Date: 19980703
Docket: IMM-5062-97
BETWEEN:
HASSAN LIBLIZADEH
(A.K.A. HASSAN LIBALIZADEH)
SHOHREH DARVAND ARAGHI
POUYA LIBALIZADEH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS FOR ORDER
(Delivered orally at Toronto, Ontario,
on June 17, 1998, now
confirmed in writing)
MacKAY, J.:
[1] The applicants seek judicial review of and an order setting aside the decision of the Convention Refugee Determination Division, dated October 23, 1997, wherein the applicants were found not to be Convention refugees. After hearing counsel for the applicants and for the respondent in Toronto, I allowed the application orally and have since issued a written order, for reasons delivered orally from the Bench, which I now confirm.
The Background
[2] The applicants are citizens of Iran, a father, his wife, and their child. The family claims to have had a history of supporting the monarchy in Iran and as a consequence had suffered harassment. The father, Mr. Libalizadeh, claimed he was harassed at school by fundamentalists and by the Islamic Association and he was expelled in grade 12 for defending himself in these confrontations. Then he began working for his brother-in-law who owned a pharmacy. In 1985, he rented a pharmacy in Tehran under his brother-in-law's licence but withdrew from the business after eleven months because of harassment from fundamentalists. In 1986, he began work managing a napkin factory for another brother-in-law and in 1994 while continuing to work there, he opened his own factory, producing napkins, diapers and sanitary pads.
[3] By this time his mother was involved with others, agitating in support of the monarchy, particularly assisting a friend whose husband had been a former army officer under the Shah. The male applicant supported his mother financially and occasionally would also help her pick up and deliver political material.
[4] In 1993 the mother's friend was arrested for distributing pamphlets. Thereafter the mother's home was raided in April 1993, and material relating to the Bahai faith was found on the premises. His mother was detained and questioned for some days before she was released. The male applicant's home was also raided and he was subsequently questioned on a number of occasions about his activities. After some time, his mother left for Canada, arriving in 1993.
[5] In July 1994, the male adult claimant was arrested and tortured. He was detained until he was released on February 11, 1995 for several days, in celebration of the revolution. He testified that his release was arranged through a bribe. Upon his release, he went into hiding in Northern Iran where he stayed with a brother-in-law for a month. His wife stayed with her family and during that month arrangements were made for them to be smuggled from Iran through Turkey then on to the United States and Canada.
[6] The principal applicant's claim was based on an alleged fear of persecution in Iran because of perceived political involvement of the male adult.
The Panel's decision
[7] The CRDD panel found that it had "valid reasons to doubt and reject the truthfulness of allegations made in support of the claim, due to implausibilities that arose in the male claimant's evidence".
[8] The panel found it implausible that the authorities would hold his mother for questioning and then "while keeping her under watch, allow her to come to Canada and leave Iran legally having issued her a passport after her arrest." There is no evidence before the panel that his mother was legally permitted to leave Iran. Indeed the evidence was that she left under arrangements, obviously including a passport, made as a result of bribes. Whether or not the panel believed the applicant's description of his mother's departure from Iran, it is not at all clear what this has to do with assessing the applicant's alleged fear of persecution were he to be returned there. It seems to me quite irrelevant to his claim.
[9] The panel also noted that it was implausible that the claimant would (a) resume his alleged political activity after his mother's arrest since he had become known to the authorities and (b) be granted leave from prison after his mother had failed to return to Iran and he had been positively identified as a dissident. There was, so far as I can find, no evidence before the panel about political activities of the applicant after his mother's arrest. In finding his release from prison implausible, the panel ignored documentary evidence from the IRB's own sources indicating a practice of releasing prisoners for brief periods as the applicant here claims to have been, and it ignored as well his evidence that he was included among those released because of a bribe.
[10] It was for these implausibilities that the panel rejected the claimant's evidence respecting his alleged political involvement in Iran. These implausibilities seem to me unreasonable in light of the evidence that was before the panel. It erred in referring, at the time of his mother's arrest, to the applicant's own home being raided. In fact, the evidence was that her home was raided and she was arrested. The panel appears to have misapprehended his claim to fear of persecution as having arisen, at the time of his mother's arrest or at some other earlier time, rather than considering his own later arrest, and detention for many months, as the principal ground for his fear.
[11] The panel supported its conclusions rejecting the truthfulness of allegations made in support of the claim because of the claimant's alleged delay in making a claim to be a Convention refugee. Delay may at times be considered a relevant consideration in assessing refugee claims. In this case the panel found the claimant had delayed leaving his country of origin following his mother's arrest. He did not then leave the country. That might be relevant if at the time he claimed he had a well-founded fear of persecution but, as I have noted, the panel misperceived his evidence on this. The only delay in leaving his country was the one month spent in hiding in Northern Iran after his temporary release from prison and while arrangements were made for him and his family to be smuggled to Canada.
[12] The second element of delay found by the panel was the failure by the applicant to make a claim in three countries that he travelled through en route to Canada, namely Turkey, Germany and the U.S. In Turkey he had remained for seven months. The panel assumed that he might have applied for and been considered for refugee status there despite documentary evidence of Iranians being returned to their country from Turkey in exchange for Kurdish rebels wanted by the Turks. Moreover, on evidence presented to me and not disputed, the Turkish position in relation to refugees and the U.N. Convention is very different to that in Canada. There simply was no evidence before the Board that the claimant might have realistically applied for refugee status in Turkey.
[13] After leaving Turkey he and his family apparently travelled through Germany, as the panel suggested in error, or in transit through the United Kingdom as the applicant's PIF claimed, and through the United States en route to Canada. Once they were brought into Canada, illegally, by an agent of the smuggler who had arranged for their passage, they claimed refugee status, without any real delay. Thus, in the period of their travels to Canada, there was no realistic opportunity for a refugee claim to be made. Equating that with delay in advancing a claim is an unreasonable conclusion by the panel.
[14] Finally, the panel notes that there was another delay after they arrived in Canada. In fact, within two days of arrival in Canada, they met with immigration authorities and were given an appointment three weeks thereafter, at which time they were permitted and did make their refugee claim.
[15] In my opinion, the panel's conclusions about delay on the part of the applicants in advancing a claim to refugee status are simply unwarranted in light of the evidence before them.
Conclusion
[16] I recognize the deference a Court in judicial review should accord to a CRDD panel decision, particularly one based upon the assessment of credibility by that panel. The last words of the panel's decision sets out its assessment of credibility solely on the basis of implausibilities, which seems unreasonable on the basis of the evidence before the panel. For this reason, the Court will intervene. Here the panel erred in setting out as the bases of its conclusions, implausibilities that were simply not supported on the facts before them.
[17] As a result an order issued allowing the application for judicial review, setting aside the impugned decision of the Convention Refugee Determination Division, and referring the matter back to the Immigration and Refugee Board for reconsideration of the applicants' claim to be Convention refugees, by a different panel.
W. Andrew MacKay
Judge
OTTAWA, Ontario
July 3, 1998