsistencies and omissions in the
applicant’s statements when he arrived in Canada. In particular, the panel
cited the following examples:
- vague
statements as to the way in which the applicant managed to come to Canada;
- vague
statements about his participation in a demonstration on June 24, 2004: the
applicant alleged problems of translation and a change of interpreter, though
there was nothing to indicate that such a change of interpreter took place;
- contradictions
regarding the existence of an arrest warrant for the applicant;
- improbability
of the fact that the applicant memorized nothing of the false Greek passport on
which he travelled, in view of the vigilance of the European customs
authorities who, he said, stopped him;
- an omission
regarding the applicant’s fear of being mistreated in compulsory military
service to which he would be subject if he returned to Iran;
- the
improbability of the fact that the applicant’s father did not hire a lawyer to
find out the nature of the charges against the applicant.
[14]
The panel
further mentioned the disqualification application for apparent bias made by
counsel for the applicant. Citing the test set out by the Supreme Court of
Canada in Committee for Justice and Liberty v. Canada (National Energy
Board), [1978] 1 S.C.R. 369, the panel dismissed this application, stating
that an informed person would not believe on a balance of probabilities that it
would render a biased decision.
ANALYSIS
[15]
The
relevant provisions of the Act read as follows:
|
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,
|
|
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)
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
|
|
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)
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.
|
|
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.
|
|
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
|
|
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)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
|
|
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)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
|
|
b) soit à une menace à sa vie ou au risque de
traitements ou peines cruels et inusités dans le cas suivant :
|
|
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
|
|
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
|
|
(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,
|
|
(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)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
|
|
(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)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
|
|
(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 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.
|
|
(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.
|
Standard of review
[16]
The
determination of the credibility of an applicant’s testimony is a question of
fact and this Court’s intervention is only warranted if there is a patently
unreasonable error. In Aguebor v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 732 (F.C.A.) (QL), Décary J.A. wrote at
paragraph 4:
There is no longer any doubt that the Refugee
Division, which is a specialized tribunal, has complete jurisdiction to
determine the plausibility of testimony: who is in a better position
than the Refugee Division to gauge the credibility of an account and to draw
the necessary inferences? As long as the inferences drawn by the tribunal are
not so unreasonable as to warrant our intervention, its findings are not open
to judicial review.
[17]
The
applicant alleged that the panel made a decision based on erroneous findings of
fact made in a perverse or capricious manner or without regard for the material
before it.
[18]
The applicant
cited several examples of erroneous findings of fact, including the following:
- the
documentary evidence submitted by the respondent at the hearing showed that
there had been a change of translator between the applicant’s first interview
on August 6, 2004 and the second interview on August 7, 2004: the first
interpreter was Tiedad Bakhshi and the second was Feresteh Rohani-Najad;
- in
his first interviews with the immigration officers, the applicant said the
Iranian authorities wanted to arrest him, not that an arrest warrant had been
issued against him;
- the
panel’s conclusion that the Iranian authorities would have issued an arrest
warrant against the applicant if they had really wanted to arrest him is
contradicted by the documentary evidence before it, in particular the United
States Department of State Country Report on Human Rights Practices 2003
and the UK Country Assessment dealing with Iran;
- the
panel’s conclusion regarding the vigilance of the European customs officials
was not based on any established evidence;
- the panel’s
reasons suggested that, at the hearing, the applicant added his fear of
military service to increase the chances of success of his application, whereas
he had consistently emphasized the fact that his fear of persecution resulted
from the events on July 8, 2004.
[19]
The number
of errors of fact made by the panel in the few pages of its reasons appeared to
indicate that the assessment of the applicant’s claim for refugee protection
may not have received the greatest possible care and attention.
[20]
Further,
the panel’s silence on two points of documentary evidence supporting the
applicant’s claims in my view constitutes a patently unreasonable error.
[21]
The case
law is clear: this Court’s function is not to examine the panel’s reasons with
a microscope (Medina v. Canada (Minister of Employment and Immigration)
(1990), 12 Imm. L.R. (2d) 33 (F.C.A.), and the latter is assumed to have
reviewed all the evidence before it (Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL)).
[22]
However,
the panel cannot simply ignore evidence supporting an applicant’s claims. The
more important this evidence is, the more imperative is the panel’s duty to
mention what weight it attaches to such evidence.
[23]
In Mahanandan
v. Canada (Minister of Employment and Immigration), [1994] F.C.J.
No. 1228 (F.C.A.) (QL), Isaac C.J. wrote at paragraph 8:
Where, as here, documentary evidence of the kind in
issue here is received in evidence at a hearing which could conceivably affect
the Board's appreciation of an Appellant's claim to be a Convention refugee, it
seems to us that the Board is required to go beyond a bare acknowledgment of
its having been received and to indicate, in its reasons, the impact, if any,
that such evidence had upon the Applicant's claim. As I have already said,
the Board failed to do so in this case. This, in our view was a fatal
omission, as a result of which the decision cannot stand.
[24]
Here the
evidence in question is the following:
- a letter of
August 11, 2004 from the Goltash company (Exhibit P-4, page 46, panel’s
record), in which it indicated to the applicant’s father that he had been
dismissed because of his failure to cooperate with the authorities regarding
the applicant;
- the applicant’s
father’s written statement (Exhibit P-5, page 48, panel’s record) relating the
interrogations to which he was subject;
- a
summons to the applicant’s father to appear before the Revolutionary Court
(Exhibit P-11, page 62, panel’s record) to give certain explanations regarding
the applicant.
[25]
It seems
clear to the Court that the panel could not both remain silent regarding this
evidence and state that the applicant was unable to provide evidence about the
problems he alleged to have had in Iran.
[26]
Also,
there was no analysis of the incident of July 8, 2004, which was in fact the
central point of the applicant’s claim.
[27]
Accordingly,
I find that this decision is vitiated by several patently unreasonable errors.
[28]
The
parties declined to submit questions for certification. The case contains none.
ORDER
THE COURT ORDERS that the instant application for
judicial review be allowed. The matter is referred back to a panel of different
members for reconsideration. No question is certified.
“Michel
Beaudry”
Certified
true translation
François
Brunet, LLB, BCL
Email this Content