Atoofi v. Canada (Minister of Citizenship and Immigration), 2004 FC 756

Date: 20040525

Docket: IMM-6232-03

Citation: 2004 FC 756

Ottawa, Ontario, this 25^th day of May, 2004

Present:           THE HONOURABLE MR. JUSTICE SIMON NOËL                              

BETWEEN:

                                                             SAEIDEH ATOOFI

ARMAN ADELI RAHJERI

                                                                                                                                            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 22 July, 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. The Board is in a pertinent position when deciding issues of credibility since it 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 Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.). In Aguebor 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 a high 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".

SUMMARY

[5]                The Applicant and her minor son, Arman Adeli Rahjeri, are citizens of Iran with the minor Applicant born in Spain. They allege a fear of persecution based on their religious beliefs and their membership to a particular social group. Initially the Applicants based their claim on the same grounds as a previously unsuccessful German asylum claim, namely on the basis that the former husband's activities in Iran would subject both the Applicant and her son to persecution. At the Canadian hearing of her claim the Applicant focussed on her recent conversion to Christianity in Germany as well as on two new claims: the abuse her former husband had subjected her to and the fear of losing custody of her son to her parents-in- law should she be returned to Iran.    The Board listed several reasons why it came to the conclusion that the Applicant's allegations were not credible and essentially found that her submissions were unsupported or simply designed to improve her claim. The Board therefore denied Convention refugee status.

FACTS

[6]                The Applicant and her former husband left Iran in 1996, travelled to Cuba and then Spain, where their son was born. Next, they travelled to Germany where they made an unsuccessful asylum claim. The Applicant admitted that she and her former husband gave false names and false record of their travel to the German authorities and maintained those falsehoods until their appeal of the negative decision. The Board noted that the Applicant did not provide evidence to support the allegation that she clarified these falsehoods at the time of her German appeal.

[7]                In April 2000, after their German claims were rejected, the Applicant and her former husband were baptized as Catholics. On March 21^st, 2001, the Applicant and her former husband were divorced and she was awarded custody of their son. The Iranian Embassy in Germany updated their Iranian ID books to reflect their divorce. On August 3^rd, 2002, after the Applicant and her former husband lost their appeal against the negative German asylum decision, the Applicant and her son came to Canada and then made claims for refugee protection. Her former husband remained in Germany, married a German woman and obtained status in Germany.

[8]                Before she left Germany, the Applicant did not tell her former husband that she was taking their son to Canada. On August 19^th, 2002, she telephoned her former husband, told him where his son was and has received calls from him since on a weekly basis. On August 20^th, 2002, a day after learning of his son's whereabouts, the Applicant's former husband phoned the Canadian consulate in Berlin to seek their assistance in getting his son back stating that he was re-marrying soon and that he wanted to take his son back before the Applicant was deported to Iran.

[9]                The Applicant's unsuccessful claim in Germany was based on her then husband's alleged activities in Iran helping people to obtain passports and exit permits illegally.    That allegation also formed the primary basis for her claim in her Personal Information Form (PIF) which also relied on her conversion to Christianity.    The Applicant submitted additional material for the Board's consideration by writing, through her present counsel, on February 11^th, 2003 and April 17^th, 2003.

[10]            The Respondent claims that the Board was first notified the Applicant would not be pursuing the claim set out in her PIF by letter from counsel on June 13^th, 2003, about 3 weeks prior to the hearing. This letter also informed the Board of the Applicant's allegations of spousal abuse. However, the Applicant claims that these issues had previously been raised in two paragraphs of the PIF. Moreover, according to the Respondent the Applicant did not state in the June 13^th letter that these allegations were to form a new basis for her claim which, as indicated by the Applicant's counsel, remained as was set out in the PIF. On June 25^th, 2003, approximately one week prior to the hearing, the Applicant's counsel copied the Board on a letter sent to the Canadian Embassy in Berlin where he stated the Applicant's fear that her former husband was seeking to return their son to Iran to be raised by his paternal grandparents.

THE BOARD'S DECISION

[11]            The Board determined that the Applicant was not credible and gave several reasons, including:

a.          the Applicant initially based her claim as stated in her PIF on her former husband's illegal activities in Iran;

b.          the Applicant was dishonest in making her German claim for asylum and, although she provided documents which confirmed this fact, she did not provide any evidence to demonstrate that she has clarified this situation with German authorities on appeal;

c.          the Applicant submitted that her former husband was abusive. The Board found that there was insufficient evidence to support the allegation and concluded that this was an attempt to "improve her claim";

d.          the Applicant submitted that she fears her former husband's parents will obtain custody of her son should she be returned to Iran. The Board weighed this claim against the evidence submitted and found that it was based on "pure speculation";

e.          the Applicant submitted that she fears religious persecution for her conversion to Christianity if she is returned to Iran but the Board found that, given the timing of her change in faith and her lack of clear reasons for becoming a Christian, that this was a "conversion of convenience designed to bolster her claim"; and

ANALYSIS

[12]            The central issue in this claim is whether or not the Applicant has a "well founded fear of persecution" and, in light of the criteria previously outlined, those seeking to set aside credibility findings have a very heavy onus to discharge. However; in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 032 at 305 (F.C.A.), 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.

[13]            Applying this jurisprudence to the case at bar, I will review each of the grounds set out by the Applicant and review the Board's decision. The Applicant essentially bases her claim on the following three grounds: allegations of spousal abuse and fear of reprisal; fear of religious persecution because of her conversion to Christianity; and fear that she will lose custody of her son in favour of her former husband's parents. With regards to the Applicant's submission that her former husband was abusive; the Board found that there was insufficient evidence to support this allegation and concluded that it was an attempt to "improve her claim". The Applicant submitted that she fears religious persecution for her conversion to Christianity if she is returned to Iran but the Board found that, given the timing of her change in faith and her lack of clear reasons for becoming a Christian, that this was a "conversion of convenience designed to bolster her claim". The Board also weighed the claim regarding custody of her son against the evidence submitted and found that it was based on "pure speculation".

CONCLUSION

[14]            I have carefully considered the reasons for decision as well as the submissions form the parties and my review shows that the Board considered all the grounds for the Applicant's claim and assessed each one in light of the evidence before it.    I am satisfied that the Board came to a decision that is supported by the evidence, that it provided valid reasons for finding that the Applicant lacked credibility and cannot find, based on a standard of patent unreasonableness, where the Board might have erred. On the contrary, the conclusions the Board has reached on the issue of credibility are well reasoned and take into account of all of the evidence that was presented before it.                   

[15]            The parties, through their respective counsel, were asked whether they had any certified questions to suggest and they both replied in the negative.

                                               ORDER

THIS COURT ORDERS THAT:

-           This application for judicial review is denied and no question will be certified.

                 "Simon Noël"                  

          Judge

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-6232-03

STYLE OF CAUSE: Saeideh Atoofi and other vs.

The Minister of Citizenship and Immigration

PLACE OF HEARING:                                 Vancouver

DATE OF HEARING:                                   May 13, 2004

REASONS FOR ORDER :                          NOËL, S.J.

DATED:                     May 25^th, 2004

APPEARANCES:

Mr. Anthony Norfolk                                         FOR APPLICANTS

Ms. Caroline Christiaens                                                FOR RESPONDENT

SOLICITORS OF RECORD:

Barrister & Solicitor                                           FOR APPLICANTS

(Vancouver)

Mr. Morris Rosenberg                                                   FOR RESPONDENT

Deputy Attorney General of Canada