Date:
20080425
Docket: IMM-648-07
Citation: 2008 FC 517
Ottawa, Ontario, April 25,
2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
AHMAD REZA AZALI
AHDIEH DASHTY and
DARIAN AZALI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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 (the Act) of the decision of
Immigration Program Manager, Mr. Donald Cochrane (the Officer), refusing the applicants'
application for permanent residence to Canada as members of the Convention
Refugee Abroad Class, or as members of the Humanitarian-Protected Persons
Abroad Designated Class.
ISSUES
[2]
The
present application raises three issues:
a) Did the
Officer err in requiring corroborative evidence as a condition of acceptance of
the applications?
b) Did the
Officer err in failing to draw a conclusion as to whether he accepted or
rejected the applicants' explanation for the error in their forms, which stated
that no previous application for a Canadian visa had ever been made?
c) Did the
Officer err in failing to confront the applicants with the inconsistency noted
in their employment history noted between their application for permanent
residence and their prior applications for temporary resident visas?
FACTUAL BACKGROUND
[3]
The
applicants are citizens of Iran and members of the Kurdish minority. The
principal applicant, Mr. Ahmad Reza Azali, alleged that he encountered difficulty
with Iranian authorities after having downloaded and distributed a video and
pictures from the internet of the murder of Shwan Ghaderi, a Kurd who opposed
the Iranian regime. The principal applicant distributed the video to homes in
Sanandaj, the applicants’ home town, because he was angry with the manner in
which the Iranian government mistreated the Kurdish population.
[4]
The
principal applicant distributed these videos until the arrest of his friend,
who had helped to copy and distribute the disks. The principal applicant feared
that he too would be the target of Iranian authorities, and therefore left
Sanandaj for Tehran. The
applicant alleged that he waited several days to determine whether his friend
would be released. On September 10, 2005, upon realizing that his friend would
not be released, the principal applicant fled to Turkey.
[5]
Applicant
Ahdieh Dasthy alleged that after her husband fled to Turkey, the police
came to their home in September or October 2005, enquiring about her husband’s
whereabouts. She informed them that she did not know where he was. She alleged
that the police returned to their home a second time, but that she was not home
and therefore the police only spoke with the neighbour.
[6]
Applicants
Ahdieh Dashty and son Darian Azali travelled to Turkey to join the principal
applicant on March 14, 2006.
[7]
The
applicants were interviewed by the Officer at the Canadian Embassy in Ankara, Turkey, on March
21, 2006. Their applications for permanent residence were refused by letter
dated December 5, 2006.
[8]
By
this application, the applicants seek the judicial review of the Officer’s
decision.
DECISION UNDER REVIEW
[9]
In
the decision letter, the Officer determined that the applicants did not meet the
requirements for immigration to Canada. This determination was
based on the Officer’s
finding that the circumstances leading up to the principal applicant’s departure
from Iran were not credible. The Officer
drew a negative inference from the fact that the principal applicant was not
able to provide any corroborative evidence of his participation in the
downloading, copying and distribution of the disks.
[10]
The
decision is also based on the inconsistencies between the application for
permanent residence and previous applications for temporary resident visas in
2002 and 2005. In his application for permanent residence, the principal applicant
denied having made previous applications for a Canadian visa, when in fact he
had made two previous applications for a temporary resident visa in 2002 and
again in 2005. When confronted with this discrepancy, the applicant stated that
he misunderstood the question on the application form. Further, the Officer
noted that the principal applicant stated in his application and again at the
interview, that he had been employed as a shopper from 1994 to 2001, and that
he had been employed selling flowers between 2001 and 2005. Applicant Ahdieh
Dashty stated at the interview that she had been employed as a secretary with a
construction company between 2004 and 2006. However, the Officer noted that in
the application for temporary resident visas made in 2005, Applicant Ahdieh
Dashty stated that she had been employed as the head of the financial section
at Clinic Sakhteman Company for five years, and that her husband was employed as
the head of the purchasing department of the same company for the previous eight
years. The Officer concluded that these inconsistencies could not be attributed
to mistake or inadvertence and that they impacted negatively on the applicants’
credibility.
ANALYSIS
Standard of Review
[11]
The
first two questions raised by the applicant are questions of fact. More
particularly, the Officer made negative findings of credibility based on the
facts. The Federal Court of Appeal held in Aguebor v. (Canada) Minister of
Employment and Immigration, [1993] F.C.J. No. 732, that credibility findings
must be reviewed according to the most deferential standard. Following the
recent decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 SCC 9 at paragraph 53, findings of fact should be reviewed on the
deferential standard of reasonableness.
[12]
The
third and final question deals with the opportunity to respond, and as such is
a question of procedural fairness. It is settled law that questions of
procedural fairness are reviewed on a standard of correctness.
Did
the Officer err in requiring corroborative evidence as a condition of
acceptance of the application?
[13]
The
applicants first submit that the Officer erred by drawing a negative inference
from the absence of documentary evidence to corroborate their allegations. They
submit that requiring corroborative evidence is unreasonable, since court
records or official documents regarding the incident in Iran are
unavailable.
[14]
The
respondent argues that it was open to the Officer to rely on the applicants’
failure to submit evidence that could “easily” substantiate their allegations
as a basis for rejecting the decision. In support of its argument the
respondent cites Khan v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 520, 2002 FCT 400, and
specifically relies on paragraph 17 of the decision of Justice Blanchard :
[17] While there is no legal
requirement to produce corroborative evidence, it was not unreasonable in the
particular circumstances of this case for the CRDD to consider, as one of the
several factors in assessing the well-foundedness of the applicant's fear, the
complete absence of any evidence suggesting that the Taliban were targeting
members of the Gadoon tribe. I believe the statement of Mr. Justice Hugessen in
Adu v. Canada (M.E.I.), [1995] F.C.J. No. 114 (C.A.), online: QL (FCJ)
is applicable to the circumstances of this case:
The "presumption"
that an Applicant's sworn testimony is true is always rebuttable, and in appropriate
circumstances, may be rebutted by the failure of the documentary evidence to
mention what one would normally expect it to mention.
[15]
The
respondent further points to Ortiz Juarez v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 365,
2006
FC 288:
[7] The Applicants complain that
there was no basis for requiring corroborative evidence since there is a
presumption of veracity in favour of the Applicants. This submission is simply
startling. The requirement for corroboration is only a matter of common sense.
In The Law of Evidence in Canada, Sopinka, Lederman and Bryant, Toronto: Butterworths, 1999, 2nd ed.,
the matter is succinctly put at page 973:
The general rule is that the
testimony of a single witness, if believed to the requisite degree of
certainty, is sufficient to found a conviction or civil judgment. Because there
may be concerns about the reliability of a witness' testimony -- perhaps the
witness has a financial interest in the outcome of the proceedings or he or she
is an accomplice -- the trier of fact may search for supporting evidence to
confirm that witness' testimony. This search for confirmatory evidence is a
matter of common sense.
[16]
Both
Khan and Oritz Juarez, above, are cases which are narrowly
tailored to the facts. In Khan, Justice Blanchard specifies that the
requirement of corroborative evidence is particular to the circumstances. Similarly,
in Oritz Juarez, Justice Phelan goes on to say in the following
paragraphs:
[8] The Applicants contend that
they could not document the transfer of funds between the accounts because the
records were lost when the bank went through a restructuring. There was neither
evidence of such loss nor any evidence that the Applicants took any steps to
request the bank records.
[9] The bank records, or at
least the attempt to secure the records, were material evidence and could
reasonably be expected to be available. It was more than reasonable for the
IRB to seek out such evidence and to then draw adverse conclusions from the
Applicants' failure to provide it.
[Emphasis
added]
[17]
I
am therefore sympathetic to the applicants’ submission that corroborative
evidence would not have been easily available in light of the facts of the case
at bar. However, the weight that the Officer placed on the lack of
corroborative evidence does not, in my opinion, amount to a reviewable error. Even
noting the difficulties the applicants might face in obtaining corroborative
evidence, it is my opinion that the inference drawn by the Officer falls within
a range of acceptable conclusions which are reasonable in light of the facts.
[18]
Furthermore,
I adopt the respondent’s submission that the absence of corroborative evidence
was but one basis for rejecting the applicants’ claim. Even if I am wrong, the Officer
based his decision on two other grounds, which I will proceed to examine.
Did
the Officer err in failing to draw a conclusion as to whether he accepted or
rejected the applicant’s explanation for the error in their forms, stating that
no previous application for a Canadian visa had ever been made?
[19]
The
applicants allege that the Officer erred in drawing an adverse inference from
the applicants’ failure to acknowledge their previous applications for
temporary resident visas, and by failing to explicitly state his conclusion;
that is, the applicants submit that the Officer failed to draw an explicit
conclusion as to whether he accepted or rejected their explanation for the
omission. The applicants further submit that by not addressing their
explanation, the Officer ignored the oral evidence before him.
[20]
The
applicants acknowledge their error. They maintain that they misunderstood the
question contained in the forms, and had not intended to mislead immigration
authorities. They submit that they made no effort to hide their past
applications.
[21]
The
respondent submits that the Officer’s failure to categorically state that he
was not swayed by the applicant’s explanation does not constitute a reviewable
error. The respondent suggests that the Officer’s rejection of the explanation
is obvious.
[22]
I
agree with the position taken by the respondent. In the refusal letter, the
Officer states generally, both at the beginning and the end of his analysis,
that he did not find the applicants’ account to be credible:
I did not find your description of the
circumstances leading up to your departure from Iran to be credible.
…
In conclusion, I find that the
descriptions of events, as described to me, are not credible.
[23]
Based
on these clear statements, it is plain from the context of the refusal letter
that the explanation provided by the applicants was rejected by the Officer. I
am satisfied that the Officer considered the evidence, in particular the
explanation offered by the applicants regarding their failure to disclose their
previous attempts at obtaining a temporary resident visa, which was reproduced
in the refusal letter.
Did
the Officer err in failing to confront the applicants with the inconsistency in
their employment history noted between their application for permanent
residence and their applications for a temporary resident visa?
[24]
Finally,
the applicants submit that they were not given the opportunity to respond to
the inconsistent versions of their employment history presented for the purpose
of the application presently under review, and the prior applications for
temporary resident visas. They argue that the Officer was required to confront
them with this discrepancy, and offer them the opportunity to disabuse him of
his concerns.
[25]
The
respondent submits that no basis exists for this argument. The respondent
contends that the duty of fairness was not breached, because the Officer did
not rely on any extrinsic evidence; rather, he relied on documents supplied by
the applicants themselves, the contents of which they cannot plead ignorance.
[26]
I
agree with the respondent. This is not a case where the Officer failed to
confront the applicants with extrinsic evidence; rather, he relied on
information which was not only known to the applicants, but supplied by them. Their
duty of fairness does not require that the applicants be confronted with
information which they themselves supplied. In Dasent v. Canada (Minister
of Citizenship and Immigration), [1995] 1 F.C. 720, at paragraphs 22 and
23, Justice Rothstein (as he was then) emphasized that in determining what
constitutes extrinsic evidence, the relevant factor will be whether the
evidence was known to the applicant. In this case, there is no doubt that the
other version of the applicants’ employment history was known to them.
[27]
A
similar question was addressed by Justice Tremblay-Lamer in the context of a
hearing of the Refugee Protection Division of the Immigration and Refugee Board.
In Ngongo v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 1627 at paragraph 16, she established a list of factors that should
be weighed in determining whether a refugee claimant should be confronted with
inconsistencies in his or her testimony before the Board:
[16] In my view, regard should be
had in each case to the fact situation, the applicable legislation and the
nature of the contradictions noted. The following factors may serve as
guidelines:
1. Was the
contradiction found after a careful analysis of the transcript or recording of
the hearing, or was it obvious?
2. Was it in answer to a direct
question from the panel?
3. Was it an actual contradiction
or just a slip?
4. Was the applicant
represented by counsel, in which case counsel could have questioned him on any
contradiction?
5. Was the applicant
communicating through an interpreter? Using an interpreter makes
misunderstandings due to interpretation (and thus, contradictions) more likely.
6. Is the panel's
decision based on a single contradiction or on a number of contradictions or
implausibilities?
[28]
Certain
of these factors listed above are instructive, though I do not suggest that the
same factors should be applied in the case at bar given the significantly
different context. It is salient that the factors attempt to assess the
substance of the contradiction, and determine whether the contradiction is
technical or whether it reflects a substantially different version of events. In
the present case, based on the facts, the Officer correctly assessed the nature
of the contradiction when he found that it could not be attributed to mistake
or inadvertence.
[29]
For
the aforementioned reasons, I find that the Officer did not breach his duty of
fairness by failing to confront the applicants with the contradictions between
their application for temporary resident visas, and their applications for
permanent resident visas. The negative inference drawn from the contradictions
was reasonable.
[30]
Taken
as a whole, the Officer’s decision that the applicants did not meet the
requirements for immigration as members of the Convention refugee abroad class
or as members of the country of asylum class was reasonable and free from
reviewable error. I therefore dismiss the application for judicial review.
[31]
The
parties did not submit questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that
the application for judicial review is dismissed. No
question is certified.
“Michel
Beaudry”
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