Sadeghi v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1083

Date: 20021017

Docket: IMM-1670-02

Neutral citation: 2002 FCT 1083

BETWEEN:

                              SIAMEK SADEGHI

                                                                Applicant

                                    

AND:

             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                               Respondent

                          REASONS FOR ORDER

ROULEAU, J.

[1]                 This application is for judicial review under subsection 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act") of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("the CRDD panel"), dated March 28, 2002 wherein it found the applicant not to be a Convention refugee. The applicant seeks an order for certiorari quashing the decision that he is not a Convention refugee within section 2(1) of the Act, and remitting the application to a differently constituted tribunal.

  

[2]                 The applicant is a 37 year-old citizen of Iran who, in 1983, moved to Minsk which at that time was part of the Soviet Union. He accompanied family members who were affiliated with the Tudeh or Communist Party in Iran. He was granted the status of a political refugee and resided there until February 2001.

  

[3]                 The applicant married a Belarussian woman in 1985 and has two children, all of them residing in Belarus. The applicant alleges he never obtained permanent resident status in Belarus and, therefore, his Convention refugee claim is directed against Iran.

  

[4]                 The applicant alleges that he converted to Christianity in 1995, that he was beaten up twice and hospitalized once in August 2000 by Iranian Muslim foreigners in Belarus who were affiliated with the Iranian Embassy or Consulate General in Minsk, that he received threatening phone calls between August and November of 2000 after the physical attacks, and that his daughters were harassed on the way to school.

  

[5]                 The applicant further alleged that on November 13, 2000, his neighbour was murdered when she asked some people who were trying to enter the applicant's apartment why they were doing so. After this incident, the applicant left his home and decided to seek protection outside of Belarus. On February 13, 2001, the applicant flew alone from Moscow to Mexico and travelled to the United States before coming to Victoria, Canada on March 5, 2001 where he applied for refugee status. The applicant alleges he fears persecution if he were to return to Iran because of his political affiliation from when he left in 1983 and his conversion to Christianity.

  

[6]                 The CRDD panel considered and weighed all of the evidence adduced by the applicant and found his allegations to be so contradictory and implausible that it could not accept them. The panel determined that the applicant was not a credible witness and that he failed to present a credible basis to his claim of feared persecution from Iran for his alleged conversion to Christianity. The applicant now seeks judicial review of the decision of the CRDD. By order rendered on July 10, 2002 by the Honourable Madam Justice Tremblay-Lamer, leave to commence a judicial review application in respect of that decision was granted.

  

[7]                 The CRDD panel found that the applicant was not a reliable or trustworthy witness in respect to the primary allegations underpinning his claim. Several inconsistencies and implausibilities in the applicant's evidence, central to his claim, were identified by the panel.

[8]                 First, it found it was implausible that the applicant did not apply for Belarussian citizenship in the three and a half year period in which he could have obtained it. Second, the applicant alleged in his PIF that three people were arrested after his neighbour was murdered allegedly because of the applicant's Christian conversion and practice and that they were not charged and were released after being detained by the police for 24 hours. However, in a statutory declaration made by the applicant on the day of his arrival in Canada, he states that no arrests were made and nobody is sure who the assailants were. Further, when testifying, the applicant stated that the suspects were detained for about one month. At the hearing, when asked about the statement he had made in his PIF, the applicant explained that there must have been a mistake in translation and that the assailants were not arrested for 24 hours after the murder. The panel found this explanation not to be reasonable and credible.

  

[9]                 The panel found other inconsistencies in the applicant's evidence with respect to his hospitalization after having been beaten in August 2000 for nine days.

  

[10]            Further, the panel found it was implausible that the applicant, who testified that he never felt drawn to go to church by himself and admitted that he was not very devout, has moved to a heartfelt acceptance of the Christian religion in such a way that if he were returned to Iran, he would, of his own conscience and by his rights, seek to practice Christianity as risk of receiving the attention of the authorities there.

  

[11]            Counsel framed the issues in this application in the following terms:

1) Whether the CRDD misconstrued the foundation of the Applicant's claim by considering that the Applicant's religious commitment to Christianity was central to his fear of persecution on religious grounds rather than the fact of his conversion to Christianity and how this would be perceived by the authorities in Iran;

2) Whether the CRDD panel misconstrued the evidence before it and made findings of fact related to credibility that were so patently unreasonable and perverse as to constitute a reviewable error;

3) Whether the CRDD panel erred in law by improperly finding there to be "no credible basis" to the Applicant's claim;

   

[12]            The applicant's first and primary submission suggests that it is not the level of religious commitment of the applicant that is central to the analysis of whether his fear of persecution on religious grounds is well founded, but rather what the attitude of the putative persecutor, the Iranian government, would be to the fact of religious conversion. By failing to address these considerations, the CRDD panel made a reviewable error.

  

[13]            He also highlights many findings of fact made by the panel related to credibility which were patently unreasonable and give rise to a reviewable error.

  

[14]            The applicant notes that the panel impugned his credibility with respect to his testimony regarding his status in Belarus.

[15]            The applicant emphasizes that the panel erred in law since the objective evidence that the panel ignored the baptismal certificate verifying the Applicant's conversion to Christianity as well as the documentary evidence that apostasy is treated as a serious crime and may be punishable by death in Iran, made it incumbent on the panel to assess this independent credible evidence before making a "no credible basis" finding. By failing to do so, it committed a reviewable error.

[16]            Having considered all the evidence, the submissions of the parties and the Certified Tribunal Record, I would allow this application for judicial review as I believe the CRDD panel misconstrued the foundation of the applicant's claim of persecution on religious grounds against Iran. I am also of the view that the panel erred in law by improperly finding there to be "no credible basis" to the applicant's claim.

  

[17]            It appears from the CRDD's reasons that the panel considered the degree of the applicant's religious commitment to Christianity as central to its analysis of whether his fear of persecution on religious grounds is well-founded. Indeed, at pages 7-8 of its decision, the panel stated the following:

Now, I turn to the elements of inconsistency and implausibility with respect to the claimant's purported religious status is Belarus. Once listening to the claimant, it became clear that he had only the slightest and most formal connection with the Christian religion. He did it at the behest of his family in what is an overwhelming Christian country and, undoubtedly, because he had some interest in it. But, there is nothing that I have heard today, either from the claimant as witness or from his friend and employer, James McDougall, that would persuade me that this claimant has moved to a heartfelt acceptance of the Christian religion in such a way as that if he were returned to Iran he would, of his own conscience and by his right, seek to practice it at risk of receiving the attention of the authorities in Iran. It is not made out.

Indeed, the implausibility in the claimant's suggestion that though he had so merely formal a connection to this religion, despite this baptismal certificate, in Belarus, yet was targeted in a most frightening way by foreign Muslim agents in Belarus is, in my judgment, so strikingly without plausibility that the mark left for me by this claimant as a witness, is one of a fabricator as opposed to a man of religion. That is the strong impression left with this decision-maker after a review of all the testimony.

The claimant alleged that he attended only a very short process in order to become baptised in 1995. He states that he sometimes accompanied his wife to church if he had the time but he did not feel compelled to go himself. That is to say, he did not feel drawn, by a heartfelt belief in the tenets of that, to wish to go. He agreed he was not very devout. These point toward the claimant, if he is returned to Iran, not establishing that he would practice that religion there. I do not accept it.

[...]

So for all these reasons, the claimant is shown not to be a credible witness and to have failed to present a credible claim of feared persecution from Iran, a country he left about nineteen years ago. The claimant has not shown that he has taken up the practice of the Christian faith since he has arrived in Canada in such a way as to persuade me that that is the faith he would follow if he returned to Iran. His interest in matters Christian began in Canada after meeting the witness, James McDougall, in about August or September 2000, or about six months after his arrival. The evidence is that it remains an interest only, though he attends church with the witness.

                                                   (Emphasis added)

[18]            With respect, the panel is mistaken. The question is not whether the applicant is so deeply committed to Christianity that he would, if he were to return to Iran, practice that religion there at risk of receiving the attention of the authorities. Rather, the central issue to the well-foundedness of the applicant's fear of persecution on religious grounds is the fact of his conversion to Christianity and the attitude of the Iranian government, the putative persecutor, should his conversion come to be known to the Iranian authorities. Indeed, the consequences for the applicant, if his conversion to the Christian faith were known by the Iranian authorities, are very serious. The documentary evidence tendered at the hearing makes it very clear that apostasy is a serious crime in Iran and may be punishable by death.^[1] The CRDD panel utterly failed to address this question and does not seem even to have recognized that the problem existed in Iran. In my view, the panel clearly exaggerated the import of a few apparent implausibilities which it succeeded in detecting in the testimony of the applicant, and this caused it to forget the substance of the facts on which the applicant based his claim. Consequently, the panel erred in failing to ask itself a question that was crucial to the decision that it reached.

  

[19]            Secondly, the panel concluded that there was no credible basis to the applicant's allegations pursuant to subsection 69.1(9.1) of the Act, a finding which was exclusively based on the lack of credibility of the applicant's oral testimony.

  

[20]            Clearly, where the only evidence linking the refugee claimant to the persecution emanates from the testimony, rejecting the testimony means there is no longer a link to the persecution. It then becomes impossible to establish a link between the person's claim and the documentary evidence.    But in the present case, where there was relevant evidence emanating from sources other than the applicant's testimony which can link his claim to the ongoing persecution of individuals in Iran, clear and definite rejection of this evidence is required to support the panel's conclusion.

  

[21]            Indeed, it appears from the documentary evidence that: (1) the evangelical Christian community has suffered harassment and arrests by authorities for the printing of materials or delivery of sermons in Persian; (2) the Iranian government is highly suspicious of any proselytizing of Muslims by non-Muslims and can be harsh in its response as evidenced by the numerous killings at the hands of authorities reported by human rights organizations; (3) the government does not ensure the right of citizens to change or recant their religious faith. Apostasy, specifically conversion from Islam, is a serious crime in Iran (some documents refer to it as the "ultimate crime") and may be punishable by death; (4) if the Applicant had to return to Iran and if his conversion were known to the Iranian authorities, he would be regarded as a traitor to the Muslim faith and probably executed. This documentary evidence before the panel did not contradict the applicant's testimony in any respects, nor did it indicate that the risk of persecution of a convert to Christianity in Iran was contingent upon the degree of his or her religious commitment or whether or not he was a worshipper or proselytizer.

  

[22]            In Seevaratnam v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 130 (F.C.T.D.), this Court endorsed the approach of the Federal Court of Appeal in Mahanandan et al. v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1128 (QL) (F.C.A.) which stated that when evidence which can affect the Board's assessment of the claim is presented at a hearing, the panel must indicate the impact it had on the claim. The need to mention and specifically analyse documentary evidence will, of course, increase with the relevance of the evidence to the decision. This is particularly so when the reasons are silent on evidence pointing to the opposite conclusion: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, at para. 17. Furthermore, the panel has a obligation, even when it finds a claimant's testimony not to be credible, to consider whatever independent credible evidence there is connecting the claimant to the harm feared before making a finding that there is no credible basis to his or her claim: Seevaratnam, supra at para. 12.

[23]            In my opinion, the same principles apply here. While I agree that some aspects of the applicant's testimony may appear incredible, the CRDD panel failed to consider all of the documentary evidence before it and simply denied the applicant's claim because it did not find him credible. As stated, there was still irrefutable credible evidence remaining which provided support for the applicant's claim that there was a real danger that he might be subjected to persecution in Iran merely because of his conversion to the Christian faith. This cogent evidence, which emanated from sources other than the Applicant, could have affected the panel's assessment of the claim in important respects and therefore should have been expressly assessed in its reasons in an objective manner: Djama v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 531 (QL) (F.C.A.); Sinko v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1181 (QL) (F.C.T.D.) at para. 23; Seevaratnman, supra at para. 13. By failing to do so, I am left to conclude that the panel made its decision without regard to the material before it. I deem this evidence sufficiently important and material to the claim that, had it been considered, it could have been capable of supporting a positive determination of the refugee claim. This, in my view, was a fatal omission central to the issues in this case.

[24]            The Board committed a reviewable error in failing to expressly consider and assess the above noted documentary evidence. As a result, the CRDD's conclusion that there was "no credible basis" for the applicant's claim cannot stand.

  

[25]            For all these reasons, I hereby allow this application for judicial review and remit the matter to the CRDD to be reconsidered by a differently constituted panel.

    

     JUDGE

OTTAWA, Ontario

October 17, 2002

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

    

DOCKET:                                 IMM-1670-02

STYLE OF CAUSE: Siamek Sadeghi v. The Minister of Citizenship and Immigration

  

PLACE OF HEARING:         Vancouver, British Columbia

DATE OF HEARING:           October 1, 2002

REASONS FOR :                   The Honourable Mr. Justice Rouleau

DATED:                                   October 17, 2002

   

APPEARANCES:

Mr. Peter Golden                       FOR PLAINTIFF / APPLICANT

Mr. Peter Bell                              FOR DEFENDANT/ RESPONDENT

  

SOLICITORS OF RECORD:

Peter Golden

Barrister and Solicitor

Victoria, B.C.                                           FOR PLAINTIFF/APPLICANT

Morris Rosenberg, Deputy

Attorney General of Canada                   FOR DEFENDANT/ RESPONDENT