Date: 20011217
Docket: IMM-1698-01
Neutral Citation: 2001 FCT 1402
BETWEEN:
FATEMEH SALEHI
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application pursuant to s.82.1(1) of the Immigration Act (the "Act") for judicial review under the Federal Court Act of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated February 27, 2001 wherein the Board determined that the applicant is not a Convention refugee.
FACTS
[2] The applicant is a citizen of Iran. She was raised as a Muslim but converted to the Church of Jesus Christ of Latter-Day Saints (Mormons) in January 2000.
[3] The applicant married her second husband, a dentist, in 1986. He was born into the Baha'i faith.
[4] In 1996, the applicant's marriage began to break down.
[5] In December 1997, the applicant travelled to Canada to visit two (2) of her daughters who were living there. This was also the first time that the applicant attended the Mormon Church.
[6] In March 1998, the applicant returned to Iran and was confronted by two (2) women who accosted her for turning her back on Islam and for marrying a Baha'i.
[7] In April 1998, the applicant was again accosted by two (2) women and detained overnight. She escaped with the assistance of her brother.
[8] The applicant decided to leave her husband and moved into an apartment in another part of Tehran alone.
[9] In March 1998, she obtained a American visa in order to go and live with her son. She obtained an exit visa out of Iran through a bribe.
[10] In June 1998, she obtained a Canadian visitor's visa and in December 1998, returned to Canada to visit her two (2) daughters again. This time she attended the Mormon Church every other week. She joined the Mormon Church to calm herself and to obtain some emotional support from Church members.
[11] Her daughters considered sponsoring the applicant for residence in Canada but had insufficient funds to do so.
[12] During this time, her husband left Iran to go live with his children from a previous marriage in the USA.
[13] The applicant remained in Canada throughout the summer of 1999. In August 1999, she was telephoned from Iran by the caretaker of her apartment. He told her that the Revolutionary Guards had broken into the apartment, beaten him up and asked questions about the applicant. Her brother called her to say that her apartment was locked and sealed by a decision of the Revolutionary Court.
[14] In January 2000, the applicant was baptized as a Mormon. She attends Church and a women's group regularly.
[15] Shortly thereafter, the applicant made a refugee claim in Canada. Her refugee claim was based on two (2) grounds. She is fearful that her membership in a particular social group, as the wife of a man born into the Bahai faith, and religion, as a member of the Mormon church, will result in trouble with the Hezbollah, the Revolutionary Forces and the extremists should she return to Iran.
ISSUES
[16] 1. Did the Board fail to meet the principles of natural justice or procedural fairness?
2. Did the Board ignore or misconstrue the evidence that was before it?
3. Did the Board err in finding that there was no more than a mere possibility that the applicant would be persecuted for her membership in a particular social group and her religion?
ANALYSIS
1. Did the Board fail to meet the principles of natural justice or procedural fairness?
[17] No, the Board did not fail to meet the principles of natural justice in the present case.
Standard of review
[18] First and foremost it is necessary to define the standard of review applicable by this Court in regards to the Refugee Board. Generally, the standard of review for questions of fact and fact and law is patently unreasonable, whereas for questions of pure law it is correctness.
[19] In Ranagnathan Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 269 (F.C.T.D.), Evans J. stated:
[para 45] On the other hand, the Refugee Division's determination of whether the relevant facts satisfy the Rasaratnam test, properly understood, is a question of mixed fact and law, and is reviewable only for unreasonableness.
[20] Later in Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (F.C.T.D.), Pelletier J. found:
[para 5] The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193.
[21] In the present case, the issues raised by the applicant are those related to fact. Therefore, the standard of review to be applied is that of patent unreasonableness.
[22] Once again, in Boye, supra, Jerome A.C.J. stated:
[para 6] Furthermore, the Refugee Division is entitled to make an adverse finding of credibility based on the implausibility of an applicant's story, provided the inferences drawn can be reasonably said to exist. Negative findings with respect to an individual's credibility are properly made, provided the tribunal gives reasons for its decision in clear and unequivocal terms.
Principles of natural justice or procedural fairness
[23] The applicant, in her Affidavit at pages 22-23, makes reference to an "off the record" conversation that took place between the Board member and her counsel after the applicant provided her testimony. She writes:
36. When I was finished giving my testimony there was an off the record discussion of whether or not my daughter, who had come to testify on my behalf, would need to testify. My counsel indicated that she was available to testify and to confirm and corroborate that my husband was a Bahai [sic]. The panel indicated that they did not think that this testimony was necessary. They indicated that they accepted my evidence that there was a perception that my husband was Bahai [sic]. After this discussion we went back on the record and concluded the hearing without my daughter's testimony.
[24] The applicant now submits that she was not provided with the opportunity to present a witness to support her claim even though there is no evidence that the Board refused to allow the applicant to do so. She relies on the case of Rehman v. Canada (Secretary of State), [1995] F.C.J. No. 417 (F.C.T.D.). The respondent however, relies on the case of Cai v. MCI, [1997] F.C.J. No. 690 (F.C.T.D.).
[25] There is no evidence of an agreement by the Board to accept the applicant's evidence in exchange for her not calling her daughter as a witness. There is also no evidence that the applicant was prevented from calling her daughter to give evidence at the hearing nor to make any submission on the record or post-hearing. In addition, if the applicant was concerned that her rights may have been violated, she should have raised this issue before the Board or in the post-hearing submissions.
[26] In my view, the Board was clear in its decision; an agreement that a witness, if heard, will corroborate the testimony of another witness, is a regular practice before tribunals and Court. That does not mean that the Board takes the evidence for granted; the Board shall assess this evidence in light of the other pieces of evidence available.
2. Did the Board ignore or misconstrue the evidence that was before it?
[27] No, the Board did not ignore or misconstrue the evidence that was before it.
[28] The applicant claims that the Board erred in ignoring or misconstruing evidence. At paragraph 20 of the Applicant's Memorandum of Argument, it is read:
It is submitted that the Board ignored relevant evidence before it, and therefore erred in law.
[29] The Board is entitled to prefer certain evidence over other evidence where the evidence conflicts. The Board is not required to mention every single piece of evidence that it considered in coming to its finding. As long as the findings are reasonable, this Court is not required to interfere.
[30] In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.), Evans J. held:
[para 16] On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
Preference toward documentary evidence
[31] The Board did in fact compare the applicant's testimonial evidence to the documentary evidence and determined that it preferred the latter over the former. An excerpt found at page 32 of the transcript illustrates the reason why the Board preferred the documentary evidence over the testimonial evidence of the applicant:
COUNSEL: Part of Exhibit C-2 is a translation of your marriage certificate and this is what it says under full particulars of husband. It says that your husband, Dr. Iraj Mohabataeen...
INTERPRETER: Dr. Iraj - what is the last name?
COUNSEL: Iraj Mahabataeen, A-E-E-N. Born in 1929, an Iranian, Muslim, occupation: Dentist. Now, this document appears to indicate that your husband is a Muslim by religion.
CLAIMANT: Because of the fear of being a Baha'i, he always introduced himself as a Muslim.
COUNSEL: Would you say, during the time that you were married, that your husband was an active practising Baha'i?
CLAIMANT: No. He was afraid of...
COUNSEL: If he held himself out as a Muslim, and you've indicated that he didn't actively participate, how is it that you had the difficulties you outlined? How is it the authorities were aware or appeared to be aware that he was a Baha'i?
CLAIMANT: Apparently- when we were married, he was not actively involved in the Baha'i faith, but before that, apparently, he was actively participating and he was registered as a Baha'i.
[32] The applicant's testimony is not convincing. It was therefore open to the Board member to prefer the documentary evidence to the testimony of the applicant.
[33] In Zvonov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1089 (F.C.T.D.), Rouleau J. held:
[para 15] Finally, I am not persuaded that the Board erred by preferring the documentary evidence to that of the Applicant. The Board members are "masters in their own house" and it is open to them to decide what weight to give the evidence; in the present case they accepted the Applicant's testimony but chose to place more weight on the documentary evidence.
[34] Specifically, the Board found that the applicant's marriage certificate was reliable documentary evidence in which it stated that the applicant's husband was Muslim. The Board preferred this evidence to that of the applicant's oral evidence that her husband was a Baha'i and, it was within the Board's discretion to do so.
3. Did the Board err in finding that there was no more than a mere possibility that the applicant would be persecuted for her membership in a particular social group and her religion?
[35] No, the Board did not err in finding that there was no more than a mere possibility that the applicant would be persecuted for her membership in a particular social group and her religion.
Mere possibility of persecution for membership in a particular social group
[36] The Board was given the task of determining whether or not the applicant could satisfy the test laid out in Adjei, supra which is stated as follows:
[para 8] What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility", as opposed to a mere possibility.
[37] In order to satisfy the test, the applicant must prove that she has a well-founded fear of persecution should she return to Iran.
[38] It was determined that there was insufficient evidence to find that the applicant was a Convention refugee based upon her membership in a particular social group. Consequently, at page 3 of its decision, the Board stated:
The panel finds that there is insufficient evidence to show that the husband was identified as a Bahai [sic] by Iranian authorities, and consequently, insufficient evidence for a claim based on membership in a social group, namely women who are married to men who are Bahai [sic].
Mere possibility of persecution for religion
[39] The Board heard extensive oral evidence from the applicant with respect to her religious practices. At page 21 of the transcript, it is read:
MUZZI: I want you to tell us what you think you're going to do when you go back to Iran in terms of practising your religion.
CLAIMANT: I cannot do anything because it's not possible.
MUZZI: All right. [...] If you're not going to do anything to practise your religion, how are the authorities going to know that you've converted?
CLAIMANT: Then if I go there, I am not a Mormon.
COUNSEL: Maybe I can help work through this, okay, so we can all understand it. You said on several occasions that you feel you can't go because you would not be allowed to teach. You said: "If I start to teach, they will find out." What is this mandate to teach? What are you asked to teach? What do feel are the things you are required to teach or to communicate?
CLAIMANT: I myself, I have to obey the laws and ordinances of the Mormon Church, which I don't have a place there to do it, and it's my duty to teach the Mormon religion. This is my duty and it's not possible there. There is no ground for it.
[40] The Board found that the applicant would face no more than a mere possibility of persecution based upon her religion; rather the applicant would more likely face discrimination on this basis. The Board wrote at page 4 of its decision:
[41] The panel finds that the claimant would likely face discrimination if she returns to Iran and attempts to convince non-Muslims to join the Mormon Church. She might be monitored and placed under surveillance. However, there is little objective evidence that she would face more serious consequences as a member, rather than a leader of the Mormon Church. The panel finds, based on the oral and documentary evidence before it, that the claimant does not face more than a mere possibility that she will persecuted should she return to Iran and proselytize Muslims to join the Mormon Church.
[42] The distinction between discrimination and persecution or harassment is slim. However, what is relevant is the fact that the applicant does not face the threat of persecution personally and therefore, is not a Convention refugee.
[43] In summary, the Board found that the applicant could not satisfy the burden placed upon her by the test in Adjei, supra. There was no compelling evidence produced by the applicant as to whether she would be persecuted due to her membership in a particular social group and her religion. Consequently, there was but a mere possibility that the applicant would face persecution should she return to Iran.
[44] The applicant failed to convince the Court that the Board has made any reviewable errors of fact or law which would justify the intervention of this Court.
O R D E R
THEREFORE, THIS COURT ORDERS THAT this application for judicial review be dismissed.
Neither counsel suggested question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
December 17, 2001