Date: 19981102
Docket: IMM-3470-97
BETWEEN:
MOHAMMAD REZA SHOJAIE ASANJAN,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] This is an application for judicial review of the decision (T96-01018) of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board dated July 21, 1997, in which the CRDD determined that the applicant is not a Convention Refugee within the meaning of subsection 2(1) of the Immigration Act, R.S.C. 1985, c.I-2 [hereinafter: the Act]. Leave to commence an application for judicial review was granted on July 27, 1998.
Background
[2] The applicant, Mohammad Reza Shojaie Asanjan, is a 39-year-old citizen of Iran. He claimed Convention refugee status upon arrival in Vancouver on December 9, 1995. He fears persecution in Iran based on his political beliefs.
[3] In his personal information form (applicant's record [AR], pp. 29-31), the applicant sets out the history of the events which led him to seek asylum in Canada. It is worth relating the applicant's story in some detail because the tribunal rejected certain allegations made in support of the claim due to both internal inconsistencies and contradiction by external documentary evidence.
[4] The applicant's father was a wealthy businessman who operated a large car parts business in Teheran. He had several wives and many children. Over the years, he involved his sons in his business. He supported the Shah's regime and contributed money to it; he also rendered assistance to the Kurds by selling them car parts at either cost or for free. After the Revolution in which the Shah was deposed, the applicant's father was arrested several times and detained for periods of up to one month. He was beaten and questioned about his support for the Shah. Eventually, he died in 1987 after being in custody for six months. One of the applicant's half-brothers also died in custody shortly after their father's death.
[5] The applicant opened his own car parts business and carried on in the tradition of his father, which included favourable dealings with the Kurds. The applicant's home was searched several times, and he was arrested on three occasions and questioned about the activities of his father and half-brother. In 1992, two of his half-brothers were arrested, one of whom, Mostafa, eventually made his way to Canada where he sought refugee status.
[6] The applicant devoted several hours each week to a karate club where he worked as an assistant coach. In April 1995, he became friendly with one "clean shaven and pleasant" student and began to confide in him the troubles his family had endured at the hands of the prevailing regime. The applicant believes that this led to his attempted arrest by two Pasdoran officers. He succeeded in foiling the arrest by administering a well-placed karate chop to one of the officers, and in the ensuing chaos hightailed it through the winding laneways to safety.
[7] The applicant went into hiding for the next six or seven months, renting various cabins in the resort area of Chalous, located on the Caspian Sea. He learned from his family that his home had been searched and that it was probably under surveillance. He had also received two summonses to appear in court regarding his half-brother Mostafa's flight from the country and the applicant's alleged anti-government activities. His family arranged for a smuggler to get him out of the country.
Tribunal's Decision
[8] In its negative determination, the tribunal held:
| The panel has valid reason to doubt and reject the truthfulness of allegations made in support of the claim, due to internal inconsistencies that arose in the claimant's evidence, as well as inconsistencies with other evidence and implausibilities. Inconsistencies may be taken into consideration when making an assessment of the credibility or trustworthiness of the evidence. |
| The allegations in question do not meet the real 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. |
| (AR, reasons for decision, pp. 8-9) |
[9] The tribunal found the summonses problematic:
| His explanations about how and where he received them was evasive and internally inconsistent. At one point he had them being left in the yard, then left with the neighbours and finally they were sent to his "personal" house. The panel could never conclude or be satisfied how he actually received them. 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. Not only was the claimant not internally consistent in his explanations, but his story about how he has them in his possession in Canada is also not plausible. He testified that he brought these summons with him from Iran carrying them in his suitcase. Considering that he claims he left Iran illegally with the assistance of a smuggler through Mehradad airport it seems to us he would be taking a grave risk, if they were found on his possession during any number of checks. What's 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 summons because if discovered it would mean certain detention in Iran. |
| (AR, reasons for decision, p. 9) |
[10] The tribunal also found implausible the applicant's testimony that he did not disclose to his half-brother, with whom he stayed for about one month upon arriving in Canada, the reasons for his flight from Iran. Mostafa testified that he had no recollection of having been told that the applicant had received a summons as a result of aiding Mostafa in departing from Iran.
[11] Finally, the tribunal found the applicant's testimony about his actual departure from Iran through the Mehradad airport in Teheran inconsistent with documentary evidence regarding established procedures. The panel found it implausible that he would leave the country with a passport in his own name given his arrest record and if the authorities were interested in apprehending him. With respect to the departure inspections, the panel held that the applicant's testimony was internally inconsistent and evasive.
Applicant's Position
[12] The applicant argues that the tribunal based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. In particular, the applicant argues that the tribunal, in doubting the authenticity of the summonses and the applicant's ability to leave Iran using his own name, misstates the evidence as to how and where he received the summons. The panel misstated the evidence regarding the applicant's testimony as to his street address. The applicant also argues that the panel misstated his evidence regarding how he passed through security at the airport.
[13] The applicant states that the panel incorrectly perceived the evidence regarding the nature of his relationship with his half-brother Mostafa when the panel held that their relationship appears "now strained" despite their evidence that they have never been close. Furthermore, the applicant never testified that he assisted Mostafa in his departure or that he even knew details of it. The panel's subsequent conclusion that the brothers would share confidences regarding their problems is unreasonable given their history.
[14] The applicant argues that the panel erred in relying on a 1993 report as to Teheran airport procedures in 1995, when he departed. However, even if the procedures have not changed substantially in the intervening two years. the applicant argues that his testimony parallelled the documentary evidence.
[15] The applicant takes issue with the panel's finding that it was implausible that he would run such a great risk in taking his summons with him on his departure. He testified that he accepted the risk in order to have documents to substantiate his refugee claim. As well, the applicant argues that because he engaged a smuggler to get him out of the country, it is not implausible that he would use his own name on his travel documents; the smuggler had made arrangements to ease his passage through the airport in advance.
[16] Finally, the applicant argues that the panel failed to address the importance of the summonses. They provide proof that he was wanted by the authorities for political reasons. The panel accepted the documents themselves, questioning only the way in which the applicant received them.
Respondent's Position
[17] Essentially, the respondent argues that the panel was entitled to make findings regarding the applicant's credibility, and that such findings were supported by detailed reasons citing numerous inconsistencies and implausibilities contained within the testimony. Furthermore, negative observations with respect to the applicant's demeanour during testimony are unassailable in the absence of perverseness.
Issue
[18] Did the tribunal err in basing its decision on erroneous findings of fact made in a perverse or capricious manner or without regard to the material before it?
Analysis
[19] The CRDD is accorded considerable deference on judicial review in regard to credibility findings. The reviewing court may not interfere with such findings unless they are found to be perverse, capricious, or made without regard to the evidence before the tribunal. The tribunal is ideally situated for making findings regarding the applicant's demeanour and overall credibility and trustworthiness.
[20] In Tshimanga v. Canada (Minister of Citizenship and Immigration), IMM-389-95 (November 9,1995) this Court canvassed the issue of credibility findings and states, at paragraphs 16 through 19, and 24, the following presumptions:
| It is perfectly acceptable for a tribunal to find an applicant lacking in credibility according to implausibilities in the applicant's testimony. For example, Aguebor v. Canada (MEI) (1993), 160 N.R. 315 (F.C.A.), Kioreskou v. Canada (MCI) IMM-1860-94, March 22, 1995 (F.C.T.D.), [1995] F.C.J. No. 457. However, where the tribunal finds a lack of credibility based on inferences,, there must be a basis in the evidence to support the inferences. Such inferences must be reasonably open to the tribunal based on the evidence of the applicant. Frimpong v. Canada (MEI) (1989), 99 N.R. 164 (F.C.A.), Ahortor v. Canada (MEI) (1993), 65 F.T.R. 137 (F.C.T.D.), 21 Imm.L.R. (2d) 39 and Quintero v. Canada (MCI) (1995), 90 F.T.R. 251 (F.C.T.D.). |
| Where the tribunals' inferences are based on what seemed to be "common sense" or rational perceptions about how a government regime in another country might be expected to act or react in a given set of circumstances, there is an obligation, out of fairness, to provide an opportunity for the applicant to address those inferences on which the tribunal relies. Nkrumah v. Canada (MEI) (1993), 65 F.T.R. 313 (F.C.T.D.), 20 Imm.L.R. (2d) 246. |
| The tribunal must have regard for the totality of the evidence before it when assessing credibility. The tribunal cannot make an adverse credibility finding while ignoring evidence of the claimant explaining apparent inconsistencies. Owusu-Ansah v. Canada (MEI) (1989), 98 N.R. 312 (F.C.A.), 8 Imm.L.R. (2d) 106, and Frimpong v. Canada (MEI) (1989), 99 N.R. 164 (F.C.A.). |
| If the tribunal, when making finding of fact, misconstrues or ignores the evidence before it, and relies upon these findings when making an adverse determination as to credibility, the decision will be quashed. Toro v. Canada (MEI), [1981] 1 F.C. 652 (F.C.A.), Rezaei v. Canada (MEI) (24 January 1992), A-855-90 (F.C.A.), [1992] F.C.J. No. 40, Lai v. Canada (MEI) (6 October 1992), A-484-91 (F.C.A.), [1992] F.C.J. No. 906, and Ioda v. Canada (MEI) (1993), 65 F.T.R. 166 (F.C.T.D.), 21 Imm.L.R. (2d) 294. |
| *** *** *** |
| If the tribunal, especially where the decision is based upon an assessment of credibility, had before it evidence which would support its negative assessment of credibility, the tribunal's findings were reasonable in light of the evidence before it, and reasonable inferences were drawn from that evidence, then the Court should not interfere with the tribunal's decision, even if the Court might not have reached the same conclusion. Muhammed v. Canada (MEI) (1993), 67 F.T.R. 152 (F.C.T.D.), Ankrah v. MEI (March 16, 1993), T-1986-92 (F.C.T.D), [1993] F.C.J. No. 385, Oduro v. MEI (1993), 66 F.T.R. 106 (F.C.T.D.), Castro v. MEI supra, Houssein v. Canada (MEI), a recent decision of the Federal Court Trial Division, and Rajaratnam v. MEI (1991), 135 N.R. 300 (F.C.A.) |
[21] In Maldonado v. Canada (MEI), [1980] 2 F.C. 302, Mr. Justice Heald of the Federal Court of Appeal stated that when an applicant swears to tell the truth regarding certain allegations, a presumption arises that those allegations are true unless a reason exists to doubt their veracity. In Djama v. Canada (MEI) (A-738-90, June 5, 1992) it was held that the panel will have erred if it allows itself to become so fixated on the details of the claimant's testimony that it forgets the substance of the facts on which the claim is based.
[22] In its reasons, the tribunal clearly stated that it doubted the applicant's testimony. In particular, it found internal inconsistencies, contradictory documentary evidence, and implausibilities. The panel points out that the applicant was afforded the opportunity to clarify the inconsistencies and implausibilities; however, he did not do so to the panel's satisfaction.
[23] The panel found the summonses "problematic". It states that the applicant was evasive and inconsistent when he attempted to explain how he received them. The panel states that the applicant testified that they were in his yard, with his neighbour, and sent to his "personal" house. Clearly, this cannot be. Reference to the transcript, however, shows otherwise:
| Q. Where did you get the two summonses? |
| A. These two summons were sent to our house and through the neighbours, they had given it to my family. |
| Q. When you say "our house", what do you mean? Whose house? |
| A. These two warrants, they were sent to my own personal home which I was living there. Send it there. |
| Q. So, how would, was there someone else living in the house besides yourself? |
| A. No. I was living by myself. |
| Q. So, how would someone have access to those papers in your house? |
| A. Iran is not like Canada that houses have the mailboxes. When they bring letters, either they throw it to the yard or they gave it to the neighbours. |
| (AR, transcript, p. 164) |
From this exchange with counsel, it appears that what the applicant is saying is that the summonses were directed to his house, but that as he was not at home they were given to his neighbours who, in turn, passed the documents on to his family. Granted, testimony given with the aid of an interpreter may at times be difficult to apprehend, however the panel's conclusion that the applicant was evasive and inconsistent appears unsupportable upon resort to the transcript.
[24] The panel also found the applicant was "very evasive" when asked by the presiding member to give his home address in Teheran. Reference to the transcript is again instructive:
| Q. What was the address you lived at, at that time? |
| A. Mirdamdad (inaudible). * * * Zafar Street * * * And then there was a small street, I've forgotten the name (inaudible), and the number was 42 and I think apartment 2. The number was 41 and the apartment was 2. I don't, it's one-and-a-half, one year and something passes and I don't exactly remember the address. |
| Q. How long had you lived there? |
| A. Approximately about one-and-a-half years. |
| (AR. transcript, pp. 164-65) |
Again, the transcripts do not appear to support the tribunal's conclusion. Indeed, the summonses themselves (exhibit C-2) shows the applicant's address as: "Mirdamad Ave., Shams Tabrizi Lane, No. 41". The applicant appears to have been mistaken only insofar as the name of the lane is concerned; it is a stretch to term this "very evasive".
[25] Finally, the tribunal finds it "bizarre" that the applicant would indulge in such risky behaviour as smuggling the summonses out of Iran in his suitcase given the dire consequences that would attend discovery of the documents. Again, this conclusion does not appear reasonable in light of the applicant's explanation that he believed the documents would assist him in substantiating his claim for refuge.
[26] The panel characterized the applicant's relationship with Mostafa as "now strained" thus implying that at an earlier time it was otherwise. This does not accord with Mostafa's testimony where it appears that the opposite is true:
| Q. Do you have any contact now in Canada with your half brother? |
| A. Yes, because here we don't have any kin or relatives naturally. We have more contacts and rapport than Iran. |
| (AR, transcript, p. 158) |
In his testimony, the applicant confirms this to a certain extent when he testified that he and his half-siblings were never close in Iran (p. 160).
[27] The panel states that it is clear that the applicant did not assist Mostafa in leaving Iran, and that this is made more evident by the fact that the claimant was unable to tell the panel exactly when his half-brother left Iran (AR, reasons for decision, p. 7). Here the panel appears to be confusing the issue: the applicant never asserted that he aided Mostafa, only that the government was under the impression that he did, and hence the summons. Given the limited nature of their relationship - something neither sibling denied - it would be unreasonable to conclude that they would share confidences with each other upon the applicant's arrival in Canada.
[28] The panel stated that it preferred documentary evidence over the applicant's viva voce testimony regarding departure procedure at the Mehradad airport in Teheran. It is well established that a panel may choose to prefer documentary evidence over sworn testimony as long as it states clearly and unequivocally why it prefers such evidence: Aligolian v. Canada (MCI) IMM-3684-96 (April 22, 1997) (F.C.T.D.), Okyere-Akosah v. Canada (MEI), A-92-91 (May 6, 1991) (F.C.A.), and Hilo v. Canada (MEI), A-260-90 (March 15, 1991) (F.C.A.). It should be noted, however, that the applicant objected to the use of a 1993 report to substantiate his actions in 1995. Notwithstanding this objection, the transcript reveals that the applicant's testimony generally conforms to that report if some allowances be made for the vagaries of translation. The panel of the CRDD ought to have been at least alert, if not astute, about the evidence of a traveller's choice of kiosk and the role of the colonel at the airport, which, together minimized the risk taken by the applicant.
Conclusion
[29] In reaching its decision, the tribunal relied heavily on its conclusions regarding the "problematic' summonses. The panel also relied on its misperception of the nature of the applicant's relationship with his half-brother. These conclusions, however, are not borne out by the evidence upon a true reading of the hearing transcript. Rather, they amount to errors in the form of misstating the evidence. Where evidence which is misstated then decisively influences the tribunal's conclusions, the reviewing court may set aside that decision: Owusu-Ansah v. Canada (MEI) (1990), 8 Imm.L.R. (2d) 106 (F.C.A.) and Zalzali v. Canada (MEI) (1992), 14 Imm.L.R. (2d) 81 (F.C.A.). The CRDD's decision (file no. T96-01018) is set aside and quashed, and the applicant's refugee claim is referred back to the CRDD, to be adjudicated and determined anew by a differently constituted CRDD panel. If the applicant and/or his half-brother Mostafa are to testify again next time before the new panel these reasons are to be read by the panel prior to the hearing; and the panel might read up or learn
something about the relationship between half-siblings of different mothers in polygamous marriages. Noted also should be the fact that the half-brother did not even list the applicant among his relatives.
Judge
Ottawa, Ontario
November 2, 1998