Date: 20121129
Docket: IMM-8230-11
Citation: 2012 FC 1400
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, November 29,
2012
Present: The Honourable
Mr. Justice Lemieux
BETWEEN:
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MOHAMMAD ZAREE ROBAT TORKI
REZA ZAREE ROBAT TORKI
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Applicants
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And
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THE MINISTER OF CITIEZNSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
applicants, 44-year-old Mohammad Zaree Robat Torki and 31-year-old Reza, are
brothers and citizens of Iran. They are seeking to have set aside a decision
rendered in English on October 21, 2011, by the Refugee Protection
Division (the panel), finding that they were neither Convention refugees within
the meaning of section 96 of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA), nor persons in need of protection within the
meaning of section 97 of that statute.
[2]
The
panel found that their claims were not credible. It did not believe that they
had been persecuted by the Iranian authorities because of their political
opinions, being opponents of the ruling regime, or, in Mohammad’s case,
because of his conversion to Christianity in 2004, and additionally the
fact that the police were suspicious of him as a result of his friendship with
Albert, a Christian.
[3]
According
to their Personal Information Forms (PIFs), they are targeted by the Iranian
authorities because they (1) participated in demonstrations against the ruling
regime following the June 2009 elections; (2) were arrested during a
demonstration in July 2009; (3) were detained for a month; (4) were abused
during their period of incarceration; and (5) were released, on the condition
that they would never again participate in demonstrations against the regime,
after their father had paid a bribe.
[4]
After
their release, the two brothers allegedly fled the capital to live in a distant
village before leaving Iran illegally on December 11, 2009. They
arrived in Canada on January 13, 2010, and made a claim for refugee
protection on January 18, 2010. They joined their brother Ali who
had fled Iran in 2007 to seek refuge in Canada.
[5]
On
July 11, 2011, the three brothers participated in a demonstration against
the Iranian regime in front of a Montréal hotel where members of the Iranian
Embassy in Ottawa were staying. The issue is whether this act of defiance makes
the claimants refugees sur place, or, in other words, whether as a result of this there is
a serious possibility that they will be persecuted upon their return to Iran.
II. The impugned decision
[6]
At
paragraph 35 of its decision, the panel explained why it had concluded
that the applicants were neither Convention refugees nor persons in need of
protection.
[35] Because of the credibility issues mentioned above, the panel
concludes that the claimants are not “Convention Refugees”. Moreover, the
claimants did not present sufficient evidence to lead the panel to believe
that, were they return to Iran, it would be more likely than not that they
would be subject to a danger of torture or to a risk to their lives or to a
risk of cruel and unusual treatment or punishment and the panel finds that they
are not persons in need of protection. [Emphasis added.]
[7]
The
panel reached this conclusion after reviewing each of the facts contributing to
their fear of persecution, namely, (1) their status as refugees sur place; (2) their status as
failed refugees; (3) their participation in the anti-regime demonstrations in
the summer of 2009; and (4) the risk alleged by Mohammad as a convert. The
refugee protection claimants also raised two issues related to procedural
fairness: (5) a reasonable apprehension of bias and (6) translation errors. I
will address each of these separately.
(1) Refugees sur place
[8]
In
paragraph 20 of its reasons, the panel wrote the following:
The panel concludes that the presence of the claimants at one
demonstration in Montreal would not put them at risk should they return to Iran
and the panel does not consider the claimants to be refugees sur place by virtue of their presence at this one
demonstration. [Emphasis
added.]
[9]
This
is based on the following findings:
1. A
contradiction in Mohammad’s testimony regarding why the applicants had not
participated in other anti-regime demonstrations in Montréal: a first response
relating to their relative lack of contact with the Iranian community in Montréal,
and a subsequent response indicating that he was aware of the difficulties
experienced by Iranians returning to Iran. The panel wrote that, according to
Mohammad’s testimony, this knowledge was gained during gatherings with his
fellow citizens to discuss literature and culture and exchange points of view. Mohammad
also told the panel that he was not seriously politically engaged, a statement
that the panel found to contradict his testimony that he had participated in
six or seven demonstrations in the capital before fleeing his native country.
The panel held that his credibility was negatively affected.
2. The
applicants filed a letter received from their father (Exhibit P-5) in
which he states that the Iranian authorities are aware of their activities in
Canada and that he was interrogated on this subject and summoned before the
Revolutionary Court because he was responsible for his sons’ actions. The panel
held that “[t]he claimant’s [Reza’s] credibility as to the harm his
father is experiencing in Iran was adversely affected as a result of his
statement his father would not be bothered by the authorities because of his
age”. The panel had asked him why he had participated in a demonstration if
he truly feared for his father’s life; Reza had replied that his father was
old and retired and that most likely the authorities “would leave him alone”. The
panel held that this answer contradicted what the two brothers had written in
their PIFs.
3. The
panel raised another problem with the father’s letter. The panel had asked why
the father had not sent his sons a copy of the summons. Reza replied that the
summons was at his father’s house; Mohammad replied that the summons was not
official because the Court’s address had simply been written on a scrap of
paper. After reviewing the documentary evidence, the panel found that the
credibility of their allegations “of repercussions in Iran of their activities
was negatively affected as a result”.
4. According
to the panel, the documentary evidence (1) “shows that relatives in Iran
are targeted if refugees continue their activities outside of Iran and that
Iranian intelligence and security forces target families of activists as a
means to force them to cease their activities”. The panel found that, in this
case, the two brothers did not fit this profile because they had not been
politically active in Canada; and (2) according to an Iranian official (Mr. Javdan),
a citizen “who had taken non-violent action abroad e.g. participated in
demonstrations against the Iranian government would not be punished when
returning to Iran. The significance of such persons to the security of the
Iranian state was so insignificant that resources would not be used to
prosecute them.”
5. Regarding
the claim that their situation in Iran was precarious because the Iranian
authorities were aware of the activities of their brother Ali. The panel noted
that Ali had left Iran in 2007 and that none of their PIFs, their testimony
before the panel or the letter from their father referred to any problems from
May 2007 “until the time that the claimants were allegedly arrested for
demonstrating in July 2009”. The panel found as follows:
The panel does not accept therefore that the problems of their brother
Ali would have created additional problems for them in the post 2009
period, since it does not appear that the brothers had any problems because
of Ali in that two year period immediately following Ali’s flight to Canada,
at a period of time when the authorities would be most interested in him. [Emphasis
added.]
6.
The
panel also reached the following conclusion:
Had the brothers feared for their father’s safety in Iran, and had they
truly believed that their activities in Canada would get back to Iran and risk
causing harm to the father, the panel finds that it would have been
unlikely then for them to have engaged in any demonstration whatsoever in
Canada. On the other hand, the claimants participated in only one
demonstration in the one and half years that they have been in Canada. The
panel finds that the claimants’ photos of them at a demonstration are, on a
balance of probabilities, an attempt to bolster their refugee claim and does
not believe that their presence at this one demonstration would have drawn the
attention of the Iranian authorities. [Emphasis added.]
(2) Participation in the
demonstrations in Iran
[10]
The
second issue dealt with by the panel was whether there was a serious risk that
the applicants would be persecuted in Iran for having demonstrated against the
regime in the summer of 2009 and then having been arrested and detained.
[11]
The
panel made the following finding with respect to that issue:
Because of the inconsistent testimony the panel did not find it credible
that the claimants, who had no previous political involvement, would have taken
part in the demonstration or that they had been arrested and imprisoned as a
result. [Emphasis
added.]
[12]
The
panel based this finding on the following observations:
1.
The
claimants did not report being politically active in Iran in the years
preceding the elections and their alleged political involvement in Iran
consisted only of taking part in the demonstrations in the summer of 2009. They
had experienced no problems in the previous two years in Iran and this was
confirmed by the younger brother at the hearing.
2.
Contradictions
were noted in the testimony of the two brothers: (1) Reza could not
remember the dates of the six or seven demonstrations in which he had
participated with family members; and (2) their testimony contained
contradictions regarding the demonstration during which they were arrested:
what had happened during the demonstration; who had arrested them, the police or
officers in civilian clothing; at what moment the two brothers were obliged to
promise to the authorities that they would never again participate in
anti-regime demonstrations before being released or transferred from one prison
to another. Reza testified that the authorities had forced him to sign a
document stating that he did not believe in God, while Mohammad said that he
had not been required to sign such a document.
(3) Mohammad:
a Christian or not
[13]
The
panel reached the following conclusion on this issue:
The panel also did not find the elder brother’s testimony he was a practising
Christian to be credible.
[14]
The
panel based this conclusion on the following evidence: (1) the inconsistency of
“why Mohammad had not been asked to sign a document similar to the one his
brother alleges to have signed if in fact he had been the one suspected of
being a Christian; (2) the claimant says he has been attending the Persian
Evangelical Church since arriving but when asked when was the last time he had
gone to services there, he stated that he had last been in August [the date of
the hearing was September 30]. He stated he does not go every week as he does
not have time but also said he had not been working and that it was only
recently that he had found a temporary job; (3) he demonstrated some basic
knowledge of Christianity when questioned about it; (4) he was asked what the
word Evangelical in the name of his church meant but he was unable to explain
this movement; (5) he testified that his friend Albert, who is not a cleric, in
Iran had baptized him because it was too dangerous to have a Protestant
Minister perform a proper baptism. The tribunal asked him, if in Montréal, he
asked the Minister of his church to perform a proper baptism. He answered he
did not feel a second baptism was necessary. The tribunal found there was an
incongruity between his PIF statement that his baptism in Iran was not a proper
ceremony and the fact he failed to undergo another baptism by a proper Minister
in Canada”.
[15]
The
panel found the following:
Given the claimant’s lack of any desire to have a proper baptismal
ceremony by a recognized Protestant Minister, given his own statement that he is not a regular
church goer and does not have the time to attend regular services, given the
difficulty the claimant had in explaining the word Evangelical, which in the
name of the very church he attends, the panel draws a negative conclusion as
to his conversion to Christianity. The claimant’s failure to practice his
religion regularly and to fully participate in organized religion in Canada, leads
the panel to conclude that whatever Christian beliefs he may have would not put
him in danger in Iran. The panel is not persuaded, on a balance of
probabilities, that the claimant has undergone a genuine conversion to
Christianity or that he would practice Christianity in Iran such as to draw
attention to himself in Iran as a Christian. For this reason the panel does
not believe he would be persecuted in Iran because of his religion. [Emphasis
added.]
[16]
The
panel added a further consideration after its analysis, namely, whether upon
his return to Iran, Mohammad would be perceived as an apostate. It held that he
would not for the following reasons: (1) he “has not established any credible
evidence that the authorities were aware of this Christian beliefs; (2) he
would openly practice in Iran; (3) that he would present himself as a Christian
to the authorities or (4) that he would come to their attention because of any
proselytising”.
(4) Failed refugees
[17]
The
documentary evidence indicates that failed refugees “are subject to sanctions
by the Iranian government when they return to Iran for making up accounts of
alleged persecution.” Relying on a 2005 document from Border Services Canada,
the panel found that “the claimants would not face a risk because of their
failed refugee claims because the Iranian government would not be informed of
this fact by the Canadian authorities.”
V. The arguments
(a) The applicants’ arguments
[18]
The
applicants allege first that the panel’s finding that the applicants are not
refugees sur
place is
unreasonable for the following reasons: (1) it is based on information provided
by a representative of the Iranian government regarding the treatment in
Iran of persons who have participated in demonstrations abroad—the Iranian
government would never admit that protestors living abroad are persecuted upon
their return to Iran; (3) the panel failed to take into consideration recent
documentary evidence clearly indicating that individuals who have participated
in demonstrations abroad against the Iranian government since the June 2009
elections are targeted and face a risk of persecution in Iran. The document
on which the panel relied is dated April 2005; (4) relying on Justice
Shore’s decision in Win v Canada (Minister of Citizenship and Immigration),
2008 FC 398, it was unreasonable for the panel to find that news of the public
demonstration would not reach the Iranian authorities; (5) the panel failed to
address an aspect of Reza’s testimony—his Internet activity. The
applicants cite the decision of Justice Martineau in Zaree v Canada (Minister
of Citizenship and Immigration), 2011 FC 889 [Zaree], relating to
their brother Ali.
[19]
Second,
the applicants contest the panel’s finding that they do not face a risk of
persecution upon their return to Iran as failed refugees because the Canadian
authorities will not provide this information to the Iranian authorities. The
applicants submit that the panel erred because (1) it failed to consider
the documentary evidence to the effect that even if the Canadian authorities do
not provide this information to the Iranian authorities, the latter can easily
deduce, conclude or be informed that a national has made a claim for refugee
protection; and (2) the documentary evidence relating to the political
opinions attributed to Iranians who have filed a claim for refugee protection
abroad. The documents in question were brought to the panel’s attention.
[20]
Third,
the panel’s doubts regarding the sincerity of Mohammad’s conversion are
unreasonable because (1) he had indicated during the hearing that in the
Christian religion one is baptised only once and that he had discussed this in Montréal
with the Minister of his church; (2) the panel recognized in its decision
that Mohammad had basic knowledge of the Christian religion. He answered all of
the panel’s questions except the one about the meaning of the term
“evangelical”, and the term “evangelical” had not been translated for the
applicant into Farsi.
[21]
Moreover,
the panel’s finding that “the claimant has not established any credible evidence
that the authorities are aware of his Chistian beliefs” is unreasonable for the
following reasons:
1.
First,
this finding is contradictory and incoherent. The panel drew a negative
inference from the fact that Mohammad was not obliged by the Iranian authorities
to sign the same document as his brother Reza, but the panel also stated that
it did not believe that Reza had signed such a document (paragraph 26 of
the decision).
2.
Second,
the panel drew a negative inference from the fact that Mohammad was not obliged
like his brother to sign a document stating that he did not believe in God. The
panel wrote: “why Mohammad had not been asked to sign a document similar
to the one his brother alleges to have signed if in fact he had been the one
suspected of being Christian” (paragraph 26). Christians believe in God. If we
follow the panel’s logic, why would the Iranian authorities have made Mohammad
sign such a declaration? The panel’s inference is illogical and arbitrary.
Furthermore, the applicant never claimed that the authorities were aware of his
beliefs, merely that they had their suspicions.
[22]
Fourth,
the applicant never claimed
(a)
that
he would openly practise his religion in Iran;
(b)
that
he would present himself as a Christian to the authorities; or
(c)
that
he would encourage people to convert.
[23]
Given
the situation in Iran, very few people do such things. The applicant cites the
decisions in Sadeghi v Canada (Minister of Citizenship and Immigration),
2011 FC 1236 [Sadeghi] and A.B. v Canada (Minister of Citizenship and
Immigration), 2009 FC 325 [A.B.]. According to the applicant, the
panel failed to deal with the issue of whether Mohammad could be subject to
persecution if the state authorities were to learn that he had rejected
Islam.
[24]
Fifth,
the applicants submit that the panel made erroneous findings of fact in a
perverse and capricious manner, without regard for the material before it.
Counsel for the applicants provided several examples.
[25]
Sixth,
the applicants point to several translation errors.
[26]
Seventh,
the panel erred in its finding that the applicants had not mentioned having
experienced problems during the period from May 2007 to July 2009. Mohammad’s
PIF indicated that the applicants had been questioned about Ali in June 2007.
They add that the panel misunderstood their argument. What their counsel had
raised at the hearing was the issue of political opinions that could be
attributed to the applicants because of their brother’s involvement in
political activities. They add that their brother Ali was with them during the
demonstration in Montréal.
(b) The respondent’s arguments
[27]
The
respondent’s memorandum addressed the following issues raised by the applicants:
(a) Did the RPD commit a
reviewable error in finding that the applicants were not refugees sur place?
(b)
Did the RPD commit a
reviewable error in finding that the applicants were not failed refugees?
(c)
Did the RPD commit a
reviewable error in finding that the applicant Mohammad did not face a risk on
account of his conversion to Christianity?
[28]
On
the first issue as to whether the applicants are refugees sur place, the respondent submits
that in order to be recognized as a “refugee sur place”, an applicant must establish a
serious possibility of persecution based on credible evidence. He must
establish all the components of the definition of a Convention refugee,
including the subjective and objective aspects of the alleged fear and the
existence of a fear of “persecution” based on events that, in this case,
allegedly occurred after the applicant arrived in Canada, and is of the view
that the applicants did not file any credible evidence establishing that the
Iranian authorities would be interested in them merely for having participated
in a demonstration in Montréal.
[29]
According
to the respondent,
1.
the
panel specifically took into account their testimony about the purpose of these
photos and how they obtained copies of them;
2.
the
panel noted that the documentary evidence in the file indicated that the
Iranian authorities would not arrest a citizen who demonstrated in his
personal capacity in a demonstration in Canada against the ruling regime
and that this same evidence confirmed that the applicants’ profile would in no
way attract the attention of the authorities;
3.
the
documentary evidence on which the panel relied came from the Danish
Immigration Report, an independent and reliable source. Mr. Javdan was
not the only source from the Danish Immigration Report. This document cites the
“Organization for defending victims of violence’s international department”, which
mentions that “insofar as the demonstration was organized by one of the big
opposition groups and the asylum seekers had participated in the actual
organization that person could risk legal persecution when returning to Iran”.
There is no evidence in the file that the applicants helped organize the
demonstration in Montréal;
4.
the
respondent cites the decision Khosravi v Canada (Minister of Citizenship and
Immigration), 2011 FC 1192, which rejected the arguments submitted by an
Iranian citizen on this point; and
5.
the
respondent submits that the panel did not fail to consider the recent
documentary evidence produced since the 2009 elections and, in accordance with
Justice Martineau’s decision in Zaree, above, the panel considered the
current situation in Iran and weighed the applicants’ testimony in light of the
recent documentary evidence in the file.
[30]
With
respect to the second issue of whether failed refugees face a risk of
persecution upon returning to Iran:
1.
The
respondent notes that the applicants criticize the panel for having considered
a 2005 document from the Canadian authorities indicating that [translation] “at no time would the
Canadian authorities inform the Iranian authorities that a person had filed a
claim for refugee protection in Canada”;
2.
To the
applicants’ criticism that the panel should have mentioned other paragraphs
from the document (Response to Information Request), the respondent replies
that the applicants do not fit the “student activist” profile, nor are they
Kurds.
3.
Furthermore,
according to the respondent, the passage referred to by the applicants
indicates that any Iranian citizen returning to his or her country may be
subjected to questioning, not just failed refugees.
[31]
On
the issue of Mohammad’s conversion to Christianity, the respondent argues that:
1.
The
panel clearly stated that the applicants’ testimony on this point was
contradictory and lacked credibility;
2.
Mohammad
was incapable of defining or explaining “what the word Evangelical in the name
of the Church meant”;
3.
The
panel noted that Mohammad had never been formally baptised, despite the fact
that he faced no danger in Canada;
4.
That
it was reasonable for the tribunal to find it unlikely that a person who
allegedly took such a great risk in his own country to try to change his faith
would not, once out of danger, attempt to be baptized formally;
5.
That
it was clearly implausible that Mohammad was not required to sign a document
indicating that he was not a Christian given his claim that the authorities
suspected his conversion to Christianity; and
6.
In
accordance with the decisions of the Federal Court in Sadeghi and A.B.,
the panel analyzed the applicants’ allegations and noted that, on account of
the large number of implausibilities in this part of the evidence, it did not
believe that Mohammad had been a practising Christian in either Iran or Canada
or that he faced a risk of being brought to the attention of the Iranian
authorities because of this supposed conversion.
[32]
With
respect to the applicants’ claim that there were translation errors that had a
direct impact on the panel’s findings regarding their 2009 detention, the
respondent states that despite one or even several interpretation errors, these
were not determinative of the panel’s ultimate conclusion as to the applicants’
credibility, citing the decision in Fu v Canada (Minister of Citizenship and
Immigration), 2001 FC 155.
V. Analysis and conclusions
(a) Standard of review
[33]
The
applicants are essentially challenging the panel’s decision on the basis of its
treatment of the evidence in the file and the way it reached its findings
relating to credibility. The issues raised are questions of fact. The Supreme
Court of Canada, in Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190, that the
standard of review for such issues is reasonableness. At paragraph 47 of
its judgment, the Supreme Court explained this standard as follows:
47 Reasonableness is
a deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within the
range of acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
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.
(b) Conclusions
[34]
For
the following reasons, I find that this application for judicial review must be
allowed:
1.
On
the issue of whether the applicants were refugees sur place or had reason to fear persecution
as failed refugees, the panel based its findings on the evidence from 2005 and
not that from 2009, which clearly demonstrated that the repression of
demonstrators following the disputed 2009 elections (see the Tribunal Record,
Amnesty International Report, pages 38 and 100; UNHCR Report, page 168; Radio
Free Europe – Special Court to be established for Iranians abroad, page 172;
The Australian – Court targets Iranian experts, page 178; Australian Refugee
Tribunal, page 180, Asylum seekers Iran, page 176, and, finally, the Swiss Organization’s
report on the treatment of failed refugee protection claimants).
2.
Although
it is well established that the Court must show considerable deference to an
administrative tribunal’s assessment of credibility, it must intervene if the
tribunal has made its credibility findings in a perverse or capricious manner.
I believe this to be the case, for example, with respect to the basis of the finding
that the applicants had not participated in demonstrations in Iran.
3.
The
panel failed to consider Reza’s evidence of his Internet activities (see
Justice Martineau’s decision in Zaree, above, at paragraph 14).
4.
The
court also failed to consider the fact that Mohammad had discussed whether he
should be baptized with the leader of his Church.
5.
The
translation errors could have influenced the panel’s findings (for example, the
word “Evangelical” was not translated) (see also Zaree, above).
[35]
The
errors identified above are sufficient to justify the intervention of this
Court.
JUDGMENT
THIS COURT’S JUDGMENT IS
that this
application for judicial review is allowed, the panel’s decision is set aside
and the applicants’ claim for refugee protection must be reconsidered by a
differently constituted panel. No question of general importance was proposed.
“François Lemieux”
Certified true translation
Francie Gow, BCL, LLB
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