PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O'KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated June 1, 2005, which determined that the applicant is neither a Convention refugee nor a person in need of protection.
[2] The applicant seeks an order quashing the Board's decision and referring the matter for re-determination by a differently constituted panel.
Background
[3] The applicant, a citizen of Iran, has been in Canada since September 2004. He claims to have a fear of detention and torture at the hands of state officials because of his perceived political opinion as an anti-revolutionary.
[4] The applicant related the following events in the narrative of his Personal Information Form (PIF). In November 2001, he was arrested and taken to the detention centre of the Revolutionary Courtin Tehran. He was detained for 42 days and questioned regarding Ali Yaghmai whom he had met during a typing course. The applicant had been observed speaking with Mr. Yaghmai on a street near a student demonstration. The applicant told the authorities that he knew very little about Mr. Yaghmai. Nevertheless, the applicant was brutally beaten and tortured during his detention. He was released on the condition that he would keep the authorities informed if he changed his address or acquired knowledge on Mr. Yaghmai.
[5] The applicant moved to Hamedan after his release, but did not report his new address as promised. A summons was sent to his old address. He made an appearance, was held for four hours for questioning, and then released. He subsequently moved to Shiraz, and informed the authorities about this change in address.
[6] The applicant feared being re-arrested and so he decided to leave Iran. He applied for a visitor visa to Canada in early 2004 and it was denied.
[7] In June or July 2004, the applicant learned that members of the disciplinary forces had visited his employer's premises twice in the past two months to inquire about him. The applicant became afraid that the authorities were again taking an interest in him, so he made arrangements with a smuggler to come to Canada.
[8] The applicant arrived in Canada in September 2004 and claimed refugee status. On June 1, 2005, the Board heard the applicant's claim. At the hearing, the Board concluded that the applicant was not a Convention refugee or person in need of protection and consequently, refused his claim. This is the judicial review of the Board's decision.
Reasons for the Board's Decision
[9] The Board was troubled by the misrepresentations that the applicant had made to Canadian immigration officials when he applied for a visa and when he made a refugee claim at the port of entry. For his visa application, the applicant had stated that he had a wife and child in Iran when in fact he was divorced and childless. At the port of entry, he lied about his route of travel and he denied having applied for a visa. The Board drew a negative credibility inference from these misrepresentations. The Board further drew a negative inference from the applicant's testimony that he promised the Iranian authorities that he would cooperate with them, upon his release, even though he had no intention of doing so.
[10] The Board accepted that the applicant had been held for questioning and that he received notices to appear, however, the Board did not accept that he was severely beaten and tortured during his detention in November 2001. The Board believed that the applicant was in pain but found that "there was no credible or trustworthy evidence before it that there was such severe beating". The applicant told the Board that he received medical treatment for his injuries from the beating. The Board noted that the applicant had made no efforts to obtain documents that would substantiate these claims.
[11] The Board found that the authorities had concluded, after questioning the applicant, that he had no close association with Ali Yaghmai, and that he did not know or have any background information to share. The Board was not persuaded that the authorities were still interested in the applicant after his last reporting in July 2002, as nothing had happened since that date, except for a summons that was sent to the applicant in July 2004 to appear and answer some questions. The applicant did not appear because he left Iran on September 14, 2004. The Board noted that no charges were pending and there did not appear to be further accusations.
[12] The Board stated that if the applicant had a well-founded fear of persecution, he would have taken steps to find out the extent of the questions that the state authorities had asked of his employer. Moreover, the Board found it troubling that the state authorities had been on the employer's premises to inquire about the applicant, yet did not take the applicant in for questioning at that time.
Applicant's Submissions
[13] In his memorandum of argument, the applicant submitted the following issues for consideration:
1. Did the Board err in relation to the definition of persecution under section 96 and section 97 of IRPA?
2. Did the Board err in the credibility findings or findings of fact?
[14] The applicant, relying on Begollari v. Canada(Minister of Citizenship and Immigration), 2004 FC 1340, submitted that the Board applied the incorrect standard of proof in determining whether the applicant has a well-founded fear of persecution. The Board stated, at page 6 of the tribunal record, that "the onus is on the claimant to establish on a balance of probabilities that there is a serious possibility of harm in the country of origin". Similar language was used in the conclusion at pages 11 to 12 of the tribunal record.
[15] The applicant submitted that the Board erred in not considering whether his continual detention for an illegitimate reason amounted to persecution. It was also submitted that the Board erred in not considering whether the applicant had suffered persecution based on the cumulative nature of the past experiences.
[16] The applicant submitted that the Board erred in relying on misrepresentations that he made to Canadian visa officers to impugn his credibility. The applicant cited Fajardo v. Canada(Minister of Employment and Immigration) (1993), 157 N.R. 392 (F.C.A.), followed by recent cases such as Maheswaran v. Canada(Minister of Citizenship and Immigration), 2003 FC 910. The applicant also cited Orelien v. Canada(Minister of Employment and Immigration) (1991), [1992] 1 F.C. 592 (C.A.) where the Federal Court of Appeal stated at paragraph 36, "That a person has sought to emigrate strikes me as a feeble basis for questioning the credibility of that person's evidence of fear of persecution at home."
[17] The applicant submitted that the Board made an "extraordinary" finding by drawing a negative credibility inference from his admission at the hearing that he promised the Iranian authorities that he would cooperate with them even though he did not really intend to do so.
[18] The applicant submitted that the Board made a contradictory finding when, regarding his allegations of beating and torture, the Board stated that "the panel believes that he was in pain, but there was no credible or trustworthy evidence before it that there was such severe beating" (page 7 of the tribunal record), and yet, went on to state that "there is insufficient trustworthy evidence to support the fact that he was beaten during his first detention" (page 10 of the tribunal record).
[19] The applicant submitted that if there is credible evidence relevant to section 97 of IRPA, the Board has an obligation to perform a section 97 analysis. In support of this proposition, the applicant cited numerous cases, including Brovina v. Canada(Minister of Citizenship and Immigration), 2004 FC 635 at paragraphs 17 and 18. It was submitted that counsel made submissions at the hearing about the treatment that the Iranian authorities mete out to detainees and therefore, the Board erred in not conducting a separate section 97 analysis.
[20] The applicant submitted that if this Court finds that a substantial error was made, then the test for allowing an application for judicial review is whether the result by the Board might have been different had the error not been made (see Abdullahi v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 31 at paragraph 4 (T.D.) (QL)).
Respondent's Submissions
[21] The respondent submitted that in the decision of Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 at paragraphs 5 and 8 (C.A.), it was explained that while the threshold for the Convention refugee definition is that of a serious possibility, the existence of that threshold must be determined on a balance of probabilities. The respondent submitted that in the Begollari decision relied upon by the applicant, the error that occurred was that it was unclear whether the Board employed the balance of probabilities or the serious possibility standard. It was submitted that other judges of this Court have held that, when a review of the reasons as a whole indicates that the Board employed the correct standard, the phrasing used by the Board cannot be said to suggest that the wrong standard was used. In I.F. v. Canada(Minister of Citizenship and Immigration), 2005 FC 1472, Justice Lemieux held that the Board had correctly explained the threshold when it stated:
The claimants have not established, on a balance of probabilities, that there is a serious possibility they would be persecuted for a Convention ground, if they were to return to Romania.
[22] The respondent submitted that in the present application, the Board employed the correct standard as it required the applicant to demonstrate that it is more likely than not (a balance of probabilities) that he faces a serious possibility of persecution.
[23] In response to the applicant's argument concerning his continual detention amounting to persecution, the respondent submitted that the applicant has not demonstrated that he was continually detained, or that the detention was under deplorable conditions. It was further submitted that the applicant's argument that he faced persecution on cumulative grounds cannot succeed because the applicant's story was not believed.
[24] The respondent submitted that the Board did not err in doubting the applicant's credibility because of his misrepresentations to Canadian immigration officers. Even if a reviewable error was committed in this regard, it was submitted that it is not material, given the other grounds for the Board's negative credibility finding.
[25] The respondent submitted that the Board did not draw an adverse credibility inference from the fact that he lied to Iranian officials, but rather, from the applicant's inconsistent actions. He first did not report his change of address out of fear, but then he did report his change of address out of fear.
[26] The respondent submitted that the Board's reasons are not contradictory as the Board did not accept that the applicant was beaten. Where the Board notes that the applicant was severely beaten, it did so in outlining the basis of his claim. However, the Board later rejects that allegation because there is no medical evidence corroborating the claim.
[27] The respondent submitted that no separate section 97 analysis is required because there was no credible evidence about the applicant's fear in Iran and there was no documentary evidence suggesting that the applicant may qualify as a person who may be at risk in Iran.
Analysis and Decision
Issues
[28] I would restate the issues as follows:
1. Did the Board apply the incorrect standard of proof to the test for a well-founded fear of persecution?
2. Did the Board make a patently unreasonable credibility finding?
[29] I will deal with Issue 2, which is:
Did the Board make a patently unreasonable credibility finding?
[30] The Board's credibility findings are findings of fact and as such, are reviewable on a standard of patent unreasonableness.
[31] The Board was concerned that the applicant had lied to Canadian immigration authorities. The applicant told the authorities that he had a wife and child in Iran whereas he in fact was divorced and childless. The Board was also concerned that the applicant told the Iranian authorities that he would cooperate with them, upon his release, when in fact he had no intention to do so.
[32] The Board stated in its decision:
In terms of credibility, it was troubling to the panel that the claimant had not told the truth in Iran while seeking a Canadian visa. He confessed that he had lied in order to obtain a visa and indicated that he had a child that he did not have in order to have a visa accepted. He later also lied regarding having applied for a Canadian visa at the port of entry and he lied about his marriage and also his travel.
Whereas the panel accepts the misrepresentation in order to obtain a visa, it is troubling that when the authorities made it clear that they understood that he had made a visa claim outside the country, he still persisted in not telling the truth at that point.
Even if the panel puts that aside, in further questioning, the claimant indicated that when questioned by state authorities, he was asked to agree to keep them informed as to his whereabouts and to provide information on Ali should it fall into his possession. When asked whether he had any intentions of cooperating and doing that after agreeing to do so with authorities, he said, "no", that it was perhaps also a misrepresentation. He also testified that he did not really tell the truth when he spoke with Canadian officials.
While the panel considers counsel's explanation for some of the misrepresentations, overall the panel takes a negative inference from the constant misrepresentations of the claimant. The panel did consider the fact that the lies must be material to the claim and so it takes a negative inference from the misrepresentations when weighing objectively the evidence before it.
[33] Although the Board put aside the lies concerning the visa application in its credibility determination, it did take into consideration the lies to the Iranian authorities concerning the providing of information, and at least one other misrepresentation, as its decision refers to "constant misrepresentations".
[34] In my opinion, the Board made a patently unreasonable decision in relying on the misrepresentation made to the Iranian authorities in order to find the applicant not to be credible. It is not surprising that the applicant would lie to the Iranian authorities, who he alleged had beat him, in order to obtain his release. In addition, I cannot see how this lie would be material to the applicant's claim.
[35] The Board's credibility finding may have been different if it had not included the lie in Iran as a factor in its credibility determination. The Board's credibility finding is crucial to the outcome of the case as the Board did not wholly accept the applicant's claim that he was severely beaten while in detention in Iran.
[36] As a result, the Board's decision must be set aside. The matter is referred to a differently constituted panel for re-determination.
[37] I need not deal with the remaining issue raised by the applicant.
[38] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[39] IT IS ORDERED that the decision of the Board is set aside and the matter is referred to a differently constituted panel for re-determination.
ANNEX
Relevant Legislation
Paragraph 95(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides that refugee protection is conferred on a person who is determined by the Board to be a Convention refugee or a person in need of protection.
| 95. (1) Refugee protection is conferred on a person when
. . .
(b) the Board determines the person to be a Convention refugee or a person in need of protection; or
. . . |
95. (1) L'asile est la protection conférée à toute personne dès lors que, selon le cas:
. . .
b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger;
. . . |
Section 96 and subsection 97(1) define "Convention refugee" and "person in need of protection" as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4922-05
STYLE OF CAUSE: SEYED KAMAL HEDAYATI
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT AND JUDGMENT: O'KEEFE J.
APPEARANCES:
| Micheal Crane
|
|
| Bernard Assan
|
SOLICITORS OF RECORD:
| Micheal Crane Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada
|