Tameh v. Canada (Minister of Citizenship and Immigration), 2003 FC 1468

                                                                                                                                          Date:    20031215

                                                                                                                             Docket:    IMM-6266-02

                                                                                                                               Citation: 2003 FC 1468

Ottawa, Ontario, this 15^th day of December, 2003

PRESENT:     THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                            ALI FARROKHI TAMEH

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

1                      This is an application for judicial review of the November 12, 2002, decision of the Immigration and Refugee Board which held that the applicant, Mr. Ali Farroski Tameh, is not a Convention Refugee nor a person in need of protection.

Background

2                      Mr. Ali Farroski Tameh is a citizen of Iran. He alleges that he became involved with an illegal pro-monarchist political organization in Iran called the Derafsh-E-Kaviyani ("DKO"), also called the Flag of Freedom Organization. By November 1999, the applicant's involvement consisted of distributing printed materials and re-producing audio and video cassettes at his home.

3                      On February 2, 2001, the applicant's fiancé went missing while distributing the materials described, and the applicant went into temporary hiding. Over the next week, he learned that the Revolutionary Guards had raided his office, his fiancé's office and his parents' home, and arrested his father, brother and fiancé.

4                      The applicant departed Iran on February 20, 2001. Upon his arrival in Canada, he learned that his apartment had been raided and his father had been detained for two weeks and released. He has since learned that his parent's home has been raided again, and that all but one of his siblings have been approached by the authorities, who are allegedly looking for him.

5                      The applicant sought status as a Convention refugee on the basis of political opinion, namely alleged involvement in a pro-monarchist group, and membership in a particular social group, his family.

6                      A panel of the Refugee Protection Division (the "Board") heard the applicant's refugee claim on October 10, 2002, and rejected the claim by a decision dated November 12, 2002.

The Board's Decision

7                      The Board found that the applicant was not a convention refugee since there was no objective or subjective basis for his claim.

8                      First, the Board found no objective basis for the applicant's claim. The Board acknowledged that there was evidence of an anti-regime/pro-monarchist movement in Iran, acknowledged the existence of the DKO , and found that the DKO is perceived to be anti-regime by the authorities inside Iran. However, relying on a panel of five specialists on Iran who claimed that DKO activities were taking place in Europe and North America and not in Iran, the Board concluded that there was no evidence that the type of activity described by the applicant ever took place inside Iran, and that by 1996 the DKO was scaling down all operations. Further, the Board found that the activities of the DKO were not, on a balance of probabilities, seen as contrary to the state interests of Iran at the time the applicant allegedly became involved.

9                      Second, the Board considered whether or not the applicant had a subjective basis for a refugee claim. The Board concluded that the applicant's testimony was not credible due to "glaring inconsistencies" and contradictions in his testimony about his involvement with the DKO. Specifically, the Board had difficulty with the letter the applicant received from the Secretariat of Reza Pahlavi, and expressed concern about inconsistencies related to the circumstances in which the claimant received the letter, the content of the letter, and the failure of the applicant to produce the letter until one week before the hearing. The Board found that on a balance of probabilities, the applicant was not involved in anti-regime political activity, and there was not more than a mere possibility that he would suffer persecution at the hands of the regime for political opinion.

Issues

10                  The applicant raises the following issues on judicial review:

            1.         Did the Board err by failing to consider all of the evidence before it regarding the activity of the pro-monarchist movement in Iran?

            2.         Did the Board wrongly refuse to admit relevant evidence?

            3.         Did the Board err by deciding, contrary to the Federal Court ruling in Shaha, that the applicant had no objective fear of persecution in Iran?

            4.         Did the Board err in its finding that the applicant lacked credibility?

            5.         Did the Board apply too high a standard in their determination that the applicant was not a person in need of protection?

Standard of Review

11                  The appropriate standard of review on findings of fact and credibility is patent unreasonableness. However, if a decision is unsupported by the evidence to the extent that the Board acted outside its jurisdiction, the standard of review is one of correctness (Salehi v. Canada (Minister of Citizenship and Immigration), [2001] FCT 1402).   

12                  The Federal Court of Appeal has found that the Board, as a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony. As long as the inferences drawn by the Board are not so unreasonable as to warrant intervention, its findings are not open to judicial review (Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 at 316-317).

Analysis

13                  As a preliminary matter, the respondent submits that the affidavit dated December 26, 2002 of Dr. Eskander Tadayoon was not before the decision-maker at the hearing on October 10^th, 2002, and can not form part of the record in the present case (Lemiecha v. Canada (M.E.I.), [1993] F.C.J. No. 1333, online: QL). I agree with the respondent that the affidavit must not be considered in this hearing. Judicial review of a decision of a federal board should proceed on the basis of the evidence that was before the decision-maker. An affidavit sworn two months after the decision of the Immigration and Refugee Board must accordingly not be considered as part of the record before the tribunal.

            1.         Did the Board err by failing to consider all of the evidence before it regarding the activity of the pro-monarchist movement in Iran?

14                  In its decision that the applicant's fear was not well-founded, the Board found that there was no evidence of the type of activity by the DKO described by the applicant inside Iran though such activities were found to have taken place in Europe and North America. Further, the Board found that by 1996 the Flag of Freedom's European offices in Paris were closed. Finally, the Board concluded that, although Iran is known to persecute political enemies, the Iranian authorities would have lost interest in the pro-monarchist activities by the time the applicant became involved in these activities.       

15                  The applicant submits that the Board ignored evidence and made findings without evidence and points to several documents in the record which are inconsistent with the above findings to which the Board did not refer in its decision. Specifically, the applicant points to a report of clashes between pro-monarchist supporters and Irani authorities that it alleges the Board failed to consider.

16                  The respondent submits that it is the duty of each Board to make determinations of fact based on the totality of the evidence before it, and the fact that some documentary evidence was not mentioned in the Board's reasons is not fatal to that decision.

17                  The very evidence that the applicant claims the Board failed to consider is clearly mentioned in its decision, namely, that "documents indicate that an anti-regime/pro-monarchist movement is in existence in Iran". A perusal of the evidence identified by the applicant as having not been properly considered by the Board does not reveal documentary evidence that specifically contradicts the conclusions of the Board. Further, I am of the view that the Board did not err in failing to refer specifically to the evidence referred to by the applicant. It is well accepted that a tribunal need not make reference to every piece of evidence in its reasons, but is required to consider the totality of the evidence before it (Hatami v. Canada [2000] F.C.J. No. 402, online: QL, Piel v. M.C.I., 2001 FCT 562).

18                  I am of the view the Board's conclusion with respect to the pro-monarchist movement was reasonably open to it on the record.

2.         Did the Board wrongly refuse to admit relevant evidence?

19                  In the oral hearing, counsel for the applicant argued that the Board erred in failing to admit certain evidence at the hearing. Firstly, the applicant referred to a 24-page fax sent to the Board from the respondent, of which only four pages (13, 14, 15 and 24) were admitted into evidence and form part of the record. Secondly, a "bank draft" from the applicant to a third party in the amount of $50.00 was not accepted as evidence. The applicant contends that the bank draft would have been evidence of his "activities in Canada".

20                  At page four of the hearing transcript, counsel for the applicant identified the above-noted pages of the fax as relevant and necessary for inclusion. In my view, the applicant waived his right to challenge the Board's failure to admit into evidence the entire fax when his counsel agreed before the Board that only this part of the transcript was relevant.

21                  The applicant also questioned the Board's failure to include and admit as evidence the bank draft for $50.00 allegedly paid to a magazine belonging to his "movement" once he arrived in Canada. Counsel for the applicant accepted the Board's decision not to include the bank draft as evidence at page 11 of the transcript. I reproduce the pertinent portions of the transcript:

PRESIDING MEMBER:       Are these two bank drafts of critical importance to this claim, Mr. Rodrigues?

COUNSEL:            Some members are interested in whether or not a claimant after coming to this country continues his activities. Some aren't.

PRESIDING MEMBER:      You might just want to hold you - keep your powder dry on that one and see what the issues are and then you can re-argue if you wish, okay?

COUNSEL:           Sure. I'm more interested in the identity these days. It's of critical importance.

                                                                                                                                                                                              (Emphasis added)                              

In my view, the applicant through counsel accepted the Board's decision not to have the bank draft admitted into evidence. The applicant cannot on judicial review challenge a decision he agreed with before the Tribunal.

22                  The Board committed no reviewable error in failing to admit into evidence the remaining pages of the fax and the bank draft.

            3.         Did the Board err by deciding, contrary to the Federal Court ruling in Shaha,

                         that the applicant had no objective fear of persecution in Iran?

23                  The applicant submits that the Board erred when it concluded that the DKO was scaling down operations at the relevant time and that the actions in which pro-monarchists may have been involved were, on a balance of probabilities, not contrary to state interests at the relevant time. The applicant argues that this conclusion is contrary to the decision in Shaha v. M.C.I., [1998] F.C.J. No. 1045, online: QL, wherein the Board was found to have erred in deciding that the applicant did not have a fear of persecution in Iran.

24                  I am of the view that a finding of fact made on the basis of the evidentiary record in one case cannot be imported to another case with a different evidentiary record. The Board must base findings of fact on the information before it. The Board did not err by not importing a conclusion of fact from one decision to another.     

            4.         Did the Board err in its finding that the applicant lacked credibility?

                         A.        Did the Board improperly make "ambivalent" findings of credibility?

25                  In its decision, the Board found the applicant not credible on the basis of "glaring inconsistencies" in his evidence.

26                  The applicant raised several issues in relation to the Board's credibility findings, submitting that the Board failed to consider evidence of the subjective fear of the applicant, wrongly considered other evidence, and failed to state in clear and unmistakable terms the basis for its negative credibility findings. The applicant submits that the Board's findings are not in keeping with the Court of Appeal's rulings in Hilo v. Canada (1991) 15 Imm.L.R. (2d) 294, and Armson v. M.E.I. (1989) 9 Imm.L.R. (2d) 150 (FCA). Hilo is cited for the proposition that the Board should not use 'selective treatment in respect of various segments of the appellant's testimony'. That is, the Board ought not to believe portions of the Applicant's testimony on one hand but reject other portions. Armson, supra, is cited for the proposition that if the Board sees fit to reject a claim on grounds of credibility, it must state clearly the ground of disbelief.     

27                  The respondent submits it is not necessary for the Board find that every word the applicant uttered to be untruthful in order to find a lack of credibility, and not necessary for the Board to determine the truth or falsity of every allegation made by the applicant. Instead, it is the respondent's position that contradictory and inconsistent testimony can cast doubt on the whole of the applicant's viva voce evidence. The respondent argues that the Board did provide clear and unmistakable examples of inconsistencies and implausibilities in the testimony, upon which the negative credibility decision was made.   

28                  In my view, the respondent's assessment is the correct one. The Court of Appeal in Hilo, supra, held that a tribunal is entitled to conclude that an applicant is not credible because of implausibilities in his or her evidence, so long as its inferences are not unreasonable and its reasons are set out in "clear and unmistakable terms". At paragraph 6 of the decision the Court wrote:

...the Board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakable terms. The Board's credibility assessment ... is defective because it is couched in vague and general terms. The Board concluded that the appellant's evidence lacked detail and was sometimes inconsistent. Surely particulars of the lack of detail and of the inconsistencies should have been provided.

29                  In the instant case, the Board provided several detailed examples of inconsistencies upon which a negative credibility determination was made. The Board noted that when the applicant was asked to explain how he came into possession of the letter from the Secretariat of Reza Pahlavi, his initial response was that he was told it was the responsibility of DKO members who fled Iran to report their whereabouts to the Secretariat. Later, when asked how his picture came to be included on the document, he admitted he requested the Secretariat write this letter on his behalf and supplied his picture to facilitate its production. The Board also noted that although the applicant explained the Secretariat covered a great deal of political ground in Iran and had organizational knowledge of his particular cell in Tehran, the document supplied by the Secretariat referred to the applicant only by his surname and only as a "political activitist". Finally, the Board noted that although the applicant first explained that he had a duty to report to the Secretariat upon arrival, he did not arrive with any knowledge of the organization that would have permitted him to carry out this duty.    

30                  In my view, these detailed explanations meet the requirements set out in Hilo, supra.     

31                  As to whether the Board can treat evidence "selectively", Hilo, supra, is not instructive. In that case, the real issue for the reviewing court was whether the Board made a negative assessment of credibility without providing specific details as to how it came to that conclusion. The Board then concluded that the evidence was credible for some purposes but not for other purposes without referring specifically to any particular evidence. Clearly, this is distinguishable from a decision to dismiss a claim as non-credible on the basis of very specific inconsistencies carefully described, as in the instant case.     

32                  Indeed, on a common sense level, it would be unreasonable to require the Board to conclude that either all the applicant's testimony is credible, or all is not-credible. Where the Board has provided several examples of contradictions in the applicant's testimony that are serious and material, an adverse credibility finding is warranted. In Canada (M.E.I.) v. Dan-Ash, (1988) 5 Imm. L.R. (2d) 78, at para. 6, Justice Hugessen of the Federal Court of Appeal stated that "...there must come a point at which a witness's contradictions will move even the most generous trier of fact to reject his evidence". This statement suggests a threshold approach to finding an applicant credible, with which I agree. I agree with the respondent's submission that, at some point, the number of inconsistencies or contradictions in a witness' testimony will justify the Board drawing a negative finding on credibility.

33                  In this case, several examples of serious and material inconsistencies were carefully explained. On this basis, it was reasonable for the Board to decide that the applicant was not credible.

                         B.         Did the Board err by failing to consider all the evidence in its assessment of credibility?

34                  The applicant submits that the panel improperly failed to consider all the evidence before it, specifically, the burning down of the applicant's father's bookstore in 1980, his father's two-week detention, and the apartment raid after the applicant's flight from Iran. This, the applicant argues is a reversible error. In support of his argument, the applicant cites Lachowski v. Canada, [1992] F.C.J. No. 1138, online: QL.

35                  The respondent's position is that the Board is not obliged to specifically indicate that it did not believe certain portions of the applicant's testimony. The respondent submits the Board's finding that the applicant was not involved in anti-regime political activities, eliminates the very basis for detention and alleged persecution of the applicant by Iranian authorities. Further, in the respondent's view, the fact that the applicant's father's business was burnt down in 1980 when the applicant was 10 years old is not relevant.

36                  I agree with the respondent's submission that the burning down of the applicant's father's bookstore is not relevant to the credibility determination made by the Board. This event occurred in 1980 and is not in any way associated with the applicant's claim that he has a well-founded fear of persecution based on his involvement with the DKO. Further, in my opinion, Lachowski does not support the applicant's position. In that case, Justice Walsh states that, unless there are inherent contradictions in his evidence, or a direct conflict with the documentary evidence, the applicant's uncontradicted evidence must be considered credible. In this case, the Board identified several specific inconsistencies in the applicant's evidence (see paragraph 29, above). The Board, therefore, did not err in failing to specifically address every aspect of the applicant's evidence.

                        C.        Did the Board err by making a perverse finding of credibility with respect to the letter provided by the applicant from the Secretariat of the DKO?

37                  The applicant submits that the Board made a perverse credibility finding when it drew a negative inference from the applicant's failure to provide a document that he had in his possession on the date of the disclosure order. The applicant cites Mahmud v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 729 on line: QL, in support of his argument.

38                  The respondent's position is that the Board was entitled to exercise its discretion in assessing whether the letter of reference provided by the applicant in this case raised suspicions about its authenticity or veracity.    

39                  In my view, the applicant's assertion is not supported. Mahmud stands for the proposition that letters cannot be relied upon to contradict an applicant's story merely because they do not corroborate his story. That is, the applicant cannot be found not credible on the basis of letters that do not corroborate his story. In Mahmud, supra, letters were submitted on behalf of the applicant that mentioned, in general terms, the problems the applicant claimed to have suffered. These letters were found, on judicial review, not to have been a valid reason for the CRDD to have disbelieved the applicant, or to have found him not credible.

40                  In the present case, the Board drew a negative inference from the applicant's failure to produce a document he had in his possession. The letter was given "no weight" because the contents of the letter were inconsistent with the applicant's explanation of the source of the letter. Therefore, the Board's decision was not merely based on the fact that the letter failed to corroborate the applicant's claims, but on the fact that the substance of the letter was inconsistent with the applicant's explanation of the source of the letter. In my view, it was reasonable for the Board, in its assessment of the applicant's credibility, to have considered all the circumstances in which the letter was provided. Consequently, I am of the view that the Board did not err in drawing a negative inference with respect to the letter in question.

                        D.        Did the Board err by "straying into the minds of the persecuting Irani authorities"?

41                  The applicant submits that when the Board came to its purported findings of credibility, it erroneously "strayed into the minds of the persecuting Irani authorities as to what they would or would not do in the circumstances". He cites Giron v. M.E.I. [1992] F.C.J. No. 481, online: QL, and Ye v. M.E.I., [1992] F.C.J. No. 584 online: QL, for the proposition that a finding of implausibility based on extrinsic criteria is not as insulated from appellate review as a finding of lack of credibility based on problems internal to the applicant's testimony.

42                  The respondent submits that the applicant failed to show how the Board "erroneously strayed into minds of persecuting Irani authorities" as alleged. The respondent argues that the decision of the Board was based on lack of credibility of the applicant as regards his involvement with pro-monarchist group. The respondent's position is that unless it is shown that the Board's inferences and conclusions are so unreasonable that they could not have been drawn, the Court should not interfere, whether or not it agrees with the inferences drawn. As the applicant has not shown in this case that the factual findings were patently unreasonable, the respondent submits that the decision of the Board should stand.   

43                  Although plausibility findings may not be "as insulated" from judicial review as other credibility findings, the Court of Appeal in Aguebor, supra, has established that the Board has complete jurisdiction to determine the plausibility of testimony. The Court will only interfere when a finding is patently unreasonable. In the instant case, the applicant fails to clearly articulate how the Board erred in drawing its credibility inferences. I am essentially in agreement with the respondent's position on this issue. I find no reviewable error.

Conclusion on Credibility Issues

44                  In my view, the conclusions of the Board as to the credibility of the applicant were not patently unreasonable. There is nothing capricious or perverse about the Board's findings. The decision carefully explains several examples of the inconsistencies that led the Board to their finding that the applicant lacks credibility, and the decision is reasonably supported by the evidence.

5.         Did the Board apply too high a standard in their determination that the applicant was not a person in need of protection?

45                  The applicant submits that the panel erred by applying too high a test to the determination of whether or not the applicant would be subject to persecution, a risk to life or to torture. The applicant's position is that the application of the "serious possibility" test was inappropriate and led the Board to the wrong decision that the applicant was not a person in need of protection.

46                  I am in agreement with the respondent's position, that the Board properly applied the test prescribed by the Court in Adjei v. M.E.I. (1989), 7 Imm. L.R. (2d) 169 (F.C.A.). As required, the Board considered whether there was a reasonable or even serious possibility (as opposed to a mere possibility) that the applicant would fear persecution at the hands

of the regime and whether there was a serious possibility that his life would be at risk.

Conclusion

47                  The applicant has failed to establish any reviewable error in the decision of the Refugee Protection Division within the meaning of paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. The Board's decision was neither clearly wrong nor patently unreasonable. In consequence, the application for judicial review will be dismissed.

48                  The applicant proposes the following questions for certification:

1.         Whether the Shaha decision is "wrongfully" decided?

2.         Whether the Mahmud decision is "wrongfully" decided on the issue of the import to the credibility of the claimant from what is not included in supporting documentary evidence?

The proposed questions request that the Court of Appeal revisit two earlier decisions decided in 1998 and 1999 respectively. I fail to see how these proposed questions raise a serious question of general importance which are determinative of the present case pursuant to ss. 74(d) of the Immigration and Refugee Protection Act, SC 2001 c. 27. Consequently, no question will be certified.

49                  In my opinion, the circumstances of this case do not constitute special reasons within Rule 22 of the Immigration Rules for an award of costs.

                                                                            ORDER

THIS COURT ORDERS that:

1.         The application for judicial review of the November 12, 2002, decision by the Immigration and Refugee Board is dismissed.

2.          No question of general importance is certified.

3.          No costs are awarded.

                                                                                                                                "Edmond P. Blanchard"            

                                                                                                                                                               Judge                  

                                                                 FEDERAL COURT

                                       Names of Counsel and Solicitors of Record

DOCKET:                                              IMM-6266-02

STYLE OF CAUSE:              Ali Farrokhi Tameh v. MCI

PLACE OF HEARING:                         Toronto, Ontario

DATE OF HEARING:                           Wednesday, September 24, 2003

REASONS FOR ORDER BY:             BLANCHARD, J.

DATED:                                                    December 15, 2003

APPEARANCES BY:                             

Mr. Rocco Galati                                                            For the applicant

Ms. Lisa Hutt                                                                 For the respondent

SOLICITORS OF RECORD:                

Galati Rodrigues Azevedo & Associates     For the applicant

Toronto, Ontario

Morris Rosenberg                                                           For the respondent

Deputy Attorney General of Canada

Toronto, Ontario

FEDERAL COURT

                                    Docket:    IMM-6266-02

BETWEEN:

                      ALI FARROKHI TAMEH

Applicant

                                       - and -

            THE MINISTER OF CITIZENSHIP

                         AND IMMIGRATION

                                                                    Respondent

       REASONS FOR ORDER AND ORDER