IMM-3470-97
RD/az
FEDERAL COURT OF CANADA
B E T W E E N:
MOHAMMAD REZA SHOJAIE ASANJAN
Applicant
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HELD BEFORE: Mr. Justice Muldoon
| HELD AT: 330 University Avenue |
Toronto, Ontario
| HELD ON: October 22, 1998 |
REGISTRAR: Sandra McPherson
REPORTER: Robert Dudley, CVR
A P P E A R A N C E S:
| ISAK GRUSHKA, ESQ. -- for the Applicant |
| STEPHEN GOLD, ESQ. -- for the Respondent |
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INDEX OF PROCEEDINGS
Page No.
Submissions by Mr. Grushka 1 - 78
Submissions by Mr. Gold 78 - 106
Reasons for Judgment 107 - 109
--- upon convening at 9:30 a.m.
| --- upon commencing at 9:35 a.m. |
| HIS LORDSHIP: Mr. Grushka, your client is the Applicant, so you have the floor. |
SUBMISSIONS BY MR. GRUSHKA:
| Good morning. Thank you. This is a judicial review of a decision of the IRB. Mr. Shojaie was a claimant from Iran, a refugee claimant from Iran, and the summary of his claim is in his Personal Information Form, in the narrative of his Personal Information Form, which is set out in the Tribunal Record from page 20 forward. |
| HIS LORDSHIP: That is in the Tribunal Record, is it? |
| MR. GRUSHKA: That is in the Tribunal Record, yes. The reproduction of the Personal Information Form, the narrative of the Personal Information Form, and this is what Mr. Shojaie was putting forward, in effect, that he was the son of a wealthy royalist prior to the revolution in 1979 in Iran. |
| HIS LORDSHIP: Now, Mr. Grushka, you almost misspoke yourself. Why don't we clear that up now? You call him Shojaie. His last name appears to be Asanjan. |
| MR. GRUSHKA: My understanding of the surnames, of these types of surnames, is that Shojaie is sort of the...Asanjan is almost the place name. |
| HIS LORDSHIP: Okay, Shojaie from Asanjan? |
| MR. GRUSHKA: That is correct. So, that is why I am calling him Shojaie. |
| MR. GRUSHKA: It is Shojaie Asanjan. Asanjan, you will have many people with the name, as I understand it, different names and then Asanjan attached to it because they happen to be from the Asanjan area historically at some point in time. |
| HIS LORDSHIP: So, many people will bear that name? |
| MR. GRUSHKA: The Asanjan portion. |
| HIS LORDSHIP: Yes, but only a few Shojaie? Only the family? |
| MR. GRUSHKA: That is correct. |
| HIS LORDSHIP: I see. Thank you. |
| MR. GRUSHKA: So, that is why I am calling him Shojaie. So, his father was...Mr. Shojaie claims his father was from a royalist background, a wealthy man, and royally four wives as well. And, as a result of his father being recognized as someone who was involved with the former regime, that the family, the sons of the patriarch of the family, ended up with difficulties. The father of Mr. Shojaie, it is alleged...it is claimed by Mr. Shojaie his father was arrested and actually died in custody in 1987, and a half brother similarly died in custody shortly thereafter, and that Mr. Shojaie's home itself was invaded a number of times, particularly after his father's and his half brother's arrest. He himself was...Mr. Shojaie was taken into custody a number of times for questioning. And Mr. Shojaie indicated as a result he had difficulties. His wife couldn't tolerate this constant harassment by the regime, and she left. |
| The culminating incident for him was when he bespoke himself. He was involved in a karate club and he bespoke himself to someone that turned out, in his mind, to be a regime supporter, and Mr. Shojaie spoke bitterly about the regime and subsequently some Pasdarans came and approached him and he ended up in a fight with them, and then he ran away from Tehran, remained in hiding in the sort of cottage area for a number of months and then made his way to Canada. He left Iran and made his way to Canada. This is set out in the narrative of the Personal Information Form at pages 20 to 22 of the Tribunal Record. |
| In the decision from the Refugee Board, which is set out in the Tribunal Record, again, from page 3 of the Tribunal Record running through page 8 of the Tribunal Record. |
| Initially, the beginning of the decision, the Board, at page 5 of the Tribunal Record goes through the preamble that is usually gone through at the beginning of the writing of a Decision, and then, at the bottom of the page, begins its analysis or its conclusions, or a summary of its conclusions at the bottom of page 5 of the Tribunal Record, which is page 2 of the Decision. It summarizes what the Panel will later go on to support in its Reasons, |
| "...that the Panel has valid reason to doubt and reject the truthfulness [this is the last paragraph] of the allegations made in support of the claim, due to internal inconsistencies in the Claimant's evidence, as well as external inconsistencies [that is, inconsistencies with other evidence] and implausibilities..." |
| So, looking at internal inconsistencies, external inconsistencies and implausibilities. |
| And it goes on to the next page that the allegations do not meet the real test of the truth of the story, that is, that it be in harmony with the probabilities which a practical and informed person would readily recognize as reasonable. |
| And then, it particularizes the Decision in the third paragraph on page 6 of the Tribunal Record; it particularizes the problem with the evidence, in the view of the Tribunal. And the issue in this claim is authenticity of the two summonses the Claimant allegedly received in Iran and his ability to depart Iran using his own Iranian passport. |
| The two summonses are included in the Tribunal Record and they are at page 80. Page 80 is the translation of one, and page 81 the translation of the second, of the Tribunal Record. And, page 80, the translation indicates that the name of the person to appear in Court, and refers to Mohammad Reza, last name... |
| HIS LORDSHIP: His father named him after the last Shah, Mohammad Reza Pahlavi. |
| MR. GRUSHKA: That is correct. |
| HIS LORDSHIP: He would attract attention. |
| MR. GRUSHKA: It is interesting, when you mention that, I had a client from Iran whose first name was Michael and he had made a refugee claim here. and he said his first name attracted attention. I said, "How did you ever get the name Michael in Iran?" and he said, "Well, I was born on the day that Michael Collins landed on the moon", or what was it? I forget who the astronaut was who landed on the moon..."So, they named me Michael, and I really had difficulty after the revolution because of that name, Michael." |
| HIS LORDSHIP: But, Michael is just another archangel, like Gabriel, who spoke to Mohammed, who told Mohammed God's word, which is in the Koran. It is strange. Male children are named Gabriel, Jibrail. |
| MR. GRUSHKA: A lot of people may use the Koran and a lot of people may use the Bible but haven't really read it in any event. |
| HIS LORDSHIP: It seems to me they have to read it more in Islamic countries, the Koran, than the Bible is read in non-Islamic countries. However. So, Michael gave him problems and this client's name is... |
| MR. GRUSHKA: Mohammad Reza. I don't know if that caused him problems, but, in any event, it indicates on page 80 of the summons, that he is being called to Court for failure to present himself and for activities against the government of the Islamic Republic of Iran. And, the summons...the second summons on page 81, which actually predates the other one, so they should be in reverse order. |
| HIS LORDSHIP: The second is this number on 80, because that is for failing to appear the first time. |
| MR. GRUSHKA: That is correct, yes. The other summons, which is the first summons, is on page 81. That is the earlier summons. It is an explanation about his brother, Mostafa Shojaie Asanjan, |
| "...travelled abroad and your help on this matter, and your information about his place or living..." |
| So, those are the summonses that are referred to in the decision on page...going back to page 6 of the Tribunal Record. |
| The issue is the authenticity of those two summonses that the Claimant allegedly received in Iran, and also another issue that is being particularized is the ability of Mr. Shojaie to depart Iran using his own Iranian passport. |
| And then, in the following paragraph, the Panel then deals with what it sees as being problematic with the summons. It doesn't deal with the summons itself. Rather, what it deals with is his explanation as to how and where he received them, and the Panel says that it felt that his explanations about how and where he received them was evasive and internally inconsistent, and to demonstrate that... |
| HIS LORDSHIP: They meant to say, more grammatically, "were evasive". |
| MR. GRUSHKA: Yes, I was just realizing that as I was reading it. And then... |
| HIS LORDSHIP: Left in the yard of his house, apparently. |
| MR. GRUSHKA: Yes. They say, |
| "...At one point, he had them being left in the yard..." |
| And so I guess the inconsistency was, |
| "...and then, he left them with some neighbours, and, finally, they were sent to his 'personal' house..." |
| HIS LORDSHIP: Now, why is that in quotation marks? Why does the CRDD Panel put "personal" in quotation marks? |
| MR. GRUSHKA: I think...I don't know that they really understood what was being said. Rather than him being evasive and internally inconsistent, I think that they looked at the evidence and really didn't understand it, rather than being inconsistent. It seems plain to me, and it is only at one point that evidence is given on that, and I will refer you to it. It is only at one point you look through the transcript where that is asked or where the claimant talks about that. And, that point is at pages 64 and 65 of the Tribunal Record, and that is really the only evidence that is ever canvassed...testimony, that is, that is ever canvassed as to where the documents were left. |
| HIS LORDSHIP: One sixty-four and 165? |
| MR. GRUSHKA: Yes. And I have looked through the transcript and that is the only place that I have found any evidence, any testimony, rather, from the Claimant or from anyone else. There was one other witness, that was his half brother, but the only testimony was at page 164 and page 165. |
| And, if we go to about a third down the page and counsel asks, |
| "...Where did you get the two summonses?..." |
| "...These two summonses were sent to our house and, through the neighbours, they had given it to my family..." |
| "...When you say 'our house', what do you mean? Whose house?..." |
| "...These two warrants, they were sent to my own personal home..." |
| I suppose that is where they got the "personal" in quotations. I am not quite sure what the meaning of that is in terms of putting it in quotations in the Decision. |
| "...These two warrants, they were sent to my own personal home which I was living there, sent it there..." |
| "...So, how would...was there someone else living in the house besides yourself?..." |
| "...No, I was living by myself..." |
| "...So, how would someone have access to those papers in your house?..." |
| "...Iran is not like Canada, that houses have the mail boxes. When they bring letters, either they throw it to the yard, or they gave it to the neighbours..." |
| HIS LORDSHIP: All right, now, so that isn't the family house or home, where his mother and the other wives of his father lived, but he... |
| MR. GRUSHKA: It is his own home. He had been married and was living on his own. |
| HIS LORDSHIP: He says...I am not sure, maybe he means one summons and then the other summons, but, |
| "...These two summons were sent to our house..." |
| "Our house", not "my house" but "our house". Perhaps he recognizes his wife's claim to dower or something, I don't know. |
| "...were sent to our house and, through the neighbours, they had given it to my family..." |
| I don't understand this either, I must say. I am having trouble. I don't know what he means. |
| MR. GRUSHKA: Well, that is why the question was asked, when you say...that is why counsel...the questioning was continued further, to clarify that so we would know what "our house" meant. |
| "...So, when you say 'our house', what do you mean? What house?..." |
| And so then he explained, |
| "...These two warrants, they were sent to my own personal home..." |
| HIS LORDSHIP: What did he mean by, |
| "...and, through the neighbours, they had given it to my family..."? |
| MR. GRUSHKA: Yes, that is correct. |
| HIS LORDSHIP: You should know. |
| MR. GRUSHKA: Yes. Well, so that is why the question then went on. |
| "...So, how would...was there someone else living in the house besides yourself..." |
| because he had initially said, "they were given through my neighbours", |
| "...No, I was living by myself..." |
| So then, the question is, |
| "...So, how would someone else have access to those papers?..." |
| HIS LORDSHIP: And that refers to the neighbours, I suppose? |
| MR. GRUSHKA: That is correct. |
| "...How would someone else have access to those papers..." |
| because what he had said at the top was, |
| "...These two summonses were sent to our house and, through the neighbours, they had given it to my family..." |
| "...Well, how did they, the neighbours, get it to give to your family?..." |
| HIS LORDSHIP: But, he was living alone there, so how did they give it to his family? His neighbours, where he was living alone, "gave it to my family". |
| MR. GRUSHKA: Yes, so he explains that Iran is not like Canada that houses have the mailboxes. |
| HIS LORDSHIP: No, no, but you see, he was living alone there. He said so. |
| HIS LORDSHIP: So, the mail comes, the postman gives it to the neighbours where he was living alone, and he says, |
| "...the neighbours, they had given it to my family..." |
| HIS LORDSHIP: What does he mean by that? I don't know what that means. |
| MR. GRUSHKA: I believe, and I don't know where... |
| HIS LORDSHIP: It sounds like his half brothers and his mother... |
| MR. GRUSHKA: No, in the...I think there is another point in the transcript, I recall reading, and I am going to have to find that, where he said that it was delivered...the summonses were sent to him where he was staying at a cottage in... |
| HIS LORDSHIP: In a lake district, in the country. By a lake. |
| MR. GRUSHKA: I beg your pardon? |
| MR. GRUSHKA: Yes, and that they were sent to him there. I don't remember if he particularized which family member sent it to him, but let me see if I can... |
| HIS LORDSHIP: Well, wait then. You mean to say the neighbours of his family received them...no, but that is not the house where he is living alone. Look, we are only at 164. You mentioned 165. Perhaps we will get some light shed on it. |
| MR. GRUSHKA: No. I will continue on on 164, that deals with the address, because there was two...in that page 6, again, of the Tribunal Record where I started off with, |
| "...The summonses are problematic on many fronts..." |
| Actually, only 164, just that particular section, deals with the summonses, the part I just referred to. |
| MR. GRUSHKA: But, continuing on that page, deals with the second problem that the Tribunal had. When you continue on down that paragraph, they said, |
| "...What is worse, when the Claimant gave his personal address, where he allegedly received these two summons, he gave different street names and apartment numbers during his testimony, and his explanation was very evasive in this area..." |
| That is, with the addresses. |
| HIS LORDSHIP: All right. Now, here is where he is asked, |
| "...What was the address you lived at at that time?..." |
| MR. GRUSHKA: That is correct, and he responds, "Mirdamdad". |
| MR. GRUSHKA: And then, the interpreter spells that out. And then he says, "Zafar Street" and the interpreter seems to spell that out, Zafar. And he says, |
| "...Then, there was a small street but I have forgotten the name, and the number was 41, and I think the apartment number 2. I don't...it is one and a half, one year and something passes...I don't remember the address..." |
| "...Well, how long had you lived there?..." |
| and he said, "Approximately one and a half years." |
| That is the address portion. Now, the Tribunal says that he gave two different...gave different street names and apartment numbers. Well, talking about the street names, on the address that the summons is, you will see there are two street names, just as the names that he had given. If you take a look again at page 80 and 81 of the Tribunal Record, which are the translations of the summonses, you will see that they provide two different names. |
| And, again, although this is all on the record, my understanding is that they have...they name their addresses by cross streets really, and so, Shams Tabrizi number 41, Shams Tabrizi Alley, Mirdamad Street. |
| HIS LORDSHIP: Where is Zafar? |
| MR. GRUSHKA: This is on page 80 of the... |
| HIS LORDSHIP: Yes, I see this on page 80. |
| MR. GRUSHKA: You see, it says "add", about the fourth line down, it says "father's name" and then underneath "father's name". |
| HIS LORDSHIP: I see. Number 41, Shams Tabrizi Alley, Mirdamad Street, Tehran. |
| HIS LORDSHIP: That is not at the lake, though. |
| MR. GRUSHKA: I beg your pardon? |
| HIS LORDSHIP: Is that at the lake? Is that where he was living alone at the lake? |
| MR. GRUSHKA: No, when he was up at the lake, that was for about a six or seven month period when he was hiding. |
| MR. GRUSHKA: The cottage area. |
| MR. GRUSHKA: No, this was his normal home that where he had received. |
| HIS LORDSHIP: He wasn't living there alone, was he? After his wife left? |
| HIS LORDSHIP: That is where he and his wife lived? |
| MR. GRUSHKA: That is where he and his wife...that had been his family home. |
| HIS LORDSHIP: Did he ever say so? |
| MR. GRUSHKA: That that was his... |
| HIS LORDSHIP: Family home? |
| MR. GRUSHKA: I don't know that there is specific reference in the testimony where he was ever asked where his family home was at the time. But, in terms of the continuity of his testimony, he had said he lived at a certain place and he left that place to go into hiding after he had the incident where he got involved with the Pasdaran. |
| MR. GRUSHKA: He left his home and went to the cottage area. |
| MR. GRUSHKA: Lived in a cottage-type area. And the summonses were delivered to his home or the cottage area...he was in hiding. That wouldn't have been his home, the cottage area. |
| HIS LORDSHIP: Right, but then... |
| MR. GRUSHKA: I mean, in terms of the continuity. |
| HIS LORDSHIP: You know, there seem to be typed copies of this translation. |
| MR. GRUSHKA: Yes, well... |
| MR. GRUSHKA: There are two translations. This was a translation...the handwritten translation was done by the interpreter at the port of entry... |
| MR. GRUSHKA: ...when he arrived. We did not...my office did not have that until much later on in the proceedings, so I, through my office, prepared a translation of the summons. We had a copy of the Farsi summons, and that is the typed translation that you have. |
| HIS LORDSHIP: And I take it that the year and date had to be translated also into the Christian era date, because they would be according to the Islamic date, wouldn't they? It is 14 something in the Islamic calendar, and it is... |
| MR. GRUSHKA: Thirteen hundred or something. |
| HIS LORDSHIP: So, that isn't a translation exactly. |
| MR. GRUSHKA: Which one are you talking? Which one is not...the handwritten one? |
| HIS LORDSHIP: Either one. They both use Christian era dates and not Islamic. |
| MR. GRUSHKA: That is correct. They converted the Islamic into the... |
| MR. GRUSHKA: ...which is 621 years difference. |
| HIS LORDSHIP: Exactly, 621 years difference. So, all right. Well, then, it helps to know that the translation was not only made literally, but it was made historically as well. |
| MR. GRUSHKA: Yes. As a matter of... yes, you are quite right. It seems to me...as a matter of practice, a matter of course, I do a lot of Iranian claims...that when the translations are done, the interpreters go one step further and they almost, in effect, give evidence... |
| MR. GRUSHKA: ...in terms of the dates. There is, I know in my office I have a chart which converts, and the interpreters just look up that chart, you know, and I suppose the Board members could do the same if they were satisfied with the accuracy of that chart. |
| HIS LORDSHIP: Well, maybe you should make a contribution to the Board; it would probably be helpful. |
| MR. GRUSHKA: Well, then, I would have to establish the accuracy, I suppose, of that particular chart. |
| HIS LORDSHIP: Well, we can start by subtracting 621 and then find the appropriate month. |
| MR. GRUSHKA: Yes. In any event, his... at page 165, he refers to the same streets, and the same numbers, so... |
| HIS LORDSHIP: But, he gives Zafar, which doesn't appear on the summons at all. Perhaps that is a little different, but I can understand how the Board would be confused. First of all, he gives 41 and 42 as street addresses. |
| MR. GRUSHKA: Well, he starts, yes, with number 42, I think apartment number 2, and then he says the number was 41... |
| MR. GRUSHKA: ...and the... |
| HIS LORDSHIP: So, he corrected himself on the street number. |
| MR. GRUSHKA: Yes, and this is not...I mean, he may have bespoke himself...or misspoke himself because this is like following one right after the other, you know, like saying, "My address is 560 Briar Hill...562 Briar Hill". |
| HIS LORDSHIP: I see that. That doesn't trouble me. But, there is no mention. I don't know what...it is very clear. It is two lines, it takes: Claimant says "Zafar Street" and the interpreter spells it, Z-A-F-A-R. Now, Mirdamdad is... |
| MR. GRUSHKA: That is another street. |
| HIS LORDSHIP: You see, it is pronounced and spelled "Mirdamad" in the summons, both of them, and the Court reporter may have got it wrong, but it is Mirdamdad, instead of Mirdamad. In the summons, it is M-I-R-D-A-M-A-D Avenue. In the transcript, it is M-I-R-D-A-M-D-A-D, which is spelled by the interpreter, and then the Claimant says, "Zafar Street" and the interpreter spells Z-A-F-A-R. And then, what is common, of course, is Shams Tabrizi Lane, number 41. That is on the summons. |
| MR. GRUSHKA: Well, he said there was a small street and he forgot the name, you see, that is why...and you have in the summons, they call it Shams Tabrizi Alley. |
| HIS LORDSHIP: Yes, or lane. |
| MR. GRUSHKA: And, in the typed version it is, I think, Lane...called a lane, so I assume that would be a small street. It just seems to me that it is rather... |
| MR. GRUSHKA: ...picky. You can say that, but it seems to me really picky when you put it into the context. I mean, the context is "42, no 41, the streets are Mirdamad and a small street, I have forgotten the name...a small alley". I don't know if the place is called an alley or lane, if that is the small street he is referring to. But, I think these things have to be taken in context and what has been done is... |
| HIS LORDSHIP: So, there is no Zafar in the summons and that comes from him and what does he mean by that, one wonders...the Panel wondered, I suppose...Zafar. |
| MR. GRUSHKA: Although the other elements are there. |
| HIS LORDSHIP: Different pronunciation, I presume, but they are there, as opposed...Mirdamad as opposed to Mirdamdad. |
| MR. GRUSHKA: Yes, you know, this is not like...these are place names or street names, and an interpreter, I suppose, is translating and it is not like a word in context. I mean, a name is like an out of context... |
| HIS LORDSHIP: That is right, but the pronunciation, you see, would be different. No matter what the alphabet, pronunciation would retain the same form and characteristic. All right. But, it doesn't concern me. It may have concerned the Panel that there is a lane or an alley, and it does not really concern me, if I read this transcript with the experience I have reading transcripts, that he corrected the address right away, virtually in the same breath. And, the only outstanding problem there, I suppose, is Zafar Street and that comes from him but no one else. |
| MR. GRUSHKA: Yes, and again, if you take a look at the address the way it is in the summons, and it is also...and I don't know...it is also in the port of entry notes. Now, I don't know if that was...it is not clear in the port of entry notes, the typed up version from the immigration officer, whether he took the address from the summons. They put down the personal address... |
| MR. GRUSHKA: ...of the...what he took from the summons or took it orally from the Claimant. |
| HIS LORDSHIP: I am not... |
| MR. GRUSHKA: I beg your pardon? |
| HIS LORDSHIP: Subject to hearing from Mr. Gold, I am not impressed with the CRDD's findings about evasiveness in the matter of address, but there are other implausibilities there. |
| MR. GRUSHKA: Yes, all right. I will... |
| HIS LORDSHIP: So, we have got over that hurdle for the moment. |
| MR. GRUSHKA: Okay, I am glad about that. I will move on, then. |
| MR. GRUSHKA: Those are the factual issues. Now, we are dealing with sort of the... well, there is one other instance, and that is where they talk about factual inconsistencies, and that is on page 7 of the Tribunal Record, and then I will get to the implausibilities. On page 7 of the Tribunal Record, which is page 4 of the Decision, and this...they move on to the second issue that they are concerned with, that they refer to on the previous page of their decision where they say, |
| "...The issue was the authenticity of the two summonses and his ability to depart Iran..." |
| Now, we are talking in this paragraph on page 7, the last paragraph, page 7 of the Tribunal Record, we are talking about his ability to leave Iran. |
| HIS LORDSHIP: There are other implausibilities, another one mentioned at the foot of page 6. |
| MR. GRUSHKA: Yes, that is... |
| HIS LORDSHIP: Oh, you will come back? |
| MR. GRUSHKA: I will come back to all the implausibilities. |
| MR. GRUSHKA: I am just dealing with the factual, what I see as, misapprehensions or misstatements. |
| MR. GRUSHKA: So, that is where they talk about his exit at the airport from Tehran, and we come...they talk about him. He testified that... in the middle of that last paragraph...he went through four inspections. The first time, an official checked his airline ticket and then only passengers with valid tickets are allowed into the airport. A second inspection by a customs official who looked through his suitcase. A third inspection by the colonel, who was allegedly bribed to let him pass through. And, at this point...it is at this point, at this inspection, that the Claimant becomes ...and again, "internally inconsistent and evasive". |
| HIS LORDSHIP: That is the third of the four inspections? |
| MR. GRUSHKA: Yes. And, the Panel's view of it is: Look, at one time he says he just passed through without any hindrance, and at another time, he says his name was put into a computer by the colonel and then he was allowed to pass through. And, in a way they are correct, that they can...we will go to the transcript. In a way, they are correct, but I don't think that they are different. |
| That is, he passed through without hindrance, and he passed through...and he was allowed to pass through after his name was put into a computer. I really don't think, taking a look at the evidence, that there was any difference in terms of that, and I will point out to you what I mean. |
| The sections of the testimony or the transcript that deals with that is at pages 162 to 163. Let's take a look at that, of the Tribunal Record. And we go to the middle of the page on page 162, and he is asked, |
| "...Counsel: Did someone accompany you through the kiosk? The colonel?..." |
| "...No. The colonel saw me and I saw the colonel. We didn't exchange any words. They told me only to pass through the kiosk of the colonel..." |
| "...Were there different kiosks to pass through?..." |
| And, down at the bottom of the page, |
| "...Then, how did you know which kiosk was the colonel's you were supposed to go through?..." |
| "...They had given me the particulars of the person and they told me the name, even..." |
| "...Did you...when you approached, going through the kiosk, did you have a choice of kiosks to go through?..." |
| "...Yes. When you go there, yourself, you have been there. When you go there, there are different kiosks that you can choose. No one forces you to go through a specific kiosk. That is your choice..." |
| Really, the part that deals with the interaction between himself, as he went through the kiosk, and the colonel is on page 162, |
| "...The colonel saw me and I saw the colonel. We didn't exchange any words. They told me only to pass through the kiosk of the colonel..." |
| And the next that is dealt with, at page 180 of the Tribunal Record... |
| HIS LORDSHIP: He presented the colonel with his passport, did he not? How could his name be entered in the computer if the colonel didn't know his name? |
| MR. GRUSHKA: Yes, and that is dealt with at page 180. |
| HIS LORDSHIP: One eighty? All right. Thank you. Yes? |
| MR. GRUSHKA: Okay. And, again, he is still being questioned by myself, and this is at the top third of the page, |
| "...Counsel: So, you recognized this colonel as being a police officer?..." |
| "...And you said he had a computer at his kiosk..." |
| and he must have said that earlier. |
| MR. GRUSHKA: I beg your pardon? |
| MR. GRUSHKA: "...And you said he had a computer at his kiosk..." |
| "...Did he...when you showed him your passport, did you see him do anything with the computer? Did he operate..." |
| Well, let's go back further. Maybe there is talk about a passport then. |
| HIS LORDSHIP: Well, just after the passage you mentioned, you asked what document he had with him, and he had his Iranian passport. |
| "...When you showed him the passport, did you see him do anything with the computer? Did he operate the computer?..." |
| "...No, he didn't do anything..." |
| "...Did he say anything to you?..." |
| "...No, only asked my name. I nodded yes..." |
| "...Did you show him...I am sorry, you nodded?..." |
| "...Okay. You say he asked your name. Did you show him some papers?..." |
| "...No, he didn't ask me because people are there, but I put my passport in front of him..." |
| "...Yes? Sorry, I don't know what you mean, he didn't ask you because people are there. What are you saying?..." |
| "...What I am saying is that there is a queue that people go one by one, and one after the other go in front of him. What I mean, that other passengers could see..." |
| "...This colonel, was he alone or did he have another officer or employee with him?..." |
| "...And, when you go up to the queue, up to the kiosk and you say there is a queue, are the people sort of right behind you where they can see or hear what is going on, or is there a distance separating each person as they deal with the officer?..." |
| "...No, there is a distance, like my distance with the member..." |
| "...The Board members? All right. So, describe to me what happens. You are in a line and then, when do you know when to approach this colonel or this kiosk?..." |
| "...When the person was known, the question was not very important..." |
| "...Well, you say there is a distance between people in the queue and the people at the kiosk of about...you and the Board members, which is about, I would say, 10 feet or so. Did you have to wait for someone in front of you to complete their dealings with this officer at the kiosk?..." |
| "...Then, what did you do?..." |
| "...You mean after I submitted my passport?..." |
| "...No, the person in front of you finished dealing with the officer, then what did you do?..." |
| "...Then, I went to the front and I gave my passport..." |
| "...Did he say anything to you when you handed him the passport?..." |
| "...Only asked my name..." |
| "...All right. And, after you gave your name, then what happened?..." |
| "...He delayed it...or, he delayed it for a few minutes and then said, 'Go'..." |
| "...When you say 'he delayed', what was he doing while he delayed?..." |
| "...Apparently was playing with the computer..." |
| "...So, he was playing with the computer. Do you know what he was doing with the computer?..." |
| "...No, but apparently he was entering my name..." |
| "...Well, do you know that?..." |
| "...That he was entering my name?..." |
| "...Yes, do you know? You say apparently he was entering your name. Do you know what he did? I mean, I know you saw him playing with the computer, but do you know what he did with it?..." |
| "...I was seeing his hands that he was playing with the computer..." |
| "...But, did you see what he punched in?..." |
| And then, the presiding member interrupts and says, |
| "...Let's be fair. That is not what the Claimant just said a few moments ago, and I would like you to respond to that. Not more than a few moments ago, counsel asked you, did he have a computer at the kiosk, and you said he did. And, you indicated that 'He did not operate the computer when I came there.' You said, 'He asked my name' but he didn't ask for any papers, you said, when I put the passport in front of him. Now, you have walked up, you have given him the passport, he asked your name, you have delayed for a period of time, and he was using the computer..." |
| "...I didn't say that he was using it. Apparently he was doing this so that others would think so..." |
| And that is where that particular... |
| HIS LORDSHIP: Had he already indicated that the colonel was bribed? |
| HIS LORDSHIP: I see, all right. |
| MR. GRUSHKA: He had indicated that the colonel had been bribed. Now, I really don't see where, in this testimony, there is this difference that is referred to in the Decision where he says, at one time...and this is again going back to page 7 of the Tribunal Record which is back to the Decision, page 4 of the Decision, at one time saying he would just pass through without any hindrance, and another time saying his name was put into the computer by the colonel, then he was allowed to pass through. I mean, they are not different. |
| HIS LORDSHIP: No, but the effect of his testimony was that his name was not put into the computer, but the colonel pretended to be putting it... |
| MR. GRUSHKA: Well, he wasn't even sure. |
| HIS LORDSHIP: No, he wasn't even sure. |
| MR. GRUSHKA: He wasn't even sure. I mean, he just saw him...he didn't know what he put in... |
| MR. GRUSHKA: ...but he wasn't hindered, and that was...and I don't know that the Panel was saying, "Well, there is a difference between passing through and putting the name into the computer and being allowed to pass through. I just don't see where there is an inconsistency really. So, that is the factual misstatements I see, or misapprehension. |
| And, now I will come to the implausibilities. |
| MR. GRUSHKA: And, the implausibility, if we go back again to page 6 of the Tribunal Record, which we are dealing with the first issue that they are concerned with, the summonses, and the implausibility of just bringing the summonses. Because, in the middle of the last paragraph on page 6 of the Record, he testified that he brought these summonses with him from Iran, carrying them in his suitcase. |
| Considering...well, we should go before that. |
| "...Not only was the Claimant not internally consistent in his explanations, but his story about how he had them in his possession in Canada is also not plausible..." |
| So, they considered the following not plausible: |
| "...He testified that he brought these summonses with him from Iran, carrying them in his suitcase. Considering that he claims he left Iran illegally, without the assistance of a smuggler, through Mehrdad (phon.) airport, it seems to us that he would be taking a grave risk if they were found on his possession during any number of checks. What is even more bizarre is that he claims he followed the smuggler's instructions to destroy his authentic Iranian passport but did not follow the smuggler's instructions not to carry the summonses because, if discovered, it would mean certain detention in Iran..." |
| All right. How does he deal with that in terms of the testimony? This is at page 164 of the Record, where the question, I believe there, was put to him, and again, it is put to him by myself. At the top third, the Claimant, |
| "...Only the documents which are now with the member, I brought those..." |
| and the reference is to the summonses. |
| MR. GRUSHKA: Page 164 of the Tribunal Record, at the top...about the fifth line, the Claimant says, |
| "...Only the documents which are now with the member, I brought those..." |
| MR. GRUSHKA: That was in reference... those were the summonses he was referring to. |
| "...And, why did you bring those?..." |
| "...Because I wanted to have some documents so that they would recognize that I am there..." |
| "...Where did you get the two summonses?..." |
| Then we go on. I have already gone through that. So, that is his response as to why he brought those summonses, okay? That is really the only part that deals with why he brought them. |
| MR. GOLD: My Lord, I don't wish to interrupt, but that isn't the only part dealing with this issue, and I didn't interrupt on the previous occasion when we were dealing with the computer and the colonel, but there is another passage that deals with that as well. In fact, two more passages. As I say, I don't wish to interrupt, My Lord, but there are relevant passages in the transcript that I can... |
| HIS LORDSHIP: Well, you are alerting me to your presentation... |
| MR. GOLD: I am, I am sorry. |
| HIS LORDSHIP: ...and submissions when the time comes. |
| MR. GRUSHKA: I appreciate that and, if I have overlooked it, I will be glad to hear from my friend's response when he deals with them. |
| HIS LORDSHIP: Now, all right, carry on please, Mr. Grushka. Now, the inconsistency mentioned on page 6 of the Tribunal Record, has to do with he followed the smuggler's advice to destroy his passport and did so, but he kept the summonses in his suitcase, and they would mean certain detention if discovered. |
| MR. GRUSHKA: Okay, yes, and he is quite right, and I have my notes. I was going to move onto that, page 166 that I have that deals further with the summonses, why he brought the summonses, and I apologize to the Court for that. That was ...page 165, 166. At the top of the page, |
| "...What about the passport you were travelling with? What did you..." |
| Excuse me, 166. No, here, we will go back to 165. |
| MR. GRUSHKA: Down at the bottom of the page... |
| MR. GRUSHKA: ...counsel asks the questions about five, six lines up, |
| "...Did the agent that was arranging your trip, did he tell you anything about travelling with personal documents, whether you should or you shouldn't?..." |
| "...He told me not to take them with me, but I brought with me..." |
| "...What about the passport you were travelling with? What did you do with that?..." |
| "...I destroyed it. I tore it in the airport..." |
| "...In Vancouver airport..." |
| "...I was instructed so by the smuggler..." |
| "...You didn't...you travelled with personal documents, even though the smuggler instructed you not to. Why did you obey one and not the other?..." |
| "...Because I knew that if these people have...when they arrive, if they have the passport, it is possible that they deport them, and I didn't want to be deported to the place which my life was in danger..." |
| "...How did you know that information that you would be deported if you had your passport?..." |
| "...In Iran, I heard that..." |
| "...Which country did you hear this about in Iran?..." |
| "...I am sorry, what?..." |
| and the member interjects, |
| "...When you were in Iran, which countries did you hear would deport people if they had a passport from Iran?..." |
| "...When I heard, it was about Canada, Sweden, or maybe Germany..." |
| And, again, moving on to page 172 of the... |
| HIS LORDSHIP: So, what your point is is that that is not unexplained; he gave an explanation. |
| MR. GRUSHKA: Yes, then we move on to page 172 of the Tribunal Record, and again...and this is now the Refugee Claims Officer questioning the Claimant. |
| HIS LORDSHIP: Yes, pretending that it isn't cross-examination. |
| MR. GRUSHKA: Yes. Those two summonses ...at the top of the page, the Refugee Claims Officer, |
| "...You were informed that there were two Court subpoenas for you with regard to Mostafa leaving Iran..." |
| "...My family, they sent that to one Hamid, to me..." |
| Actually, there is the...you were asking earlier about how he got the summons in the cottage area; |
| "...My family, they sent that to one Hamid, to me..." |
| and there is other testimony about Hamid being someone that arranged things up in the cottages. In any event, Refugee Claims Officer, |
| "...Those two summons..." |
| And the Refugee Claims Officer, |
| "...You say that, in the next sentence, 'They arranged to have someone bring the two notices to me.' Why did you do that? Why did you want the notices?..." |
| "...You mean the two summonses?..." |
| "...Because I wanted that if I have to come out of the country, I wanted to have some documents so that they believe me..." |
| "...So who would believe you?..." |
| "...The governments of the country to which I am going to..." |
| And, my understanding is, he is saying, "I want to prove that I am in danger; that is why I am showing the summonses. I want to bring the summonses with me." And, indeed, the Panel finds that implausible that he would do that and bring those summonses with him. And, he is saying, "Well, you know, I wanted to bring them because I wanted to prove that I was in danger." And I think the process of the hearing bore out his concern that it was important to take the risk, whatever the risk may have been, to bring those, to substantiate that he was, indeed, in danger, and to be able to establish asylum, to seek refuge some other place, because he wanted to show, "Look, this shows I am in danger." |
| The Panel, at page 150 of the Tribunal Record... |
| MR. GRUSHKA: This hearing took place over two days. |
| MR. GRUSHKA: The first time we appeared, the Panel was missing some material they wanted to consider...it was important to have it. And so, we started the proceeding, entered some evidence, some documentary evidence, and then postponed it to have the brother come and be a witness, the half brother, and also to have some documents. And, in the middle of the page, the presiding member says, on the date of the first hearing, he says: |
| "...All right, we have had a pre-hearing conference and we determined at the pre-hearing conference that the issues now are credibility and nexus. As well, for us to be able to proceed today, we would need certain information, which we are not able to obtain today. So, the Panel will direct the Refugee Claims Officer to assist us in obtaining the original summons or warrant, the original summons or warrant, that is now in Vancouver CIC. To the Panel, this is a very important document. We will want to have an opportunity to review it and, depending on a review, we might even have a possible...sent it out for forensic testing prior to the next sitting..." |
| Then they go on to say they would also like to hear from the half brother. |
| So, the panel considered these summonses, which were in Vancouver, which had been kept by the Vancouver immigration when he arrived in...when he landed for the first time at Vancouver, they wanted those documents, the originals, brought into the hearing, not the photocopies that they had. |
| So that, really, I mean, the Panel considered this very important yet, on the other hand, they are saying, "Well, we considered it important, but he should not have considered it important enough to risk bringing it with him when he is coming here seeking asylum", and I find that really sort of contradictory in a sense. In one place, they are saying, "We consider it very important", but yet it wasn't worth the risk for him to do it, even though, to us, it is very important that it be here, and he had said, "Well, I consider it important to show the foreign government that indeed I was in danger." |
| HIS LORDSHIP: Yes. There seems to be no mention of the consistency of this. It is true, he travelled with the summons in his suitcase, and it is understood that had those summonses been discovered by any Iranian officials, he would have been in deep trouble. But, he also travelled with his own passport. Now, he explains that, because of bribery. |
| HIS LORDSHIP: But, he didn't destroy the passport until he got to Vancouver. So, he had the summonses and his passport as he passed through in Tehran, or in the airport. The passport he presented to the bribed colonel, the summons he kept in his suitcase: It was a risk; there is no doubt about that. |
| MR. GRUSHKA: Oh, there is no doubt, but is it ununderstandable (sic)? No, I am not saying that it is not a risk. I don't disagree that it is a risk, but what the Panel is saying, that it is implausible to them that someone would undertake this risk, and there are two factors to a risk, one is the consequences... |
| MR. GRUSHKA: ...of being discovered. The other is the probability of being discovered. And certainly, the risk was very high in terms of the consequences, as were the risks in terms of the consequence, I suppose, weighing against that of not being granted asylum in a foreign jurisdiction or foreign country. So, those are the risks that you are weighing and, certainly, the consequences could be serious in either way on both sides, the balance in that respect, I suppose. |
| The question is, the probabilities. |
| HIS LORDSHIP: Yes, probability of discovery? |
| MR. GRUSHKA: The probability of discovery. And, the Claimant has something to say about the probabilities of discovery in his mind, when he undertook that particular risk. At page 184 of the Tribunal Record... |
| HIS LORDSHIP: Oh, there we are getting... |
| MR. GRUSHKA: ...he asked at the top, this is now in redirect, I asked, |
| "...Now, were you...did you know in advance the steps that you had to go through at the airport prior to going there? Did you have information as to what were the procedures at the airport?..." |
| "...And, how did you know that?..." |
| "...I had taken a trip. I had taken a trip previously..." |
| And this was a number of years ago. |
| "...When was this trip taken previously?..." |
| "...Thirteen sixty-two, 1366..." |
| Iranian calendar, 1983, 1984. So, that was a number of years ago. |
| HIS LORDSHIP: But, after the Islamic Revolution? |
| MR. GRUSHKA: That was after the revolution, yes. |
| HIS LORDSHIP: Which was in 1979, I believe? |
| MR. GRUSHKA: That is correct, '78, '79. And then he describes, and going back before that, he describes a process...go back to 182. So, he says that, "I knew some of the process", and if you go back to 182 is where he describes the process, all right? In the middle of the page. We had already gone through earlier, at the top of page 182, how he had gone through the computer and through the colonel, and then in the middle, it says...Counsel says, |
| "...Now, you say that there is another process, there is another person you see when you come to the airport, there is another person you go through..." |
| "...The first time I entered, they want to see the tickets, yes..." |
| "...And, who looks at the tickets?..." |
| "...He is a very ordinary constable, police constable..." |
| "...And, you said that there is also a check done about...I think you mentioned before, in your pockets, or did someone check you?..." |
| "...When does that happen?..." |
| "...That is the last stage, what they call as you enter into the transit area..." |
| "...Did you carry your baggage with you? Is your baggage put..." |
| He asked...the interpreter interrupts, |
| "...No, all right. At the airport, is your baggage checked, or do you carry it with you onto the plane?..." |
| "...I had a suitcase. I went to the airport and I had a hand bag in my hand... |
| "...Is anything checked in the baggage compartment, or do you take both the suitcase and the hand bag onto the plane?..." |
| "...No, I took just one of them with myself on board and, in the last stage, they check it for the currency..." |
| "...They check what for the currency?..." |
| "...They check everyone for the currency because they don't want anyone to take currency or gold outside..." |
| "...Did they check your suitcase and your hand bag for currency?..." |
| "...The suitcase, the first time, it is a very ordinary customs officer who checked it..." |
| "...So, this is now a fourth person that we are talking about you going through. You have mentioned somebody, you show a ticket, an ordinary constable you show a ticket to. You mentioned the colonel, the police constable, then you mentioned having your body searched as you go into transit. Is this a fourth person now, that you go through?..." |
| "...He looked...the first one is as you enter the airport, he wants your tickets. He allows only the passengers with the ticket inside. The second part is that someone just looks through the suitcase and ask you whether, 'Do you have any currency or gold?' and he just puts his hand inside. The third one is the colonel and the fourth one is a very small room that they search your pockets..." |
| "...Okay. When you went through the customs, the second one where they are searching for the jewellery and the currency, did they look through the pockets of the items in your suitcase?..." |
| "...No, they never did look there..." |
| "...So, when were they looking? When were they looking inside the suitcase?..." |
| "...Just like this, they put their hand through the suitcase and they just look at the bottom of the suitcase, maybe for something smuggled or money, I don't know..." |
| "...Did you know in advance?..." |
| Now, his evidence had been that the summonses were in the pocket of his coat, I believe, or jacket that was in the suitcase, the one that was being...not travelling onto the airplane with him but was going into the luggage section. If we take a look at the documentary evidence, documentary material that was filed about what the process is in going through the airport, we have that at the application record. |
| HIS LORDSHIP: Yes. Does he say somewhere that the summonses are in the pocket of his jacket? |
| MR. GRUSHKA: Yes. They were in the... |
| HIS LORDSHIP: Pocket of jacket? |
| MR. GRUSHKA: ...they were put in the pocket of the jacket or coat that was in the suitcase. |
| MR. GRUSHKA: One seventy-six? Yes, there it is. That is correct, page 176 in the middle, Mr. Davis, the second member, asks him, |
| "...Don't you think you were running a bit of a risk trying to take those out through the airport?..." |
| He is talking about the summonses. |
| "...Well, they identify you as a wanted fugitive, if somebody took it upon themselves to search your suitcase..." |
| "...No, I kept it in the pocket of one of my pockets, and there, they search you only for the money and gold. They put their hands in just to search of money and gold..." |
| In other words, what he is saying is that they are not really...at that point in time, when they are searching the suitcases, they are interested in other items; they are not interested in pieces of paper. |
| HIS LORDSHIP: Now, by "suitcase", he means the one which was sent off to the baggage compartment of the airplane and not in the passenger cabin? |
| MR. GRUSHKA: That is correct, because later on he searched personally. He says that they searched. At the last stage, he is searched personally. And, the documentary material seems to support that type of process, and that is at page 38. |
| HIS LORDSHIP: That is in the Tribunal Record? |
| MR. GRUSHKA: No, this is the Application Record. |
| MR. GRUSHKA: This particular document, that I have extracted and put into page 38 of the Application Record, is in the Index of...generally, they file an index of country material and then you go to the library and pull out the contents. |
| MR. GRUSHKA: So, this is the context within the index material that they provide. And it says at page 38 of the Application Record, right at the bottom, |
| "...Actual departure procedures at the airport..." |
| Then it goes through the various stages where the passengers present themselves two or three hours before departure, obtain passport approval, usually within a few minutes. Upon entering the airport, just as the Claimant was describing, tickets are checked by policemen. Only persons with valid tickets are allowed to enter the departure section. Then, after making a turn, luggage is X-rayed by police; the passenger goes through a metal detector. And then, passengers proceed to the right in the airport. At the police counter, they hand over the passport, and departure control is done on an immediate basis. Straight ahead, after the metal detector, leading on to the check-in counter of the airlines, is a row of customs checkpoints, where customs officers search all luggage by hand. Specifically, they look for gold, carpets, antiques, et cetera. The back of the ticket is marked. The control is less rigorous than before. Leaving the customs area, ticket and luggage are verified to make sure it has been checked. And then, passengers proceed to the airline check-in counters, luggage is checked in, boarding passes issued; luggage without a number is not loaded. |
| And then, after check-in, passengers proceed upstairs to the first floor. Then, there is a customs officer, who again checks all passports, and then the passenger enters one of four cubicles where he and his hand luggage is searched by customs officials. After hand-luggage screening, body frisk is done. |
| So, they seemed to know, he says, that in terms of the probability of being caught that in the luggage...but what they were looking for, he put it in his suitcase because he knew that there, they were only looking for carpets, antiques, jewellery, money, and that piece of paper was not something that would likely...I mean, they are looking for hard things, I guess, or for clumps of things. So that, in terms of probability it was a risk he was willing to take, given the consequences of being able to use that, or to be able to use that, the importance of being able to use that to justify or to prove to a foreign government that he is, indeed, in danger. And, indeed, the Panel wanted to see those summonses and it was very important to them, although they never really commented in their decision on what they thought about summonses in terms of the validity of those particular summonses, because they did seem to indicate that he was being sought by the police, or by the Pasdaran...by the Court, rather. |
| So, my submission is that their conclusions that this...his bringing those summonses with him was not something that is reasonable or reasonably plausible... |
| HIS LORDSHIP: An insane risk almost. |
| MR. GRUSHKA: ...is what they are saying, but he says, "No, it was not...the consequences were grave but I thought it was very important to prove my case, and I thought the probabilities of being caught were not high." |
| Then, at page 7 of the...we move onto the next area of implausibility, page 7 of the Tribunal Record, and page 4 of the Decision. There is a finding of incredulity or implausibility of the relationship between the brothers, or the fact that the half brother, Mostafa, didn't know about what was going on, and they say in the first complete paragraph, |
| "...His half brother, Mostafa, was a witness at these proceedings. Mostafa had no recollection of being told by the Claimant that a summons was issued to the Claimant due to his assistance in Mostafa's departure from Iran..." |
| That is the summons was because it was alleged that he had helped Mostafa, who is in Canada, escape from Iran. |
| "...Though it appears their relationship [that is the two half brothers] is now strained, the Claimant did live with the witness, Mostafa, for over a month on arrival to Canada. It seems only reasonable to the Panel that the Claimant would indicate to his half brother that the one reason he is in Canada seeking refugee status is due to Mostafa leaving Iran. In fact, Mostafa was not aware of Mohammad Reza's [the Claimant's] activities in Iran, nor of Mohammad Reza's alleged assistance in Mostafa's own departure. It is clear to this Panel that the Claimant did not assist Mostafa in exiting Iran... |
| and, of course, the Claimant never indicated he did assist; he just said he was suspected. |
| HIS LORDSHIP: No, he was suspected. |
| MR. GRUSHKA: "...this is made even more evident when the Claimant was unable to tell the Panel the exact timing of Mostafa's departure from Iran..." |
| Now, the Panel seems to find this rather incredulous, because they go on at the next page to say, in the first paragraph, |
| "...Combine this with his half brother's lack of knowledge of the Claimant's activities in Iran [the first complete paragraph] or his knowledge of the existence of the summons that bears his name, we find the whole story untruthful and concocted..." |
| So, they find this truly incredulous. However, the evidence of both the brothers, the half brothers, is, and I will go through the transcript, the whole way is that they just did not get along, or they didn't have a good relationship at any point in time. And I will take you through the testimony as I look through the transcript. |
| HIS LORDSHIP: That frequently occurs between the children of the same father but different mothers in a family. |
| MR. GRUSHKA: And, that is what clearly comes out, I would suggest, from the evidence. |
| We first take a look at page 84 of the Tribunal Record. |
| HIS LORDSHIP: We will take a look at page 84 in a few minutes. |
| HIS LORDSHIP: We will have a short recess. |
| --- upon recessing at 11:00 a.m. |
--- A BRIEF RECESS
| --- upon resuming at 11:10 a.m. |
| HIS LORDSHIP: Mr. Grushka? |
CONTINUED SUBMISSIONS BY MR. GRUSHKA:
| If we look at page 84 of the Tribunal Record, in the...these are the interview notes at the port of entry of the Immigration officer, and in the middle of the page, the Claimant is noted as responding to the Immigration agent...well, the question was asked, |
| "...Same agent as Mostafa?..." |
| In other words: Did you use the same agent as your brother, Mostafa? |
| "...No, I have no idea who Mostafa used. |
| "...Do you know when Mostafa left Iran?..." |
| "...Yes, I knew he escaped, but I have no idea how he did it. The situation was horrible. Everything was kept secret so he could go safe..." |
| And, we move on along to... |
| HIS LORDSHIP: That was on page 84? |
| MR. GRUSHKA: Page 84. Did you catch that in the... |
| HIS LORDSHIP: No, I didn't. |
| MR. GRUSHKA: Okay. This is the fifth paragraph down, these are the interview notes at the port of entry, |
| "...Same agent as Mostafa?..." |
| This is the Immigration officer asking, I assume. |
| "...No, I have no idea who Mostafa used..." |
| "...Do you know when Mostafa left Iran?..." |
| "...Yes, I knew he escaped, but I have no idea how he did it. The situation was horrible. Everything was kept secret so he could go safe..." |
| And, we move on along to page 154 of the... |
| HIS LORDSHIP: Tribunal Record? |
| MR. GRUSHKA: Yes, the Tribunal Record. Now, the witness here is Mostafa, the half brother, that is in Canada, in Toronto. |
| MR. GRUSHKA: He is being questioned by the Refugee Claims Officer. |
| MR. GRUSHKA: And, he was given a summons to come to the hearing, or a summons was issued for him. Three blocks up from the bottom, Refugee Claims Officer, "Okay, you list in your Personal Information Form...", and this is now...the Refugee Claims Officer is talking about Mostafa, the half brother's Personal Information Form that he had filed when he had made a refugee claim. |
| MR. GRUSHKA: "...You list in your Personal Information Form, in question 15 of that form, your immediate family members and among them you list four brothers and one sister but, as you can see, none of them are the gentleman that is sitting beside you..." |
| That is the Claimant, his half brother. |
| "...Why is he not on that list?..." |
| "...Because he was my stepbrother and I wanted to mention my own...only my own original brothers and sisters there..." |
| "...When you say he is your stepbrother, what do you mean?..." |
| "...Because he is not from my own mother; he is from my stepmother. He is the son of my father's wife..." |
| "...And the people that you listed there, the brothers and sisters you list there, you all have the same mother, same father?..." |
| "...Do you have other brothers and sisters beside Mr. Shojaie sitting beside you, who have different mothers?..." |
| "...You mean the siblings or the mothers... or the stepmothers?..." |
| "...Well, okay, the number of stepmothers first..." |
| "...Well, in total my father had four wives..." |
| "...So, how many more brothers and sisters do you have than what is listed in your Personal Information Form?..." |
| "...Except him, five, five of them..." |
| "...And the brother sitting beside you, what is his mother's name?..." |
| "...Did you grow up in the same house with the brother sitting beside you?..." |
| "...No. Just I wanted to mention here that, apart from Mohammad, I mentioned I have four more, five more siblings...with Mohammad becomes six..." |
| "...How many family homes did your father have?..." |
| "...Six to seven, seven to eight, I don't know exactly..." |
| Then, we move on to page 156. The presiding member at the top asks, |
| "...Pardon? In the narrative, in your Personal Information Form, again [and the half brother, the witness, Mostafa, is being questioned] you also make no mention of your brother or your half brother..." |
| "...I didn't mention him because he was my stepbrother, and we didn't have much of a rapport, relationship, as such..." |
| Going on further down the page, |
| "...Well, was he involved at all in your escape from your country?..." |
| "...Was he aware you were escaping?..." |
| "...Do you know if he was politically active in anything anywhere in any group?..." |
| "...Because we didn't have any rapport, contact, I don't know..." |
| "...Do you have any contact now in Canada with your half brother?..." |
| "...Yes, because here, we don't have any kin or relatives. Naturally, we have more contacts and rapport than Iran..." |
| "...Did he tell you why he left Iran?..." |
| "...What did he tell you?..." |
| "...He asked me what was my problem I come out of here. I told a little bit of my story to him..." |
| "...What, did he tell you why he left?..." |
| "...I didn't permit it to myself. I don't allow myself to ask him a question. If he wanted, he would have submitted it himself. To a very less extent, he said some things..." |
| "...Are you aware why he left Iran?..." |
| "...Did you describe to him...explain to him why you left? Did you describe and explain to him why you left Iran?..." |
| "...To this extent, I explained to him that in Iran I had political problems and I left. Only to that level..." |
| And then, the witness was asked questions by myself in the next page, |
| "...Which of these four wives was your father's first wife?..." |
| "...Well, how did you feel about all the other wives and siblings?..." |
| "...Since we didn't have any contact, my feeling toward my brother was very less. I can say that, very, very less..." |
| On page 159 of the Record, now the Claimant is giving testimony, and at the bottom of page 159, going up about 4 blocks from the bottom, where it says "Counsel". |
| MR. GRUSHKA: The Claimant is being questioned four blocks from the bottom, |
| "...Now, you say that you had also told him about what happened to your father and your brother, their deaths, and you also mentioned you had been arrested a few times. Why were you arrested?..." |
| "...Well, since my father and brother were doing political activities, were very active, and I guess my other brothers are so active; since we didn't have contact, I wouldn't know exactly. But, based on that, myself and also we are doing these activities, the regime was suspicious about us and, based on that, I was arrested three times..." |
| In other words, he is saying he didn't really have contact with the other family members. |
| HIS LORDSHIP: But, he was selling auto parts to Kurds, I presume? He admits that. |
| HIS LORDSHIP: So, he would come under suspicion? |
| MR. GRUSHKA: Yes, but I am just going through to show that, really, the relationship was not there, and all these pieces... |
| MR. GRUSHKA: Never was. And, we go on to page 160, in this sort of...the top third of the page, Counsel asks...I ask of the Claimant, |
| "...How many siblings did you have from your mother and father, from the same mother and father?..." |
| "...Did you keep in contact with any...did you have a relationship with any of the other half siblings?..." |
| "...If you mean in Iran, to a very, very less extent..." |
| "...I don't know whether you had a stepsister or a stepbrother, but one cannot have the same feeling as brotherly or sisterly feelings..." |
| Page 165, the top third of the page, Counsel...and, again, the Claimant is being asked, |
| "...Now, one of the summonses refers to giving information about Mostafa Shojaie Asanjan's exit [that is the half brother] from the country, providing assistance for his exit..." |
| "...Now, what did you know about his exit from Iran?..." |
| "...Did you know that he left Iran?..." |
| "...Well, after he left, yes..." |
| Page 177, almost down to half the page, just on top of half the page, Counsel, |
| "...Now, once here, did you tell your brother, Mostafa...did you tell Mostafa the reasons for your leaving Iran?..." |
| "...I just told him that I was in danger, that is all..." |
| "...You didn't elaborate on that?..." |
| "...He didn't ask and I didn't give, no..." |
| "...Because, as I said earlier, we didn't have a very good rapport. We didn't have a very good relationship or contact..." |
| "...Just to be clear on this, how many times have you met him in Canada since you have been?..." |
| "...Since last year, three times, maybe four times..." |
| "...Since you have come to Canada, three or four times?..." |
| "...Except when just I arrive. I stayed with him for a little while because I didn't have anywhere else to stay..." |
| "...So, when you actually arrived, you did stay with him at that time?..." |
| "...Was he making a claim at that time for refugee status?..." |
| "...So, was he in the process or was it already decided, do you know?..." |
| "...No, he was awaiting..." |
| "...So, did you tell him, 'I have a warrant that says they are after me because of you'?..." |
| "...Why wouldn't you tell him that to help him?..." |
| "...I suggested, let's go to the hearing together, but he didn't appreciate it and then I didn't pursue it..." |
| "...I am really confused by this part. Maybe I am missing something. You tell him you want to go to a hearing with him?..." |
| "...I suggested that let's go to the hearing together, though we were not in good terms with each other, but I suggested, since we are brothers, let's go together. He didn't accept..." |
| So, this is the testimony from both brothers describing their relationship. The Panel then goes on to find it incredulous after all this testimony is given, how we never got along, we didn't get along there, we had no rapport there, I didn't mention any of my half brothers in my Personal Information Form because, you know, they are not from the same mother. And, the Panel, after that type of testimony and, you know, "He doesn't want to come with me to the hearing. I suggested to my brother let's go to the hearing together, he doesn't want to go"...after that type of testimony, the Panel finds it incredulous, and I am suggesting that is an unreasonable conclusion from the evidence, from the testimony that was there before them from both brothers. |
| Finally, the last area of implausibility is in the last paragraph of page 7, the last complete paragraph on page 7 of the Tribunal Record, which is page 4 of the Decision, they found that the departure from Iran...the Claimant's evidence about the departure from Iran, they found his evidence not credible or trustworthy, and they go on to say that his evidence about his departure from Iran through the Mehrdad Airport in Tehran is not consistent with the documentary evidence. Well, I already went through the documentary evidence. It does...I would suggest does appear consistent: |
| "...It is not plausible that he would exit Iran using an Iranian passport with his name and photo on it if he had a record of arrest, as he claims and being currently wanted by the authorities, as well as escaping from custody as he claims..." |
| Well, his testimony had been that the colonel had been paid in advance, and so I don't see how that is implausible that he would go through...it doesn't matter what name he would give, in effect, if the person checking up on the name is paid to look the other way. |
| HIS LORDSHIP: They didn't find it incredible or implausible that the system was that the traveller could choose whichever colonel he wanted, whichever kiosk. |
| MR. GRUSHKA: Well, it is the same as, if you go to...if you travel to the United States and you go to the airport at Pearson International Airport and you go through the U.S. Immigration Controls at Pearson International Airport, there is a number of kiosks. You line up at whichever one you want. When you come out from Pearson Airport and you come into Canada through Immigration, you pick whichever line you want. And, as he said in his testimony, he was described to me as to what he looked like; I picked the kiosk that he was sitting at. |
| HIS LORDSHIP: Obviously. But, that wasn't considered, his ability to choose which kiosk. The CRDD didn't find that incredible or implausible, did they? They don't say so. |
| MR. GRUSHKA: No, they don't mention that. |
| HIS LORDSHIP: No, well, so obviously they accepted that. But then, they are finding implausibilities nevertheless. Okay. |
| MR. GRUSHKA: My conclusions on my submissions are that they have made errors on the evidence in terms of finding inconsistencies where no inconsistencies existed, they have reached conclusions on implausibility which are unreasonable with respect to the brothers not confiding in each other, with respect to going through the colonel at the airport with his own passport. It is unreasonable, given the context and the testimony that was provided, the conclusion of implausibility was unreasonable. Given that they made mistakes on the evidence on which they based their decisions, that is, that there was inconsistency in where the summonses were delivered to, that he didn't know the address, where they made mistakes on those, and came to conclusions based on those, then their conclusions are damaged by the process that they have gone through. |
| Those are my submissions. |
| HIS LORDSHIP: Thank you. Mr. Gold? |
SUBMISSIONS BY MR. GOLD:
| MR. GOLD: My Lord, I won't deal with the two first findings of the Refugee Division, the finding concerning where the summons was delivered or the finding dealing with the address. My Lord, they are minor findings, and the Respondent's submission is that even if one discounts those two findings, although I would submit that there is a basis in the evidence to support the Board's finding on these points, even if one discounts those, the other findings made by the Refugee Division are strong ones, they are material, and, I would submit, they are supported by the evidence. |
| My Lord, if I may deal with the finding concerning the brothers first, I think that can be dealt with very briefly. My friend has read the relevant passages. This finding is at the top of page 4 of the Reasons For Decision. The crucial finding here... |
| HIS LORDSHIP: You mean 4 of the Tribunal Record or 4 of the... |
| MR. GOLD: Of the Decision itself, My Lord. If I may, I will refer to the Decision...when I refer to the Decision, it will be by reference to its actual page number. |
| HIS LORDSHIP: All right, sure. |
| MR. GOLD: The board states, |
| "...He had no recollection of being told by the Claimant that a summons was issued to the Claimant due to his assistance in his, Mostafa's, departure from Iran. Though it appears their relationship is now strained, the Claimant did live with the witness, Mostafa, for over a month on arrival to Canada. It seems only reasonable to the Panel that the Claimant would indicate to his half brother that the one reason he is in Canada seeking refugee status is due to Mostafa leaving Iran..." |
| My Lord, the Board recognized here the nature of the Applicant's testimony, and his brother's testimony concerning the fact that the relationship wasn't close. The Board, however, did find it implausible that notwithstanding this fact, the Applicant, who was wanted in Iran allegedly for assisting his brother and was issued a summons for this fact, would not have at least told his brother, whom he had been living with for a month upon his arrival in Canada something about this. |
| My Lord, I note that at page 84 of the Tribunal Record, in the interview notes taken by the Immigration officer at the port of entry... |
| MR. GOLD: Eighty-four, My Lord. At the very bottom of that page, the Applicant is asked at the bottom of the page, |
| "...Have you contacted your brother, Mostafa?..." |
| "...Yes, last week. I do intend to go to Toronto to join..." |
| MR. GOLD: Now, he contacts his brother in advance of arriving in Canada, he stays with him a month. As his brother, I think pointed out in his testimony, My Lord, when he was asked whether his brother had...whether he knew about his brother's situation and the reasons et cetera...as the brother himself had said, "Well, if he had wanted to tell me, he would have told me something", it does, in the Respondent's view seem that the board was correct in drawing an adverse inference. That, in these circumstances, the Applicant would have said at least something to his brother concerning the nature of his flight from Iran. |
| HIS LORDSHIP: Is there another way of looking at that? Here was someone he did take into his confidence at the karate club. Nice guy, not even bearded. Wouldn't be a supporter of the Revolution. And he was betrayed by him, but he and his brother do not start off with a good relationship. His brother, in his view, isn't a nice guy, so why would he confide in his brother? What if his brother tripped him up in his refugee application? You see the brother, when asked, "Have you any siblings?" "Well, yes..." but he lists only those, to use the ancient expression, ex uno et alterio utero, out of the same womb. He doesn't mention this claimant because he really is more cold and hostile than even indifferent to this claimant. Why would this claimant take that kind of brother into his confidence? And perhaps vice versa? |
| MR. GOLD: Well, My Lord, I agree. |
| HIS LORDSHIP: If the Panel were going to make an adverse finding there, at least they should have discussed that and discounted it for whatever reason, but it doesn't seem to me to be so discountable. |
| MR. GOLD: Well if, I suppose, it was a situation where the Applicant made no contact with his brother, but contacts him in advance, despite the cold nature of the relationship, contacts him in advance, stays with him a month... |
| HIS LORDSHIP: He needed a roost. |
| MR. GOLD: True. That is true, My Lord. |
| HIS LORDSHIP: He is the only relative he has in Canada, a half brother... |
| MR. GOLD: Yes, true. Knew that his brother, though, was going to be attending a hearing concerning his refugee claim. |
| HIS LORDSHIP: Yes, and offered to accompany him. |
| MR. GOLD: Yes, that is true, but doesn't advert to the fact that he is in a similar situation and that situation has arisen because of the fact that "I am accused of assisting you to escape". |
| HIS LORDSHIP: It does...the relationship really doesn't sound like one where they might be sitting around and having a nightcap before bedtime and telling each other truths or lies, or declarations of fraternal fealty. |
| HIS LORDSHIP: It seems to me, though, that before a Panel, and you could pass this on as my opinion, not that it is going to be all that important, but before a Panel makes an adverse finding on certain facts, they should explore and negative other explanations for that fact. And, goodness knows, the two brothers put it pretty plainly to them that their relationship was frosty, and yet the Panel says, "Oh, but that is just implausible that he wouldn't confide in his brother." Well, to me, it does not seem so implausible. |
| Now, remember, I am not here to find whether this Claimant be a Convention refugee or not; I am here to assess the conduct and performance of the Panel. |
| MR. GOLD: I am certainly aware of that. |
| HIS LORDSHIP: I am making no finding about refugee status or not. But, that seems to be a deficient performance on their part to come up with a kind of a damning finding of implausibility without exploring what was presented to them, fair and plain: These brothers don't get along well. They are nothing to each other. |
| MR. GOLD: But, they were cognizant, and mentioned that fact, My Lord. |
| HIS LORDSHIP: I beg your pardon? |
| MR. GOLD: They mentioned that, though. |
| HIS LORDSHIP: Yes, but then they come to what I think is a perverse finding of implausibility when it seems to me to be redolent with plausibility. All I can do is view the conduct of the Panel through my own, hopefully, objective and unbiased lights, and if they had said, "Well, we saw them as they exited going out arm in arm", or, "We saw the one give the other a pat on the shoulder and, therefore, it is implausible", I would have said, "Oh, all right. That is implausible now. Now that we know that." |
| But they didn't. There was no behaviour on the part of these brothers, and no testimony on the part of these brothers that one meant much to the other, except that any old port in a storm; they are alone, without relatives, in Canada. And so, Mostafa provided that any old port in the storm of having no roost for this claimant. He stayed at his place. |
| I don't know in what world the two family members grew up, but that does not seem to be an implausibility to me. |
| HIS LORDSHIP: They had the duty, of course, to make the finding. |
| MR. GOLD: ...I must have grown up in the same world. I am not being impertinent, My Lord, but I must...I find it on its face a reasonable inference to make. However, if that finding falls, I must go to the others that remain and... |
| HIS LORDSHIP: Well, I am not sitting here like a sphinx, Mr. Gold, you are knowing what I am thinking. |
| HIS LORDSHIP: Mr. Grushka knew what I was thinking and I am being open with you. |
| MR. GOLD: The other findings are... well, let me deal first, perhaps, with the finding on that same page dealing with the exit from Iran. |
| HIS LORDSHIP: The same page, which is? |
| HIS LORDSHIP: Page 4, yes. |
| MR. GOLD: The Board states, |
| "...It is not plausible that he would exit Iran using an Iranian passport with his name and photo in it, if he had a record of arrests, as he claims, and being currently wanted by the authorities, as well as escaping from custody, as he claims..." |
| HIS LORDSHIP: What about the bribed colonel? |
| MR. GOLD: Well, I wanted to mention that, My Lord. At page 40 of the Application Record, where the document dealing with the exit conditions was read, in part, to the Court. |
| MR. GOLD: Page 40 of the Application Record. |
| HIS LORDSHIP: Oh, of the Application Record? Just one minute, please, Mr. Gold. Yes, I have that. |
| MR. GOLD: My Lord, there is an observation that was not read, in the middle of that page, which states, |
| "...With so many checks by the authorities involved, it would seem that without the correct documentation in hand, it would be difficult for passengers who are wanted by the Iranian authorities to pass the control system at Tehran's airport by means of bribery or false documentation..." |
| MR. GOLD: ...this leads me back to the actual testimony of the Applicant concerning the procedures that he encountered at the airport. I would submit that if one looks at that testimony, it is both internally inconsistent and it is inconsistent with the documentation describing the exit procedures. |
| MR. GOLD: My Lord, now, my friend has read most of the passages to the Court. It starts, indeed, at page 162 when the Applicant himself was asked in examination-in-chief how he exited, and he mentioned the colonel. |
| MR. GOLD: And we, though, skipped another section, and this is at page 175. It is picked up again by Board member Davis, and I don't believe we dealt with the questions that he asked the Applicant in this area. In the middle of page 175, Mr. Davis asks, |
| "...And, you were told to go through the kiosk that was being manned by this one particular colonel..." |
| "...Was this colonel with the police or with the Ministry of Intelligence?..." |
| "...It was with the police..." |
| "...So, that is how you get through that security check. Now, according to the documentary evidence we have, there is a second security check by the Ministry of Intelligence. How did you get through that one?..." |
| "...Claimant: The Minister of Information just has a kiosk that they enter your data into a computer, and then you can pass. The other place, they will check you just for the currency or any money you have with you, and they are Pasdarans..." |
| "...Mr. Davis: So, when the Ministry of Intelligence entered you into the computer, there was no problem, you went through?..." |
| "...Claimant: No. Maybe for this reason they ask me to go through the colonel's kiosk. No problem happened..." |
| "...Presiding member: I am a little confused here. So, where the colonel was, did he have a computer?..." |
| "...Claimant: Yes, they have..." |
| "...Presiding member: Is that the first checkpoint you went through or the first place that you had to show your identity documents to in the airport?..." |
| "...Do you recall going through an area where there was someone from the Intelligence department of Iran, the Ministry of Intelligence?..." |
| "...Claimant: No, but there is just one place that is written where that the area which they control the passports and about the previous question, when you enter the airport, they just check your ticket, and that person is an ordinary police constable..." |
| Now, My Lord, it is not really clear from that whether the colonel was the first police officer the Applicant encountered. The Applicant later clarifies it; he says it was the third...the second one. |
| MR. GOLD: Which corresponds, it would seem, to number 11 on page 40 of the Application Record. Perhaps I should have asked the Court to keep this particular document open as well, My Lord. |
| HIS LORDSHIP: All right, number 11. |
| "...Before entering the waiting hall, the passenger hands over his passport, and the exit fiche to a police officer. The passport is checked to ensure it contains the exit stamp and the exit fiche is retained..." |
| MR. GOLD: It would seem that that perhaps is what the Applicant...that this was the colonel. Now... |
| HIS LORDSHIP: Well, is it not the colonel who issued the exit fiche? |
| HIS LORDSHIP: No? You see, number 4 on page 39. |
| "...After the metal detector, passengers proceed to the right. At the airport police counter, they hand over the passport and departure control is done on an immediate basis..." |
| And, if that was the colonel, then we have to deal with number 10 which is the Ministry of Intelligence. |
| HIS LORDSHIP: All right. Now, it is not entirely clear, "Passengers then proceed...", no mention of passport and exit fiche or departure control there in 10. It says, |
| "...Passengers then proceed past the bank and government caviar store to the final series of checks. A customs officer of the Ministry of Intelligence, with the help of a computer [oh, I am sorry, there is] again checks all passports. Afterwards, men and women proceed toward body checks. The passenger then enters one of four cubicles..." |
| Well, there would seem to be two points at which a computer is used, number 4 and number 10. Is the exit fiche...where is that described? What is an exit fiche? In other words, what I am wondering is, if one person with a computer issues an exit fiche saying, "I have cleared this person"...one bribed person with a computer says, "I have cleared this person", is the other one interested only in recording numbers and exit fiche, or is the same, the very same verification done twice? This looks like a pretty specialized process: Somebody is looking for currency and carpets, somebody is looking for gold and jewellery, and somebody is looking at passports, somebody is checking pockets and personal possessions. Each one does a specialized job. Therefore, is it reasonable to believe that two verifications, two of the exact same verifications or similar enough verifications are done by two different people? At first blush, it doesn't seem plausible that they would repeat the same verification. But we don't know. I can't tell. |
| MR. GOLD: It is difficult to say, My Lord. |
| HIS LORDSHIP: Is an exit permit an exit fiche? I guess it is. |
| "...Prior to this, a passenger could [could, it doesn't say 'must'] pass through three security checks..." |
| You know, the English word "check" is so over-used, it is imprecise. It can mean to stop or prohibit, it can mean to verify, and it can mean to search, and what we should do in English is avoid "check" and say what we really mean. But, I don't know what three checks...security checks...verifications, I suppose, luggage search, checking for intended flight, and pay the exit tax, only to discover they wold not be allowed to leave the country. |
| MR. GOLD: It is difficult, My Lord, it is. I suppose one must actually observe the process to really understand... |
| HIS LORDSHIP: And the only one present at the hearing who observed the process, because we know he did come out of Iran, was the Claimant, and I don't see why his word shouldn't be taken. Or, it conforms roughly to this exit and entry procedures at the airport. |
| MR. GOLD: Yes, "roughly", My Lord. As the hearing progressed, it seemed to expand. But, I won't go over those same passages that my friend read, with the exception of the one inconsistency that I think is clearly shown in the transcript, and that is at page 180. And, in the middle of that page, counsel asks...well, toward the top of the page: |
| "...Counsel: So, you recognized this colonel as being a police officer?..." |
| "...And, you said he had a computer at his kiosk..." |
| "...Did he...when you showed him your passport, did you see him do anything with the computer? Did he operate the computer?..." |
| "...Claimant: No, he didn't do anything..." |
| HIS LORDSHIP: Then he said he was playing around with it. |
| MR. GOLD: He does say that later, My Lord, after the presiding member at 182 said, |
| "...A few moments ago, counsel asked you, did he have a computer at the kiosk, and you said he did and you indicated that 'he did not operate the computer when I came there'. You said, 'He just asked my name. He didn't ask for any papers...' and you said, 'but I put a passport in front of him'. Now, it is you have walked up, you have given him the passport, he asked your name, you delayed for a period of time and he was using the computer..." |
| "...Claimant: I didn't say that he was using it. Apparently, he was doing this so that others would think so..." |
| MR. GOLD: My friend has read the rest of the passages, My Lord, and I suppose the Board here was looking at all of these passages on cross-examination and redirect and, to them, the quality of the answers were not good. They were inconsistent and... |
| HIS LORDSHIP: It may have suffered from translation. |
| MR. GOLD: That is true, yes. |
| HIS LORDSHIP: Did he do anything with the computer? Well, later, he is going to say he was playing with it, but that question could so easily imply, "Did he actually operate it?" and he said, "No, he didn't actually operate it; he was just making a show." Later, we find out he was just making a show, but he knew, you see. He knew, or thought he know. I don't know how he could give direct evidence about that, but, in his own mind, the colonel was not operating the computer; he was playing with it for show. And so, if you are going to find how many angels can dance on the head of that pin, it is very dangerous insofar as assessing the Claimant's credibility. |
| Again...give me your best shots, but again, I think that if the Panel are going to make an adverse finding there, they had better be clear and they had better negative other explanations which are equally plausible or equally implausible if they think so. But, to say, "Aha, you see in one place, he said that the colonel didn't do anything, and then he said he was playing with it, so that is an inconsistency." How was the question put to him? Was the colonel operating the computer? Was the colonel entering in anything in the computer? Was this, this, this? And he says, "No, he didn't do anything." |
| But counsel draws his attention to the computer again, and he says, "Oh, well, yes he was making a show of using it and playing with it." |
| MR. GOLD: I see your point, My Lord. I suppose... |
| HIS LORDSHIP: I wouldn't find a witness incredible, unbelievable or implausible in his story on that basis alone. |
| MR. GOLD: If that finding... |
| HIS LORDSHIP: If I could speak Farsi, I might, but I can't speak or understand Farsi. I have to rely on these English translations. |
| MR. GOLD: My Lord, if one discounts that particular finding concerning the consistency of his evidence there, I suppose the only other finding that is material here is the fact that he carried the summons in the suitcase with him. |
| HIS LORDSHIP: Yes, and we have been over the risk...the factors of risk. |
| MR. GOLD: We have, My Lord. |
| HIS LORDSHIP: He took a chance. There is no doubt about it. He is aware of it himself. It was a big chance. He thought that the risk of being discovered was either less than any other, or that it was worth it. |
| MR. GOLD: But, My Lord, as the Board pointed out, why would he destroy the passport, yet ignore the agent's advice to him not to take the summons to the airport? |
| HIS LORDSHIP: I suppose because he is not an immigration lawyer. He says, in his mind... here is the mind of someone leaving his country. I won't even dignify him with the name "fugitive". But, he is leaving his country and seeking asylum in another country. The agent says, "Destroy all the papers which identify you", and in his mind he says, "Well, if I have an Iranian passport, they can deport me to Iran." I realize he has got a summons from an Iranian Court, but maybe anyone...I don't know. Anyone could be accused of an offence in Iran, I suppose, without being a citizen. No, it is not very clear. But, he is not an immigration lawyer, he is not learned, so far as I know, in international law or passports or identities. And, so far as we know, this is the first refugee claim he has ever made. And I say to you, yes, there is a problem there. |
| MR. GOLD: Surely a layman, even with average intelligence, My Lord, in his circumstances would recognize the risk? He produced later birth certificate, Iranian driver's licence, all personal identifiers, and yet... |
| HIS LORDSHIP: So, he disobeyed the... well, it seems to me, if he is leaving Iran and using his Iranian passport because the colonel has been bribed, it would only be natural that he would have the birth certificate and driver's licence, they are not incriminating, with him. If you are carrying an Iranian passport, maybe you take along your Iranian driver's licence and birth certificate. The only incriminating documents were the summonses which were in the pocket of the coat in the suitcase which was going into the baggage compartment of the airplane. |
| MR. GOLD: And which is checked for gold, et cetera. |
| MR. GOLD: But, is it plausible that the Applicant would put summonses in his coat, in his suitcase...well, My Lord, I suppose that is the question. |
| MR. GOLD: The Board found it implausible. |
| HIS LORDSHIP: It might be less plausible if those summons were written on high quality paper which would feel like currency. If they were written on the usual newsprint mush, they wouldn't feel like currency. No, but you see, they are looking for currency, and if they felt papers in there, a high quality paper like a bank note, well, that would... but, if they felt other papers, such, as newsprint or something, I don't know what...I haven't got, have I, those summonses before me? The CRDD thought them sufficiently important that it wanted those summonses before themselves, but then they don't mention whether the summonses would be likely to attract the attention of someone looking for currency or not. So, I suppose they weren't on high quality bank note type paper. They must have been on something which wouldn't attract the attention of, or the CRDD would have mentioned it, surely. They would have said, "Ha, this is really crazy. He knows that he is going to be searched. Someone is going to be feeling around for currency or gold or jewellery, and look at the high quality of the paper on which these summonses are written. Now, that increases the risk maybe a hundred-fold", but it didn't mention that. If they want them, they can have them. They are important not only since they are objects which endanger him, they are important not only for what is written on them; that is the sine qua non. But then, given that they will be subject to a search for currency, they are also important for the quality of paper on which they are published, and that seems obvious to me. |
| Now, you and I didn't grow up in the same world, but if that paper felt like currency, he is taking a big risk, he is really in trouble. Apparently, the hand was passed through his suitcase, and no one stopped him and said, "Aha, what have we here? Oh, it isn't currency. My God, it is a summons." |
| Now, making allowances for the different worlds in which we were raised, Mr. Gold, I nevertheless say that that is plain and obvious, and should be to an experienced Convention refugee determination division member. What are they searching for? If the summons resembled currency sight unseen, he is in big trouble, but obviously they didn't, or I suppose this Board...these are two experienced Board members...I would have supposed that they would have made something of that, but they didn't, and they did have the actual...I take it they had the actual summonses. |
| MR. GOLD: That he brought with him, yes. Well, My Lord, the Respondent...as the Board itself stated at the outset, it applied the test of Mr. Justice O'Halloran in Faryna v. Chorny and the definition in that case where it said, |
| "...The question is: Does it meet the test of the truth of the story?..." |
| "...The test of the truth of the story of a witness that it be in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions..." |
| HIS LORDSHIP: "A practical and informed person". And these two members should have been... should meet those qualifications, but what I have pointed out to you, unless you think I am absolutely insane about the quality of the paper, for example, is something they ought to have considered, too. Now, perhaps you won't say that in my presence, but you may walk out of here and say to Mr. Grushka, "He is insane", but it seems to me that is a reasonable test: What was he doing? What were those papers? Would they attract the attention, for example? And, I say, if they are not made on that kind of paper, and the Board didn't mention it but nevertheless found adversely to plausibility, the Board didn't do its complete job. |
| MR. GOLD: Well, My Lord, I can only say that it would seem to me that if someone knew that he was going to be, or likely to be searched for currency, his luggage would be searched, and he had summonses which incriminate him, it does not seem reasonable to me that he would fold them up, put them in his coat pocket in his suitcase... |
| HIS LORDSHIP: Well, an experienced searcher for currency knows the feel of currency without having to see it. And, once again, I get back to the quality of the paper. If the summonses felt like currency, I would think it would really be implausible, because he would know that an educated hand would be feeling through his luggage. But, if the quality of the paper on the summons was such that it didn't feel like currency, the risk is much less, and the hand can't read what is written on the paper; the hand can only note the quality of the paper. |
| So, I am left with a defective...a really defective analysis by the CRDD there, and its adverse conclusion. And, it seems to me that when a Tribunal or a Court makes an adverse conclusion, it should negative all the other possibilities, and not just say, "Oh, that is implausible. Ha, that is implausible. Those are summonses. Anyone could read that", but the hand searching couldn't read that, and that is why I think the Board went off the rails. Anyone who could read those summonses would say...would stop him, and say, "Ha, you haven't answered these summonses, I guess", but the hand which searches for currency cannot read what is written on the paper. |
| Now, why didn't the Board think of that? Am I the only one in the world who would think of that? And so, I would say that presents less of a risk of exposure to him. Maybe I am the only one in the world who would think of that. I don't know. |
| MR. GOLD: No, no, My Lord, indeed not. It is a point I didn't think of, but it is a valid point. It is just I don't know if the Board...if I would necessarily agree with Your Lordship that the Board would necessarily have to negative that finding in order to draw the inference it did. |
| HIS LORDSHIP: Well, then, but I am drawing the conclusion that there are other inferences which could as equally be drawn, and the Board did not draw them or even examine them or consider them. That is all I am saying. |
| MR. GOLD: In that situation, My Lord, there do not remain any further findings that... |
| HIS LORDSHIP: No, I know...Mr. Gold, your client should be proud of you. You have been like a spawning salmon. |
| MR. GOLD: Perhaps not, My Lord. |
| HIS LORDSHIP: Hitting all the falls, swimming against the current, and what I have been trying to do, and I hope successfully there, is not hide anything I am thinking from you... |
| HIS LORDSHIP: ...so that you can make the best answer you can. But, there is one to which there is no answer, why the blazes didn't the Board think of that absolutely exculpatory plausibility about those summonses? As I say, if they were written on newsprint, they wouldn't feel like currency. |
| MR. GOLD: Thank you, My Lord. |
| HIS LORDSHIP: All right, Mr. Gold. I think I do not need to hear from you in reply, Mr. Grushka. |
| As may be evident, the application will be allowed. Now, are there any serious questions of general import, the answer to which could change this outcome if another answer were given, which ought to be certified? |
| MR. GRUSHKA: Not from my point of view. |
REASONS FOR JUDGMENT:
| The Reasons for this decision ought to be pretty obvious as we have gone along, whether they be right or wrong, they ought to be obvious, because the Court has tried to examine all the conclusions pointed out to it by the CRDD and has concluded... the Court has concluded that not all of the implausibilities, not all of the inferences were even considered by the CRDD. |
| I should like...well, I can give you Reasons later, but I would just like to mention one thing before we go, and, that is, that where evidence which is misstated, misconstrued, then decisively influences the Tribunal's conclusions, the reviewing Court may set aside that decision, and the authorities for that are both from the Federal Court of Appeal, and they are, Owusu-Ansah v. MEI (1990) 8 IMM L.R. (2nd) 106, and Zalzali v. MEI (1992) 14 IMM L.R. (2nd) 81. |
| I mention that now because what I have done is perhaps a daring thing, if not revolutionary. I have upset the Board's decision made on the grounds of credibility and implausibility, and ordinarily that is something which a reviewing Court ought to leave strictly alone, unless it can be demonstrated that the findings are ill-founded, or that the findings have been made without consideration of all the evidence, or all the considerations possible, and that is what this Court finds is deficient about this Board's conclusion. |
| So, for that reason, the Reasons expressed during the hearing, and the written Reasons which will be forthcoming, the application is allowed, and Mr. Shojaie Asanjan's refugee claim is referred back to the Immigration and Refugee Board for a determination anew by the CRDD. |
| Now, if this Claimant, Mohammad Reza Shojaie Asanjan, is to testify anew before the newly constituted Panel of the CRDD, then it is this Court's belief that the newly constituted Panel ought to have before it, to read, the transcript of this hearing. Time will have gone by and the effluxion of time doesn't do anything good for human memory, and this Board's objections, this Court believes, have been demolished. So, rather than expose Mr. Mohammad Reza Shojaie Asanjan to the same kind of jeopardy of misconstrued findings, the next Board should know what has happened here, especially if he is going to be subject to, ahem, cross-examination via an RCO. I should say non cross-examination by an RCO. |
| So, I am going to recommend to the next Board, or direct the next Board to look at the objections to this first Board's findings. If Mr. Mohammad Reza Shojaie is not to be testifying viva voce before the next Board, then that next Board, in my opinion, does not need the transcript of this hearing. It will have the Court's Reasons, but not the transcript of this hearing. |
| So, that is my recommendation, nay, direction to the next Board: It will hear the case anew; it will come to its own conclusions anew. They say no one wins or loses but that is absurd, that is fatuous. If he wins, so be it. If he loses, so be it. But a new Board with a new frame of mind ought to make a refugee claim determination. |
| If there be no more questions or comments by counsel? |
| HIS LORDSHIP: Thank you. We shall rise. |
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
}