Jarrah v. Canada (Minister of Citizenship and Immigration), 2002 FCT 180

Date: 20020219

Docket: IMM-5599-00

Neutral citation: 2002 FCT 180

BETWEEN:

                                                        MOHAMMAD JAFAR JARRAH

                                                                                                                                                     Applicant

                                                                             - and -

                                     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                               REASONS FOR ORDER

NADON J.

[1]                 The applicant seeks to set aside a decision of the Refugee Division of the Immigration and Refugee Board (the "Board") dated September 11, 2000, pursuant to which he was found not to be a refugee.

[2]                 The applicant, born on January 1, 1978, is a citizen of Iran who claims a well-founded fear of persecution by reason of his political opinions. He left his country on August 11, 1999, and arrived in Canada at the Montreal Mirabel Airport on September 9, 1999. The applicant claimed refugee status upon arrival at Mirabel.

[3]                 The Board concluded that the applicant was not a Convention refugee on the ground that he was not credible. Further, the Board concluded that the applicant's claim had no credible basis, as no credible or trustworthy evidence had been presented.

[4]                 Firstly, Ms. Markaki, counsel for the applicant, submits that the Board erred when it concluded that the applicant's meeting with the school principal in 1998 did not take place. The Board so concluded because the applicant contradicted himself on more than one occasion, with respect to the date of this meeting.

[5]                 In my view, the Board did not make an error in concluding as it did. It was certainly open to the Board, on the record before it, to find that the applicant's story in regard thereto lacked credibility. The applicant gave an explanation to justify the contradictions in his story, but he was unable to persuade the Board of the reasonableness of his explanation. It is not up to me to assess that explanation and come to a conclusion. That is the Board's task and, as a result, I cannot conclude that the Board made an error which would allow me to intervene.

[6]                 I now turn to the second ground of attack put forward by the applicant. Ms. Markaki submits that the Board erred in concluding that the inconsistencies between the applicant's oral testimony, his Personal Information Form ("PIF") and the port of entry notes affected his credibility.

[7]                 The applicant challenges the Board's conclusion and submits that the Board erred in giving the inconsistencies as much weight as it did, bearing in mind that the port of entry notes were prepared in the absence of a translator and that the applicant's knowledge of English was limited. This, according to the applicant, explains why some of the statements contained in the port of entry notes are "[...] simply too ludicrous for the Board to believe that a person has actually made them."

[8]                 Be that as it may, the respondent points out that the applicant does not challenge the contradictions noted by the Board concerning his passport. At page 2 of its Reasons, the Board makes the following remarks:

Then he wrote in the document at port of entry that he had travelled on a Pakistani passport. In answer to question 18 in his PIF, he wrote that he had travelled on a forged Spanish passport. Finally, in his oral testimony he said he did not know from what country the passport he had used had come. When asked to explain those contradictions, he simply said that the only word he had understood at the airport was "Spain".

[9]                 As the applicant does not challenge the Board's finding regarding his passport, that finding, no doubt, was such as to affect his credibility. With respect to the Board's other findings concerning the inconsistencies between the port of entry notes, his PIF and his oral testimony, I have not been convinced, notwithstanding Ms. Markaki's forceful arguments, that the Board made capricious or perverse findings. I can, therefore, only conclude that the issue raised by the applicant is simply a matter of weight to be given to the evidence before the Board and since it is not up to me to reassess the evidence, the applicant's arguments on this point must fail.

[10]            The next ground of challenge raised by the applicant concerns Exhibit P-3, a series of four photographs taken by the applicant's brother in Canada. The purpose of the photographs, according to the Board, was to demonstrate the injuries suffered by the applicant while in prison in Iran between July 10 and August 9, 1999. However, Ms. Markaki, in her Memorandum of Argument, states at paragraph 16 thereof, that the applicant testified that the marks on his back were the result of the lashings he had received from the school principal in February 1998.

[11]            The February 1998 meeting between the applicant and the school principal is the meeting which the Board found not to have occurred. As I indicated earlier, I see no reason to disturb the Board's finding on this point and, as a result, it goes without saying that if the Board is right that the meeting with the principal did not occur, then the applicant did not receive the lashings he claims to have received.

[12]            At page 3 of its Reasons, the Board deals as follows with the photographs:

The claimant filed as Exhibit P-3 a series of four photographs taken by his brother while he was in Canada. The photographs are supposed to illustrate the ill treatment he suffered while he was in prison between July 10, 1999 and August 9, 1999.

On the photographs, one can see the date May 26, 1998. When invited to explain how photographs taken on May 26, 1998 could show the marks of ill treatment suffered over a year later, in July or August 1999, the claimant was unable to answer. His counsel told the panel that she had requested the photographs and the date in the camera was wrong. Another explanation provided by the Refugee Claim Officer during his submissions was that, when the camera batteries are low, there can be a problem with the dates. Despite those explanations, the panel is very surprised that on each of the photographs, just where one sees the date May 26, 1998, someone has written a figure from one to four, and a signature, apparently with the intention of hiding that information. Moreover, nothing on those photographs indicates that the marks shown there were caused by ill treatment suffered during the claimant's alleged imprisonment in July and August 1999.

[13]            It is clear from the Board's Reasons that it was of the view that the photographs had been "doctored". The Board also concluded that the photographs did not prove that the injuries had been caused by ill treatment during the applicant's alleged July and August 1999 imprisonment. Ms. Markaki argues that the Board's conclusion that the photographs were "doctored" is perverse. She argues that the applicant gave a reasonable explanation as to why the date which appears on the photos is incorrect.

[14]            In my view, this issue is a red herring. If the Board's conclusion is that the applicant did not suffer injuries because the photographs are "fraudulent", then the Board obviously made an error in that on two occasions, the applicant offered to show the scars on his body and the Board did not appear interested. However, the Board also concluded that the photographs did not prove that the injuries were caused during the alleged imprisonment of July and August 1999. With that conclusion, Ms. Markaki, quite properly, takes no issue. It cannot be seriously disputed, in my view, that the injuries shown on the photographs could not be related to a specific event. The applicant's argument on this point, therefore, fails.

[15]            I now turn to the last issue raised by the applicant. At paragraphs 20 to 22 of her Memorandum of Argument, Ms. Markaki makes the following submissions:

Finding of no Credible basis

20.           It is respectfully submitted that the Board's finding of an absence of credible basis is simply unfounded. This is so, since the Board does not even deal in its decision with the testimony regarding the actual event that took place and which led the Applicant to leave his home country;

21.           As it appears in the Applicant's affidavit, he gave a lengthy, detailed and emotional testimony on the events which took place which led him to leave his country. He provided a vivid description of the student manifestation in question and the way it was broken up by the police. He spoke in detail about the reasons why the manifestation was organised and the events surrounding it. He spoke with great emotion when describing the treatment received in prison and was able to provide descriptive testimony regarding the actual prison and its physical surroundings. Finally, he broke down when speaking about his father who was arrested and mistreated because of him;

22.           In light of the above and the fact that the reasons actually given by the Board in its decision are not that compelling, it is once again submitted that there is no foundation for the Board's finding that there is no credible basis for the Applicant's Claim;

[16]            I note that the applicant makes the point that the Board did not deal with "[...] the actual event that took place and which led the applicant to leave his home country". The "actual event" here is the applicant's alleged participation in a student protest which took place in the city of Masshad on July 10, 1999. The Board's failure to deal with this event was not put forward by the applicant as a ground of review with respect to the Board's credibility findings, which led to its conclusion that the applicant was not a refugee. Rather, the Board's alleged failure to deal with the July 10, 1999 protest is put forward solely to attack the Board's conclusion that there was no credible basis.

[17]            Unfortunately for the applicant, if the Board's credibility findings are reasonable, and I have held that they are, then the no credible basis conclusion is, in my view, entirely justified. As MacGuigan J.A. stated in Sheikh v. MEI, [1990] 3 F.C. 238 (F.C.A.), at page 244:

The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim.

I would add that in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. Of course, since an applicant has to establish that all the elements of the definition of convention refugee are verified in his case, a first-level panel's conclusion that there is no credible basis for any element of his claim is sufficient.

[18]            It is my view that in order for the applicant to successfully challenge the no credible basis conclusion, it was necessary, in the present case, to challenge, and succeed on that challenge, the Board's findings concerning the applicant's lack of credibility. Since I have held that those findings are not unreasonable, then, as MacGuigan J.A. stated in Sheikh, supra, "[...] a tribunal's perception that he [the applicant] is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim."

[19]            For these reasons, this application for judicial review shall be dismissed.

                                                                                               Marc Nadon

                                                                                                       JUDGE

O T T A W A, Ontario

February 19, 2002