Date: 19990630
Docket: IMM-3448-98
BETWEEN:
TAHEREH SHAKER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicant seeks an order setting aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, which decision found her not to be a Convention refugee.
[2] The Board's decision is based on a finding that the applicant lacked credibility because her evidence was full of inconsistencies and implausibilities. The applicant appeared twice before the Board, once on February 3, 1998, and a second time on March 2, 1998. By error the Board did not keep a tape recording of the first session. The respondent agrees that the Board's decision must be assessed by reference to the transcript of the second session, the applicant's affidavit, and the documentary record, which of course contains the applicant's personal information form.
[3] This reliance on inconsistencies and contradictions in the applicant's evidence can be seen, for example, in the following passage from the Board's reasons:
| The panel finds that the claimant does not have a well-founded fear of persecution in Iran, after considering and deliberating on the evidence before it, in its entirety. The panel has valid reasons to doubt and reject the truthfulness of allegations made in support of the claim, due to internal inconsistencies, contradictions and implausibilities that arose in the claimant's evidence, as well as inconsistencies with other evidence. Inconsistencies and implausibilities may be taken into consideration when making an assessment of the credibility or trustworthiness of the evidence. The panel finds that the claimant is not a credible witness. [Footnote omitted.] |
[4] There is no doubt that there was a certain amount of confusion at the hearing about the dates when events took place because the interpreter had to transpose from the Iranian to the Gregorian calendar, as well as interpret. In any event, despite the Board's statement that the applicant's evidence was full of inconsistencies, after a careful analysis of the evidence, the respondent identified only two possible inconsistencies and neither of these is clearly such.
[5] In one instance, the applicant said that she first contacted a smuggler to see about obtaining a passport to leave Iran in the Iranian month of Hordad. Hordad runs from approximately May 20 to mid-June. At another time, she said she obtained the passport in the month of Ordibehesht. That month runs from mid-April to approximately May 20. The Board considered her to have been inconsistent. A review of her evidence, however, reveals that she said that she obtained the passport within a couple of days of contacting the smuggler and that when she said, in the first instance, that it had been in the month of Hordad, she qualified that by saying:
| End of May and - I remember the months, but I really don't remember the days. |
When she was talking about when she received the passport she said:
| ... I believe it was the end of the month of Ordibehesht, which is about 20th or ... those days. I don't want to say. The last week of May. |
[6] The presiding member appears to have misunderstood her evidence because he later tells her "... you met the smuggler. You said the end of the month of Hordad, which is May, June 96." She responds again by saying that she had met the smuggler and he had obtained a passport for her at "the end of Ordibehesht or the beginning of Hordad". The inconsistency found by the Board does not exist.
[7] The other possible inconsistency identified by the respondent arises from the fact that the applicant refers, in her personal information form, to her nephew being detained after Komiteh members raided her house and found a satellite dish, which her nephew said was his. In her oral testimony, after explaining that a fine had been paid so that the nephew could avoid going to court, she said that her nephew was not detained. When she was subsequently asked about this inconsistency she said that her nephew had initially been taken into custody for questioning and then, once the fine was paid, he was released and not detained. This explanation is consistent with the rest of her testimony concerning the incident.
[8] The Board's decision contains several dubious assessments of other aspects of the evidence. The Board states at one point "The claimant gave contradictory testimony with regard to when she called Mr. Mansour, a prominent member of Mujahedin organization in Germany ...". Her testimony was not inconsistent, and Mr. Mansour was not a member of the Mujahedin, he was a member of the Fedaian (Majority), the organization the applicant states she supported.
[9] At another place the Board states:
| The claimant was a difficult witness repeating herself with the same information that was not necessarily directly related to the question asked. The panel observed that the claimant did not display any emotion nor could the panel detect any change in the tone or demeanour when she was recalling during her testimony the alleged traumatic event surrounding her severe beating in the car and subsequently thrown out from a moving car. It was alleged that the claimant had one of her ribs and left wrist broken and that it was so painful that it caused her to lose her senses. The demeanour is not determinative and is not infallible in reaching a finding as to whether or not truth is being told. Nevertheless, in conjunction with the inconsistencies and implausibilities for which reasonable explanations were not forthcoming, the claimant's demeanour can be of some help in assisting the panel to sense the lack of a ring of truth to the story being narrated. For all the aforesaid reasons, the panel concludes that the alleged incidents are a fabrication of the claimant, contrived in the mistaken hope that they would form a credible basis of the claim. [Underlining added.] |
[10] It is not immediately obvious why one should expect the applicant to become emotional when describing the beating, so long after the event. Individuals vary greatly as to the degree of emotion they show when describing such events - why is she assumed to be a person who would react emotionally? Insofar as the conclusion that the events are a falsification, there is medical evidence that she did suffer the injuries she described.
[11] The Board's treatment of the medical evidence is also somewhat odd. The Board states:
| The claimant submitted a medical report by Dr. Les Richmond with an attached Radiology report purporting to support the veracity of her claim with regard to the injuries received as a result of the beating at the hands of the Komiteh agency. It could be very well that the claimant had sustained injuries but the doctor cannot conclude that the healed bone fractures could only be the result of the beating at the hands of the Komiteh. The doctor can conclude that the healed bone fractures are consistent with the version of events told by the claimant but it is the panel that assesses the evidence and concludes if it is believable or not. The panel makes the finding that it is not. ... [Footnote omitted and underlining added.] |
[12] Dr. Richmond never purported to make any claim other than that the applicant had suffered the injuries she described, around the time she had described them as having occurred. He concludes his description of the injuries with "These findings are consistent with her history as outlined above [i.e., the history she recounted to him]". The Board in its reasons seems to be of the impression that he is doing more than that.
[13] The Board then refers to a letter the applicant submitted in evidence from the Organization of Iranian People's Fedaian (Majority) stating that the applicant had been persecuted in Iran and that she was a supporter of the Organization. The Board gives this letter little credence, referring to it as unsigned and noting that the Organization is based outside Iran "presumably to publicise [sic] and promote their cause in western countries". The letter is not unsigned and the treatment given to members of the Organization in Iran is ample reason to explain why it operates outside the country. The Board, of course, does not have to accept the factual assertions found in the letter (which it refers to as "opinion"), but the two above comments are not convincing reasons for doing so.
[14] That brings me to the finding of implausibility which is a major factor in the Board's decision. I will paraphrase that finding as being: if the applicant was a supporter of the Fedaian for so many years, and was suspected of being such by the Iranian government, she would have been executed or kept in long term detention. Her story is implausible because of the harshness with which the Iranian government treats Fedaian supporters and those suspected of being such.
[15] The Board's decision reads:
| The human rights situation in the Islamic Republic of Iran is characterized by long-term political imprisonment after unfair trials, the widespread use of torture and the death penalty . . . Those targeted for such abuses are often involved, but sometimes just suspected of involvement, in underground opposition activities. |
| State control is maintained through arbitrary detention, torture, and summary trials and executions, carried out by the Revolutionary Guards and other security forces. In February Reynaldo Galindo Pohl, the U.N. Special Reporter for human rights in Iran, released his annual assessment, which described the continuation of "persistent and widespread torture and ill treatment, chiefly to force detainees to confess, make public statements of repentance, or inform on the organizations they belong to." Pohl estimated that there are 19,000 political prisoners in Iran. |
| The U.S. State Department estimates that several hundred people are executed each year for political reasons . . . |
| Sixteen years after the establishment of the Islamic Republic of Iran, government opponents are still facing imprisonment after unfair trial, torture and execution. |
| The Government continues to be a major abuser of human rights. There was no evidence of improvement in 1995. Systematic abuses include extrajudicial killings and summary executions; widespread use of torture and other degrading treatment; disappearances; arbitrary arrest and detention; lack of fair trials . . . |
| From the forgoing, it is clear that the treatment to be expected by a suspected Fadayan supporter is therefore long-term imprisonment and/or execution. Yet the claimant would have the panel believe that she was harassed on various pretexts and released on each of these alleged incidents. Had she truly been suspected of being a supporter of the leftist anti-regime groups, the panel opines that the authorities would not need any pretext and that her treatment would have been much more severe. It could, perhaps, be argued, as the claimant implied, that the lenient treatment was due to the lack of solid evidence linking her to the leftist organization. In the context of Iran, the panel does not find this to be plausible. It is well documented that the Iranian judicial system has little in the way of the basic procedural safeguards and is characterized by an almost complete absence of anything resembling due process. When we note that even suspected supporters of the Fadayan or Mujahedin organization are executed in Iran, it is quite clear that legal niceties such as "evidence" are of no consequence in Iran. The panel therefore finds the female claimant's account of her harassments, interrogations, physical assault and releases as a suspected supporter of the Fadayan Khalgh organization to be too implausible and thus not credible. [Footnotes omitted.] |
[16] I set out counsel for the applicant's response:
| 38. It is submitted that the Board erred in fact and law by finding that the documentary evidence shows that a person in the Applicant's situation would have been put in long-term detention or killed a long time ago. The documentary evidence cited by the Board only says that people in long-term detention are "sometimes" people who were "just suspected of involvement". It does not say or suggest that anyone under suspicion is put in long-term detention or killed. Such an interpretation is perverse, given that the Iranian government can be suspicious of a citizen for anything from actual political activism to simply not being demonstrative enough in their support of the state religion. |
| 39. It is further submitted that this argument is perverse since it essentially amounts to saying that any real perceived dissident should be in jail or dead. In effect such an argument negates the possibility of anyone being determined to be a Convention refugee from Iran. |
| 40. It is further submitted that this finding is capricious, as the Board contradicts it on the next page. At p. 13 the Board finds that there is "no question" that her claim would be a valid basis for fearing persecution if it were true. This assertion makes no sense if the Board truly believes that her claim is theoretically impossible. ... [Underlining added.] |
[17] Counsel for the applicant referred to the decisions in El-Naem v. Canada (Minister of Citizenship and Immigration) (1997), 126 F.T.R. 15 and Moradi v. Canada (Minister of Citizenship and Immigration) (Imm-2317-97, September 23, 1998). In both cases the Board concluded that the applicant's stories were implausible, decisions similar to that under review in this case. In the first, the Board rejected the applicant's claim on the grounds that it was implausible that a suspected supporter of the Muslin Brotherhood in Syria would be detained and then released. Mr. Justice Gibson held that the Board erred in concluding that the applicant was a suspected supporter; the evidence clearly indicated that the applicant faced persecution because of his family's connections to the Brotherhood, not his own. In the Moradi case, Mr. Justice MacKay also rejected implausibility findings as not being warranted, findings which were essentially the same as those in this case. Counsel says similar results pertain to the facts and the reasoning of the Board in this case.
[18] There is merit to that argument. I do not, however, find it necessary to assess the implausibility findings of the Board separately from its erroneous inconsistency findings. I considered whether it was possible to separate the two, and found that the decision could not be dealt with in that fashion. I could not disentangle the inconsistency findings from the implausibility findings, they are intertwined throughout the decision and they are the basis of the Board's negative decision.
[19] The Board's errors in finding inconsistencies where none existed are sufficient to require that the decision be set aside and the applicant's claim be referred back for reconsideration.
Judge
OTTAWA, ONTARIO
June 30, 1999