Ottawa, Ontario, the 10th day of February 2006
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the panel) on April 14, 2005, in which Farid Osmane concluded the applicant was neither a Convention refugee nor a person in need of protection within the meaning of sections 96 and 97 of the Act.
ISSUES
[2] The case at bar raises two questions:
1. Did the panel make an error justifying this Court’s intervention when it found that the applicant was not credible?
2. Was the panel biased?
[3] For the following reasons, the answer to the first question is in the affirmative. In view of the answer to the first question, it is not necessary to answer the second.
BACKGROUND
[4] The applicant is a citizen of Iran. He was born at Tehran on April 2, 1982.
[5] The applicant alleged that he feared persecution by the Iranian authorities on account of an incident which took place at Tehran on July 8, 2004.
[6] The applicant and his friend Ata intervened when they saw a man being beaten by two other persons in the street. In the confusion, the victim fled and one of the attackers pursued him. The applicant and Ata continued to scuffle with the other assailant and the applicant thought the latter hurt his head when he fell. He said that it was only then that he realized that the assailant had a pair of handcuffs attached to his belt, which led him to conclude he was a plainclothes officer. The applicant and Ata immediately fled.
[7] The applicant later learned that Ata had been arrested. As he feared the same thing would happen to him, the applicant left his residence to hide from the Iranian authorities.
[8] On July 9, 2004, the authorities searched the applicant’s residence. As he was not found on the premises, they arrested his father. During his detention, the applicant’s father learned that the men the applicant and Ata had been fighting the evening before were government agents and that the victim was a political opponent. The applicant’s father also learned that the Iranian authorities suspected the applicant and Ata of conniving with this political opponent.
[9] The applicant’s father was eventually released, but was again questioned by the authorities and summoned to appear before the Revolutionary Court as part of the investigation into the applicant. His lack of cooperation with the authorities cost him his job.
[10] The applicant arrived in Canada on August 6, 2004 and immediately filed a claim for refugee protection.
[11] His application was heard on January 26, 2005 and dismissed on April 14, 2005.
IMPUGNED DECISION
[12] The panel dismissed the application’s claim for refugee protection on the ground that he was not credible when he alleged he had a reasonable fear of persecution by the Iranian authorities.
[13] In its reasons, the panel noted several inconsistencies and omissions in the applicant’s statements when he arrived in Canada. In particular, the panel cited the following examples:
- vague statements as to the way in which the applicant managed to come to Canada;
- vague statements about his participation in a demonstration on June 24, 2004: the applicant alleged problems of translation and a change of interpreter, though there was nothing to indicate that such a change of interpreter took place;
- contradictions regarding the existence of an arrest warrant for the applicant;
- improbability of the fact that the applicant memorized nothing of the false Greek passport on which he travelled, in view of the vigilance of the European customs authorities who, he said, stopped him;
- an omission regarding the applicant’s fear of being mistreated in compulsory military service to which he would be subject if he returned to Iran;
- the improbability of the fact that the applicant’s father did not hire a lawyer to find out the nature of the charges against the applicant.
[14] The panel further mentioned the disqualification application for apparent bias made by counsel for the applicant. Citing the test set out by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, the panel dismissed this application, stating that an informed person would not believe on a balance of probabilities that it would render a biased decision.
ANALYSIS
[15] The relevant provisions of the Act read as follows:
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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,
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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 :
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(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
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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;
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(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.
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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.
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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
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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 :
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(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
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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;
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(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
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b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
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(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,
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(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
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(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. |
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(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. |
Standard of review
[16] The determination of the credibility of an applicant’s testimony is a question of fact and this Court’s intervention is only warranted if there is a patently unreasonable error. In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.) (QL), Décary J.A. wrote at paragraph 4:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[17] The applicant alleged that the panel made a decision based on erroneous findings of fact made in a perverse or capricious manner or without regard for the material before it.
[18] The applicant cited several examples of erroneous findings of fact, including the following:
- the documentary evidence submitted by the respondent at the hearing showed that there had been a change of translator between the applicant’s first interview on August 6, 2004 and the second interview on August 7, 2004: the first interpreter was Tiedad Bakhshi and the second was Feresteh Rohani-Najad;
- in his first interviews with the immigration officers, the applicant said the Iranian authorities wanted to arrest him, not that an arrest warrant had been issued against him;
- the panel’s conclusion that the Iranian authorities would have issued an arrest warrant against the applicant if they had really wanted to arrest him is contradicted by the documentary evidence before it, in particular the United States Department of State Country Report on Human Rights Practices 2003 and the UK Country Assessment dealing with Iran;
- the panel’s conclusion regarding the vigilance of the European customs officials was not based on any established evidence;
- the panel’s reasons suggested that, at the hearing, the applicant added his fear of military service to increase the chances of success of his application, whereas he had consistently emphasized the fact that his fear of persecution resulted from the events on July 8, 2004.
[19] The number of errors of fact made by the panel in the few pages of its reasons appeared to indicate that the assessment of the applicant’s claim for refugee protection may not have received the greatest possible care and attention.
[20] Further, the panel’s silence on two points of documentary evidence supporting the applicant’s claims in my view constitutes a patently unreasonable error.
[21] The case law is clear: this Court’s function is not to examine the panel’s reasons with a microscope (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.), and the latter is assumed to have reviewed all the evidence before it (Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL)).
[22] However, the panel cannot simply ignore evidence supporting an applicant’s claims. The more important this evidence is, the more imperative is the panel’s duty to mention what weight it attaches to such evidence.
[23] In Mahanandan v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1228 (F.C.A.) (QL), Isaac C.J. wrote at paragraph 8:
Where, as here, documentary evidence of the kind in issue here is received in evidence at a hearing which could conceivably affect the Board's appreciation of an Appellant's claim to be a Convention refugee, it seems to us that the Board is required to go beyond a bare acknowledgment of its having been received and to indicate, in its reasons, the impact, if any, that such evidence had upon the Applicant's claim. As I have already said, the Board failed to do so in this case. This, in our view was a fatal omission, as a result of which the decision cannot stand.
[24] Here the evidence in question is the following:
- a letter of August 11, 2004 from the Goltash company (Exhibit P-4, page 46, panel’s record), in which it indicated to the applicant’s father that he had been dismissed because of his failure to cooperate with the authorities regarding the applicant;
- the applicant’s father’s written statement (Exhibit P-5, page 48, panel’s record) relating the interrogations to which he was subject;
- a summons to the applicant’s father to appear before the Revolutionary Court (Exhibit P-11, page 62, panel’s record) to give certain explanations regarding the applicant.
[25] It seems clear to the Court that the panel could not both remain silent regarding this evidence and state that the applicant was unable to provide evidence about the problems he alleged to have had in Iran.
[26] Also, there was no analysis of the incident of July 8, 2004, which was in fact the central point of the applicant’s claim.
[27] Accordingly, I find that this decision is vitiated by several patently unreasonable errors.
[28] The parties declined to submit questions for certification. The case contains none.
ORDER
THE COURT ORDERS that the instant application for judicial review be allowed. The matter is referred back to a panel of different members for reconsideration. No question is certified.
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2872-05
STYLE OF CAUSE: ASHKAN MIRZAIE FASHAMI
v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 8, 2006
REASONS FOR ORDER AND ORDER BY: The Honourable Mr. Justice Beaudry
APPEARANCES:
Annie Bélanger FOR THE APPLICANT
Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bélanger, Fiore FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec