Date: 19980213
Docket: IMM-3581-97
BETWEEN:
MINA FAYAZ ESFAHANI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] The applicant moves the Court for leave and judicial review with the object of inducing this Court to set aside the decision of the Convention Refugee Determination Division (hereinafter: CRDD) in file no. T-96-04070, rendered on July 29, but dated July 30, 1997 whereby the CRDD adjudged that the applicant is not a Convention refugee. She is the widow of a general in the former Shah's army who was killed during the revolution, in 1979.
[2] The principal basis on which the CRDD made its adverse finding was credibility, that is to say the applicant's lack of credibility on several issues. The CRDD simply compared the assertions written in the applicant's personal information form (PIF) with the answers and assertions expressed in her oral testimony.
[3] The CRDD found that the applicant was not a Convention refugee because of the following factors:
| (a) There was an inconsistency between the applicant's PIF and her oral testimony. In her PIF she stated that she was unaware of the existence of the weapon which had been registered to her late husband, whereas in her oral testimony she indicated she knew of the existence of the weapon and provided details as to how her husband kept the weapon in storage in a garrison and it remained there until after his death, etc.; |
| (b) There was an internal inconsistency in the evidence which the applicant gave regarding the conditions of her release in December 1995. In her PIF she stated that there was a stringent weekly reporting requirement whereas in her oral testimony she stated that she only had to provide information regarding the weapons and report any change of address. When confronted with this inconsistency, the applicant became flustered and stated that she was expected to keep in touch with the authorities and advise them of her whereabouts. The CRDD found this greatly differed from the PIF evidence regarding stringent weekly requirements and thus adduced this area of evidence as being not credible. |
| (c) The applicant gave contradictory evidence in that in her PIF she did not mention that she went into hiding one month after her arrest, but at the hearing she testified that she went into hiding one month after being released from detention. When confronted with this inconsistency, the applicant became flustered and provided no explanation, apart from saying that she did not show herself to authorities before leaving Iran. The CRDD stated that not reporting to authorities was quite different from going into hiding; and |
| (d) Furthermore, the CRDD found that the applicant's testimony regarding her going into hiding one month after her release from prison was inconsistent with her evidence that she was given two weeks to provide the authorities with information regarding the weapons or else she would face imprisonment. This was inconsistent because remaining at home after the two week deadline would be very risky since the authorities could have come and arrested her at any time thereafter. Therefore, the CRDD found that the applicant never went into hiding in Iran and that her testimony in this area was not credible or trustworthy. |
[4] The applicant says the CRDD deceived her into believing that it gave her an "undertaking", indeed in paragraph 5 of the applicant's memorandum of argument, "that undertaking", with no antecedent is mentioned. The CRDD concluded that generally the applicant's testimony was untrustworthy, but did accept inter alia her identification of her late husband. In so doing the CRDD cannot be fixed with giving an undertaking to accept all of her testimony. In fact, in its reasons it recounts how, when she was confronted with the inconsistencies in her evidence, she appeared "flustered".
[5] There is nothing exceptional and no reviewable error in the CRDD's accepting some and rejecting some of an applicant's story for reasons of implausibility.
Alizadel v. M.E.I., A-26-90, January 11, 1993 (F.C./A.)
[6] Here, where the CRDD found the applicant to be lacking in credibility, and pinpointed the occasions, this Court will not interfere with its decision.
[7] In some aspects the applicant's solicitor's memorandum of argument is just incredible. It attacks this finding:
| Finally, the claimant gave contradictory evidence regarding whether or not she was ever in hiding as a result of the alleged detention. The claimant remained in Iran approximately four months following her alleged arrest and there is no mention in her PIF of spending any of this time in hiding. However, at the hearing she testified that she went into hiding one month after being released from detention. When confronted with the inconsistency she again appeared flustered and could provide no explanation. She replied lamely that she did now show herself to the authorities before leaving Iran which is hardly the same as going into hiding. |
| Moreover, the claim that she went into hiding one month after being released is inconsistent with her evidence that she was given two weeks to provide authorities with information about the weapons or face imprisonment. Remaining at home after the two-week deadline had passed would have been a highly risky course of action since the authorities knew where the claimant lived and could have come to arrest and imprison her at any time. On a balance of probabilities, the panel finds that the claimant never went into hiding in Iran and that her testimony in this critical area is not credible or trustworthy. |
| (CRDD decision, application record, tab 3, p.008) |
It is true that there is no mention of going into hiding in the PIF. But on September 20, 1977 the applicant gives this for her explanation of no mention of going into hiding in her PIF, but mention of such in oral testimony, and why was it omitted:
| 3. * * * I said that it was a very difficult decision to take. My husband had [sic: was] a general under the Shah. He died during the Revolution and in fact was one of the first persons to be killed by the revolutionaries. He was attacked while going to work. He was burned by a molotov cocktail and died of the burns in hospital. He died the day before the revolutionaries announced their complete victory. I have been harassed since my husband's death. I had to decide if I was going to abandon Iran after all these years. It was a very difficult decision that would change my whole life. This is what I said at the hearing. |
| (application record, tab 4, p. 010) |
Some explanation of why she testified orally to going into hiding, but did not say so in her PIF! She seems to have remained "flustered" after obtaining the consultation services of her new lawyer and even unto September 20, 1977. In paragraph 11 of the applicant's argument in reply, there is intended comment on this inconsistency and implausibility, but it is so extraneously off-point as to merit no repetition here.
[8] The applicant criticizes the CRDD for not receiving into evidence two photos of the late Shah with his officers. Her counsel at the CRDD advised that they were unnecessary, because the CRDD accepted her testimony in identification of her late husband. How silly, then, to criticize the CRDD for simply passively going along with that which was at bottom, the applicant's own decision! The applicant, after all, bears the onus. (Parenthetically, perhaps the applicant's counsel, like this judge, would have been hard-pressed to state that the same officer was designated (by a drawn arrow) in both photos.)
[9] The applicant fails to persuade the Court to grant leave. With such strong findings of the applicant's lack of credibility as the CRDD made here, its finding that she is not a Convention refugee will not be disturbed. Maybe she can mount a successful H & C initiative.
Judge
Ottawa, Ontario
February 13, 1998