Date: 20020410
Docket: IMM-6378-00
Neutral citation: 2002 FCT 402
Ottawa, Ontario, April 10, 2002
PRESENT: THE HONOURABLE MR. JUSTICE EDMOND P. BLANCHARD
BETWEEN:
GHOLAM REZA HOSSEINI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Court has before it an application for judicial review from a decision by the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") on November 28, 2000.
STATEMENT OF FACTS
[2] The applicant was born in Teheran, Iran on February 13, 1970. He is a citizen of the Islamic Republic of Iran. The applicant claimed refugee status in Canada because he feared being persecuted for his political opinions or political opinions which were attributed to him by the Iranian government.
[3] In December 1987, the applicant was conscripted to do his military service. He was sent to the Pasdarans, in the Sarollah unit, as an ordinary soldier. He claimed he only had to serve 14 months in a southern barracks and a tidal observatory on the bank of a river before his father paid a bribe so he could leave military service and go back to school. The applicant accordingly returned to school between February and June 1989. In October 1989, the applicant was admitted to the university in veterinary science and received his degree in veterinary medicine in December 1995. After obtaining his degree, from February 1996 to January 1997, the applicant went back to complete his military service as a first lieutenant in the Revolution Guardians Corps or pasdarans ("Sepah"). As an officer in a Sarollah barracks west of Teheran and a health medicine hygienist, he was responsible for hygiene at kitchens, dormitories and provisional detention centres for soldiers and civilians in breach of the clothing legislation and legislation on alcohol. His commanding officer allegedly participated in the massacre of demonstrators at Islam Shahar.
[4] According to the applicant's written statement he was involved with friends, Fared and Mohammad Reza, in secret distribution of pro-monarchist and anti-government pamphlets.
[5] In his written account the applicant said he witnessed the arrest of his friend Fared Reza in Teheran two days after the end of his military service. As he was afraid of being reported he hid with relatives for a month. During that time, as he was not sought by the authorities, he came out of hiding and opened a veterinary clinic near Teheran.
[6] The applicant maintained that he took part with friends in six or seven demonstrations authorized by the authorities, during the student demonstrations of 1998. However, he alleged that the police and pro-government militia intervened to disperse the demonstrators.
[7] In June 1999, the applicant said he allowed student friends who were trainees in his clinic to reproduce pamphlets and hold meetings at his clinic. The applicant explained that these meetings were not illegal. He said his clinic was used to get away from a group of fanatics, the Ansar Hezbollah group.
[8] On June 2, 1999, the applicant said he took part in a pro-democracy meeting to denounce the fundamentalist aspects of the government. Following this meeting the two friends, who had organized the demonstration, were allegedly arrested. The applicant claimed that he was reported by the two trainees as, following their arrests, the authorities descended on his clinic and found pamphlets, which was the reason he fled to Canada with a Danish passport.
REFUGEE DIVISION'S DECISION
[9] In dismissing the claimant's claim the Refugee Division concluded that his testimony was not credible. The Refugee Division said:
[TRANSLATION]
The claimant was not credible, his fear was not objective. If he had been credible, he would have had to be excluded as a member of an organization with limited and brutal purposes, namely Sarollah.
In its analysis of the applicant's lack of credibility the Refugee Division found that the claimant's story contained many omissions, contradictions and implausibilities on fundamental aspects of his claim.
POINT AT ISSUE
[10] The applicant raised the following points:
(a) Did the members of the Immigration and Refugee Board commit an error in completely failing to rule on inclusion, namely the facts on which the applicant's fear of persecution was based, when they did not conclude the latter was excluded?
(b) Did the members of the Immigration and Refugee Board commit an error in concluding that the applicant's fear was not objective?
(c) Did the members of the tribunal make a decision based on erroneous findings of fact, made in a perverse or capricious manner or without regard for the material before them?
ANALYSIS
1. Exclusion
[11] In its reasons, the Refugee Division said the following under the heading [TRANSLATION] "Exclusion":
[TRANSLATION]
The tribunal has good reason to think that if the claimant was credible he would have had to be excluded as a member of an organization with limited and brutal purposes, namely the Sarollah unit of the Revolution Guardians.
[12] The applicant argued that by that statement the members of the Refugee Division concluded that the applicant was not a member of an organization with limited and brutal purposes, since he was not covered by an exclusion clause.
[13] The respondent argued that the applicant could not be given refugee status since, based on the evidence and his own admissions, he had to be excluded from the benefit of international protection under the exclusion clause, 1F(a) of the United Nations Convention Relating to the Status of Refugees (the "Convention").
[14] In the respondent's submission, the Refugee Division had ample evidence at its disposal to conclude that there were good reasons for thinking that the applicant had been a party to crimes against humanity and that the applicant was excluded from the Convention's protection.
[15] In the case at bar, the Refugee Division did not analyze this question of the applicant's participation in its reasons. It also did not make the analysis to treat the Sarollah unit as an organization for limited and brutal purposes, although the evidence might lead to such a conclusion.
[16] The decision which I have to consider in this judicial review is a decision rejecting the applicant's claim for lack of credibility and the fact that the fear of persecution was not objective. The Refugee Division ruled on the non-inclusion, and in my view not on the exclusion, of the applicant from the Convention's protection. For the applicant to be covered by an exclusion clause, I feel this should be done explicitly. In the case at bar, the Refugee Division clearly found in its reasons that the applicant's testimony was devoid of all credibility and noted that [TRANSLATION] "if the claimant had been credible, he would have had to be excluded". This type of conditional exclusion cannot be used to exclude the applicant from international protection under art. 1F(a) of the Convention.
[17] On this question of exclusion, therefore, I find that the Refugee Division did not rule that the applicant had participated in a crime against humanity as a member of an organization for limited and brutal purposes, and was accordingly excluded from international protection under art. 1F(a) of the Convention.
2. Non-inclusion
[18] The applicant maintained that the events of June 1999 which prompted him to leave Iran were the essence of his claim and, in the applicant's submission, there was no analysis of the credibility, implausibility or significance of these events in the Refugee Division's decision. The applicant maintained that the Refugee Division's failure to rule on the essence of the claim was an error of law which in itself justified this Court's intervention.
[19] The applicant complained that the Refugee Division's analysis dealt essentially with his military service. In his submission, the purpose of this analysis was to determine whether he was covered by an exclusion clause, not to decide whether he could be regarded as a credible witness.
[20] In this regard, the respondent argued that although the tribunal's analysis dealt primarily with the applicant's military service, the analysis was on its face clearly intended to determine whether he was credible, not to determine whether he was covered by an exclusion clause. In the respondent's submission, the Refugee Division did not have to limit its analysis to the circumstances which led to the applicant's departure and could focus its analysis on all aspects of the evidence which appeared important in the context of the claim. On this point, the applicant said that the claim rested essentially on his contention that he was and is an opponent of the government. In the respondent's submission, the military service in the Sarollah unit contradicted that argument and as such was a major fact on which the Refugee Division could focus its analysis in determining credibility.
[21] The respondent argued that if the applicant had really been a political opponent he would probably not have been admitted to the Sarollah unit for his military service; he would not subsequently have obtained leave to interrupt his service and go back to his studies; and he would also not have gone back into the Sarollah unit to complete his military service after establishing friendly ties with opponents of the government at the university.
[22] In the respondent's submission, it was entirely reasonable for the Refugee Division, a tribunal specializing in Iranian affairs, to conclude that the applicant's story, that of a person who claimed to be a long-standing opponent of the existing government in Iran, a demonstrator and an activist, and in the same breath claimed to have served in the Sarollah unit and minimized the role of that unit as a tool of repression, was fundamentally contradictory. This conclusion is supported, the respondent argued, by the applicant's story, as he himself emphasized the problems his family had even before his military service, namely that the applicant came from a family whose head, his father, openly supported the Shah and the monarchy. In this regard, Sepah allegedly came to the applicant's father's residence several times, beating him and taking him away for questioning. In addition, two houses belonging to him were also confiscated by the government. In my opinion, this conclusion by the Refugee Division was not patently unreasonable.
[23] I further consider that although the Refugee Division's analysis dealt primarily with the applicant's military service, the purpose of that analysis was clearly to determine whether the applicant was credible, and in carrying out the analysis the Refugee Division could consider points which seemed significant to it in this connection, in so far as they affected his credibility.
[24] The Refugee Division found it implausible that the applicant saw nothing of what was happening in the Sarollah detention centres while the documentary evidence indicated the leading part played by Sarollah in the repression of student demonstrations, the poor and the female sector of the population. This conclusion of implausibility and the other contradictory and implausible omissions noted by the Refugee Division in the reasons for decision are not unreasonable and in my view support the fundamental conclusion that the applicant lacked credibility. This conclusion allowed the Refugee Division to rule that the applicant's claim had no objective basis.
[25] One of the applicant's principal arguments was the fact that, in his submission, there were several Sarollah units within Sepah and he did not do his military service in the unit which, according to the documentation, was involved in the repression and repeated violations of human rights.
[26] After reviewing the evidence before the Refugee Division, including Exhibit R-10, which does not mention the existence of several Sarollah units, I am satisfied that the Refugee Division had sufficient evidence on which to reject the applicant's explanation that he belonged to a different Sarollah unit in Sepah from the one to which he referred. The assessment of the value of the applicant's explanations, like that of the other facts, is entirely within the jurisdiction of the Refugee Division, which also has recognized expertise in weighing the merits of testimony on the situation in various countries. This being so, I agree with the respondent's arguments, namely that the applicant could not simply repeat on judicial review an explanation already given to the specialized tribunal and dismissed by it. In Muthuthevar v. M.C.I., [1996] F.C.J. No. 207, on line: QL, Cullen J. was entirely of this opinion at para. 7 of this reasons:
...While the applicant seeks to "explain away" testimony that the Board found implausible, it must not be forgotten that these same explanations were before the Board and were not accepted as credible. The applicant has not directed to this Court evidence that was ignored or misconstrued, and in the absence of such a finding, the Board's conclusions on credibility must stand.
In my view, the same logic applies in the case at bar.
[27] The applicant raised other errors of fact in the Refugee Division's decision. Inter alia, the applicant said he did not claim to be involved in activities against the government at secondary school. On this point, I note that the applicant nonetheless said in his written statement of claim that he had many problems during those years because of his membership in a family known for its monarchist views. According to his document, the applicant was also involved in opposition to the government during his years at university, which did not in any way prevent him from being again recruited into Sarollah after his education was complete. The Refugee Division dismissed this claim by the applicant. The logic of the Refugee Division's decision rests largely on the contradiction in the fact that the applicant, who was perceived as an opponent of the government, was nevertheless recruited into this special unit whose members were carefully selected. In my opinion, contrary to what the applicant argued, it was not for the tribunal to determine whether he had the option of doing his military service where he thought best, but rather whether it was likely that, despite his family's reputation and his own, he was twice admitted to a Sepah unit, and the Refugee Division found this implausible. I feel that the inferences and conclusions drawn by the Refugee Division on this point are not patently unreasonable.
[28] The applicant argued that it was unreasonable for the Refugee Division to conclude that it was implausible and contradictory for the applicant to be released from his military service to complete his studies, since conscripts are never released for that purpose. According to the applicant, obtaining release to pursue studies is quite usual. I note that in its reasons the Refugee Division stated that its finding of implausibility was based on the fact that the applicant [TRANSLATION] "did not have a record of political neutrality". In other words, it was because of his membership in a family of monarchist opponents and his profile that the Refugee Division felt it was implausible and contradictory for the applicant to have been released from his military service to complete his studies, not because conscripts were never released for that purpose. In my view, this conclusion is not patently unreasonable.
[29] The applicant also objected to the Refugee Division's conclusion when it found a contradiction in the fact that the applicant, as an opponent of the government, had made no protest against the Sarollah unit, which according to the evidence was guilty of human rights violations. According to the applicant, he was never a witness of any human rights violations by the Sarollah unit during his military service, and if he had been exposed to such atrocities he would have escaped. He said he wanted to complete his military service so he could go back to a normal life in Iran. He also said he had never minimized the activities of Sarollah, which he admitted was an organization committing human rights violations.
[30] I feel that the Refugee Division was entitled to reject the applicant's submissions and to find them contradictory. The applicant did his military service in the Sarollah unit, which was specifically engaged in the repression of opponents like himself. According to his own testimony, he admitted that he knew that through Sarollah the government was responsible for human rights violations. After his university studies, he joined opponents in distributing pamphlets and creating slogans against the government. The Refugee Division could not reconcile these facts with the applicant's conduct, in not having seriously opposed the abuse inflicted on persons in prison, including the physical deterioration and health problems which were clearly visible. In my opinion, this conclusion by the Refugee Division was based on the evidence and was not patently unreasonable.
[31] The applicant also argued at paras. 43 to 46 and para. 51 of his affidavit that errors of fact were made. After considering these submissions and the submissions by the respondent, I feel that even if I were to accept that certain errors were made by the Refugee Division connected with these submissions, I conclude that the errors were not conclusive and could not be a basis for this Court's intervention.
Conclusion
[32] Questions of credibility are questions of fact. It was held by Décary J.A. in Aguebor v. The Minister of Citizenship and Immigration (1993), 160 N.R. 315, at 316-317, para. 4, that the appropriate standard of review is that of the patently unreasonable decision. That case also notes that as a specialized tribunal the Refugee Division is in a position to assess a claimant's credibility:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
[33] This Court's decisions have demonstrated great restraint on questions of credibility, especially where as here the matter falls directly within the Refugee Division's field of expertise.
[34] I feel that the Refugee Division made an entirely proper analysis of the evidence and the applicant's testimony. I find that that analysis discloses no error in weighing the evidence that could be conclusive and warrant this Court's intervention. The applicant was completely unable to discharge the heavy burden which he had of establishing the unreasonable nature of the findings of fact by the Refugee Division, which has well-known expertise on the social and political situation in Iran.
[35] I therefore conclude that the inferences drawn and the Refugee Division's findings on fact and credibility were not patently unreasonable and consequently do not offer a basis for this Court's intervention. In Canadian Union of Public Employees, Local 301 v. City of Montréal, [1997] 1 S.C.R. 793, at 844, L'Heureux-Dubé J. said:
We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one . . . Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable.
[36] For these reasons, the application for judicial review will be dismissed.
[37] The applicant proposed the following question for certification:
[TRANSLATION]
Is it correct to conclude that a refugee status claimant is excluded from the benefit of international protection under an exclusion clause when the members of the tribunal have concluded that the claimant is not a Convention refugee but was not expressly covered by an exclusion clause?
[38] I have considered the written submissions of the parties and the applicant's reply. I feel, based on my finding that the applicant was not excluded from the Convention's protection by the Refugee Division, that this point can have no conclusive effect on the outcome of the appeal. The proposed question will therefore not be certified.
ORDER
THE COURT ORDERS that:
1. The application for judicial review is dismissed.
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Edmond P. Blanchard
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: IMM-6378-00
STYLE OF CAUSE: Gholam Reza Hosseini
- and -
The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 25, 2001
REASONS FOR ORDER BY: Blanchard J.
DATED OF REASONS: April 10, 2002
APPEARANCES:
Annie Bélanger FOR THE APPLICANT
Marie-Nicole Moreau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bélanger, Fiore, Attorneys FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada