Alizadeh v. Canada (Citizenship and Immigration), docket IMM-2030-96

     IMM-2030-96

B E T W E E N:

     HASSAN ALIZADEH AND MOHTRAM RABEH

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

GIBSON, J.:

     These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "Tribunal") of the Immigration and Refugee Board wherein the Tribunal determined the applicants not to be Convention refugees within the meaning of subsection 2(1) of the Immigration Act¹. The applicants' application was heard by the Tribunal on the 14th of January, the 9th of March and the 8th of November, 1994. Reasons for the Tribunal's decision are dated the 22nd of May, 1996 and the notice of decision is dated the 3rd of June, 1996, almost 19 months after the last hearing date.

     The applicants are husband and wife. They are citizens of Iran. They base their claims to Convention refugee status on an alleged well-founded fear of persecution if required to return to Iran, on their political opinion, real or perceived, and their membership in a particular social group.

     The applicants difficulties in Iran arose originally out of the political activities of two of their sons. After the applicants supported the release of their two sons from prison, one of the sons left the family home and the applicants lost track of his whereabouts. The other son remained in the family home. The applicants aided in arrangements to smuggle this son out of Iran. With the disappearance of the two sons, the Revolutionary Guards began to focus their attention on the applicants. The applicants were taken before the Komiteh. The male applicant was struck on the head with a gun butt and spent one week in hospital. The male applicant was advised that, despite his age, he was born in 1923, he would be required to go to the war front. He feared that he would be tasked to clear mine fields. The applicants were taken into detention, interrogated and beaten. The applicants obtained temporary release and took advantage of it to flee Iran. With the aid of a smuggler, the applicants travelled first to Dubai, then briefly returned in transit to Iran. They then went on to Mexico, through the United States where they stayed for some three months with a son, and finally to Canada.

     In its reasons, the Tribunal acknowledge that it is required to be cognizant of the fact that, before it, testimony in cases such as that of these applicants is given through an interpreter, that the process is fraught with the possibility of misunderstanding, that claimants may be nervous and that cultural differences may be present. Other factors were present with these applicants. As indicated earlier, the male applicant was born in 1923. The female applicant was born in 1935. Thus, the applicants were not young. In addition, the female applicant is essentially illiterate. Nonetheless, the Tribunal concluded:

The panel has valid reason to doubt and reject the truthfulness of allegations made in support of the claims, due to internal inconsistencies that arose in the claimants' evidence, as well as inconsistencies with other evidence.

....

The panel interrupted the proceedings to have the interpreter present read the narratives to the claimants because of the substantial inconsistencies in the evidence. The panel was concerned with the number of inconsistencies and inaccuracies by the claimants to state correctly the most fundamental aspects pertaining to their fear and personal experiences. The panel concluded later, however, after taking a recess in the hearing so that their own narratives could be read to the claimants, that the reason for the problem of accurately presenting information in the Personal Information Forms was that the claimants were not telling the truth to the panel and that they were attempting to create answers that would most favourably lead to a positive decision. Unfortunately, as the hearing continued on the claimants became confused with their own previous narratives and their previous personal testimony. There were many, many inconsistencies and the claimants' general inability to answer questions and/or make clarifications is, the panel finds, substantial to the determination of these claims.

The Tribunal then went on to describe six specific inconsistencies. It then concluded:

The panel finds that the aforementioned inconsistencies are material to the claims. Consequently, the panel rejects the truthfulness of the claimants' evidence respecting the reason for their departure from Iran and for making a claim to be Convention refugees.

    

     Finally, the Tribunal concluded that the applicants did not have a well-founded fear of persecution if required to return to Iran.

     Before me, counsel for the applicants focussed on two issues: first, the delay on the part of the Tribunal in reaching its decision which, counsel argued, should be found to result in the loss by the Tribunal of jurisdiction to issue its decision; and second, the finding of the Tribunal with regard to the credibility of the applicants.

     Subsection 69.1(9) of the Immigration Act reads as follows:

(9) The Refugee Division shall determine whether or not the person referred to in subsection (1) [on the facts of this matter, the applicants] is a Convention refugee and shall render its decision as soon as possible after completion of the hearing and send a written notice of the decision to the person and to the Minister.

[underlining added by me for emphasis]

There was no evidence before me as to whether the almost 19 month delay between the end of the hearing and the issuance of the Tribunal's decision breached the Tribunal's obligation under the terms of the quoted subsection. Counsel for the applicants argued that 19 months could never be "as soon as possible". By contrast, counsel for the respondent pointed out that "as soon as possible" was not defined with any precision and if Parliament had meant an absolute time limit to apply, it would have specified that time limit rather than using the general words that it chose. Certainly, if Parliament had used words such as "within a reasonable time" I would conclude that the delay in reaching a decision in this matter was not "reasonable". But in the absence of a specified time or a "reasonableness" or equivalent test, I cannot, in the absence of evidence, conclude that the Tribunal did not act "as soon as possible".

     In the alternative, counsel for the applicants argued that the refugee determination process engages section 7 of the Canadian Charter of Rights and Freedoms². In Hernandez v. the Minister of Employment and Immigration³, Robertson, J.A. wrote:

It is apparent that the argument [the same argument as that made before me] is gaining in popularity despite the decision of this court in Akthar v. Minister of Employment and Immigration (1991), 129 N.R. 71; 14 Imm. L.R. (2d) 39 (F.C.A.). Admittedly, as counsel for the applicant was so quick to point out, Mr. Justice Hugessen did state:

"In these circumstances, and while, as indicated, I do not exclude the possibility of delay in the conduct of a refugee hearing giving rise to a Charter remedy, this is not such a case."

It is understandable that an appellate court would not wish to foreclose absolutely on a Charter argument. A rule without exceptions has more often than not proven to be a source of controversy rather than consensus. At the same time, I am of the view that the above statement must be placed in the context of the incisive analysis which preceded it. Within that framework, it is abundantly clear that the "unreasonable delay" argument cannot be perceived as a fertile basis for setting aside decisions of tribunals. It is probably closer to legal reality for one to presuppose that rarely, if ever, will the argument be successfully invoked.

Both Akthar and Hernandez dealt with delays in the processing of a refugee claim rather than with delays between the time of a hearing and the time a decision is given. Despite this distinction, I am satisfied that those decisions apply by analogy on the factS before me. While counsel for the applicants argued that the applicants have suffered prejudice by reason of the long delay in reaching a decision in this matter, and I had no evidence before me on the point, I am not satisfied that any prejudice is of such significance as to warrant a conclusion that, by its delay, the Tribunal here should be determined to have lost jurisdiction.

     Counsel for the applicants argued that the Tribunal's credibility finding could not be supported in that, although the Tribunal recognized the difficulties faced by applicants such as those in this matter, it then went on to examine the applicants' evidence in minute detail focussing on inconsistencies of no consequence. I disagree. The inconsistencies identified by the Tribunal in its reasons are fully supported by reference to the transcript, which, in turn, discloses further inconsistencies, and, in the words of the Tribunal, "evasive" responses. The Tribunal found the inconsistencies which are identified in its reasons to be material to the applicants' claims. Taken together, the inconsistencies identified are certainly material to the claims when regard is had to the totality of the evidence.

     Given the foregoing, I am satisfied that the Tribunal's conclusion that the applicants do not have a well-founded fear of persecution if they are returned to Iran was reasonably open to it.

     In the result, this application for judicial review will be dismissed.

     In accordance with an agreement reached at the close of the hearing of this matter, draft reasons substantially in the form of these reasons were distribured through the Registry to counsel and time was allowed for written submissions on the issue of certification of a question. No written submissions were received within the time allowed. No question will be certified.

    

     Judge

Ottawa, Ontario

February 19 , 1997

__________________

¹      R.S.C. 1985, c. I-2

²      Constitution Act, 1982 (R.S.C. 1985, Appendix II, No. 44), Being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11

³      (1993), 154 N.R. 231 (F.C.A.)