Ottawa, Ontario, April 6, 2006
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] Sworn testimony is presumed to be true in the absence of reasons to doubt the truthfulness of that testimony (Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302, at paragraph 5). A Board ought not to take extreme measures to seek inconsistencies in testimony in order cast doubt on the credibility of the evidence (Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (QL)). However, when testimony contains significant inconsistencies about relevant facts, this will be sufficient to support an adverse inference concerning the credibility of that testimony (Waheed v. Canada (Minister of Citizenship and Immigration), 2003 FCT 329, [2003] F.C.J. No. 466, at paragraphs 39-40).
The panel may consider testimony and documentary evidence to determine credibility. The panel must also determine the weight it attributes to documentary evidence.
The Board is entitled to consider the evidence, testimonial and documentary, as a whole in order to determine its credibility: Mostajelin v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 28 (F.C.A.) (QL). As discussed above, the Board was within its rights to make the determination that it did with respect to the credibility of the applicant. Having done that, the Board was entitled to determine the probative value that would or would not be given to documents offered in support of the testimony of the applicant.(Waheed, supra)
NATURE OF THE JUDICIAL PROCEEDINGS
[2] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) of the decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated May 26, 2005, by which it was decided that the applicant was not a refugee or a person in need of protection within the meaning of sections 96 and 97 of the Act.
FACTS
[3] The applicant, Mohammad Reza Arabalidoosti, is a citizen of Iran. After having studied in the United States from 1993 to 1997, Mr. Arabalidoosti returned to Iran and worked for a newspaper by the name of Jame’eh va Daneshgah. From December 1997 to February 2000, he worked for this newspaper as executive director, writer and head of public relations. He was subsequently the executive director of another newspaper, called Africa Studies, until he fled Iran in the summer of 2000.
[4] Spurred on by the suicide of a student in Iran, Mr. Arabalidoosti suggested the founding of a national students’ union with the objective of holding the administration responsible for its acts and giving rights and powers to the students. Mr. Arabalisdoosti explained this proposal to Dr. Javid Jasbi, a politician and member of the newspaper editorial committee, and was criticized for it.
[5] Shortly thereafter, Mr. Arabalidoosti noticed that his home was under surveillance. He therefore left the country for a short period of time, hoping that the situation would calm down. While he was visiting India for two weeks, a student revolt took place in Iran, for which a student union was blamed. In addition, Mr. Arabalidoosti’s picture was published in the newspaper as a leader of the opposition abroad.
[6] This situation left Mr. Arabalidoosti afraid of remaining in Iran, because in similar cases, Islamic extremists commit assassinations on the basis of the pictures they see, as they consider these persons to be satanic.
[7] He obtained a student visa for the Netherlands and, with the help of his father, a retired general, Mr. Arabalidoosti succeeded in leaving the country in August 2000. He did not claim refugee status in the Netherlands. In January 2001, he went to the United States, where he claimed refugee status in September 2001. His claim for refugee status in the United States was dismissed in September 2003. On October 13, 2004, Mr. Arabalidoosti came to Canada, where he claimed refugee protection.
IMPUGNED DECISION
[8] The Board dismissed Mr. Arabalidoosti’s claim, alleging that he did not establish credible evidence of his fear or the risks of return. The Board concluded that Mr. Arabalidoosti was not credible and was not a Convention refugee or a person in need of protection under sections 96 and 97 of the Act.
[9] The Board did not believe that Mr. Arabalidoosti had difficulties in Iran by reason of his employment at the Jame’eh va Daneshgah newspaper, because the evidence he adduced concerning his employment was inconsistent on several points.
[10] Moreover, the Board was of the opinion that, because Mr. Arabalidoosti did not apply for refugee status at the first opportunity in the Netherlands or when he arrived in the United States, he showed a lack of real fear of persecution in Iran.
ISSUES
[11] Did the Board make a reviewable error in concluding that the applicant was not a victim of the oppressive government of Iran?
ANALYSIS
Standard of Review
[12] The standard of review applicable in this case is that of patent unreasonableness, because the nature of the issue, that is, the assessment of Mr. Arabalidoosti’s credibility and the Board’s expert knowledge call for a high degree of judicial deference (Al-Shammari v. Canada (Minister of Citizenship and Immigration), 2002 FCT 364, [2002] F.C.J. No. 478 (QL), at paragraphs 10-11; Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL) (F.C.A.), at paragraph 4; R.K.L. v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116, [2003] F.C.J. No. 162 (QL), at paragraphs 7-9.)
Did the Board make a reviewable error in concluding that the applicant was not a victim of the oppressive government of Iran?
[13] The claim for refugee protection made by Mr. Arabalidoosti is based on a crucial fact: his involvement in the Jame’eh va Daneshgah newspaper and the proposal to found a student union he presented to Dr. Javad Jasbi, a politician and member of the newspaper editorial committee. The contradictions and inconsistencies in Mr. Arabalidoosti’s evidence cast doubt on this alleged involvement.
[14] Mr. Arabalidoosti gave a long explanation in Question 31 of his Personal Information Form (PIF), which nevertheless omitted an essential event: he had been stripped of his duties and privileges as executive director of the newspaper in June 1999. Far from being a side event, this was directly connected with the basis of his refugee protection claim. The Board could validly take this into consideration and dismiss the explanation to the effect that the PIF was already sufficiently long. No matter how long the answers given in the form may be, they must contain, as mentioned in Question 31, all the essential facts of the refugee protection claim.
[15] In spite of all this, Mr. Arabalidoosti allegedly continued to work at the newspaper until February 2000, when it was officially closed. However, in another part of his testimony, Mr. Arabalidoosti stated that the newspaper had never closed. Whether closed or not, Mr. Arabalidoosti nevertheless received a letter of recommendation allowing him to continue his studies from the person who supposedly stripped him of his duties as executive director. Whether or not this person was a hypocrite, the fact remains that the signatory of the letter supported the Iranian regime, and the Board could not understand how he could help a dissident broadcast his ideas.
…Thus, the claimant failed to explain why Ali Abbaspour and Javad Jasbi, who were on the side of the oppressive Iranian regime, would help a dissident of the regime and say that he was still an executive of the newspaper, although his power and privileges were taken from him five or six months earlier. Consequently, the panel does not believe that the claimant was antagonized by Javad Jasbi because of his alleged proposal of the formation of the union (Reasons of the panel, at page 3).
[16] Two essential conclusions of the Board are connected with this excerpt: the first one, questioning the activities of Mr. Arabalidoosti at the newspaper, and the second one, questioning the reasons for which Javad Jasbi allegedly became his enemy.
[17] Mr. Arabalidoosti contradicted himself about the period during which he acted as executive director. To Question 7 of his PIF, he answered that his employment officially ended at the end of 1999. However, he also stated that he had been stripped of his duties in June 1999, six months earlier. His explanation did not clear up the contradiction, especially considering the fact that the American immigration judge who heard Mr. Arabalidoosti’s refugee protection claim in the United States wrote that Mr. Arabalidoosti had held this employment until he left Iran in August 2000. In his written submissions, Mr. Arabalidoosti criticized the American immigration judge, but at the same time relied on the conclusion reached by the same judge according to which his testimony was considered credible. He cannot pick and choose parts of the decision which suit his argument and dismiss those which undermine it. In the absence of evidence to the contrary, it is to be presumed that the immigration judge correctly reported the facts that were presented. Mr. Arabalidoosti did not consider it appropriate to prove the contrary by submitting excerpts from the evidence adduced before the American jurisdiction. Therefore, the Board could conclude that there was a contradiction concerning the period during which Mr. Arabalidoosti worked for this newspaper.
[18] On the basis of this same decision, the Board concluded that Mr. Arabalidoosti contradicted himself about the reasons for which he left Iran. In his refugee protection claim made in the United States, Mr. Arabalidoosti alleged having written draft texts criticizing Dr. Javad Jasbi. However, his claim for protection in Canada was based on the proposal he allegedly made to Dr. Javad Jasbi to found a student union. Once again, before the Board, Mr. Arabalidoosti blamed the American immigration judge for not having accurately reported the evidence that had been submitted.
[19] In his memorandum and his affidavit, Mr. Arabalidoost offered a slightly different version of this explanation. He stated that the American immigration judge mentioned the proposal to found a student union. However, it appears from the decision rendered by the American immigration judge that, contrary to what Mr. Arabalidoosti stated in the refugee protection claim he submitted in Canada, the suggestion to found a student union had not been made directly to Javad Jasbi but was part of the ideas Mr. Arabalidoosti had described in his drafts. Therefore, Mr. Arabalidoosti gave a new explanation which should have been submitted to the Board.
[20] Sworn testimony is presumed to be true in the absence of reasons to doubt the truthfulness of that testimony (Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302, at paragraph 5). A Board ought not to take extreme measures to seek inconsistencies in testimony in order cast doubt on the credibility of the evidence (Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (QL)). However, when testimony contains significant inconsistencies about relevant facts, this will be sufficient to support an adverse inference concerning the credibility of that testimony (Waheed v. Canada (Minister of Citizenship and Immigration), 2003 FCT 329, [2003] F.C.J. No. 466, at paragraphs 39-40).
[21] Considering the conclusions reached about the inconsistencies in Mr. Arabalidoosti’s testimony, the Board was not required to mention the letter from Mr. Arabalidoosti’s father in which he related the facts of which he had knowledge. This undated letter, which does not contain any mention of the place where it was written, is self-serving evidence, in that it was written at the request of Mr. Arabalidoosti for the purposes of his refugee protection claim and has no probative value.
The respondent submits that it is not an error for the Board to explain why it gave no weight to documents offered in an attempt to substantiate allegations found not to be credible. That submission is valid but not necessary. The Board determined, at page 5 of its reasons, that it was rejecting such evidence as the letter issued to the applicant by the PPP in 2001 because the claims which the applicant sought to substantiate with that letter were found not to be credible. The Board did not believe that the 1993 collision was related to efforts by the PML to harass or threaten the applicant. It therefore stated the following:
[...] The claimant's sole supporting evidence of his thesis of the 1993 plot against his person consist (sic) of a PPP letter dated February 16, 2001 and obviously issued upon the claimant's (applicant's) request. This self-serving evidence can not (sic) be given much probative value considering that the claimant's allegations are not credible nor (sic) plausible.
Prior to this portion of the reasons, the Board explained its reasons for finding that the allegations of the applicant was not credible or plausible. It was therefore entitled to reject the documentation in support of those allegations. (Waheed, supra, paragraph 42)
[22] As decided in Ozdemir v. Canada (Minister of Citizenship and Immigration), 2001 FCA 331, [2001] F.C.J. No. 1646 (QL), at paragraphs 9 to 10, such evidence does not have to be mentioned.
Decision-makers are not bound to explain why they did not accept every item of evidence before them. Much depends on the significance of that evidence when it is considered in light of the other material on which the decision was based: see Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35.
Nor will a reviewing court infer from the failure of reasons for decision specifically to address a particular item of evidence that the decision-maker must have overlooked it, if the evidence in question is of little probative value of the fact for which it was tendered, or if it relates to facts that are of minor significance to the ultimate decision, given the other material supporting the decision.
[23] The newspaper excerpt must be dealt with in the same way because it is a text, written in Dutch; therefore, the connection with Mr. Arabalidoosti was not made.
This Court has repeatedly held that a claimant must establish a credible link between his claim and the objective situation prevailing in a country in order to be granted Convention refugee status (Canada (Secretary of State) v. Jules, (1994), 84 F.T.R. 161). Accordingly, it will not suffice for an applicant to present evidence showing problems encountered by some of this fellow-citizens. He must also establish a connection between his claim and the objective situation in his country. I am satisfied that such a connection could be based on the evidence contained in the record. I consider that the Refugee Division erred in not taking the objective situation in Iraq into account. (Al-Shammari v. Canada (Minister of Citizenship and Immigration) 2002 FCT 364, [2002] F.C.J. No. 478 (QL), at paragraph 24)
[24] In Waheed, supra, at paragraph 41, Mr. Justice Michel Beaudry affirmed that the panel may consider the testimony and documentary evidence to assess credibility. The panel must also determine the probative value given to documentary evidence.
The Board is entitled to consider the evidence, testimonial and documentary, as a whole in order to determine its credibility: Mostajelin v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 28 (F.C.A.) (QL). As discussed above, the Board was within its rights to make the determination that it did with respect to the credibility of the applicant. Having done that, the Board was entitled to determine the probative value that would or would not be given to documents offered in support of the testimony of the applicant.
CONCLUSION
[25] Mr. Arabalidoosti contradicted himself on essential facts of his refugee protection claim. The Board drew its conclusions on the basis of the evidence it had. Mr. Arabalidoosti did not show that the Board committed a patently unreasonable error. He only showed that the evidence could have been interpreted differently. This Court must show much greater judicial deference to findings of fact. Accordingly, the application for judicial review must be dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application be dismissed;
2. No serious question of general importance be certified.
“Michel M.J. Shore”
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
FILE: IMM-3800-05
STYLE OF CAUSE: MOHAMMAD REZA ARABALIDOOSTI
v. MINISTER OF CITIZENSHP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 29, 2006
REASONS FOR ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
|
Johanne Doyon
|
FOR THE APPLICANT |
|
Ian Demers
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
JOHANNE DOYON Montréal, Quebec |
FOR THE APPLICANT |
|
JOHN H. SIMS Q.C. POUR LA PARTIE DÉFENDERESSE Deputy Attorney General of Canada
|
FOR THE RESPONDENT |