Date: 20080617
Docket: IMM-1956-07
Citation: 2008 FC 745
Toronto, Ontario, June 17, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ALIREZA ZAREIAGHDARAGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board) dated April 13, 2007, wherein the Board found the applicant
to be neither a Convention refugee nor a person in need of protection.
[2]
The
applicant requested that the Board’s decision be set aside and the matter
referred back to a newly constituted panel of the Board for redetermination.
I. Background
[3]
Alireza
Zarei Aghdaragh (the applicant) is a 28 year old citizen of Iran. The
circumstances leading to his application for refugee status are as described in
his Personal Information Form (PIF).
[4]
The
applicant worked for Iran Khodro, the country’s largest car manufacturer. The
applicant alleged that a friend of his spoke to him about corruption at the
company, specifically, that the owner was diverting funds from the sale of each
car to the Iranian leadership. As a result, the applicant and two co-workers
decided to expose the corruption by placing flyers in cars and writing in the
company washrooms. It appears that the applicant and his co-workers’ intention
in doing so was to encourage workers to strike against the company.
[5]
The
applicant alleged that one day in June 2003, he witnessed one of his co-workers
(who had helped distribute the flyers and write in the washroom) having
problems punching his time card. The co-worker went to the clock room where the
applicant then saw him surrounded by Harasat and plainclothes agents. As the
applicant’s time card was also not working, he felt uneasy and hid in the
changeroom until he could leave the factory. The applicant went to his
grandmother’s home.
[6]
The
applicant’s mother informed him that regime agents had raided their home and
taken all of his identity documents. As such, the applicant fled Iran and entered
the Netherlands where he
made a claim for refugee protection. That claim was rejected and he appealed,
but it appears that the appeal was abandoned. The applicant alleged that he
then travelled to Germany where he was detained for three months and then
returned to the Netherlands where he was released. The applicant remained
in the Netherlands for ten months
until he was eventually able to come to Canada via St. Martine and Trinidad. Upon
arrival in Canada, the
applicant made his claim for refugee status.
[7]
The
applicant alleged that since his departure from Iran, one of his
brothers has been unable to obtain a job because of the applicant’s actions and
another brother was arrested.
II. The Board’s Decision
[8]
In
its decision dated April 13, 2007, the Board determined that the applicant was
not a Convention refugee as he did not have a well-founded fear of persecution
based on a Convention ground and was not a person in need of protection. The
Board identified the determinative issue as credibility and found the
applicant’s testimony not to be credible.
[9]
The
Board took issue with the fact that the applicant’s descriptions of the
incident differed between his Port of Entry (POE) notes and his PIF narrative.
Specifically, the POE notes suggested that the actions were depicted in a
newspaper article, whereas this was not the case with the description in the
PIF narrative. When asked to explain the discrepancy, the applicant claimed it
was a problem with interpretation. The Board found this explanation
unsatisfactory as the translation was from the applicant’s own written
evidence. The Board drew a negative inference from this discrepancy. The Board
also noted the lack of corroborative evidence of the incident and the
applicant’s connection to it. The Board was of the opinion that as this was a
big company, they expected some reference to the incident in newspapers. The
Board found the incident was the central issue and that the applicant had
failed to establish that it had occurred.
[10]
The
Board also took issue with discrepancies in the applicant’s submissions
regarding the pamphlets he alleged to have distributed in cars. In his PIF
narrative, the applicant submitted that he stuffed pamphlets into cars, whereas
in his oral testimony he said that he used a marker to write messages on
cardboard which were put in only three cars. The Board further noted that the
applicant could not explain how his name had been linked to the writing in the
bathroom given that the applicant did not identify himself.
[11]
With
regards to the applicant’s family, the Board noted that the detention of the
applicant’s brother was not mentioned in his PIF and drew an adverse inference
from the omission. The Board mentioned that two of the applicant’s other
brothers had been unaffected by the incident.
[12]
The
Board reviewed a copy of a summons from Iranian government officials received
by the applicant, but noted that it stated only that the applicant was summoned
for “acts against internal security and disturbance of public thoughts” and
that it was dated almost a month after the alleged incident.
[13]
In
conclusion, the Board found that after considering all the evidence, the
applicant was neither a Convention refugee, nor a person in need of protection.
Consequently, his claim was rejected.
III. Issues
[14]
The
applicant submitted the following issue for consideration:
1.
Did
the Refugee Division err in law, breach fairness, err in fact and exceed
jurisdiction in relation to credibility findings?
[15]
I
would rephrase the issues as follows:
1.
What
is the appropriate standard of review?
2.
Did
the Board err in fact in finding that the summons was not genuine?
3.
Did
the Board err in fact in finding that the applicant had stated in his POE
examination that there was a newspaper article referring to the specific
incident and strikes that the applicant alleged he had participated in?
4.
Did
the Board err in stating that the applicant had produced no corroborative
evidence regarding the raids on his family’s home?
5.
Did
the Board err in its consideration of the applicant’s lack of information on
his coworkers’ arrests?
IV. Applicant’s Submissions
[16]
The
applicant submitted that the Board made an error of fact in finding that the
summons received by the applicant from the Iranian government was not genuine.
It was submitted that the fact that the applicant could not explain the
summons, an Iranian legal document, is not a basis to find that the document is
false (Bulambo v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1330). The applicant does not
bear the onus of explaining why the authorities decided to do as they did or to
explain the authorities’ state of knowledge (Kalonda v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 396). Moreover, the applicant
submitted that no deference is owed to the Board on this issue as they have no
expertise in the matter of foreign official documents. The Board commits a
reviewable error when it finds that a document is not genuine without citing
evidence upon which to base the finding (Sadeghi-Pari v. Canada (Minister of
Citizenship and Immigration), 2004 FC 282). The applicant also noted
that the Board mistakenly found that the summons was issued a month after the
incident. In fact, the summons is dated June 17, 2003 and the incident is
alleged to have occurred at the end of June.
[17]
The
applicant also submitted that the Board erred in fact in finding that the
applicant had stated in his POE examination that there was a newspaper article
referring to the incident. The officer’s POE notes indicate that the applicant
admitted to publicizing the scandal through flyers and pamphlets and by
divulging information to a newspaper. It was submitted that the applicant never
said that a newspaper article resulted from the information divulged. Moreover,
the Board erred in stating that the applicant had said that the strikes he
attended were publicized in the newspaper. The applicant submitted that there
was a newspaper article publicizing certain strikes, but his evidence was that
the strikes that he personally participated in were not publicized.
[18]
The
applicant also took issue with the Board’s finding that there was no
corroborative evidence establishing that the applicant’s family’s home had been
raided by Iranian officials. It was submitted that there was no evidence to
submit because the Iranian government does not issue receipts or documentation
in the event of a raid. And finally, the applicant submitted that the
applicant’s lack of knowledge of what happened to his two co-workers after he
left Iran should not
be used against him.
V. Respondent’s Submissions
[19]
The
respondent submitted that the cases cited by the applicant for the proposition
that failure on the part of the applicant to explain the charges cited in the
summons should not undermine his credibility, are clearly distinguishable from
the present case. Unlike in the present case, the cases cited by the applicant
involved situations where the Board drew a negative credibility finding from
the applicant’s inability to properly identify a document for want of legal or
technical knowledge. In the present case, the Board noted a discrepancy between
the contents of the summons and the applicant’s evidence; the result of this
discrepancy in light of a number of other credibility concerns, led the Board
to conclude that the document was not genuine. The respondent cited a number of
cases wherein credibility concerns led the Board to find the documentary
evidence not to be genuine (Songue v. Canada (Minister of Citizenship
and Immigration), [1996] F.C.J. 1020 (T.D.); Culinescu v. Canada
(Minister of Citizenship and Immigration) (1997), 136 F.T.R. 241 (T.D.)).
The respondent submitted that there is no duty on the part of the Board to
submit suspect documents for expert assessments provided there is sufficient
evidence before the Board to cast doubt on the authenticity of the document (Jin
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J.
No. 181).
[20]
The
respondent
argued that the Board’s credibility concerns arose from a number of material
inconsistencies, implausibilities and omissions on the part of the applicant.
With regards to the applicant’s inconsistent statements about the newspaper
coverage of the strikes, the applicant stated at the hearing that he “was also
involved in the strikes and for the newspaper coverage of these incidents”. The
respondent submitted that a plain reading of this statement could reasonably
lead the Board to conclude that there was media coverage of at least some of
the strikes. Thus, the Board was entitled to draw an adverse inference from the
applicant’s failure to adduce new publications of any of the strikes.
[21]
The
respondent
submitted that the applicant has misunderstood the nature of the Board’s
finding with regards to the applicant’s lack of knowledge about his two co-workers’
fates after his departure from Iran. The Board’s finding was based on
inconsistencies in the applicant’s testimony and omissions in his PIF and not
from the applicant’s lack of knowledge.
[22]
And
finally,
with regards to the Board’s comments concerning the lack of corroborative
evidence of the raids on his family’s home, the respondent argued that the
requirement of corroborative evidence is a matter of common sense. The Board
had independent concerns regarding the applicant’s testimony and failure to
produce corroborating documents further undermined the applicant’s credibility.
The Board can note a lack of effort to obtain corroborating evidence as a
contributory factor in a negative credibility finding (Matarage v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 460
(F.C.T.D.), Ramanathan v. Canada (Minister of Citizenship and
Immigration), 2004 FC 862). Moreover, Rule 7 of the Refugee Protection
Division Rules, SOR/2002-228 requires that “claimants provide
acceptable documents establishing identity and other elements of the claim”.
VI. Applicant’s Reply
[23]
With
regards to the respondent’s submissions on the summons, the applicant submitted
that the summons cannot be rejected merely because the Board finds that they
should have official seals even though there was no evidence of this
requirement (Mulaja v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1296). Moreover,
independent documentary evidence, such as a summons, can actually offset the
Board’s finding of a lack of credibility (Hamid v. Canada (Minister
of Employment and Immigration), [1995] FCJ 1293).
[24]
The
applicant also replied to the respondent’s argument on a lack of credible
evidence. It was submitted that the Board failed to consider that there was no
corroborative evidence for the applicant to submit given that the Iranian
government does not publicize or keep public records of raids. Moreover, a lack
of corroborative evidence does not require the Board to refuse a claimant’s
claim.
VII. Analysis and
Decision
A. Issue 1
What is
the appropriate standard of review?
The Board’s
credibility findings should be reviewed on a standard of reasonableness.
[25]
I
wish to now deal with Issue 3.
B. Issue 3
Did the Board err in fact in
finding that the applicant had stated in his POE examination that there was a
newspaper article referring to the specific incident and strikes that the
applicant alleged he had participated in?
The
applicant submitted that the Board erred in finding that the applicant in his
POE examination submitted that a newspaper article dealing with the specific
incident alleged by the applicant existed. The applicant submitted that his POE
examination was translated in a very vague manner which led the Board to
conclude that such a newspaper article existed. The applicant acknowledged that
he admitted to providing information to the newspapers, but submitted that he
had never stated that a newspaper article was printed regarding the specific
incident.
[26]
The
respondent submitted that it was reasonable for the Board to infer from the
applicant’s POE examination that such an article existed and as such, the
adverse inference drawn by the Board was reasonable.
[27]
The
relevant portion of the Board’s decision reads as follows:
The claimant mentioned one incident in
his PIF that led him to leave Iran. His description of that
incident in his handwritten notes at the port of entry (POE) and in his PIF
narrative is different. In his POE notes, he suggests that his actions of
attending strikes pertaining to this incident were depicted in the newspaper,
but that was not the case in his PIF narrative. The claimant was asked why his
POE notes state that this is an event covered by the media and the PIF does
not. His explanation was that there was a problem with interpretation, but the
panel does not find that explanation satisfactory because his own written
evidence that was translated by the interpreter on record are similar to what
the officer’s notes state. The panel draws an adverse inference from the
discrepancy.
[…]
There was no newspaper article of this
incident, even though in his POE notes, he states it was in the Elite paper. He
presented a newspaper article about his weight and his score as a wrestler,
which has no relevance to the incident which he states led him to leave Iran
and file his claim in Canada. The claimant had no
corroborative evidence of the incident or his connection to it. Since the
company is reputedly such a large company, one would expect some reference to
the newspaper about that incident. The panel finds that this incident was the
central issue and the claimant has not established that indeed this incident
happened. Therefore the claim of the claimant fails.
The translation of the
POE examination notes reads as follows:
[…] MY FRIENDS, HUSSAIN, MAJID, AND I,
MADE IT PUBLIC KNOWLEDGE BY WAY OF FLYERS, PAMPHLETS AND THE “ETLANT” NEWSPAPER
AND AS A RESULT, WE WERE TARGETED BY THE SEPAH PRESENCE IN THE WORKPLACE. THE
NEWSPAPERS PRINTED THAT THE PERSONS RESPONSIBLE FOR THE REVELATION WOULD BE
DEALT WITH BY SEPAH.
[28]
The
applicant’s PIF is silent on whether the applicant approached the newspapers
and on whether any stories of the alleged incident were printed. During the
hearing, the applicant, through the interpreter, provided the following
response when questioned about the incident:
INTERPRETER: Towards the army or other political
things. I was also involved in these strikes and for the newspaper coverage of
these incidents. This caused the leader to announce that these problems should
be reacted to. […]
[29]
In
my opinion, the Board wrongly inferred from these ambiguous statements that the
applicant was submitting that as a result of the applicant approaching the
newspapers an article concerning the specific incident had been published. The
Board stated that such an incident in such a big important corporation would
likely have been publicized. The Board went on to fault the applicant for not
providing the article and for being inconsistent in his statements to the
Board. In my opinion, the Board erred in this regard. The applicant did on
several occasions mention his involvement in approaching the newspapers for
their help in publicizing the incident, but no where in any of the applicant’s
statements does he state explicitly that an article in relation to the specific
incident was published in any newspaper.
[30]
In
my opinion, the Board wrongly assumed that the newspaper article about similar
instances to which the applicant referred to in the hearing was in fact an
article about the particular strikes and incident the applicant participated
in. The Board then faulted the applicant based on this faulty assumption. As
such, I would allow the judicial review on this ground.
[31]
Because
of my finding on this issue I need not deal with the remaining issues.
[32]
The
application for judicial review is therefore allowed and the matter is referred
back to a newly constituted panel of the Board for redetermination.
[33]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
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