Date : 20040525
Docket : IMM-7165-03
Citation : 2004 FC 755
Ottawa, Ontario, this 25th day of May, 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
NADER HADJI RAZZAGH
Applicant
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 (the "Board"), dated August 27th, 2003, wherein the Applicant was denied Convention refugee status.
STANDARD OF REVIEW
[2] The only ground for this application is the credibility and plausibility findings of the Board. The Board rejected the Applicants' refugee claims because they found that the evidence presented by the Applicant was not credible, nor plausible. The Board is an expert tribunal in determining refugee claims and has direct access to the testimony of the witness, and is usually in the best position to assess the credibility of the witnesses. Accordingly, the standard for reviewing findings of credibility made by the Board is that of patent unreasonableness, see as cited by both parties, Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.) where the Federal Court of Appeal said:
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.
[3] In accordance with Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 para 11, before a credibility finding of the Board is set aside, one of the following criteria must be established:
1. The Board did not provide valid reasons for finding that an applicant lacked credibility;
2. The inferences drawn by the Board are based on implausibility findings that in the view of the Court are simply not plausible;
3. The decision was based on inferences that were not supported by the evidence; or
4. The credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
[4] Credibility findings of the Board are therefore entitled to the highest degree of deference, and should only be set aside in accordance with the criteria set out above. With respect to credibility or plausibility, the Court should not substitute its opinion for that of the Board except in the "clearest of cases".
FACTS
[5] The Applicant is a citizen of Iran who alleges a fear of persecution based on his political beliefs and membership to a particular social group. In 1992 the Applicant enrolled in Azad University to study German. There, together with like-minded friends and followers of Dr. Abolkarim Soroush a leading Iranian scholar, he formed a group to discuss politics and social affairs. Although the Applicant was never particularly politically active, he was suspended from University on one occasion for a two-week period because he had discussed Dr. Soroush's ideas in class . After graduation he kept in touch with the members of his University groups to get together periodically to discuss politics. On July 13th, 1999, he attended a student uprising at Tehran University to take some photos and show solidarity with his friends. A few weeks after the July 13th incident, the Applicant received a summons to report to the local police station within 48 hours. He attended, was questioned about the incident and was released.
[6] The Applicant received a second summons in December 1999 and was re-interrogated by the same authority. During this second interview reference was made to the Applicant's two-week suspension from University and he was detained for two days and nights. He was released upon signing an undertaking and posting bail. On June 29th, 2000, the Applicant received a third summons to report to the authorities within 48 hours that incited him to leave Iran. The Applicant was tried by Revolutionary Court in absentia and convicted to a 5 year jail sentence which he is still required to serve. The Applicant then left Iran and arrived in Canada on August 19th, 2000. He applied for refugee status at the Port of Entry, Pearson International Airport and subsequently moved to Vancouver. On October 20th, 2000, the Applicant attended counsel's office to sign a PIF which he was told was filed that day, but after several inquiries it was determined in January 2003, that the Board had no record of the Applicant or his claim. A new PIF was therefore filed in March 2003 and the events surrounding the initial claim were explained at the hearing.
THE BOARD'S DECISION
[7] The Board determined that the Applicant was not credible and gave several reasons, including:
a. the Applicant omitted to include the fact that he had been identified through photos taken at the July 13th , 1999 incident, but more importantly the Board had difficulty believing that the Applicant was of interest to the authorities at all because he had "played an innocuous part" in the uprising and also had left the scene as soon as he could while the authorities acting at the scene had arrested and detained large numbers of those who had played an active part in the demonstration;
b. the Applicant was never served with an arrest warrant, never detained for more than two days and the fact that the court proceedings were a year away, lead the Board to conclude that, while there might have been intimidation, it was not probable based on the evidence provided that the Applicant was of interest to the authorities; and
c. the Applicant provided significant detail of what the Board considered irrelevant factors, but did not provide the same level of detail when dealing with the key issues which, among other factors, lead the Board to doubt the Applicant's credibility.
ANALYSIS
Credibility and Implausibility
[8] The Board determined on page 2 of its decision that the central issue in this claim is whether or not the Applicant is credible and was guided by the principles set out in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 032 at 305 (F.C.A.) ("Maldonado") and those set out in Rajaratnam v. Canada (Minister of Employment and Immigration) [1991] F.C.J. No. 1271" However in Maldonado it was made clear that the Board must have valid reasons for finding that an Applicant lacks credibility. The decision in Attakora v. Canada (Minister of Employment and Immigration), (1989) 99 N.R. 168 (F.C.A.), and Owusu - Ansah v. Canada (Minister of Employment and Immigration), [1990] 8 Imm. L.R. (2d) 106 (F.C.A.), are both cases in which decisions were set aside because the inferences drawn by the Board were based on implausibility findings that were not inherently such. In Frimpong v. Canada (Minister of Employment and Immigration), [1980] 8 Imm. L.R. (2d) 106 (F.C.A.), a decision of the Board was set aside because it was based on inferences that were unsupported by the evidence. As stated in Bains, this is because a reviewing court, depending on the nature of the alleged implausibilities, may be in as good a position as the Board to assess the validity of the alleged implausibilities.
[9] In this case the Applicant's credibility was in question as was the plausibility of his claim and the Board was required to satisfy itself, on the basis of the evidence presented, that there were grounds to support its decision. On page 3 of the reasons for decision the Board essentially concluded as follows:
The claimant's testimony was consistent with the content of his Personal Information Form (PIF), however, I find that while he gave a very detailed account of unnecessary parts of his testimony, such as the size of the room in the police station of the boulevard on which he was when the Hezbollahis were chasing people, brandishing sticks, he did not elaborate on the content of his PIF. He repeated what is in the narrative without any further details regarding the facts. He had difficulties with dates and he often was vague about the very essential parts of his story such as the examinations at the police station. When asked what the police wanted from him, all he could say is that they wanted to hear what he knew about the demonstrations. In fact, I found the claimant not as descriptive with the facts of the claim as he was with the unnecessary details that surround his story. (My emphasis)
[10] While it is understandable that, given the large volume of cases, proceedings must be undertaken in an efficient manner, however, the rules of natural justice demand that care be taken to ensure that all parties be given a reasonable opportunity to make submissions and be heard. Applying this jurisprudence to the case at bar, I have carefully considered the reasons for decision as well as the submissions form the parties and compared them with the hearing transcript in this matter. I will therefore address the findings in the order they appear in the transcript.
Dates:
[11] With regards to the finding that the Applicant had "difficulties with dates" I note that, on page 3 of the transcript, immediately after being sworn in and before Examination in chief, the Applicant is asked by the Presiding Member (PM) to provide his date of birth. The following exchange occurs:
PM - And what is your date of birth, Mr. Razzagh?
Applicant (A) - Aban 1st, 1347.
Interpreter (I) - Which is October 23rd, 1968.
PM - Now, Ms Azmudeh [Counsel for the Applicant - C], I notice that, as usual, Mr Mehrassa [the Interpreter - I] has not used both dates.
C - [...] he hasn't, yes.
PM - Mr. Mehrassa has been asked many, many times to use both dates.
C - I have communicated that to him.
PM - There are people that don't want even to accept his translations for that very reason - - one of the reasons. Okay? So please tell - - you tell him too, because every single - -
C - I have.
PM - Every single lawyer that has appeared before me and before my colleagues and has had to deal with Mr. Mehrassa, they have been told by the Member that they want both dates.
C - And I believe all those lawyers must have told Mr. Mehrassa, including myself.
PM - I know. I know. That's why I am annoyed about it.
[12] The Board comments throughout the hearing about the poor quality of translation specifically with regards to the provision of dates. For example on pages 17 and 24 of the transcript the Presiding Member makes the following comments:
[...] Mr. Mehrassa seems to be the only interpreter that doesn't want to translate the whole thing, that refuses to give you - - whenever he puts the dates - - the two dates whenever he feels like it. If he doesn't, he doesn't, and that's not good enough, because these are serious documents. We know there are - - there are lots of documents that are fraudulent, as you know. So unless we have the information, it's difficult to decide. P.17; and
Upon Counsel for the Applicant stating that the Persian language is confusing:
[...] It's not so confusing. A good interpreter does a good job.
[13] These exchanges eventually prompted Counsel for the Applicant to state that there was "obviously a lot of tension" between the translator and the Board which should not be reflected on the Applicant. In fact on page 26 of the transcript several discrepancies in dates seem to have been attributed to previous errors in written translation. Further, on pages 31 and 32 alleged discrepancies with dates are explained away by the fact that one date was the date of translation and not the date of the event. Other problems with dates were apparently due to the fact that 2000 was a leap year that wasn't taken into account in the Iranian calendar. Suffice to say that I am satisfied, based on my review of the transcript and submissions made at trial that the Applicant did not have difficulties with dates.
Vagueness and lack of descriptiveness on the essential facts:
[14] Examination in chief of the Applicant per se starts on page 5 of the transcript with an initial question about the Applicant's experiences and student political activities in Iran. While the answer given may not be qualified as concise, it serves to paint a general picture of the Applicant's activities in Iran and provides a relevant context for the main basis of his claim. Immediately after answering this first question the Presiding Member (PM) intervenes, on page 7 of the transcript, and suggests that the applicant "move on to the reason why he is afraid to go back [to Iran]". The following exchange with the Applicant's counsel then takes place:
C - Did you ever get into any form of trouble with the university because of your political opinions?
PM - Well, okay, well, you know, he said - -
C - So basically - -
PM - I want to know - - let's get into why he left and why he's afraid to go back.
[15] Although the Presiding Member immediately comes back to the issue of the Applicant being suspended from University for two weeks because of his political activities and opinions, the message given to the Applicant from the outset of the hearing and which is included in the reasons for decision is that he should "skip the unnecessary details". However, I consider information such as the Applicant's political involvement and activities to be highly relevant and necessary testimony for this claim and I am of the opinion that by suggesting he "move on" to the reasons why he was afraid to return to Iran at such an early point in the hearing and otherwise indicating that they did not want to hear about other relevant elements of his account, the Board curtailed the Applicant's ability to provide adequate testimony to support his claim.
[16] The transcript also shows that these types of interventions occurred throughout the Examination in chief and eventually lead Counsel for the Applicant, on page 28, to ask the Board if it is interested in hearing "questions about how he left Iran" because it is a credibility issue and the Presiding Member replies that " in some cases there is no need". However, the facts surrounding the Applicant's departure from Iran and the alleged delay in him making his refugee claim are later considered by the Board as issues affecting his credibility.
[17] Furthermore, the Board concludes in its decision that the Applicant's testimony was consistent with the information he provided in his PIF, but notes that he did not elaborate any further. The finding is particularly surprising considering the exchanges captured on pages 51 and 52 of the hearing transcript where the Applicant is asked how he had been identified by the police. In this exchange the Presiding Member initially determines that the Applicant gave testimony which was not included in his PIF when in fact it was. The Presiding Member, upon being corrected, then states that the Applicant has to be more specific, but logically to do so he would have had to rely on an account of his student political activities and previous "trouble" he had had with Iranian authorities. However, the Board had already determined from the beginning of the hearing that it was not necessary for him to provide such information.
CONCLUSION
[18] Based on my review of the Board's decision and comparison with the hearing transcript, I am of the opinion that the Board's interventions during the hearing demonstrate, from the outset, the Applicant was curtailed from giving full testimony thus was not given a reasonable opportunity to be heard and did not receive a fair hearing in which the Board could consider all of the relevant evidence before rendering its decision. I therefore find, based on a standard of patent unreasonableness, that the Board erred and rendered a decision which does not reflect a concern for a fair hearing process.
[19] The parties were ask if they had any questions for certification to propose and they did not.
ORDER
THIS COURT ORDERS THAT:
- This application for judicial review is granted and is to be returned for adjudication before another panel. No question will be certified.
"Simon Noël"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7165-03
STYLE OF CAUSE: Nader Hadji Razzagh
- and -
The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver
DATE OF HEARING: May 13, 2004
REASONS FOR ORDER : NOËL, S.J.
DATED: May 25th, 2004
APPEARANCES:
Ms. Negar Azmudeh FOR APPLICANT
Mr. Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Embarkation Law Group FOR APPLICANT
(Vancouver)
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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