Date: 20040917
Docket: IMM-6549-03
Neutral citation: 2004 FC1279
BETWEEN:
FARIBA RASSAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
Introduction
[1] The Refugee Protection Division of the Immigration and Refugee Board (the "Panel") rejected Fariba Rassan's claim for refugee protection, citing a number of implausibilities, inconsistencies and omissions in her evidence. Ms. Rassan now seeks to have the Panel's decision set aside, asserting that the Panel's credibility and plausibility findings were not supported by the evidence that was before it.
Background
[2] Ms. Rassan is a 29-year-old citizen of Iran. She claims to have a well-founded fear of persecution in Iran on two grounds: (1) her refusal to inform the Iranian Ministry of Intelligence and Security about information she had access to as an interpreter at the Omani and Bahrani embassies in Tehran; (2) her identity as a bisexual woman.
[3] Ms. Rassan's troubles originated with a series of phone calls which she began to receive from an anonymous caller in April 2000. The caller, allegedly from the Ministry of Intelligence, demanded information about personnel and events at the embassies where Ms. Rassan was employed. The phone calls continued unabated until August 2002, when, Ms. Rassan claims, the caller and another man broke into her home, abused her and again asked for information relating to the embassies. Ms. Rassan states that the men returned approximately one week later, again demanding information; Ms. Rassan alleges that during this incident she was berated, assaulted and raped.
[4] This incident precipitated Ms. Rassan's flight from Iran. In addition, in her PIF narrative, Ms. Rassan states that she "could never express her [bi]sexuality openly in Iran".
[5] Findings pertaining to the issues of implausibility and lack of credibility were dispositive of the Panel's decision. Specifically, in concluding that Ms. Rassan was not a Convention refugee, the Panel noted:
(a) letters of employment from the Omani and Bahraini embassies indicated that Ms. Rassan was a secretary and not an interpreter as contended;
(b) no documentary evidence was adduced in relation to Ms. Rassan's education in interpretation and translation;
(c) the alleged rape was not mentioned in the Port of Entry notes, which Ms. Rassan wrote by hand in English;
(d) despite Ms. Rassan's claim that she could not live openly as a bisexual in Iran, she arrived in Canada with a man she described as her boyfriend; later she married a different man;
(e) in identifying the agents of persecution, Ms. Rassan referred to "Ministry of Information" and "Ministry of Intelligence" indiscriminately.
Analysis
[6] The predominant issue in this case is the credibility or the lack of credibility of Ms. Rassan. It is well-established that on findings of credibility, the Panel's decision is entitled to a high degree of deference and that the standard of review is patent unreasonableness. The Court should not and cannot substitute its views for that of the Panel and should approach any challenge to credibility findings with extreme caution. See Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.) (QL).
[7] In the present case, the inconsistencies and omissions noted by the Panel are relevant to an assessment of credibility. With respect to Ms. Rassan's position at the embassies, while the applicant has argued that Ms. Rassan could have been privy to confidential information even in a secretarial position, it was open to the Panel to find that a position of translator would put her in much closer proximity to high-level officials and their diplomatic meetings.
[8] Regarding Ms. Rassan's bisexual identity, the Panel noted that she arrived in Canada with a man who she described as her boyfriend. While Ms. Rassan indicated that this was a mistake in translation and that her companion was only a friend, her response to the follow up question regarding their plans to marry contradicts this explanation.
[9] The Panel also noted that Ms. Rassan has married a different man since her arrival in Canada. It is also noteworthy that Ms. Rassan failed to adduce any evidence about her alleged relationship with a woman in Iran.
[10] Against this background, the Panel found Ms. Rassan's actions to be those of a heterosexual woman and did not find that she fears persecution based on her profile as a bisexual woman. There is nothing unreasonable in this conclusion. The Panel can measure an applicant's evidence against reason and common sense. See Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (C.A.) (QL). In the present case, the Panel did just that.
[11] The Panel found the applicant's explanation regarding her failure to mention the alleged incident of rape in the Port of Entry notes - that she was only asked to give a summary of her reasons for claiming refugee status - not to be compelling considering the length and detail of Ms. Rassan's declaration. The incident of rape was admittedly the precipitating event for Ms. Rassan's flight from Iran and it was reasonably open to the Panel to find an omission of such a meaningful event from the Port of Entry notes to be significant. Given the untenable explanation and the significance of the omission, it was not unreasonable for the Panel to find that the alleged rape did not take place. The applicant has argued that proper application of the Gender Guidelines would explain Ms. Rassan's reluctance to disclose the rape. However, there being no evidence before the Panel upon which it could conclude that Ms. Rassan was reluctant to testify or that she required alternative arrangements, it was reasonably open to the Panel to conclude that application of the Guidelines would not have resulted in disclosure of the alleged incident.
[12] Both the applicant and the respondent commented on the indiscriminate use of the terms "Ministry of Intelligence" and "Ministry of Information" to describe the agent of persecution. The applicant argues, and I agree, that drawing adverse inferences based on this alleged contradiction amounts to splitting hairs. Ms. Rassan was advised by a Farsi interpreter that "Ministry of Information" was the best translation and that is why she used this term in her PIF. Had this been the basis of the Panel's decision, it could be found to be patently unreasonable. However, a decision regarding a claimant's credibility is based on the cumulative impact of inconsistencies and omissions (see Sheikh v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 604 (C.A.) (QL)) and the adverse inference drawn does not amount to a reviewable error in light of the many other properly drawn negative credibility inferences.
[13] The applicant has argued that comments made by the Panel in its reasons give rise to a reasonable apprehension of bias. The comments in question relate to the Panel's characterization of the applicant's declaration as a lengthy treatise, as opposed to a summary, which included a lengthy description of her personal characteristics, independent nature and even her weight loss since coming to Canada.
[14] The test for reasonable apprehension of bias was set out by de Grandpré J. in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369. That test considers what an informed person, viewing the matter realistically and practically - and having thought the matter through - would conclude. Would she think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly?
[15] In the present case, the comments referring to the length of and detail in the applicant's declaration may be gratuitous, however, they do not evidence any bias or reasonable apprehension of bias.
[16] Both parties also addressed the question of whether Ms. Rassan's passport was purposely destroyed. The Panel concluded that it was implausible that Ms. Rassan would destroy her valid Iranian passport when she was not wanted by the Iranian authorities. This was a peripheral plausibility finding made by the Panel, immaterial to the overall outcome of the application and no basis for overturning this conclusion. It is well established that this Court should not generally substitute its view of the facts for that of the Panel, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise.
[17] Upon a review of all of the evidence before the Panel, I conclude that the findings made were reasonably open to it and that no material issue was overlooked. The Panel's decision is not unreasonable, much less patently so.
[18] For all these reasons, this judicial review must be dismissed.
[19] There is no question to be certified.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6549-03
STYLE OF CAUSE: FARIBA RASSAN v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 5, 2004
REASONS FOR ORDER: PHELAN J.
DATED: September 17, 2004
APPEARANCES:
Mr. Alp Debreli FOR THE APPLICANT
Mr. Robert Bafaro FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Alp Debreli
Toronto, Ontario FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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