Mohammadi v. Canada (Citizenship and Immigration), docket IMM-2507-96

     IMM-2507-96

B E T W E E N:

     ABDOLLAH MOHAMMADI

NINA MOHAMMADI

NADIA MOHAMMADI

NIMA MOHAMMADI

SOHEILA RAHMANI

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

HEALD, D.J.:

     This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated July 2, 1996. By this decision the Board determined that the applicants herein were not Convention refugees.

    

THE FACTS

    

     The applicants are Abdollah Mohammadi (the male claimant), 37 years old, his spouse Soheila Rahmani (the female claimant) who is 30 years old, their daughters Nina and Nadia and their son Nima (the minor claimants). They are all citizens of Iran. The male claimant along with the minor claimants entered Canada on March 18, 1995, having travelled from Iran via Turkey, Holland and the United States. On July 12, 1995, the male claimant applied for Convention refugee status in Canada, citing his fear of persecution because of his political opinion. The female claimant entered Canada on July 30, 1995 and applied for Convention refugee status in January of 1996.

     The male applicant was active in the Kurdish Communist party as well as in the Communist party of Iran. He withdrew from those parties in 1990. In 1995, his former house was raided. All of the family excepting the female claimant escaped from Iran through Turkey. The female claimant was arrested by revolutionary guards, beaten and questioned concerning the whereabouts of her husband. In May of 1995, she was moved to a hospital because she was experiencing a difficult pregnancy. Aided by members of the Communist party she was able to escape to Iraq and, subsequently to Turkey.

THE DECISION OF THE BOARD

     The Board held that there was an absence of credible or trustworthy evidence entitling it to conclude that the applicants were Convention refugees.

     This conclusion was reached because of a number of major implausibilities in the evidence:

(a)      The evidence as to the applicants being sought by the authorities;

(i)      the Board concluded that it was not plausible that the authorities were seeking the applicants. They so concluded because the evidence was that the applicants were not sought out at the homes of their close relatives (such as their uncle for example);

(ii)      the authorities did not question the applicants' relatives concerning their whereabouts, even those living in close proximity to the applicants; and

(iii)      the authorities did not seek the male applicant even though his wife had admitted his whereabouts to the authorities.

(b)      The evidence as to the applicants exit from Iran;

(i)      the male applicant said that he made contact with a smuggler and that he and his daughters left Iran with a false passport which included their true names and photographs. The Board found it implausible that, in spite of Iran's strict border crossing procedures, a wanted fugitive could exit Iran using a passport containing photographs as well as his correct name; and

(ii)      while it was suggested that the smuggler bribed Iranian border officials, the Board did not agree, stating that it found this suggestion to be "sheer speculation".

(c)      The evidence as to the male applicant's activities in Canada

         The male applicant testified that he was an active supporter of Kurdish and Communist causes. However, since his arrival in Canada, he had not been active at all in these causes. The Board found it implausible that someone "so dedicated to a cause that he will risk his life to be so active in Iran would do nothing in support of that cause once in Canada, where there are no sanctions at all for so doing ".

(d)      The evidence as to the female applicant's return to Iran

         The female applicant testified that she returned to Iran because she wished to say goodbye to her mother as well as retrieving some personal items. The Board found this activity to be implausible, since her mother could visit her (as her father did). They also found it implausible that she would risk returning for the mere purpose of retrieving some clothing items.

THE ISSUES

     The issues raised by the applicants are:

a)      Did the Board err in its assessment of the applicants' credibility;

b)      Did the Board have due regard to the totality of the evidence.

ANALYSIS

     In making assessments as to credibility, that assessment by the Board must be clear and unmistakable. In Hilo v. Canada (M.E.I.)¹, the Federal Court of Appeal stated; "... the Board was under a duty to give its reasons for casting doubt upon the appellants credibility in clear and unmistakable terms. The Board's credibility assessment, quoted supra is defective because it is couched in vague and general terms".

     In my view, the credibility assessment by the Board in this case meets the requirements set forth in Hilo supra. I consider it to be "clear" and "unmistakable".

     In this case the Board accepted the documentary evidence in preference to the applicants testimony. In such a case, the Board is required to state in clear and unmistakable terms why it preferred the documentary evidence over the applicants testimonial evidence².

     My perusal of the evidence persuades me that the Board did, indeed, give detailed reasons for preferring the documentary evidence³.

     The jurisprudence also requires that the Board have regard to the totality of the evidence⁴. Since the Board commented specifically on the major areas of the applicants evidence and related it to the documentary evidence, I am persuaded that the Board did have regard to the totality of the evidence.

     Finally, it is my conclusion, for the foregoing reasons, that the decision reached by the Board was reasonably open to it on this record. On this basis, the within application for judicial review must be dismissed.

     Neither counsel suggested that a serious question of general importance was involved in this application. I agree with that view of the matter. Accordingly, no serious question of general importance will be certified pursuant to the provision of section 83 of the Immigration Act.

                 "Darrel V. Heald"

D. J.

Toronto, Ontario

April 16, 1997

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                  IMM-2507-96

STYLE OF CAUSE:          ABDOLLAH MOHAMMADI ET AL

                     - and -

                     THE MINISTER OF CITIZENSHIP

                     AND IMMIGRATION

DATE OF HEARING:          APRIL 15, 1997

PLACE OF HEARING:          TORONTO, ONTARIO

REASONS FOR ORDER BY:      HEALD, D.J.

DATED:                  APRIL 16, 1997

APPEARANCES:

                     Mr. Jack Martin

                         For the Applicants

                     Ms. Kathryn Hucal

                         For the Respondent

SOLICITORS OF RECORD:

                     Refugee Law Office

                     603-481 University Ave.

                     Toronto, Ontario

                     M5G 2E9

                         For the Applicants

                      George Thomson

                     Deputy Attorney General

                     of Canada

                         For the Respondent

                     FEDERAL COURT OF CANADA

                     Court No.:      IMM-2507-96

                     Between:

                     ABDOLLAH MOHAMMADI ET AL

     Applicants

                         - and -

                     THE MINISTER OF CITIZENSHIP

                     AND IMMIGRATION

     Respondent

                     REASONS FOR ORDER

__________________

¹      (1991), 15 Imm. L.R. (2d) 199 (F.C.A.).

²      Okyere-Akosah v. M.E.I., (1992) 157 N.R. 387 (F.C.A.). per Desjardins, J.A.

³      See Board's reasons - Application Record - Page 10.

⁴      Compare Owusu-Ansah v. M.E.I., (1989, 8 Imm. L.R. (2d) 106 (F.C.A.), at page 113.