Nadafi v. Canada (Minister of Citizenship and Immigration), 2004 FC 343

Date: 20040308

Docket: IMM-5079-03

Citation: 2004 FC 343

OTTAWA, Ontario, this 8^th day of March, 2004.

Present:           THE HONOURABLE MR. JUSTICE KELEN

BETWEEN:

                                                       EBRAHIM RADMAR NADAFI

SEDIGHEH SOUDABEH TAHVILDARI

PANIZ RADMARD NADAFI

Applicants

- and -

THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") dated June 10, 2003, which determined that the applicants are not Convention refugees or persons in need of protection, on credibility grounds.

FACTS

[2]                 The applicants are citizens of Iran. They arrived in Canada on August 15, 2002. Ebrahim Radmar Nadafi, the principal applicant ("applicant"), alleges a well-founded fear of persecution at the hands of the Iranian authorities because of his political opinion, and because his father was a colonel in the Shah's special guard, prior to the 1979 Islamic revolution, in Iran. The applicant's wife, Sedigheh Soudabeh Tahvildari, and his minor child, Paniz Radmard Nadafi, base their claims on that of the applicant.

[3]                 The applicant alleges that following the revolution, his father was detained and his family ostracized. The applicant claims to be a supporter of the Iranian Freedom Organization, also known as the Liberal Union of Iran. On July 9, 1999, the applicant allegedly took part in a student demonstration in Tehran that was interrupted by a Hezbollah attack. He claims that as a result of his participation the authorities made false accusations against him. He claims that when he tried to prevent the Hezbollah from beating students, he was struck on the back of the head, lost consciousness, and awoke in the medical unit of the prison. He claims that he was imprisoned and tortured for three years, one month (July 1999 to August 2002). He claims he was released when family members paid a bribe, following which he arranged to leave Iran for Canada, with the assistance of smugglers.

THE DECISION

[4]                 The Board held that the applicant's credibility was undermined by inconsistencies between his oral testimony and written statements, and was not satisfied by the applicant's explanations for the inconsistencies. In particular the Board outlines the following inconsistencies at page 2 of its reasons:

During his interview with the immigration officer, the male claimant stated that he was arrested and charged and put in prison for putting a motorcycle on fire. In his Personal Information Form (PIF), and oral testimony he states that he was attacked and arrested because of trying to stop a Hezbollah from attacking the demonstrators. [...] When the inconsistency was brought to his attention, the male claimant stated that these were false accusations levelled against him by the authorities. The panel is not satisfied with this explanation. The panel notes that there is no reference in the Immigration Officer's note that the male claimant was beaten and arrested because of blocking the Hezbollah. As indicated above the officer's note unequivocally states that the male claimant was arrested and charged for putting a motorcycle on fire.

[5]                 The Board also held that the applicant's credibility was further undermined because he was unable to produce his passport. The Board did not accept the explanation that it had been returned to the smuggling agent after he entered Canada, and the Board doubted that the applicant made a refugee claim the morning after he arrived, as he testified. At page 3 the Board states:

[...] When asked when did the claimants come to Canada, the male claimant stated that they entered the country on August 15, 2002, and made their claims the next morning. However, the document from the Immigration office shows that the claimants made their claim on October 22, 2002. When this was put to the claimant, he stated that they were given an appointment when they contacted the Immigration Office on August 16, 2002; however, no document was proffered to substantiate such an allegation. The confusing nature of the male claimant's testimony about when they arrived in Canada and when they made their claim, coupled with the absence of the travel documents reinforce the panel's finding that the male claimant's testimony is not credible. [emphasis added]

[6]                 Finally, the Board held that the Iranian government deals "very harshly" with its opponents, i.e. student leaders, known activists, and journalists.

ANALYSIS

[7]                 The standard of review for credibility findings is patent unreasonableness as guided by Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), and De (Da) Li Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.).

[8]                 The Court concludes that the Board's first basis for finding the applicant not credible is perverse, and patently unreasonable. The applicant, at the hearing testified that he had a document from the immigration office proving he made the refugee claim on August 16, 2002. The applicant deposed in his affidavit that he sent the document to the Board immediately after the hearing when the date became an issue. The Board held that no document was proffered to substantiate this application. In fact, such a document exists. I am of the view that the Board's

finding of fact about the non-existence of this document is perverse, and patently unreasonable. I also accept the applicant's affidavit evidence that this document was sent to the Board immediately after the hearing, because it was referred to in the transcript of the hearing, and reference was made to it being provided. Moreover, the Board said at the hearing that it wanted to move on, so as to suggest that the document was not critical. This is prejudicial to the applicant. If it is of critical importance, the Board should so indicate to the parties so that it can be dealt with. Fortunately, the applicants did send the document to the Board.

[9]                 The Court also finds the Board's second basis for finding the applicant not credible to be patently unreasonable. The Court does not consider the applicant's telling of his story to be inconsistent -- only that the applicant provides more details on certain occasions. The applicant's consistent history is that he was arrested at a student demonstration in July 1999, rendered unconscious, woke-up in prison, falsely charged with setting a motorcycle on fire and participating in a violent student demonstration, imprisoned for three years, one month, and extensively tortured for which he has lasting mental and physical injuries, which have been documented by a Canadian medical report. Accordingly, the Court finds the Board's rejection of the applicant's explanation to be patently unreasonable.

[10]            Finally, the Court finds that the Board erred in failing to refer to the important, relevant, probative corroborating evidence from the medical doctor which confirmed the applicant's scars and personal injuries from extensive torture. The applicant's alleged torture is a critical part of his claim. If a Canadian doctor finds clear evidence of that torture, the Board errs in failing to even refer to it or explain why the Board dismisses it.

[11]            For these reasons, the decision will be set aside.

[12]            Neither party considers that this case raises a question which warrants certification. The Court agrees that no question should be certified.

ORDER

THIS COURT ORDERS THAT:

This application for judicial review is allowed, the decision set aside, and the case referred to another panel of the Board for redetermination.

                                                 "Michael A. Kelen"                                                                                                                 _______________________________

         JUDGE       

FEDERAL COURT

Names of Counsel and Solicitors of Record

DOCKET:                                              IMM-5079-03

STYLE OF CAUSE:              EBRAHIM RADMAR NADAFI ET AL. v. MCI

DATE OF HEARING:                        March 2, 2004

PLACE OF HEARING:                      Toronto, Ontario

REASONS FOR ORDER

AND ORDER:                                      THE HONOURABLE MR. JUSTICE KELEN

DATED:                                                 March 8, 2004

APPEARANCES BY:                          Ms. Carey MacKay                                                                                                                                                                    

For the Applicants

Mr. Gordon Lee

For the Respondent

SOLICITORS OF RECORD:          

Ms. Carey MacKay

Toronto, Ontario

For the Applicants

Mr. Morris Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario

For the Respondent

                          FEDERAL COURT

                                                               Date: 20040308

                                                   Docket: IMM-5079-03

BETWEEN:

EBRAHIM RADMAR NADAFI

SEDIGHEH SOUDABEH TAHVILDARI

PANIZ RADMARD NADAFI

Applicants

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER

AND ORDER