Date: 20060213
Docket: IMM-4258-05
Citation: 2006 FC 151
BETWEEN:
SHIRIN ZARGHAMI
SHAGHAYEGH HOSSEINZADEH SERESHKI
SARVNAZ-ANA HOSSEINZADEH SERESHKI
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Immigration Division of the Immigration and Refugee Board (the "Board") dated June 22, 2005, wherein the Board found that the applicant had misrepresented the identity of her husband. As a result of its decision, the Board issued exclusion orders against the applicants.
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[2] Shirin Zarghami ("the applicant") is a citizen of Iran and was a resident of France. Her daughters, Shaghayegh Hosseinzadeh Sereshki born on September 27, 1984 and Sarvnaz-Ana Hosseinzadeh Sereshki born on May 5, 1993, are citizens of France.
[3] In 1979, the applicant married Hamid Hossein Zadeh Sereshki ("Hamid") and moved to France with him. She was authorized to stay in France due to her husband having been accepted as a refugee from Iran.
[4] In 1994, the applicant and Hamid divorced in France.
[5] On April 17, 1996, Ms. Zarghami and her daughters were issued visitor visas to Canada from the Canadian Embassy in Paris. They arrived in Canada on April 20, 1996.
[6] On August 11, 1998, Parviz Neshat became a permanent resident of Canada after he was found to be a Convention refugee by the Convention Refugee Determination Division on June 1, 1998.
[7] On November 11, 1998, Ms. Zarghami married Parviz Neshat in Canada. She claimed that she knew Parviz Neshat in Iran, that they met in Canada through Ms. Zarghami's cousin, and that she nursed him back to health after he was seriously wounded by gunshot during a robbery attempt in January 1997.
[8] On January 12, 1999, Ms. Zarghami applied for permanent residence in Canada and requested exemption from the visa requirements on humanitarian and compassionate ("H & C") grounds for herself and her two daughters.
[9] By decision dated December 29, 1999, the Immigration Counsellor granted the exemption from the visa requirement on H & C grounds.
[10] Canada Immigration Enforcement was notified that Mr. Neshat may have misrepresented his identity to Canadian authorities when he entered Canada and made his refugee claim. Mr. Neshat is believed to be Hamid. Upon investigation into Mr. Neshat's identity, Ms. Zarghami and her children were reported under section 40 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, for misrepresentation of material facts being the identity of Mr. Neshat and the nature of their relationship.
[11] The misrepresentation allegations were referred to and heard before the Board at an admissibility hearing held on February 23, March 7, March 11 and May 12, 2005.
[12] By decision dated June 22, 2005, the Board issued an Exclusion Order against the applicants and found on a balance of probabilities that the applicants had misrepresented the identity of Mr. Neshat.
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Adequacy of the Board's Reasons
[13] The applicant submits that the Board's reasons were inadequate because the Board did not explicitly state that it disbelieved the testimony of the applicants or their witnesses, did not address the evidence of Mr. Amidi, and because the reasons were unintelligible in parts.
[14] The issue of adequacy of reasons was canvassed in VIA Rail Canada Inc. v. National Transportation Agency et al., [2001] 2 F.C. 25, where the Federal Court of Appeal stated the following at page 36:
[22] The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. . . . Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. . . . The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out . . . and must reflect consideration of the main relevant factors. . . .
[15] The respondent is correct in asserting that reasons serve the two main purposes of letting the parties know that the issues have been considered and of allowing the parties to effectuate any right of appeal or judicial review (Via Rail, supra, Townsend v. Minister of Citizenship and Immigration, 2003 FCT 371, and Fabian v. Minister of Citizenship and Immigration, 2003 FC 1527).
[16] In Carby-Samuels v. Canada (Treasury Board) (1994), 84 F.T.R. 124, Justice Marc Noël found that reasons were adequate where they stated concisely and with precision the grounds for the decision and where the applicant could not pretend to be at a loss as to why the Board decided the way it did or validly assert that the Board failed to address relevant issues.
[17] The question as to the adequacy of reasons engages an issue of procedural fairness. As such, the standard of review is correctness (Housen v. Nikolaisen, [2002] 2 S.C.R. 235, and Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195, at paragraph 45).
[18] In this case, the only issue before the Board was whether the applicants had misrepresented the identity of Mr. Neshat. At the heart of the Board's findings is an assessment of credibility, as misrepresentation is a credibility determination. The applicants and Mr. Neshat testified that Parviz Neshat was not the same person as Hamid. The Board member found on the balance of probabilities that the applicants had misrepresented the identity of Mr. Neshat. Therefore, the Board disbelieved the testimony of the applicants and Mr. Neshat.
[19] Specifically, the Board member set out in her reasons her findings regarding the evidence and why she disbelieved the evidence of the applicants. Taking into account cultural factors, age, level of education, ability to testify as to the information requested, and their interest in the outcome, the Board member found, inter alia:
- Ms. Zarghami's answers were often evasive, and she was general when her answers could have been more specific, or very detailed when it was not required. Ms. Zarghami was difficult to control when testifying and had to be asked to move to the back of the hearing room;
- Hamid failed to cooperate to confirm his identity. He failed to meet with the Canadian Embassy official in France at the appointed place and time to confirm his identity, and was not at the agreed upon location when he was called to testify at the hearing. During his telephone testimony, he did not listen well, would speak at the same time as the examiner, and was not organized nor focused;
- In the statutory declaration of the Immigration Officer at the Canadian Embassy in Teheran, the Officer stated that he tried to contact relatives of Hamid but was told that he had left Iran for France, and then to Canada;
- Though Mr. Neshat testified that he could not speak French, the evidence indicates that he studied French in Iran, and Doug Lawrence's evidence showed that Ali Kasravi, an employee of Mr. Neshat, heard him speaking French in his store. This employee also stated that Mr. Neshat and Ms. Zarghami spoke openly about their life in France;
- The photograph presented by Mr. Neshat appeared to be falsified and the Iranian authorities indicated that Mr. Neshat's birth certificate had been tampered with;
- There were many coincidences in the lives of Hamid and Neshat, including the names and dates of birth of the two daughters of both Hamid and Neshat, the similar acronyms for their companies, both had training as architects, both were involved in carpets and renovation work, the fact that Neshat arrived in Canada around the same time period Hamid disappeared in France, and that Hamid had obtained a Canadian visitor visa valid around the time Neshat arrived in Canada;
- The evidence of Doug Lawrence, the insurance company investigator who discovered the dual identity of Neshat/Hamid, showed that though he recanted it when asked to do so by Ms. Zarghami, Mr. Ismail had previously identified a photograph of Mr. Neshat as Hamid and sworn a declaration indicating that he feared threat of harm from Hamid's brother in France if Mr. Ismail provided testimony regarding the identity of Hamid;
- The evidence of Doug Lawrence showed that a photograph of Mr. Neshat was shown to people in the vicinity of Hamid's carpet store in France and the photograph was identified spontaneously by various people as being "Hossein, the carpet store owner" (Hamid Hossein Zadeh Sereshki).
[20] In addition to these findings, the Board considered the documentary evidence presented by the applicants including photographs, a declaration by Mr. Ismail recanting his earlier statement, supporting letters from Mr. Hamid's brother and a Muslim cleric who lived with Hamid in France. The letters from Hamid's brother and the Iman were given less weight as they were not considered objective, because of the relationship with the witnesses.
[21] Regarding the applicant's argument concerning the comprehensibility of the reasons, it is useful to consider the words of the Federal Court of Appeal in Lesanu v. Canada (M.E.I.), [1993] F.C.J. No. 962, at paragraph 2:
. . . Clumsiness of language or expression is often understandable and no consequence must be given to it, provided that on reading the decision as a whole it can be seen that the members of the Board did not go astray in terms of their role or the manner in which it should be carried out. . . .
[22] In my opinion, though not perfect, the Board's reasons were comprehensive with respect to the consideration of the evidence, credibility determination of the various witnesses and the weight accorded to the evidence. While the applicants allege that the reasons are incomprehensible due to error in grammar, spelling and word usage as English is not the first language of the Board member, the reasons are reasonably clear.
[23] With regard to the argument that the Board erred in its determination of Hamid being an uncooperative witness, even if this were a patently unreasonable conclusion, this is by no means the only element upon which the Board based its determination and this element would therefore not be determinative.
[24] The applicants have not shown that the Board failed to take into account any relevant factors or evidence, but disagree with the weight accorded to the evidence and the conclusion reached by the Board. The applicants cannot pretend to be at a loss as to why the Board decided the way it did or validly assert that the Board failed to address the relevant issues as the credibility determination is at the heart of a finding of inadmissibility for misrepresentation of identity. The reasons were adequate and there was no breach of procedural fairness.
Bias
[25] According to the applicant, the Board has shown in its reasons that it was biased against the applicants throughout the admissibility hearing, and the Board's decision should therefore be quashed.
[26] The test for reasonable apprehension of bias is whether or not an informed person, viewing the matter realistically and practically and having thought the matter through would think it more likely than not that the decision maker would unconsciously or consciously decide an issue unfairly (Committee for Justice and Liberty et. al. v. National Energy Board et al. (1976), 68 D.L.R. (3d) 716 (S.C.C.)).
[27] The applicant submits that in a case where the Board has rejected testimony because the person testifying has an interest in the outcome of the case, a reasonable person would think it more likely than not that the Board would not decide the issue fairly. An applicant with serious accusations made against her would never be able to respond to the allegations made if the decision maker was going to reject her evidence because she had an interest in the outcome of the case. There would be no point in even taking part in the hearing.
[28] I do not agree with the applicant's argument. The Board did not state that it rejected testimony because an individual had an interest in the case. The Board merely took this into account when weighing the evidence of Ms. Zarghami, her daughter Shaghayegh, and Mr. Neshat against the evidence to the contrary.
[29] Additionally, there is a presumption of impartiality that can only be displaced with "cogent evidence" that demonstrates that something the decision maker has done gives rise to a reasonable apprehension of bias (R. v. R.D.S., [1997] 3 S.C.R. 484 at paragraphs 116-117, Arthur v. Canada (Attorney General) [2001] F.C.J. No. 1091 (F.C.A.) (QL), and Zundel v. Citron, [2000] 4 F.C. 225 at paragraph 36 (C.A.)). The threshold for a finding of real or perceived bias is high. A real likelihood or probability of bias must be demonstrated; mere suspicion is not enough. In my opinion, a review of the material filed in this case provides no evidence that the Board member was biased or that there was a reasonable apprehension of bias. The Board member, after reviewing the application as a whole, was entitled to draw conclusions with respect to the applicants' credibility and misrepresentation.
[30] In my opinion, the applicants have not shown a reasonable apprehension of bias in this case.
Burden of Proof
[31] The applicant submits that although the Board correctly states that the burden is on the Minister at the beginning of its decision, the demands that it made on the applicants to resolve the issue clearly shows that it does not understand how this burden works or who is required to shoulder this burden.
[32] According to the applicant, the onus that the Board has placed on the applicants of convincing the other party in the admissibility hearing that Parviz Neshat and Hamid are two different people indicates that the Board does not understand that the Minister has the burden of proof. The applicant submits that the Board has erred in law and its decision should be quashed.
[33] However, in this case, the Board clearly stated at the outset of its reasons that the task at hand is to decide whether the "Minister has proven their allegation on the balance of probabilities".
[34] In reviewing the evidence, the Board made findings with respect to the probative value and credibility of the witness testimony and various statements and documents provided. The Board concluded that based on all of the evidence, on the balance of probabilities, the applicants had misrepresented the identity of Mr. Neshat.
[35] It is my opinion that, in the comments at the end of the Reasons with respect to what could have been done by the applicants, the Board was not shifting the burden of proof onto the applicants nor stating that the applicants were obliged to cooperate with the Minister. Instead, the Board was simply suggesting that the applicants could have helped themselves in refuting the Minister's case and all of the evidence presented by undergoing DNA testing, fingerprint comparison or presenting both Hamid and Parviz Neshat at the same time. As they did not, the evidence presented by the Minister was sufficient to meet the standard of proof on the balance of probabilities.
[36] Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
February 13, 2006
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4258-05
STYLE OF CAUSE: SHIRIN ZARGHAMI, SHAGHAYEGH HOSSEINZADEH SERESHKI, SARVNAZ-ANA HOSSEINZADEH SERESHKI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 10, 2006
REASONS FOR ORDER BY: PINARD J.
DATED: February 13, 2006
APPEARANCES:
Christopher Elgin FOR THE APPLICANTS
Helen Park FOR THE RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR THE APPLICANTS
Vancouver, British Columbia
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada