Date: 20110630
Docket: IMM-6317-10
Citation: 2011 FC 809
Ottawa, Ontario, June 30,
2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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MANSOUR DEHGHANI-ASHKEZARI
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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 pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision made on
October 8, 2010, of the Refugee Protection Division of the Immigration and
Refugee Board in Montreal, Quebec wherein it was determined that the applicant
was not a Convention refugee.
BACKGROUND
[2]
The
applicant is a 33 year-old citizen of Iran who alleges fear of
persecution based on religious and political grounds as well as on his
membership of a particular social group, namely the underground Christian
community in Iran. He says his
conversion to Christianity in the Islamic theocracy would be considered an act
against the Islamic revolution and he would thus be personally subjected to a
danger of torture if returned.
[3]
Mr.
Dehghani-Ashkezari was a Muslim who says he heard the voice of Jesus in
September 2005. Since that time he began participating in Bible study sessions
with three other participants, two of whom were also converts.
[4]
On
one occasion that the applicant was not at Bible study, the home where the
group congregated was raided by a group of Iran’s Islamic
Basij militia. Several days later, the applicant learned that his parent’s
house had been raided by the same group. He claimed they were looking for the
applicant who the Basij said was an “apostate, anti-Islam and anti-revolution”.
His brother was arrested and detained for two days and the head of the Bible
study group was placed in detention.
[5]
The
applicant arrived in Montreal on September 4, 2006 by way of Turkey, Germany and
Cuba. Upon
arriving in Toronto, he joined
the Persian Christian Fellowship Church.
DECISION UNDER REVIEW
[6]
The
Board found the applicant lacked credibility with respect to principal aspects
of his narrative and thus concluded that he did not have a well-founded fear of
persecution. It found inconsistencies and contradictions of a serious nature in
comparing the Canada Border Services Agency (CBSA) notes with the contents of
the applicant’s first Personal Information Form (PIF), executed on October 2,
2006, as well as his second PIF, executed on January 9, 2007.
[7]
Based
on the portion of the applicant’s evidence the Board did not reject, it found
it implausible that the Iranian regime is actively seeking to arrest and
persecute the claimant as being an apostate, anti-Islam and anti-revolution.
ISSUES
[8]
The
issues raised in this application are as follows:
- Did the Board err in not putting its
credibility concerns to the applicant?
- Were the Board’s credibility
findings reasonable?
- Was it reasonable for the Board to
conclude that the applicant was not at risk in Iran?
ANALYSIS
Standard of Review
[9]
This
case essentially turns on the Board’s credibility findings. It is trite law
that the IRB is afforded deference to assess the credibility of an account and
draw inferences as it sees fit: Aguebor v. Canada (Minister of
Employment and Immigration) (1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886. As
such, the issues to be analysed herein are questions of mixed fact and law and
must be reviewed on a reasonableness standard: Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 53.
[10]
Where
procedural fairness is in question, the proper approach is to ask whether the
requirements of natural justice in the particular circumstances of the case
have been met. A standard of review analysis is not required: Sketchley v. Canada (Attorney
General),
2005 FCA 404, [2006] 3 F.C.R. 392 at paras. 52 and 53. Deference to the
decision-maker is not at issue. See: Ontario
(Commissioner Provincial Police) v. MacDonald, 2009 ONCA 805, 3 Admin
L.R. (5th) 278 at para. 37 and Bowater Mersey Paper Co. v.
Communications, Energy and Paperworkers Union of Canada, Local 141, 2010
NSCA 19, 3 Admin L.R. (5th) 261 at paras. 30-32.
Did the Board err in not
putting its credibility concerns to the applicant?
[11]
Referencing
Gracielome v. Canada (Minister of Employment
and Immigration) (F.C.A.) (1989), 9 Imm. L.R. (2d) 237, [1989] F.C.J. No.
463 (QL), the applicant submits that the Board erred by impugning the
applicant’s credibility based on contradictions and/or inconsistencies that
were not put to him.
[12]
This
is not a fair accusation. The Board did put certain concerns it had to the
applicant. For example, it asked him why, when he arrived in Montreal and was
asked how many times a week he prayed, he responded that he did not pray. The
Board also inquired as to why, in that same interview, he stated that he
preferred Protestantism over Catholicism for the reason that Protestants were
less strict than Catholics. The Board also put to the applicant the
inconsistencies with respect to how long he served in the military. In oral
testimony he said he served for 21 months; the military service card indicated
18 months. The applicant does not dispute that these inconsistencies were put
to him at the hearing. He argues that the Board erred in not raising all of the
contradictions it relied upon in its decision.
[13]
The
case at bar is distinguishable from Gracielome, above. Gracielome concerned
a husband and wife from Haiti who claimed they were victims of threats
and violence by the Haitian authorities. Based on three alleged contradictions
in the evidence, the Board did not believe their story. The application was
allowed. Justice Hugessen, writing for the majority, explained the error of the
Board as follows:
It
is worth noting that in none of the three cases were the applicants confronted
with the alleged contradictions or asked for explanations. On the contrary, it
is apparent that each example was found by the majority [of the Board] after
the fact, from a painstaking analysis of the transcripts of the evidence.
[14]
There
is nothing here to suggest that the contradictions in the applicant’s evidence
were uncovered by a painstaking analysis of the transcripts of the evidence. See:
Ayodele v. Canada (Minister of
Citizenship and Immigration) (1997), 76 A.C.W.S. (3d) 994, [1997]
F.C.J. No. 1833 (QL) at para. 17. The applicant had the opportunity to speak to
what were clearly the Board’s concerns and the applicant was represented by
counsel: Ayodele, above. Counsel could have examined or re-examined his
client on any inconsistencies that were obvious from the record. See also: Taruvinga
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1264 at para. 15.
[15]
Moreover,
as noted by Justice James Russell in Awolaja v. Canada (Minister of
Citizenship and Immigration), 2010 FC 1240, 93 Imm. L.R. (3d) 296 at paras.
44-45, and referring to Justice Francis Muldoon’s reasons in Tanase v. Canada (Minister of
Citizenship and Immigration) (2000), 181 F.T.R. 111, 3 Imm. L.R. (3d)
308, the law surrounding the duty of a tribunal to provide an applicant with
notice of its concerns and an opportunity to explain is not settled law. As
such, it continues to be a case-by-case analysis, based on the facts of that
particular circumstance. In this case, I cannot find that the Board erred in
how it conducted itself with respect to the obvious concerns that it had with
the applicant’s story.
Were the Board’s
credibility findings reasonable?
The
Board’s credibility findings were based on the following:
·
In the
CBSA interview, and in his first PIF, the applicant stated that he attended 4
or 6 Bible study sessions. In his second PIF he stated that he attended
sessions every two weeks which adds up to 19-20 sessions. At the hearing, the
applicant testified that he attended between 30 and 40 sessions;
·
In the
CBSA interview, the applicant stated that he was not officially a Christian and
that he just attended Bible study sessions. In the first narrative there is no
assertion of conversion. In the second narrative the applicant speaks of his
conversion;
·
In the
applicant’s narrative he described his family as being moderate Muslims. In
the second narrative he stated that his parents were not practicing Muslims;
·
Inconsistencies
between whether the applicant contacted his friend Akbar or whether Akbar
contacted him with respect to the raid;
·
In the
CBSA interview, the applicant stated that he decided to leave Iran around July 15, 2006, a few days after
his house was raided. In his first narrative, he said the incident occurred on
August 3, 2006 and he left thereafter. In the second narrative, he left after
the incident which he described as having occurred on July 15;
·
In the
first PIF, the applicant stated that he left Iran on July 28, 2006 whereas in
question 7 of the PIF he stated that he was self-employed in Tehran until September
2006;
·
In the
CBSA interview, the applicant refers to one raid on July 15, 2006; in the first
narrative, he mentions the raid on his shop; and in the second narrative, he
adds that there were three additional raids on his parent’s home, as well as
the raid on his shop.
[16]
The
Board concluded that the applicant did not attend more than six Bible study
sessions, never officially considered himself a Christian or converted to
Christianity while in Iran, never prayed as a Christian or attended a religious
service and offered no cogent evidence concerning the alleged raid on the home
where they engaged in religious study, nor on the subsequent raids on his
family home.
[17]
The
applicant further submits that the Board erred in relying on the CBSA notes as
these were put to him during his 25-day detention in Montreal when he was
scared and anxious as he had never previously been detained. The first PIF was
submitted without proper translation and after the applicant had only met with
his counsel for half an hour.
[18]
At
the Board hearing, the applicant tried to disavow certain of the responses he
gave when he arrived in Montreal, attributing the way he
answered to stress, misunderstanding and/or translation issues. The Board
considered the applicant’s explanation but noted that the translator was a
certified interpreter and properly translated all the other questions. It was
open to the Board not to accept the applicant’s explanation with respect to how
he answered certain questions.
Was it reasonable for the
Board to conclude that the applicant was not at risk in Iran?
[19]
The
applicant relies on the documentary evidence to assert that Christians are
being persecuted in Iran. He says a return would mean he would face a
threat and risk to his life. He submits that part of the Board’s finding that
the applicant was not at risk of harm was because the Board found he could
return to Iran without a
well-founded fear of persecution if he simply hides his conversion to
Christianity from the authorities and the general population. Alternatively, he
could declare, four times before a Muslim judge, that he is not Christian but
rather Muslim.
[20]
As
the respondent correctly notes, the Board does not state that the applicant can
avoid a conviction for being an apostate by stating that he is Muslim. This
portion of the Board’s reasons was simply a discussion of the documentary
evidence and what would be required in Iran in relation
to the charge of apostasy. It was not a suggestion to the applicant as to how
he might conduct himself; the Board was referring to this evidence as part of
its implausibility findings used in its ultimate credibility findings.
[21]
With
respect to the risk, the Board found that the more recent documentary evidence
suggested that Christians who converted would be treated as those born to
Christian parents. As for all Christians in Iran, this would mean
having to behave discretely, allowing religious practice to take place within
the religious community and treating it as a private matter. The Board concluded
that if the applicant were to return to Iran, he could
continue to engage in his religion as before he left.
[22]
The
Board did acknowledge the risk of persecution should the applicant choose to
proselytize but did not believe that the applicant was credible in his
assertion that he feels compelled to do so. He had stated that he does not
believe in the religious aspects of Christianity. The Board may have
misinterpreted the evidence of whether the applicant has brought other people
to worship at the Persian Christian Fellowship Church. The Pastor
thought that there were more but could recall at least one person. But the
Board’s finding that the applicant had failed to demonstrate a commitment to
proselytize was reasonable on the evidence as a whole. As such, the Board found
the risk of persecution was not a real threat.
[23]
Had
the Board found the applicant to be credible, and had the member believed that
the applicant was truly committed to his religion, the Board’s conclusion on
the scope of freedom of religion and the risk due to proselytizing would
require more scrupulous examination by the Court. Indeed, freedom of religion
includes the right to be able to practice openly in society. However, the
Board’s analysis on this point cannot be divorced from its negative credibility
findings. The Board reasonably concluded that the applicant was not credible,
not an adherent Christian and thus not at risk of facing persecution if
returned to Iran.
[24]
The
applicant proposed that I certify the following question as a serious question
of general importance:
Is it open to
the Board once the threshold issue of the genuiness of the religious faith is
established to dictate how a person is to practise their religious faith?
[25]
I
have found that the Board in this case did not dictate how the applicant is to
practise his religious faith if returned to Iran. Thus, an
answer to this question would not be dispositive of an appeal in this case and
the question will not, therefore, be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed. No
questions are certified.
“Richard
G. Mosley”
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