Date: 20120223
Docket:
IMM-4232-11
Citation:
2012 FC 246
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 23, 2012
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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MILAD MOHAJEER
BASTAMIE
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review submitted in accordance with subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27
(Act), of a decision dated June 1, 2011, by the Refugee Protection Division of
the Immigration and Refugee Board (panel) that the applicant was not a refugee
or a person in need of protection under sections 96 and 97 of the Act.
I.
Background
A. Factual
background
[2]
Milad
Mohajeer Bastamie (applicant), an Iranian citizen, is twenty-five (25) years
old. The applicant fears persecution should he return to Iran
because of his political opinion and activities in Iran and in Canada against the regime of the Islamic Republic of Iran.
[3]
In
2005, during the presidential election campaign in Iran, the applicant was a
member of an activist group called Freedom for the Children. He distributed
pamphlets to support the reformist candidate, Mostafa Moeen.
[4]
On
June 14, 2005, the applicant and his friend Navid allege that they were stabbed
while distributing the said pamphlets. The applicant maintains that his
attackers were members of the Baseej, an Iranian paramilitary force, who
supported the candidacy of Mahmoud Ahmadinejad. Following the attack, the
applicant was hospitalized for a one-week period and it took him about
six (6) months to recover.
[5]
On
June 16, 2005, the applicant’s uncle filed a complaint on behalf of the
applicant with the prosecutor of the Revolutionary Court against the Baseej
members who had attacked him. In the years subsequent to the attack, the
applicant alleges that he was the victim of harassment by the Baseej members
because they wanted him to withdraw his complaint.
[6]
On
June 20, 2009, the applicant maintains that he participated in a demonstration
against the 2009 presidential election results. At that demonstration, the
applicant and his friend Navid were purportedly arrested, detained and
tortured.
[7]
On
July 19, 2009, the applicant submits that he was released on the condition that
he withdraw his 2005 complaint. After his release, the applicant learned that
his friend Navid had died in custody. The applicant therefore went into hiding
in Karaj.
[8]
In
August 2009, the applicant claims that his mother received threatening
telephone calls saying that the applicant would be killed if they found him
because he had still not withdrawn his 2005 complaint.
[9]
The
applicant left Iran illegally on November 25, 2009. He travelled to Turkey and
then by ship in a container to France, which is where he left for Canada on a
false Swedish passport.
[10]
On
December 26, 2009, the applicant arrived in Montréal and claimed refugee
protection.
[11]
After
his arrival in Canada, the applicant contends that he participated in two
demonstrations, organized in Montréal, against the Iranian regime.
Consequently, the applicant claims that he is a refugee “sur place”.
[12]
On
May 16, 2011, his refugee claim was heard by the panel.
B. Impugned decision
[13]
In
its decision, even though the panel was satisfied that the applicant had
established his identity, the panel found that the applicant was not a refugee
or a person in need of protection under the Act because his account was not
credible.
[14]
The
panel noted a number of issues in the applicant’s claim that diminished his
credibility. The panel drew negative inferences for the following reasons:
(i) Regarding the point of entry
form and the Personal Information Form (PIF):
·
The
panel had concerns about the nature of the militancy of the group
Bach hae Azadi, or Freedom for the Children, to which he claims to
have belonged from 2005 to 2009. The panel found that the applicant’s political
involvement in Iran was rather minimal: the applicant simply distributed
pamphlets with his friends in the two weeks prior to the 2005 election. In the
election of 2009, the panel noted that the applicant did not participate in the
campaign despite the fact that he alleges that he was arrested at a
post-election demonstration;
·
The
panel noted that there were inconsistencies with respect to some of the dates
mentioned in his PIF and his testimony. Although the applicant attributed these
errors to poor translation, the panel rejected this explanation;
·
The
applicant testified that, after his release from custody in 2009, he went into
hiding in Karaj, where he remained for a period of four (4) months. However,
the panel noted that the applicant made no mention of this fact in his point of
entry form. Once again, the panel rejected the applicant’s explanation, which
blamed the interpreter for this omission;
·
The
panel noted that the applicant could not specifically identify which country he
arrived in by container despite the fact that he says he remained there for one
week. The panel also rejected the applicant’s explanation that he only found
out that he had arrived from France after his arrival in Canada;
·
The
panel stated that the applicant lied to the immigration officer about his father’s
whereabouts when he entered Canada;
(ii)
Regarding the attack in June 2005:
·
The
panel found that the applicant’s account concerning the stabbing incident in
2005 was problematic. In particular, the panel had concerns about the fact that
the applicant’s uncle allegedly filed a complaint at the police station two
days after the incident and stated that the residence of the attackers in
question was in Tehran, when the applicant’s uncle would not have known this
information only two days after the attack. In contrast, the applicant
testified that it took months to obtain information on the attackers.
Consequently, the panel found that there was little probative value in the copy
of the complaint made by the uncle and the letter by the applicant’s mother, which
were submitted as evidence. The panel found that the applicant had been
stabbed, but that there was no credible and trustworthy evidence indicating
that the applicant’s attackers were in fact members of the Baseej;
·
The
panel noted that there were inconsistencies with respect to the applicant’s
allegation that he had appeared before a judge two years after the 2005 attack
and that the judge had been reluctant to proceed with the matter;
(iii) Regarding his arrest at a
post-election demonstration in June 2009:
·
The
panel noted that the only evidence provided by the applicant with respect to
his arrest and detention during the 2009 demonstrations was his testimony.
Because the panel found that the applicant’s testimony was not credible
regarding the other elements of his account, the panel found, on a balance of
probabilities, that the applicant had not been arrested at the demonstration.
Also, the panel found that the applicant did not fit the profile of those
arrested at the 2009
demonstrations;
(iv) Regarding his release from
prison in July 2009:
·
The
panel did not accept the applicant’s allegation that he was released after one
month in custody on the simple promise to withdraw his 2005 complaint. Also,
the panel did not find it credible or plausible that the applicant was sought
by the authorities in 2009 because of a complaint filed in 2005, with which the
judicial process had no clear desire to proceed;
·
The
panel found the applicant’s allegations that he had been harassed constantly by
Baseej members until his departure in November 2009 implausible. The panel
noted that the applicant did not attempt to leave the country until 2009
despite the fact that he testified that he had received death threats. The
panel therefore found that this delay diminished the subjective element of the
applicant’s fear of persecution;
(v)
Regarding the refugee
“sur place” allegations and the risk of being a failed refugee:
·
The
panel determined that there was no credible evidence that the applicant
actually took part in demonstrations against the Iranian regime in Canada (the
applicant did not submit photos or evidence from Facebook, Twitter or YouTube).
Furthermore, the panel noted that there was no evidence that the applicant’s
alleged participation in these demonstrations had come to the attention of the
Iranian authorities. Consequently, the panel found that the applicant’s
activities in Canada would not pose a risk for him should he return to Iran.
Similarly, the panel stated that, if he were to return to Iran, the applicant
would not face a risk because of his failed refugee claim.
II.
Issue
[15]
In
this application for judicial review, the Court is of the opinion that there is
one issue:
Did the panel base its
decision on an erroneous finding of fact, made in a perverse or capricious
manner, or without regard for the material before it?
III.
Applicable
legislative provisions
[16]
Sections
96 and 97 of the Immigration and Refugee Protection Act read as follows:
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Refugee Protection, Convention Refugees and Persons
in Need of Protection
Convention refugee
96. A Convention refugee is a person who, by
reason of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries
of nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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Notions d’asile, de réfugié et de personne à protéger
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention
– le réfugié – la personne qui, craignant avec raison d’être persécutée du
fait de sa race, de sa religion, de sa nationalité, de son appartenance à un
groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a
pas de nationalité et se trouve hors du pays dans lequel elle avait sa
résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
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Person in need of protection
97. (1) A person in need of protection is a person
in Canada whose removal to their country or countries of nationality or, if
they do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or to a
risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that
risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in
every part of that country and is not faced generally by other individuals in
or from that country,
(iii) the risk is not inherent or incidental
to lawful sanctions, unless imposed in disregard of accepted international
standards, and
(iv) the risk is not caused by the inability
of that country to provide adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a
class of persons prescribed by the regulations as being in need of protection
is also a person in need of protection.
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Personne à protéger
97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se
réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce
pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent
ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de
sanctions légitimes – sauf celles infligées au mépris des normes
internationales – et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à
protéger
(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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IV.
Applicable
standard of review
[17]
This
issue concerns the panel’s assessment of the applicant’s credibility. It is
settled law that credibility findings are reviewable on the standard of
reasonableness because this is a question of fact (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 (Dunsmuir); Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339; Mejia v Canada (Minister of Citizenship and Immigration), 2009 FC 354, [2009] FCJ No 438). The Court will therefore focus on “justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.” (Dunsmuir, above, at
paragraph 47). Pursuant to Aguebor v Canada (Minister of
Employment and Immigration) (1993) 160 NR 315 (FCA), on questions of
credibility, the Court is required to give considerable deference to the
panel’s findings of fact.
V.
Analysis
[18]
First,
the applicant argues that the panel erred in assessing his credibility. More
specifically, the applicant states that the panel was not entitled to draw
negative inferences from the information in his point of entry form and PIF,
his allegations regarding the attack he was a victim of in June 2005, his
arrest at a post-election demonstration in June 2009 or his release from
custody in July 2009 because the documentary evidence confirms the plausibility
of his account.
[19]
Second,
the applicant claims that the panel erred in its assessment of his allegation
of being a refugee “sur place” and a failed refugee. In this case, the
applicant submits that the documentary evidence in the record contradicted the
panel’s findings and that the panel referred only to part of the documentary
evidence found in the record.
[20]
Generally,
the respondent points out the reasonableness of the panel’s decision. The
respondent argues that the panel was entitled to find that the applicant is not
credible in light of the lack of evidence in the record and all of the
inconsistencies and implausibilities in the applicant’s account. The respondent
contends that the applicant had the burden of establishing a serious
possibility of persecution on the basis of credible evidence, which he did not
do in this case. The respondent also notes that the panel found that the applicant
did not provide any evidence except for his testimony, which was deemed not
credible, to support his allegations.
[21]
The
Court notes that the applicant’s credibility is central to the panel’s
decision. After reviewing the record, the Court is of the opinion that the
panel’s decision was reasonable for the following reasons.
[22]
In
its decision, the panel focused on several contradictory and implausible
elements in the applicant’s account. When considered together, they seriously
undermine the applicant’s credibility. The Court points out that the panel drew
a negative inference with respect to the applicant’s credibility because of the
following problems:
- Contradictions between the
information in the applicant’s point of entry form and PIF and his
testimony, namely, the following:
- The applicant’s membership
in the political group Freedom for the Children (Tribunal Record, page
386);
- The locations and dates of
the applicant’s alleged work prior to his departure from Iran (Tribunal
Record, pages 390‑391);
- The applicant’s journey to
Canada (Tribunal Record, pages 426‑428);
·
Contradictions
and implausibilities with respect to the June 2005 attack and the
applicant’s appearance before a judge (Tribunal Record, pages 406‑409
and 410-412).
[23]
Consequently,
after a detailed analysis, the panel found the applicant to be not credible.
Because the panel stated that the only evidence provided by the applicant
regarding his arrest and detention during the 2009 demonstrations was his
testimony and because of its concerns with respect to credibility, the panel
concluded, on the balance of probabilities, that the applicant was not arrested
at a post‑election
demonstration in June 2009. Furthermore, the panel did not find it credible or
plausible that the applicant was sought by the authorities in 2009 because of a
complaint filed in 2005, with which the judicial process had no desire to
proceed. The Court is of the opinion that the inconsistencies raised by the
panel cannot be characterized as subordinate or collateral. Finally, because of
the applicant’s lack of credibility, the panel stated that there was no
evidence to support the applicant’s allegation that he was a refugee “sur
place” or that he would be persecuted as a failed refugee should he return to
Iran because the Canadian authorities do not advise foreign authorities of the
return of a failed refugee (Tribunal Record, paragraph 31).
[24]
The
Court recalls that the applicant has the burden of establishing the risk he
faces with credible evidence. On these grounds, it was open to the panel to
find that the applicant lacks credibility. Pursuant to Sheikh v Canada (Minister of Employment and Immigration), [1990] 3 FC 238, [1990] FCJ No 604 (FCA), the lack of
credibility finding may extend to all evidence emanating from his testimony.
Also, the Court notes that the panel explained in clear and concise terms all
of the reasons why it considered the applicant’s testimony not credible. The
applicant’s arguments concerning the selective treatment of documentary
evidence by the panel are of no help to him under the circumstances. In this
case, the lack of credibility apparent in the record is such that it is
sufficient to dispose of the matter. The errors of the panel alleged by the
applicant do not warrant the intervention of the Court. In fact, even though
the document entitled “On certain crimes and punishments in Iran,” to which the panel referred, is dated 2005 (Tribunal Record, page 45), the fact remains that
the panel also relied on A-1, the recent document entitled “United Kingdom
(UK). October 2010. Home Office. Operational Guidance Note: Iran.”
Furthermore, even though the applicant insisted that the Iranian authorities
monitor Web sites like YouTube, Facebook and Twitter (Tribunal Record, page
297), in this case, there is no evidence in the record that the applicant’s
participation or photo related to the demonstrations against the Iranian regime
appear on those sites, which could have possibly come to the attention of the
Iranian regime as a result (Zaree v Canada (Minister of
Citizenship and Immigration), 2011 FC 889, [2011] FCJ No 1097).
[25]
For
all of these reasons, the Court is of the opinion that the panel’s findings,
considered as a whole, cannot be characterized as erroneous, perverse or
capricious. Consequently, the panel’s decision falls within the range of
“possible, acceptable outcomes which are defensible in respect of the facts and
law”, and the intervention of the Court is unwarranted (Dunsmuir, above,
at paragraph 47).
[26]
At the hearing, counsel agreed that this matter did not raise any
serious question of general importance.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that
1.
This
application for judicial review be dismissed.
2.
No
question will be certified.
“Richard Boivin”
Certified
true translation
Janine
Anderson, Translator
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