IMM-3602-97
RD/az
FEDERAL COURT OF CANADA
B E T W E E N:
BEHBOUD SAADATKHANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HELD BEFORE: Mr. Justice Muldoon
| HELD AT: 330 University Avenue |
| 8th Floor, Courtroom #1 |
Toronto, Ontario
| HELD ON: October 22, 1998 |
REGISTRAR: Sandra McPherson
REPORTER: Robert Dudley, CVR
| VOLUME: EXCERPT |
A P P E A R A N C E S:
| MAX CHAUDHARY, ESQ. -- for the Applicant |
| JEREMIAH EASTMAN, ESQ. -- for the Respondent |
- i -
INDEX OF PROCEEDINGS
Page No.
Reasons for Judgment 1 - 9
REASONS FOR JUDGMENT:
| HIS LORDSHIP: Well, in reviewing the CRDD's decision, this Court is convinced at least that it is not incorrect. One might go farther and say this Court is convinced that it is correct. There was some discussion of the apparently unreported decision of the Federal Court of Appeal in Jian Yu Yang v. MEI, Court Number A-185-92, dated January 25th, 1995, a very brief decision, and perhaps that is the decision's only vice. It says, |
| "...The Appellant has not succeeded in persuading us that the Board [meaning the CRDD] acted unreasonably in finding that the Claimant's account of the central incident alleged in support of his claim was implausible. If that central incident is disbelieved, as clearly it was, the other alleged errors of the Board are of no consequence..." |
| I take, and anyone who reads that will have to take that to mean the other alleged errors of the Board in this case. There was some discussion between the Court and the Respondent's counsel and the Court said that if the other alleged errors were all correct, if the CRDD got nothing else right, it probably should not have...the Court should have no confidence in such a decision. But, that was not the case here. That was a theoretical matter. The case here leaves the Court convinced that the CRDD got everything else right. |
| The questions of credibility were discussed in some detail to see whether the CRDD's findings were perverse. The Tribunal rejected the family's claims for want of credibility in their accounts. The CRDD identifies several inconsistencies, Mr. Eastman said eight, and implausibilities, which, on their own may not vitiate the family's claims, but do so when regarded in concert. |
| The change of story about the urgency, the life and death urgency of obtaining a drug for his wife, was momentous from the Personal Information Form, to testimony before the CRDD. And, truly, not credible, plausible explanation was given, because that is a momentous change. When one is acting to save a beloved wife's life, to find a drug, one doesn't have the leisure of stopping to participate in a demonstration. And, of course, common humanity might dictate that you would drive the wounded to the hospital, but one doesn't have that time because there is another life, more important to one, which is at risk. But, that is not something about which one makes a mistake. It is not something...and the Board did take that into account and took that seriously. |
| They found it implausible that the Applicant would stop to demonstrate, spending approximately 35 to 40 minutes, before making his way to the bazaar to obtain the much-needed drug for his wife. His testimony, of course, was out of harmony with his PIF. In the latter, he said the matter was urgent and that his wife's life was at stake. In the former, he denied any sense of urgency at all. |
| The Panel found his viva voce testimony inconsistent with his wife's condition as described in the PIF. He explained that the PIF contained a mistake, but that it was not a major one. But, it was mentioned twice in the PIF, as Mr. Bubrin, a member of the CRDD pointed out. So, it is no question of bad interpretation or a mistake. It is twice mentioned that it was urgent. |
| The panel made reference to documentary evidence regarding the timing of events in the demonstration. This evidence apparently contradicts the Applicant's testimony. The Tribunal found that the Claimant's alleged conduct in joining the demonstration was implausible. He had no idea who had organized the demonstration or what it was for, other than it was a protest against an improvident government for things being in short supply or unavailable, and it was an economic protest. But, of course, in the case of the conduct of a government, and especially a totalitarian, theocratic government, an economic protest is a political protest. |
| The Applicant stated that he joined the crowd out of frustration at his fruitless search to fill the prescription and his anger at the government. Now, which was it? That, or was he certain that he was going to get that drug imminently from someone at the bazaar? |
| The Panel disbelieved his motive, given his testimony that his wife's situation was not dangerous, that is to say his viva voce testimony, that he was en route to pick up the drug and the pharmacies were closed due to the holiday season, not the government. |
| The Panel questioned the plausibility of the Applicant's claim that although he had been politically inactive since 1979, which is the year of the Islamic Revolution, he joined a demonstration about which he knew nothing, in a repressive country where serious consequences were possible. |
| This led the Panel to conclude that his story lacked the ring of truth. |
| The central reason given by the CRDD for its negative determination of the Applicant's claim is a lack of credibility. The Panel assessed the testimony with regard to consistency, rationality, common sense, and explained the reasoning behind its decision. The CRDD articulated several instances where it found implausibilities and inconsistencies with the Applicant's testimony. It noted the difference between the Applicant's viva voce testimony and his written PIF regarding the severity of his wife's condition after surgery, as mentioned. The Panel did not find the testimony consistent with his efforts to find the required drug, efforts which he said led him to feel so frustrated and angry that he just couldn't pass up the opportunity to join a demonstration about which he knew very little at the time. The Panel specifically found his participation in the demonstration implausible. |
| Documentary evidence noted by the Panel contradicted the Applicant's version of the demonstration with regards to its timing. In the Federal Court of Appeal decision in Aguebor v. MEI, (1994) 160 N.R. 315, Mr. Justice Décary for the Court held, |
| "...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 the 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. Credibility findings are completely within the tribunal's purview and must be given considerable deference on judicial review. They cannot be interfered with so long as they are reasonable and supported by the record..." |
| One might say, in contrast, this morning there was a case in which the Panel's credibility findings were so unreasonable that this Court set them aside, although the decision was based on credibility. But there, the Applicant's counsel was able, it depends on what case you get, was able to demolish each one of those in turn. He knocked them down like ten pins and demonstrated that they were not reasonable. |
| And that is not the situation here. In this case, the CRDD acted well within its jurisdiction when it made its adverse credibility findings with regard to the Applicant's claim. These findings were duly noted and enumerated in the Tribunal's reasons. The central incident, that is the Applicant's participation in the demonstration, was not believed by the CRDD panel, although it did note that the particular demonstration did, in fact, occur. |
| The Tribunal's findings are reasonable and they are supported on the record. Thus, the CRDD's findings of lack of credibility and plausibility result in the failure of the Applicant's claim. The application, therefore, with no joy on the part of the Court, will be dismissed. There is no serious question for certification. |
| And the Court has one other thing to add, and that is this: In this Court's view, neither party has any reason to be dissatisfied with the efforts of counsel. One gets the case one gets. Sometimes counsel is almost persuasive in overcoming the difficulties, but, in the last result, one cannot make a good case out of a bad case. I have never seen one which is quite so clear. Perhaps that is an exaggeration, but this was a clear case, in my opinion, and the Applicant's counsel did the best anyone could do to overcome it, but, in the end result, the application to quash and set aside the CRDD's decision must be dismissed. |
| Any questions? Thank you. Court will rise. |
| --- upon adjourning at 4:25 p.m. |
I hereby certify the foregoing to be a true and accurate transcription of the above noted proceedings held before me on the 22nd DAY OF OCTOBER, 1998 and taken to the best of my skill, ability and understanding.
}
} Certified Correct:
}
}
}
}
} ________________________________
} Robert Dudley
} Certified Verbatim Reporter
}
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.