OTTAWA, Ontario, October 30, 2006
PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
and
THE MINISTER OF CIIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[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 under the Federal Courts Act, R.S.C. 1985, c. F-7, of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated December 14, 2005, in which the Board determined that the Applicant is not a Convention refugee nor a person in need of protection.
[2] The Applicant, Mr. Afshin Aarabi, is a 44 years old citizen of Iran. He claims to have a well-founded fear of persecution at the hands of state authorities and citizens due to his political opinion and his membership of the DKO, a pro-monarchist organisation that is against the present Islamic regime of Iran.
[3] Mr. Aarabi states that his father was a supporter of the opposition group, National Front, in Iran.
[4] During his university years, Mr. Aarabi alleges that was shocked to hear of the Mullahs activities and he participated in two demonstrations. One of these demonstrations was held on April 9, 1989 and concerned security for students. Because of his participation in this demonstration, Mr. Aarabi alleges that he was arrested, detained and tortured for three days. He was also forced to sign an undertaking stating that he would not participate in any political group or gatherings.
[5] Mr. Aarabi claims that he was suspended from the university in 1989 and not allowed to pursue his studies. The official reason for the suspension was that he did not observe the fast of Ramadan, however Mr. Aarabi believes that his political opinion was the real cause.
[6] In 1999, Mr. Aarabi alleges that he was introduced to the Derafsh-e-Kaviani Organisation (DKO), also known as the Organisation of Human Rights and Fundamental Freedoms for the People of Iran. He felt that it was his duty to take serious actions against the current Islamic regime and address many of the current social issues amongst young people of the country.
[7] Mr. Aarabi alleges that he began to support the DKO financially in December 1999 and to distribute political materials from 2000 onward. His cell consisted of Wahid, Majid, Mahmoud and himself and, as a group, they distributed DVDs as well as audio and printed materials.
[8] On July 20, 2004, Mr. Aarabi claims that he received a telephone call from Wahid who counselled him to hide. He did and a short time later learned that his mother’s home was raided in connection with his underground activities. Mr. Aarabi subsequently learned that Mahmoud’s home was also raided.
[9] After July 23, 2004, Mr. Aarabi learned that Mahmoud failed to report the successful completion of his assignment within the expected time limit.
[10] Mr. Aarabi arrived in Canada on September 10, 2004, having travelled via Turkey and France. He alleges that he cannot return to Iran as he has not honoured his undertaking not to be involved in politics and that his involvement in DKO puts his life in danger.
[11] The Board found that Mr. Aarabi is not a Convention refugee because he does not have a well-founded fear of persecution for a Convention ground in Iran. It also found that he is not a person in need of protection because his removal to Iran would not subject him personally to a risk to his life or to a risk of cruel and unusual treatment or punishment. The Board found that there were no substantial grounds to believe that Mr. Aarabi’s removal to Iran would subject him personally to a danger of torture.
[12] The Board refused Mr. Aarabi’s claim for refugee protection because it found his evidence not credible, based on numerous inconsistencies and the implausibility of his story. There was little evidence supporting Mr. Aarabi’s claim, apart from his testimony.
[13] Given the lack of genuine evidence of political involvement of Mr. Aarabi, the Board did not believe that he would face persecution in the event of his return to Iran.
[14] The only issue in the present case is whether the Board committed an error such that this Court should interfere with the decision.
Statutory scheme
[15] According to section 96 of the IRPA, a person is a Convention refugee if they have a well-founded fear of persecution for reason of race, religion, nationality, membership in a particular social group or political opinion:
|
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.
|
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. |
[16] Subsection 97(1) of the IRPA states as follows:
|
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
the risk is not caused by the inability of that country to provide adequate health or medical care. |
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 occasionnées par elles,
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
Standard of review
[17] The Board’s assessment of the credibility of the evidence is entitled to the highest level of deference by this Court. Where the Board’s inferences and conclusions are reasonably open to it on the record, this Court should not interfere, whether or not the Court agrees with the inferences that were drawn. (Aguebor v. Canada (Minister of Employment and Immigration), (1993), 160 N.R. 315 (F.C.A.))
Whether the Board committed an error such that this Court should interfere with the decision?
[18] In the present case, the Board made some findings that were not supported by the evidence before it or that were erroneous. These findings render the decision patently unreasonable.
[19] For example, the Board found as follows:
[…] The claimant was asked to explain why country documents indicate that there are not any activities inside the country versus his testimony that most of the activities took place inside of the country. The claimant in response testified that there are splinter groups within the country and that most of the activities were executed within Iran. […] (Emphasis added.) (Tribunal Reasons, at page 4)
[20] This finding fails to mention what type of activities the Board is referring to. Is the Board referring to pro-monarchy anti-government activities in general, political activities in general or Mr. Aarabi’s various activities on behalf of his pro-monarchy political group? It is unclear. Nevertheless, this finding will be addressed despite the fact that it is impossible to ascertain what the Board is referring to or what inference or conclusion the Board drew from such a finding.
[21] In the decision Shaha v. Canada (Minister of Citizenship and Immigration), IMM-123-98, July 16, 1998, F.C.T.D., a case involving a refugee claimant from Iran who was active in monarchist activities inside Iran as was Mr. Aarabi herein, Mr. Justice Francis McDonald stated the following, at paragraph 1:
The application for judicial review is allowed. The Board erred in finding that based on documents stating that the activities of pro-monarchists in Iran are minimal, information on their activities is lacking and hard to find, and that this group poses a very marginal and ineffective threat to the present Iranian government, the claimant does not have a fear of persecution in Iran. It may very well be true that the pro-monarchist movement’s activities are limited but this is not the issue. The real issue is whether, based on his pro-monarchist activity, does the claimant fear persecution for his political beliefs/activities if he is returned to Iran. By failing to address the question, the Board erred.
[22] It is respectfully submitted that the Board, in the present case, made findings very similar to the findings made by the Board in Farzad Shaha, above, and, accordingly, erred for the same reason. In particular, the Board failed to address the issue of whether, based on his pro-monarchist activities in Iran, Mr. Aarabi has a well-founded fear of future persecution if returned to that country.
[23] “If the Board’s decision is based on a substantial error, which if it had not been made might have caused the Board to decide otherwise, that decision should be quashed and referred back for re-consideration by another panel of the Board” (Abdullahi v. Canada (Minister of Citizenship and Immigration), IMM-1610-95, 10 January 1996, F.C.T.D.; Basmenji v. Canada (Minister of Citizenship and Immigration), IMM-4811-96, 16 January 1998, F.C.T.D., at paragraph 11).
[24] Assuming, however, that the Board is referring to pro-monarchist activities inside Iran, the Board erred further by finding that “there are not any activities inside the country”.
[25] Indeed, the Board’s own Research Directorate published a Response to Information Request, IRN41136.E, on March 20, 2003, in connection with the issue of whether the DKO was active inside Iran. While some sources consulted stated that they could not confirm that the DKO was active, other sources consulted led the Board’s Research Directorate to state as follows confirming that the DKO is indeed active inside Iran:
However contradictory information was provided by the Executive Director of the Foundation for Democracy in Iran (FDI) (11 March 2003), a “non-profit organization devoted to the promotion of democracy and human rights [that] provides free weekly news services and human rights alerts online” (Islam Online n.d.). The Executive Director, a former journalist who has written for the Wall Street Journal, Washington Times, Time, CBS News and ABC News (NewsMax.com 7 Mar. 2002), stated that “[y]es, Derafsh-E-Kaviani – the Flag of Freedom Organization – is active inside Iran” (11 Mar. 2003). (Emphasis added.) (Affidavit of Applicant, Exhibit A, Applicant’s Record, at page 71)
[26] The said Response to Information Request, states further as follows, again confirming that the DKO is not only active inside Iran but engaged in the very same activities that Mr. Aarabi stated he was engaged in:
Information corroborating the FDI Executive Director’s assertion is provided by IND in its October 2002 country assessment on Iran, which states that the Derafsh-E-Kaviani “distributes audio and video tapes within Iran,” that it “broadcasts from radio station Voice of Kaviyani Banner of Iran” and that it “[c]aims to have a network of resistance cells” in Iran (Oct. 2002). (Affidavit of Applicant, Exhibit A, Applicant’s Record, at page 72)
[27] The Board further found, at page 4 of its reasons:
In terms of credibility the claimant did not obtain for the panel proof of his political involvement such as an organisational letter, membership card, cassettes, flyers, arrest warrants, undertaking letter, or proof of his father’s political involvement. When the claimant was asked regarding these key omissions, he testified that there was no organisational letter and the organisation did not have membership cards. He testified that most of the organisational activities took place inside of Iran and so the Secretary of the organisation in the United States was unaware of the magnitude of the activities and organisational size. The panel finds it implausible that the Secretary of the organisation globally would be so ill informed and finds the claimant not credible in this regard. […]
[28] Mr. Aarabi testified that the anti-government political organization that he was active with in Iran (the DKO) did not have or issue a membership card because it was dangerous for the organization to have such documents. With respect to an organisational letter, flyers, cassettes, arrest warrants and undertaking letter, Mr. Aarabi was simply asked if he had a copy of these materials and he answered that he did not.
[29] As Mr. Aarabi stated that he fled Iran illegally and by foot, it would have been unwise and dangerous for him to carry anti-government political materials on his person in the event that he was stopped en route to Turkey from Iran. Indeed, it is unreasonable to expect Mr. Aarabi to have put his life and safety at risk in attempting to smuggle such materials out of Iran. Moreover, Mr. Aarabi’s explanation as to why he did not have copies of materials, which would demonstrate his involvement in politics in Iran, is plausible and logical and should not have simply been dismissed by the Board.
[30] At page 4 of the reasons, the Board also found as follows:
[…] The claimant testified that he did not design and produce the flyers himself and that he did not have any examples of the materials. Given the alleged importance of the documents, the panel does not find it credible that he was unable to describe one of the flyers that he allegedly distributed. […]
[31] During the course of the hearing Mr. Aarabi was asked by his counsel if he remembered any specific pamphlet he distributed in Iran and he testified that he remembered pamphlets he distributed relating to the attack by the Islamic regime authorities on university students in Iran in 1999. When asked to describe these pamphlets, Mr. Aarabi testified that one pamphlet guided students on what to do when being attacked and how to organize themselves. The pamphlet informed students as to how to keep their activities hidden and secret. It also advised students on how to contact different universities in Iran and how to create a network. It also stated that students should become united and emphasized that they should create a relationship with the public.
[32] It would seem then, that, contrary to the Board’s finding, Mr. Aarabi was in fact able to describe at least one of the pamphlets he and his group distributed. He seemed to know the materials that his group distributed.
[33] The Board found as follows:
[…] The panel also questioned the claimant whether he was aware of what happened to his political friends and he testified that he did not know. The panel finds that if he indeed had a political profile, his organisers would have informed him of any significant occurrence that would have impacted in the organisation’s security as a whole. The claimant failed to obtain an undertaking paper, which usually is available to the claimant and confirms that the claimant indeed was active and is being monitored by the state. In the unexplained absence of this document, the panel finds the claimant not credible and that he lacks a credible and trustworthy political profile. […] (Tribunal Reasons, at pages 4-5)
[34] It is clear from Mr. Aarabi’s written testimony that he was informed and aware of what happened to his political friends during the time he was in Iran. In the narrative portion of Mr. Aarabi’s Personal Information Form (PIF), at paragraph 23, he wrote that Wahid, his cell’s contact person, told him, on July 20, 2004, to go into hiding. On July 23, 2004, Wahid again contacted Mr. Aarabi and told him that another cell member, Mahmoud, failed to report to him that he had successfully completed the distribution of political materials. There was a long delay in this regard and Wahid called Mr. Aarabi to tell him that Mahmoud’s home had been raided in connection with his political activities. Afterwards, all cell members went into hiding and Mr. Aarabi eventually fled Iran.
[35] Once he fled Iran, it is reasonable and plausible that Mr. Aarabi would no longer know the whereabouts of his friends or what happened to them following these events. It was unreasonable of the Board to make negative inferences concerning his political profile based on the fact that he lost contact with his friends after fleeing his country.
[36] The Board further erred in finding Mr. Aarabi failed to obtain an undertaking paper. Mr. Aarabi’s sworn and uncontradicted evidence was that he signed an undertaking in 1989 when he was involved in a large protest. Mr. Aarabi was one of many people arrested and he was detained for three days. This incident, which occurred over 15 years before Mr. Aarabi fled Iran, had nothing to do with the basis of his refugee claim. Mr. Aarabi explained that he did not have a copy of the undertaking, which he gave to the Iranian government in 1989.
[37] Mr. Aarabi gave the undertaking referred to by the Board many years before the hearing. There was no evidence before the Board that the said undertaking even existed in writing as Mr. Aarabi was not asked if he was given a copy of the undertaking by the Iranian regime. He was simply asked if he had a copy and he testified that he did not. Further, there was no evidence before the Board that such undertakings are usually available as asserted by the Board.
[38] In its reasons for decision, at pages 5-6, the Board stated that the letter he submitted from his mother said that he had been the one to suggest that the documents pertaining to his father’s political activities be destroyed. During the course of Mr. Aarabi’s hearing, the Board’s own interpreter translated the mother’s letter referred to by the member and it was clear, from that translation on the record, that the letter did not, in fact, state that Mr. Aarabi was responsible for the destruction of father’s documents relating to his involvement in the National Front (Transcript, Tribunal Record, at page 240).
[39] At pages 6-7 of the reasons, the Board found as follows:
The claimant testified at one point that the tapes were generated in the United States and that they had information placed on the DVD and tapes inside of the country as they did not need a large studio. The claimant testified that the group tried to increase awareness of the problems but that they did not have a marketing/target plan and did not focus their distribution. He testified that the materials were distributed generally to university students and workers. The panel found the claimant’s testimony extremely vague with regard to the distribution of DVDs and tapes and finds that the claimant is not credible as being in a small cell. The panel finds that the claimant should have known more information regarding methods of distribution that would not reveal his involvement. The panel also asked the claimant regarding the number of organizational members and whether he knew other cell members or learned of their activities. The claimant testified that he had no knowledge regarding other members or their activities but felt that there were fifteen to twenty thousand members in Iran. When asked if he ever ran into other members, the claimant stated that he did not. Given the claimant’s lack of overall knowledge in the organisation, the panel does not believe that his profile is such that he would be considered to have a political profile.
[40] It was never Mr. Aarabi’s testimony that the tapes he distributed inside Iran were generated in the United States. In fact, when Mr. Aarabi was asked if the tapes and other materials, to his knowledge, came from outside Iran, he testified that his belief was that the material was produced in Iran because it was too dangerous to bring the material into Iran.
[41] Further, Mr. Aarabi was only asked a few questions about the distribution method of the DVDs in Iran and he answered them in a direct fashion. For example, he was asked how he obtained the DVDs and he stated that he obtained them from Wahid – the contact person of his cell. Mr. Aarabi said that he did not know where Wahid obtained the DVDs. He said that the DVDs did have a DKO crest or emblem on them. Finally, when asked about this, Mr. Aarabi answered that he assumed that the DVDs came from the DKO.
[42] When Mr. Aarabi was asked about the content of the DVDs, he explained that they were divided into four sections. The first section contained speeches by Dr. Ganji, the DKO leader, or Reza Shah Pahlavi, the exiled Shah. The second section contained news items. The third section contained information about the wrongdoings by the Islamic Republic government such as executions and killings. The fourth section counselled people on what to do and how to do it.
[43] Therefore, contrary to the Board’s findings on this issue, Mr. Aarabi’s testimony was clear and logical. He answered the questions directly to the best of his knowledge. He had a good idea of the content of the material they distributed and explained how they distributed this material. The evidence before the Boar, namely the uncontradicted testimony of Mr. Aarabi, did not support its findings.
[44] The Board’s reasons for decisions contain a few important misinterpretations and erroneous findings, which were not supported by the evidence before it. This application for judicial review should therefore be granted and the decision returned to the Board for re-determination by a differently constituted panel.
JUDGMENT
This application for judicial review is granted. The matter will be returned to a differently constituted panel for a re-determination.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-37-06
STYLE OF CAUSE: AFSHIN AARABI v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 3, 2006
REASONS FOR JUDGMENT BY: Honourable Paul U.C. Rouleau
APPEARANCES BY
Rocco Galati
(416) 536-7811 for the Applicant
David Tyndale
(416) 973-1544 for the Respondent
SOLICITORS OF RECORD
Galati, Rodrigues & Associates
Barristers & Solicitors
637 College Street, Suite 203
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada for the Respondent