Date: 20021224
Docket: IMM-3962-01
Neutral Citation: 2002 FCT 1326
BETWEEN:
SAEID RIVAN
Applicant
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] Through his application for judicial review, Saeid Rivan, a citizen of Iran, asks that the Court set aside the decision dated July 23, 2001, delivered by the Refugee Division of the Immigration and Refugee Board (the panel), which denied him inclusion, i.e. recognition as a refugee, and ruled that he be excluded under article 1F(b) of the Convention, as it had serious reasons for considering that he had committed a serious non-political crime outside of Canada.
[2] Mr. Rivan gives three reasons to fear persecution by the authorities in Iran:
1. the authorities suspect him of collaborating outside the country with the Mujaheddin, an opposition movement;
2. he failed to comply with the release terms after being detained by the Sepah, the intelligence service of the "Revolutionary Guards", otherwise known as the Pasdaran, terms that required that he collaborate with them; and
3. he filed a complaint with the courts in his country claiming that he had been the victim of an arbitrary detention inflicted by the Sepah.
[3] There are several stages in Mr. Rivan's story, including the following:
1. At the age of 16 he volunteered during the war between Iran and Iraq, joining the Baseej (a volunteer supporter of the regime) and was at the front for a year and a half over a period of six years between 1981 and 1987.
2. After receiving his secondary school diploma, he completed his military service between 1987 and 1989. Perceived as a supporter of the regime, he was chosen by the Sepah to be a member of its security unit. After one month of service, he asked to be transferred, once again, to the front. In his Personal Information Form (PIF), he says he was disgusted with the crimes committed by the Sepah in their detention centre.
3. In 1990, he was admitted to the University of Tehran, in the contingent reserved for the Sepah. Experiencing academic difficulties, he asked for a leave at the end of his first year.
4. In 1991, with two friends, he went to Romania and established a corporation engaged in exports and imports to and from Iran. In 1992, he was in Iran, working for his brother, marrying and settling in Tehran.
5. In November 1992, he went to his native town of Ahvaz, to visit his father who was ill. There he received a telephone call from an old friend, a member of the Sepah, by the name of Hossein Behbahani, who seemed to be aware of his business activities in Romania and suggested a meeting with him and another interested individual in order to get a project underway. On November 4, 1992, while awaiting Mr. Behbahani at the site of the meeting, he and the third party were arrested by the Sepah.
6. He writes that he was beaten, tortured and interrogated for fourteen days and that many questions had to do with the Mujaheddin. During his interrogation, he says, his assailants brought his wife before him to force him to confess and informed him that his father had died. He says that after promising to collaborate with the Sepah, he was turned over to the revolutionary tribunal, which ordered his release provided that he not leave Ahvaz or Iran.
7. After his release, Mr. Rivan says, he learned that his wife had been detained and interrogated for one night in a private home belonging to a member of the Sepah. Mr. Rivan and his wife filed a complaint against the Sepah for his own arbitrary detention and another for the illegal confinement of his wife by the Sepah in a private home.
8. In the spring of 1993, after a number of attempts, the applicant was authorized by a judge of the revolutionary tribunal to return to Tehran to join his wife, who was pregnant.
9. In November 1993, he fled Iran and settled in Romania after learning that the Sepah had raided the family home in Ahvaz and arrested for 24 hours his brother Omid, now disappeared after an attempt to join him in Romania.
10. From November 1993 to May 1999, his PIF indicates that he stayed in Romania with visitor's status. In early June 1999, he left Romania, passed through Germany and on June 4 landed in Montréal where he claimed refugee status a few days later.
PANEL'S DECISION
[4] The panel considered that the claimant was not "a credible witness". "His claim had neither an objective nor a subjective character, and if he had been credible, the panel would have excluded him as a perpetrator and accomplice in obstructing justice, public mischief and narcotics trafficking."
[5] The panel's decision is twenty-two pages long, fifteen of which are devoted to an analysis of the claimant's lack of credibility. Furthermore, the panel found there was no objective or subjective basis for his fear. It thought the claimant had not rebutted the presumption of the ability of the Iranian government to protect him. In regard to the lack of subjective fear, the panel relied on the fact that he had not requested refugee status in Romania.
(a) Credibility
[6] The panel based its adverse finding of credibility on a number of factors, including:
(i) omissions in his PIF;
(ii) contradictions between his PIF and his testimony and some contractions within his testimony;
(iii) improbabilities;
(iv) vagueness; and
(v) claimant's conduct.
(i) Omissions in his PIF
[7] The panel criticizes Mr. Rivan for omitting a number of facts from his PIF, including the following:
(a) the claimant, it says, failed to mention in his PIF his currency trafficking activities in Tehran, in order to disguise the fact that this trafficking could be done only with the approval of the Sepah;
(b) the claimant failed to indicate that his wife had been working in Tehran for fifteen years as an "office administrator" for the director of a state corporation in the petroleum industry, the Behran oil company;
(c) he failed to mention in his PIF the means used to enable him to remain so long in Romania (about six years) and to obtain extensions of his Iranian passport through the falsified visa;
(d) the complete failure to describe the nature of his activities in Romania between November 1993, when he fled Iran, and June 1999, when he left that country for Canada, including (1) the fact that the claimant worked as an interpreter for Interpol Romania and the civilian police in Bucharest between 1996 and 1999; (2) that Interpol Romania illegally extended his entry authorizations; (3) that during his stay in Romania he placed himself at the disposal of an official of the Iranian Embassy in order to find a client to whom this official could sell his two kilograms of heroin, and that his initial involvement was to develop a friendship with this influential man who might renew his passport for him; (4) that after the ambassador had refused him an extension, he went ahead with this transaction out of vengeance and began collaborating with Interpol to mount a "sting" operation; and (5) that the claimant worked as a bodyguard for an Iranian capitalist residing in Romania, from the time when his restaurant went bankrupt in 1996-97;
(e) the fact that he failed to mention in his PIF that in Montréal he met with the former director of the Sepah of all the Komiteh of the city of Ahvaz, who, according to his testimony, is a relative of the Friday Imam (the religious authorities in Iran for the whole province of Kuzhestan). He also failed to indicate that in Montréal he had made the acquaintance of members of Hezbollah.
(ii) Contradictions
[8] The panel cited a number of contradictions in the evidence, and in particular between Mr. Rivan's testimony and his PIF, such as:
(a) the contradiction between his testimony, in which he says he was reluctant to take Mr. Behbahani's call and to meet with him - an antipathy that originated during his military service, when he learned that Mr. Behbahani was torturing people - and the reference in his PIF that Behbahani was "an old friend from the time of the military service";
(b) the claimant's statement during his testimony that he had been forced to join the Baseej, contradicting what he wrote in his PIF, that "I was a supporter of the Islamic regime and volunteered for service in the war front", and his statement on occasion that he had volunteered for the Baseej, contradicting his previous statement concerning the involuntary nature of his engagement;
(c) an internal contradiction in his oral testimony concerning his presence on Iraki territory during the war. The panel notes that during the first hearing, the claimant explained that at the front he was in the reconnaissance commandos in enemy territory and was fighting against the Mujaheddin, but at the last hearing he denied having penetrated Iraki territory during the war while on reconnaissance missions;
(d) an internal contradiction in the claimant's testimony, namely, whether he had fought the Mujaheddin and whether he had killed some of its members. It was the panel's opinion that during the last hearing he stated he had not killed any Mujaheddin or had anything to do with them in combat, while he had stated the opposite during the first hearing;
(e) the panel spotted a contradiction concerning the duration of his university studies. The panel explains that "... at line 4 of his answer to Question 17 of his PIF, the claimant wrote that he stayed at university from September 1990 until June 1991, while at the hearing he said that he had only studied at university for two to three months";
(f) a contradiction between his PIF and his testimony as to whether or not he was forced to write an examination in order to enter university. In his PIF, the claimant says that "Sepah had some places in the universities reserved for its members and other people who had fought in the war. I was not required to pass the university entry test, which was compulsory for all the other candidates." At the hearing, the claimant contradicted himself, saying he had to go through a competition in order to enter university.
(g) a contradiction between his testimony and the evidence presented by the Minister's representative. As noted, the claimant testified about some activities he claimed to have carried on with the Romanian police and Interpol services in Romania (as an interpreter and collaborator in a "sting" operation), with Iranian diplomats (as a "middleman" in a transaction involving trafficking in two kilos of heroin), and with an Iranian capitalist in Romania (working as a bodyguard). But the panel notes, at page 11 of its decision, that the Minister's representative made some inquiries with the Romanian authorities and learned that Mr. Rivan's name and fingerprints were not on file with the Interpol service in Romania, leading the panel to conclude that the claimant "lied, by his actions or omissions, about the nature of his activities in Romania, and in particular about his contradictory relations with the police of that country and with the Iranian diplomatic authorities";
(h) a contradiction in his account of the events concerning his wife's confinement. The panel found that the claimant had contradicted himself in his testimony concerning the knowledge that his wife had of the premises in which she was confined following her arrest and that in fact it was sometimes she and sometimes he who had allegedly identified the site of her detention, which was sometimes a private home, and sometimes a prison.
(iii) Improbabilities
[9] The panel identified the following improbabilities:
(a) the panel considered it improbable that Mr. Rivan's wife would continue to hold a "position of trust" in a state company for fifteen years, when the Iranian regime was trying to persecute her husband. It relied in particular on its expert evidence concerning the Iranian social context in reaching the following conclusion:
Given Iran's social, political and criminal justice organization, in which women systematically occupy positions where they are subordinated to men, both at work and in the family, and are held responsible for the acts of their husbands, it seems very unlikely to the panel that the claimant's wife could have retained such a position of trust if the security services had entertained any suspicions that either her husband or herself was an accomplice of the Mujaheddin.
(b) according to the panel, it is unlikely that the claimant could have engaged in trafficking in American dollars on the black market from the time he ceased his university studies, without encountering any difficulties with the Iranian authorities. What is incredible in the claimant's account, it says, is that such activity is "strictly forbidden in Iran, on pain of death";
(c) the panel viewed as improbable the claimant's testimony concerning the circumstances of his entry to Canada, and in this regard the panel gave the following explanation for its incredulity:
At the last hearing, in response to a question by the Minister's representative concerning the circumstances of his entry into Canada, the claimant stated that he entered the country without having his passport stamped or making any declaration to the Immigration authorities. On the recommendation of the smuggler, he pretended to be deaf.
The panel, however, is of the opinion that this allegation of the claimant, namely that he avoided the questions of the Immigration authorities by pretending to be deaf, is totally improbable in light of the presumption, which the claimant did not refute, that is raised by the explicit provisions of section 12 and following of the Immigration Act, which require that any person seeking to enter Canada be subject to questioning by an Immigration officer.
(d) the claimant's establishing of contacts with Pasdaran members in Montréal is characterized as improbable by the panel. It makes the following observation:
For its part, the panel must regard it as improbable that the claimant would meet in Montreal, a city of more than two million inhabitants, a Pasdaran official from his native town in Iran just a few days after the official's arrival in Canada, and that he would offer the latter an illegal transaction to bring a member of his family into Canada in exchange for services concerning the Iranian judicial or immigration authorities.
(iv) Silences and vagueness
[10] The panel finds, on the basis of its assessment of the claimant's testimony, that he remained silent or was unclear about a number of points. These are:
(a) the true nature of the relationship between the claimant and Mr. Behbahani. The panel thinks that Mr. Rivan, during the hearing, minimized what was in fact an "old friendship" between him and Mr. Behbahani. The panel explains its view as follows:
To explain the resumption of his relations with Behbahani despite his animosity towards that individual due to the brutality of his methods, the claimant said that he only went to the rendezvous set up by Behbahani at the insistence of his own mother, to whom Behbahani was supplying propane gas bottles for cooking free of charge.
...
Consequently, the panel is unable to explain satisfactorily to itself why the claimant resumed contact with an individual who had been associated in his mind with such unpleasant memories, simply to please his mother.
Either the claimant acted to please his mother-in which case he did not explain how she could have known Mr. Behbahani or remained in contact with him after the alleged break with the claimant following the claimant's departure from the unit of the intelligence services in which he performed guard duties-or the claimant had stayed in contact with Mr. Behbahani and wished to renew his close relations with him after completing his military service. In the latter case, the claimant remained unclear about the duration of his relationship with Mr. Behbahani, the means whereby the latter remained aware of the claimant's domicile and activities, and the nature and scope of the relations the two men wished to develop after the 1979-1990 war.
...
The panel may thus believe that in the hearings, the claimant deliberately underestimated and transformed the nature and depth of his relationship with the Baseej and with Mr. Behbahani, thereby minimizing his complicity with Behbahani during their collaboration in the Pasdaran security services unit, and then after the war between Iran and Iraq.
The panel concludes that Mr. Rivan had not taken his distance from the regime, and notes:
The explanation given in paragraph 8 of the PIF, where Behbahani is described as "old friend of the time of the military service," provides a much more likely basis for the suspicions of the Iranian authorities and for the charges brought against the claimant because of the alleged complicity between Behbahani and the Mujaheddin-e-Khalq. However, this raises the question of the nature and extent of the relationship between the two men, a subject on which the claimant was deliberately ambiguous.
(b) the nature and scope of the claimant's relations with the Sepah, enabling him to enter and leave the university without any problem. The panel found that the claimant kept it in the dark on this. In reaching this conclusion it cited the contradiction between the claimant's written and oral evidence - on the one hand, saying he had to write an examination to get into university, while on the other hand saying that no such examination was required. The panel concluded that the claimant's explanation as to the ease with which he could leave the university was unsatisfactory, for "he was admitted as a member of the class of supporters of the regime", whether he "entered the university as part of the quota of the Sepah or in the quota of the Baseej".
The panel questioned the claimant in several places on how he had left an ideological force without being considered disloyal to the regime;
(c) the reasons why the claimant had dissociated himself from the Islamic regime and how he had done so. At page 9 of its decision, the panel states:
However, the claimant never explained to the panel how or why he later became dissociated from the Iranian Islamic regime, except to state vaguely that he had distanced himself from the regime during his stay in Romania, which had caused him to look at things differently.
(d) according to the panel, a number of questions remain unanswered: (1) the nature of the claimant's economic activities when he left the university; (2) the origin of the resources that enabled him to set up a business in Romania and to begin importing products to Iran; and (3) the nature and extent of Mr. Rivan's probable relations with the Iranian authorities in connection with his economic activities.
(e) the true nature and extent of the relationships between the claimant and the Iranian regime that enabled him to obtain extensions of his visa on his passport during his stay in Romania. At page 11 of its decision, the panel explains the lack of clarity in this regard and writes:
Consequently, the panel is unable to determine the nature or extent of the claimant's relations with agents of the Iranian government, who allowed him to obtain unlawfully an extension of his visa on his Iranian passport.
(v) His conduct
[11] The claimant's conduct was also severely criticized by the panel, leading it to find a "general lack of credibility" in the claimant. By way of explanation, the panel states:
At the hearings, the claimant seemed to the panel to be a seasoned manipulator, who alternated between tears and smiles for no reason and with no transition, as he did in particular when speaking of the death of his father or an alleged attack on his brother.
The claimant made declarations to the panel that seemed designed to test the reactions of the members, like his statement that he knew his claim was going to be rejected, or his offer to report a member of the Hezbollah in Montreal, as part of a "deal" that the panel had no jurisdiction to make with him.
In reply to the various questions put to him by the panel or by the Minister's representative, the claimant also made things up, like the story of his brother's arrest in a bus at some distance from Ahvaz and the confused explanations he then offered concerning his brother's status and the place where the arrest took place.
Generally speaking, the panel is very concerned about the lack of scruples reflected in the claimant's attitude throughout the proceedings. This attitude revealed the claimant as completely unreliable, seemingly prepared to employ any means available to attain objectives which he refused to share with the panel. [Emphasis added]
[12] And later, in a discussion generally winding up the subject of credibility, the panel says:
The tribunal finds that the claimant's general pattern of conduct at the hearings clearly reveals a general intention to mislead, as do his manoeuvres designed to carry out that intention.
(b) Lack of objective or subjective component
[13] The panel held that Mr. Rivan had not rebutted the presumption that the Iranian state was capable of protecting him. In this regard, the panel refers to "an impressive collection of court papers indicating many successive transfers of his file complaining of arbitrary arrest among the various jurisdictions of the military courts and the revolutionary courts, until the matter was finally brought before the chief coroner of Ahvaz" (P-11 to P-22).
[14] The panel comments that Mr. Rivan acknowledged that he had been summoned to Ahvaz to pursue the complaints of his arbitrary arrest, but because he was in Romania he did not go.
[15] The lack of subjective fear is established, the panel says, by the fact that he did not request Romania's protection when he was there for five and a half years.
(c) Exclusion
[16] Article 1F(b), says the panel, justifies exclusion "[e]ven were the claimant to be credible". He confessed to committing acts of public mischief in Romania: he encouraged an employee of the Iranian Embassy in Romania to commit an act of trafficking in narcotics.
ISSUES
[17] A number of arguments are raised by the applicant in opposition to the panel's decision.
(a) Concerning inclusion
[18] In the first place, citing a number of judgments of this Court, the applicant says the panel erred in law in failing to express an opinion on the documentary evidence specific to him, about thirty exhibits in all. The applicant's counsel alleges that the panel did not rule on the content, value and evidentiary weight of this documentation, which corroborated a number of significant aspects of his testimony that were addressed to the core of his claim. Specifically, she says, the panel did not take into consideration (or misinterpreted) the medical evidence of doctors Rongier and Renzi and the expert psychological evidence.
[19] Secondly, the applicant argues that the panel based its decision on erroneous findings of fact that it made in a perverse or capricious manner, without regard for the evidence before it. The applicant disputes a number of omissions, contradictions and improbabilities identified by the panel and submits that it misread the record, citing as an example the panel's finding that currency trafficking in Iran is strictly forbidden on pain of death, an error that the panel cites in concluding that it "is thus most unlikely that an individual trafficking in currency would operate without obtaining the protection of the security services."
[20] Thirdly, the applicant argues that the panel's conclusion that there was no objective component to the applicant's fear is erroneous, based as it was on the panel's finding that the claimant had not rebutted the presumption of the ability of the Iranian state to protect him. The applicant cites some of the documentary evidence.
[21] Fourthly, the applicant submits that the reasons cited by the panel members for denying his claim are an ultimate confirmation of the feeling that Mr. Rivan had from the very first day, that the panel, even before hearing him, had already decided the outcome.
[22] Fifthly, the Chair of the panel during the hearing process requested some information from the Documentation Centre without disclosure.
(b) Concerning exclusion
[23] The applicant submits that the panel's conclusion that he is excluded should be set aside for the following reasons.
[24] First, the panel's exclusion is conditional - "if he had been credible". As Mr. Justice Blanchard held in Hosseini v. Canada (Minister of Citizenship and Immigration), [2002] F.C.T. 402, a conditional exclusion is not permitted.
[25] Second, article 1F(b) was never raised by the Minister. To justify exclusion, she cited articles 1F(a) and 1F(c) of the Convention. The applicant could not defend himself on the article 1F(b) exclusion and, in the circumstances, there is a breach of the rule of natural justice, as the respondent concedes.
ANALYSIS
(a) Inclusion
[26] I think the heart of the panel's decision concerning inclusion is found in its conclusion that the applicant is not credible. The panel did not believe his story.
[27] It has been said many times by the judges of the Supreme Court of Canada and this Court, in both the appeal and trial divisions, that questions of credibility are at the core of the panel's jurisdiction and are findings of fact that cannot be overturned unless the panel has based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, within the meaning of paragraph 18.1(4)(d) of the Federal Court Act, a patently unreasonable decision.
[28] In Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, Mr. Justice Cory stated, at paragraph 45:
[45] When a court is reviewing a tribunal's findings of fact or the inferences made on the basis of the evidence, it can only intervene "where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact"....
[29] This review of the evidence is limited in scope. Cory J. writes, at page 509:
[48] ... I would stress that this is not to say that a court should weigh the evidence as if the matter were before it for the first time. It must be remembered that even if a court disagrees with the way in which the tribunal has weighed the evidence and reached its conclusions, it can only substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting the tribunal's findings.
[30] This theme was again discussed by Madam Justice L'Heureux-Dubé in Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, where she writes at paragraph 85 of her judgment:
[85] 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. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision....
[31] In this exercise of reviewing the evidence, Mr. Justice Laskin, as he then was, counsels us in Boulis v. Minister of Manpower and Immigration, [1974] S.C.R. 875:
[21] ... At the same time, the Board must be accorded the trust in its careful and fair dealing with the cases that come before it... that its status as an independent court of record demands. Its reasons are not to be read microscopically; it is enough if they show a grasp of the issues that are raised by s. ... and of the evidence addressed to them, without detailed reference. The record is available as a check on the Board's conclusions. [Emphasis added]
[32] To the same effect is the judgment of Laskin J. in Woolaston v. The Minister of Manpower and Immigration, [1973] S.C.R. 102, where he writes:
[8] I am unable to conclude that the Board ignored that evidence and thereby committed an error of law to be redressed in this Court. The fact that it was not mentioned in the Board's reasons is not fatal to its decision. It was in the record to be weighed as to its reliability and cogency along with the other evidence in the case, and it was open to the Board to discount it or to disbelieve it.
[9] I am satisfied upon a review of the entire record that what has been presented as an error of law is properly a matter of fact upon which no appeal lies to this Court.
[33] The methodology adhered to by the panel in determining the applicant's lack of credibility is one that is clearly recognized by the Court. The panel based its finding that the applicant's testimony was not credible on his conduct, some omissions in his PIF, some conflicts between his PIF and his testimony and a series of improbabilities or contradictions within his testimony. The panel considered the testimony confused and obscure. In Mostajelin v. Canada (Minister of Employment and Immigration, [1993] F.C.J. No. 28, Mr. Justice Décary writes that these findings of credibility "are beyond the review of this Court".
[34] Mr. Justice Stone wrote to the same effect, again on behalf of the Federal Court of Appeal, in Wen v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 907:
[2] The Refugee Division's decision turned wholly on an adverse finding of the appellant's credibility. That finding was founded in part on a number of perceived internal contradictions and inconsistencies in the appellant's story. While it may be possible to view the bases of this perception differently, we must resist the temptation of doing so when it has not been shown that it was not reasonably open to the Refugee Division.
[3] That apart, we also observe that the adverse finding was based as well on the appellant's answers being "confusing" and "evasive". This assessment of personal demeanour ought not to be interfered with by this Court which lacks the advantages available to the triers of fact.
[35] In her submissions to the Court, counsel for the applicant developed her attack on the reasons (erroneous, she says) that led the panel to doubt Mr. Rivan's credibility. She argued that:
(1) the discrepancies identified between his testimony and his PIF are not changes but mere clarifications;
(2) the omissions that are singled out were either mentioned (e.g., the solicitation by the Sepah at the university) or are irrelevant (e.g. the currency trafficking), and have no relationship to his claim;
(3) a number of findings of fact are not based on the evidence or the panel has misunderstood the evidence (e.g. Mr. Rivan never testified that he was a member of a pursuit commando unit, that he had fought and killed Mujaheddin, or that he had attended some torture sessions);
(4) the panel misconstrued the evidence (e.g. the death penalty is not imposed on currency traffickers in Iran);
(5) the contradictions it found are not contradictions (e.g. the fact that he volunteered and the fact that he felt obliged to go to the front, or the identification of the place of detention); and
(6) the obscurities cited are not obscure and pertain to a misconstruing of the evidence by the panel.
[36] After a detailed review of the certified record of the panel (and thus of the applicant's testimony and the documentary evidence), I conclude that counsel for the respondent, despite her valiant effort, has failed to persuade me that the panel's adverse finding as to Mr. Rivan's credibility should be overturned.
[37] Among the many errors cited by the applicant, I believe that about six can be characterized as not resting on the evidence or resulting from a misconstruing of the evidence; examples are the failure to identify the Pasdaran request for collaboration at the university, and the statements that he killed some Mujaheddin, that he had access to the detention site during his month of service with the Sepah and that his mother received the gas bottles free of charge.
[38] In light of the panel's decision as a whole, these errors cannot be characterized as central to that decision, in my opinion, and do not affect its reality.
[39] In my opinion, moreover, the vast majority of the factual errors the applicant would have me exclude are either based on inferences reasonably drawn by the panel and supported by the evidence or would require a reassessment by me, which the decided cases prohibit me from doing. On its findings, the panel is immune from the intervention of this Court.
[40] I have carefully read the applicant's affidavit in support of his application for judicial review. He harshly criticizes some of the panel's findings of fact, but in my opinion his perspective is based on a microscopic reading of the panel's decision that necessarily abstracts from all the other aspects of the evidence that would support the panel's conclusions.
[41] Taken as a whole, the evidence could reasonably lead the panel to conclude that the applicant's testimony lacked credibility because the omissions in his PIF were significant, the improbabilities cited were not unreasonable and the contradictions were numerous. Furthermore, this finding of non-credibility is also based on the panel's assessment of the applicant's conduct during his testimony, an assessment that only the panel could make.
[42] Finally, on this point, I consider the words of Mr. Justice Hugessen, then a member of the Federal Court of Appeal, in Owusu v. Canada (Employment and Immigration Commission), [1988] F.C.J. No. 434, applicable in this case:
In all the other cases without exception, the findings of fact could validly be made by the Commission according to its view of the evidence: if I had been sitting in place of them I might have come to a different conclusion, but I am quite unable to say that in deciding as it did the Commission made an error.
Accordingly, of the errors cited by the applicant the only real one affects only one of the eight examples given by the Commission to support its finding that the applicant's version was not worthy of belief, and this example is far from the most important one. In these circumstances, it cannot be said that the decision itself is based on an erroneous finding of fact within the meaning of s. 28(1)(c) of the Federal Court Act.
[43] Not only did the panel not adopt the essential points of Mr. Rivan's claim because they were not credible, but it rejected him for other reasons: lack of a subjective fear and the protection of the Iranian state.
[44] I think the respondent's submissions concerning the lack of a subjective fear are well-founded and that the panel could find that the claimant had not established a well-founded fear of persecution should he return to Iran. Mr. Rivan, it will be recalled, fled Iran in 1993 and settled in Romania for five and a half years, but did not request the protection of that country. The panel could reasonably conclude that Mr. Rivan's conduct was incompatible with the notion that he thought he would be persecuted if he were to return to Iran.
[45] The lack of subjective fear is fatal to Mr. Rivan's claim (see Fernando v. Canada (Minister of Citizenship and Immigration), [2001] F.C.T. 759 and Maqdassy v. Canada (Minister of Citizenship and Immigration), [2002] F.C.T. 182).
[46] The applicant argues that the fact that Romania is a signatory to the Convention was not put in evidence before the panel. As Mr. Justice MacKay did in Ilie v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1758, I reject this submission on the basis of subsection 68(4) of the Immigration Act.
[47] In the circumstances, I need not address the argument advanced by the respondent and adopted by the panel that, considering the complaints filed by the applicant and his wife with several Iranian courts, Mr. Rivan enjoyed the protection of the State.
[48] I will briefly dispose of three other submissions made by the applicant in opposition to the panel's decision.
[49] First, citing a decision of this court, the applicant argues that the panel did not rule on the content, value and evidentiary weight of the evidence as a whole that was specific to the claimant (exhibits P-1 to P-39).
[50] This criticism by the applicant is inaccurate. The panel did rule on exhibits P-11 to P-22 and from my reading Mr. Rivan's testimony and the decision I think it also took into consideration exhibits P-5 to P-7 (panel record, page 19). The panel states:
At the hearings, the claimant filed an impressive collection of court papers indicating many successive transfers of his file complaining of arbitrary arrest among the various jurisdictions of the military courts and the revolutionary courts, until the matter was finally brought before the chief coroner of Ahvaz.
[51] The panel also took a position on Mrs. Lillo's psychological report. It refers to it in its decision (pages 17 and 18 of the panel record) and it assessed its probative value in a way that was not unreasonable, in my opinion, considering the evidence on the record as a whole.
[52] To be sure, the panel did not refer to all the other exhibits filed by the applicant, but the cases hold that it is not obliged to do so.
[53] The Federal Court of Appeal ruled on this point in a recent case, Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394. Mr. Justice Evans writes, at paragraphs 9 and 10:
[9] Decision-makers are not bound to explain why they did not accept every item of evidence before them. Much depends on the significance of that evidence when it is considered in light of the other material on which the decision was based....
[10] Nor will a reviewing court infer from the failure of reasons for decision specifically to address a particular item of evidence that the decision-maker must have overlooked it, if the evidence in question is of little probative value of the fact for which it was tendered, or if it relates to facts that are of minor significance to the ultimate decision, given the other material supporting the decision. [Emphasis added]
[54] I consider the exhibits that were not mentioned by the panel, including the medical reports, to be of minor significance to the ultimate decision. The medical report of Dr. Rongier establishes that Mr. Rivan was exposed to toxic gases during the Iran-Iraq war. The panel did not cast any doubt on that when assessing the applicant's credibility. But this exposure to toxic gases is not the foundation or one of the bases of his claim. I reach a similar conclusion concerning the report of Dr. Renzi. The other exhibits add nothing.
[55] Second, counsel for the applicant cites an apprehension of bias, but she raises it in a peculiar way: "[translation] that the reasons cited by the panel members for denying his claim for refugee status are an ultimate confirmation of the feeling that he had from the very first day of his hearing, that the panel, even before hearing him, had formed a negative opinion in his regard". And she relies on Valtchev v. Minister of Citizenship and Immigration, [2001] F.C.T. 776, which, she says, applies since the panel failed to analyze the documents that corroborate his claim, attributed to the applicant a number of statements that he did not make at the hearing, failed to consider the expert psychological evidence and drew negative inferences that are contradicted in the documentary evidence.
[56] I reject this second ground raised by the applicant. Valtchev, supra, is completely different. In Valtchev, Mr. Justice Muldoon could find the appearance of bias from the very fact of the many and extremely serious errors committed by the panel in that case. I have already explained that this is not the case in the matter before us.
[57] I am unable to accept the final submission made by the applicant at the actual hearing of his application for judicial review. He says the chair of the panel, at the time his claim was before it, from December 6, 1999 to May 31, 2001, requested some information from the Information Services of the Immigration and Refugee Board, that it did not disclose the information received and that this demonstrates the bias of the panel. As indicated in the panel record, at pages 198 to 209, the Chair made two requests for information. One concerned the links between the Pasdaran and Romania and the Securitate, in relation to the logistic system established by the Pasdaran in Eastern Europe and some information on Pasdaran who had fought alongside Muslims in former Yugoslavia. The second request dealt with the torture of suspension and the physiological and psychological consequences of such a practice.
[58] The respondent submits that the applicant was not adversely affected, since the panel did not base its reasons on this information, reasons that have nothing to do with the information that was gathered. The applicant replies that this information, and especially the second matter, might have influenced the assessment of his claim.
[59] The applicant's argument, in my opinion, is speculative and, even if it were well-founded, would not be material to inclusion in the panel's reasons, considered as a whole.
[60] For these reasons, I consider that the panel's finding on non-inclusion has merit.
(b) Exclusion
[61] Although I am under no obligation to consider exclusion, I am inclined to do so by a special circumstance.
[62] The Minister agrees that, during the hearings, the panel did not warn the applicant that it was going to consider the application of paragraph 1F(b) of the Convention. This, the Minister says, was a violation of the applicant's right to a hearing, one of the rules making up the principles of natural justice.
[63] However, the Minister argues that this breach is not automatically fatal to its decision on exclusion, since another panel would likewise conclude that exclusion was justified.
[64] This argument by the Minister is not relevant in the circumstances of the case before me, since I have concluded that the claimant is not included, and thus I cannot overturn the panel's conclusion "that Mr. Saied RIVAN is not a 'Convention refugee'". Furthermore, as the applicant argued, the panel's finding on exclusion was a conditional exclusion ("if he had been credible"), something that Blanchard J, in Hosseini, supra, held cannot be used to exclude a claimant from international protection under the Convention.
[65] The panel's finding in regard to the exclusion of Mr. Rivan is set aside.
[66] For all of the reasons given, the panel's finding in regard to the applicant's exclusion is set aside but, in the circumstances, given the merit of the panel's decision as to inclusion, this application for judicial review is dismissed. No question need be certified.
"François Lemieux"
Judge
Ottawa, Ontario
December 24, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-3962-02
STYLE: SAEID RIVAN
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: FEBRUARY 26, 2002
REASONS FOR ORDER OF MR. JUSTICE LEMIEUX
DATED: DECEMBER 24, 2002
APPEARANCES:
ANNIE BÉLANGER FOR THE APPLICANT
NORMAND LEMYRE FOR THE RESPONDENT
AND
SHERRY RAFAI FAR
SOLICITORS OF RECORD:
ANNIE BÉLANGER FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA