Date: 20040203
Docket: IMM-4906-02
Citation: 2004 FC 180
Ottawa, Ontario, February 3, 2004
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
ALI AFKHAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") wherein the Board determined that the applicant was not a Convention refugee, nor a person in need of protection according to the Immigration and Refugee Protection Act, S.C. 2001 c.27 (the "Act").
[2] The applicant alleges a well-founded fear of persecution based on imputed political opinions and also submits he is a person who faces a risk to his life or a risk of cruel and unusual treatment, punishment or torture.
[3] The Board relates the following facts in its decision:
[4] The applicant was born on May 17, 1980, in Tehran, Iran. He is single and his parents and two siblings are living in Iran. He has approximately fourteen years of education and has no employment history.
[5] The applicant alleges that he was studying Electrical Engineering at the Imam Khomeini Azad Abhar University. During his last year of studies, he was informed by a group of students of a demonstration that was going to be held on February 10, 2001, demanding more freedom of speech. Around that time, a newspaper director had been arrested and his newspaper had been banned. The students were asking for his release.
[6] The demonstration got out of hand and Islamic fanatics started assaulting the students, arresting them and beating the ones who were attempting to escape. A few of them were attacked by sticks, and tear gas was used. The applicant heard some shots that were fired and decided to run away. He later went to his cousin's house and called one of his friends that had been with him at the demonstration. His friend's parents informed him that their son had been identified as a participant in the demonstration and had been arrested.
[7] The applicant asked his cousin to call his home from a public telephone and to inform his parents that he would be keeping a low profile for a while. The applicant was staying with a relative when he found out that he was being sought. He alleges that the government's secret services was looking for him because they had discovered that his uncles were also wanted and had run away from the Islamic regime for political reasons.
[8] The applicant alleges that on February 14, 2001, security forces broke into his house and searched for evidence. They found copies of a cancelled newspaper along with some letters from his uncles and papers related to the demonstration. The applicant, fearing for his life, arranged through his parents and a third person to leave everything behind and to try to reach Canada, where he had family who could help him. He alleges that government agents still visit his house from time to time and bother his parents. The applicant arrived in Canada on May 28, 2001 and requested Canada's protection on that same day.
[9] The applicant submits that the Board based its decision on erroneous findings of fact and that it was made in a capricious and perverse manner, without regard for the material before it.
[10] An applicant who wishes to see a Board's decision on credibility reviewed faces a heavy onus. The burden lies on the applicant to show that the Board's decision could not be justified considering the evidence presented at the hearing:
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 Refugee Division are not so unreasonable as to warrant our intervention, its findings are not open to judicial review (Aguebor v. MEI, 160 N.R. 315 (F.C.A.)).
[11] In the case at hand the applicant has submitted a long list of alleged errors of fact and erroneous inferences drawn by the Board.
[12] After careful review of the hearings' transcript, I am satisfied that the errors identified in the Board's decision are determinative to its finding of credibility, that they were made without regards for the evidence submitted and are of such magnitude that it renders the decision patently unreasonable.
[13] Furthermore, the applicant had submitted medical evidence as to his stay in the hospital and injuries he had suffered as a result of being beaten during the demonstration which was not mentioned in the decision. The Board's failure to discuss the document which supports the applicant's claim amounts to a reviewable error.
[14] As stated by Evans J. in Cepeda-Gutierrez c. MCI (1998), 157 F.T.R. 35 at page 41:
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts.
[15] With regard to the university documents submitted, the Board's statement that "it is surprised by their production" at the second hearing when the applicant had clearly stated he would do so at the first hearing, casts a doubt on the Board's objectivity since it clearly fails to consider the applicant's testimony on this point.
[16] Also puzzling is the Board's comment that the applicant was unable to give any satisfactory explanation on the questions pertaining to these documents. The applicant had testified at the first hearing that he would get the documents from his mother in Iran and at the second hearing he testified that he had the envelopes in which these documents arrived from Iran and that he could present them to the Board if so required. I find that there is nothing inconsistent in the testimony between the first and second hearing.
[17] Further, the applicant provided his university card number which would have enabled the Board to verify whether he was a student at that university. Thus, there was no serious motive to give no probative value to these documents.
[18] Though the burden of proof in such instances is quite heavy, I believe the applicant has shown that the Board's decision was manifestly unreasonable. The great number of errors that were made in the course of the Board's decision is sufficient to grant this judicial review.
[19] For these reasons, the application for judicial review is allowed. The matter is referred back for redetermination by a newly constituted panel.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed. The matter is referred back for redetermination by a newly constituted panel.
"Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4906-02
STYLE OF CAUSE: ALI AFKHAM
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 29, 2004
REASONS FOR ORDER
AND ORDER OF THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: February 3, 2004
APPEARANCES:
Christina Karadimos FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waïce Ferdoussi, avocats
1550 Metcalfe Street, Suite 903
Montreal, Quebec
H3A 1X6 FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General
Department of Justice
Montreal, Quebec
H2Z 1X4 FOR THE RESPONDENT