Docket: IMM-5198-02
Citation: 2003 FCT 758
BETWEEN:
SHARAREH MOHSENI DINEHROODI
MOHAMMAD ALI MAHROOZADEH
Applicants
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for judicial review of the Immigration and Refugee Board's decision ("the Board") dated October 9, 2002 which held that the applicants are not Convention refugees and not persons in need of protection.
[2] The principle applicant, Sharareh Mohseni Dinehrnoodi ("the applicant"), is a citizen of Iran. She and her son came to Canada on April 11, 2000. They claimed refugee status based on fear of persecution by reason of perceived political opinion and religion.
[3] The applicant stated in her Personal Information Form (PIF) narrative that she was harassed and insulted while at school because she came from a non-hezbollahi family. She states that in 1993 she married a man who was also non-hezbollahi and who did not support the Iranian regime. She states that he was politically active, but she was unaware of that activity at the time.
[4] The applicant states that her husband fled the country after learning that the Sepah had raided their home and was looking for him. He came to Canada in January, 1998 and made a refugee claim that was rejected on September 29, 1999.
[5] In December 1997, soon after the applicant's husband fled Iran for Canada, the applicant learned that the Sepah was looking for her and that she was to report to them, which she did. She states that she was detained for a week, questioned about her husband and his political activities, threatened, beaten and made to sign an undertaking.
[6] According to the applicant, a few months later, the Sepah raided her parents' home, where she was staying, and she was detained for three weeks, beaten, threatened, sexually abused and questioned about her husband and his whereabouts.
[7] The applicant states that her parents house was kept under surveillance, and was raided when friends and family were over. She states that in the spring of 1998, she was again taken for questioning. She was made to sign an undertaking that she was not affiliated with any political organization and had no contact with her husband. She was made to report to the Intelligence Services every two weeks and was not permitted to leave Tehran without permission.
[8] The applicant states that, in the autumn of 1998, she moved out on her own and became friends with two women living in the apartment. Through these friends, she was introduced to evangelical Christianity. In the later part of 1999, the applicant learned that her apartment building had been raided and her friends had been arrested. As a result, she went to stay with a friend in Isfahan. A few days later, the applicant learned that her parents' home was raided; her parents had been detained and were told that she was an apostate, anti-Islamic and anti-clergy.
[9] As a result, arrangements were made for the applicant and her son to flee Iran. They made refugee claims upon their arrival in Canada. On October 9, 2002, the board determined that the applicant and her son were not Convention refugees or persons in need of protection, stating its reasons, in part as follows:
"While the claimant alleges that she was constantly detained and harassed by the Sepah because of her husband's political activities, the very case that she bases her claim upon, namely her husband's political activity and escape from Iran, has been rejected by the Board for lack of credibility. In their comprehensive and well-written reasons, the Board has cited its reasons for not believing the claimant's husband's story. Even if we believe (which we do not) that the claimant's husband escaped Iran as a result of his political activities, it is implausible that the Iranian government would spend so much time on the claimant, tapping her telephone, placing her domicile under surveillance, detain her on numerous occasions, and constantly raid her parents' house (as alleged) to find out about her husband. The claimant's husband, according to his own testimony, was not a political leader or a known activist that his flight would attract such extraordinary attention. It is, therefore, my opinion, that the claimant was never arrested or harassed by the Sepah for the alleged political activities of her husband. It follows that I do not believe that the claimant was ever detained, threatened, or sexually abused by the Sepah or other authorities."
[10] The applicant argues that the Board treated the refusal of her husband's refugee claim as, in effect, res judicata, disbelieving, as a result of that prior decision, the applicant's story. She argues that the Board had pre-judged her claim and did not consider her evidence.
[11] The respondent argues that the Board was entitled to rely on the previous CRDD decision, since those reasons were before it. It also argues that the Board made an independent finding, apart from its reliance on the applicant's husband's rejection.
[12] It is clear from the Board's reasons that it did not base its credibility finding solely on the previous CRDD decision relating to the applicant's husband. The issue is not, therefore, whether the Board erred in treating that prior decision as determinative; rather, the issue is whether the Board was entitled to consider the prior determination at all as evidence in support of its conclusion that the applicant's story was not credible.
[13] Recently, in Badal v. Canada (Minister of Citizenship and Immigration), 2003 FCT 311 (F.C.T.D.), Justice O'Reilly held at paragraph 25 that "reliance on the findings of another panel must be limited, careful and justified." For example, he writes,
"a Board can adopt another panel's conclusions in respect of the conditions in the applicant's country of origin or the feasibility of seeking refuge within its borders: Olah v. Canada (Minister of Citizenship and Immigration), 2001 FCT 382 ...; Koroz v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1593 (QL)(C.A)".
[14] In addition, Justice O'Reilly found that "[a] Board may also admit in evidence and read the written reasons of a previous panel dealing with the same applicant: Lahai v. Canada (Minister of Citizenship and Immigration), 2002 FCA 119..."
[15] In this case, we are dealing with the Board's use of a different panel's reasons for rejecting the claim of a different refugee claimant: the applicant's husband. The respondent contends that the Board was entitled to rely on those reasons because the applicant knew that they were being admitted into evidence and did not raise any objections at that time. In my view, and based on the case law cited above, while the Board was entitled to rely on the previous panel's decision to some extent, for example, with regard to any factual findings made about country conditions, as per Olah, it was not entitled to rely on the Board's overall conclusions as proof that the applicant's husband and, in turn, the applicant's own claim was fabricated, a finding which is clearly determinative of the Board's conclusion with respect to the applicants' credibility and which is clearly an important part of the Board's decision. As such, having improperly relied on the previous panel's adverse credibility finding as support for its own adverse credibility finding, it is my opinion that the Board's credibility determination was patently unreasonable and that it based its decision on irrelevant evidence.
[16] For these reasons, the application is allowed, the decision of the Immigration and Refugee Board dated October 9, 2002, is set aside and the matter is referred back for rehearing and redetermination by a newly constituted Board.
JUDGE
OTTAWA, Ontario
June 19, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET : IMM-5198-02
STYLE OF CAUSE : SHARAREH MOHSENI DINEHRNOODI
MOHAMMAD ALI MAHROOZADEH and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto
DATE OF HEARING: May 14, 2003
REASONS BY: The Honourable Mr. Justice Rouleau
DATE OF REASONS: June 19, 2003
APPEARANCES : Mr. Michael Crane
FOR THE APPLICANTS
Ms. Ursula Kaczmarczyk
FOR THE RESPONDENT
SOLICITORS OF RECORD :
Michael Crane FOR THE APPLICANTS
Barrister & Solicitor
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT