Date : 20031016
Docket : IMM-1374-03
Citation : 2003 FC 1197
BETWEEN :
NAZILA NAGHASHZADEH and
SEYED NOUREDIN HOSSEINI SALAKDEH
Applicants
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for judicial review pursuant to section 18.1(3)b) of the Federal Court Act, R.S.C. 1985, c. F-7, in relation to a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") rendered February 6, 2003, wherein the Board determined that Nazila Naghashzadeh (the "principal applicant") and Seyed Nouredin Hosseini Salekdeh (the "dependant applicant") are not Convention refugees.
[2] The applicants request that the decision be declared invalid, quashed or set aside and referred back for determination by a differently constituted panel of the Board.
[3] The principal applicant made her claim on the ground of political opinion based on her alleged participation in a student opposition group in Iran. The dependant applicant made his claim on the Convention ground of membership in a particular group based on the alleged difficulties arising from his wife's activities. In its decision, the Board determined that there was no credible or trustworthy evidence on which they could establish their claims.
[4] The principal applicant is a 28 year old woman from Iran who claims to have formed in 1999, together with three of her friends, an anti-government student group in Tehran.
[5] The dependant applicant, who was not a student, assisted the group through the purchase of a photocopier with which to produce pamphlets for distribution. The principal applicant and her friends distributed the pamphlets late at night or early in the mornings. These pamphlets contained information in support of the student movement and which contained comments against Iran's Supreme leader Ayatollah Khameneie.
[6] In the early morning of April 28, 2001, during one of their pamphleteering events the authorities arrested a member of the group. Having witnessed the arrest, the principal applicant immediately went home and informed her husband about what had happened. Together they left their home and went to the home of a friend in order to evade arrest.
[7] The following day, the applicants heard that another member of the group had also been arrested and that their own home had been raided. During that raid, the photocopier was seized, as were a number of pamphlets.
[8] The applicants remained at their friend's residence and did not return to their home. With their friend's help, a smuggler was contacted to organize their exit from Iran.
[9] In early May, 2001, the applicants, with the assistance of the smuggler, left Iran for Dubai, but once in Dubai they were told by the authorities that their documents were not in order and, therefore, were forced to return to Iran.
[10] On June 20, 2001, after having obtained new documents, the applicants successfully exited Iran. Onboard they destroyed their Iranian passports because the smuggler had advised them that they would be deported otherwise. The applicants made refugee claims upon arrival in Vancouver the same day.
[11] In its decision the Board expressed its reluctance to believe the truthfulness of the applicant's allegations owing to inconsistencies in the testimonies, discrepancies with reference to objective information, and implausibilities in light of legal, social and cultural context of Iran.
[12] Concerning the principal applicant, the Board stated that it was not plausible that she would be in a Tehran alley between 2:00 and 3:00 a.m., at the time of the arrest of her friend, unaccompanied by a male relative given the severe restrictions on women in Iran.
[13] The Board pointed out the apparent inconsistencies in the principal applicant's testimony regarding the arrest of her friend : she suggested in her testimony that the licence plate on the vehicle driven by the men who arrested her friend had a certain number, but when questioned whether she could actually see the licence plate in the dark, she said no.
[14] The Board underlined that despite the principal applicant's claim to be a political activist, she failed to demonstrate the expected degree of familiarity with student protest organizations and their aims.
[15] When pressed to name the particular student organization she belonged to, the principal claimant named the Democratic Front of Iran and said it was led by Tabarzadi and included the Mohammadi brothers. Documentary information subsequently provided by the principal applicant showed that this was not possible.
[16] Furthermore, the Board stated that the principal applicant's testimony that the authorities came to her in-laws' home with an arrest warrant which they left with her brother-in-law is contradicted by the documentary evidence which states that a copy of an arrest warrant is never left with a member of the family. The Board rejected the dependant applicant's explanation that his brother bribed the officials to leave the arrest warrant.
[17] The Board underlined the existence of significant discrepancies between the information the principal claimant gave in her Record of Examination ("ROE") before an immigration officer as well as in her P.I.F. and her testimony before the Board.
[18] The Board then went on to point out the lack of credibility in the dependant applicant's testimony. More specifically, the Board found the dependant's testimony about buying a photocopier from a friend and getting a receipt in his personal name not to be plausible given the documentary evidence showing that ownership of photocopiers is limited to certain businesses, hospitals and schools.
[19] The Board did not find plausible that the applicants made three trouble-free trips through the strict security of the airport in Tehran, using their own passports, after their home had allegedly been raided and their political involvement confirmed.
[20] It was submitted by the applicants that when reading the decision as a whole, it becomes clear that the Board acted in bad faith. The language used in the decision and the utter lack of any explanation as to why it was so dismissive of the applicants' testimony to illustrates the omnipresence of bad faith in the Board's decision.
[21] The respondent, on the other hand, states that the Board applied the correct legal test in making its credibility findings.
[22] Furthermore, the respondent argues that the credibility findings of the Board were reasonably open to it based on all of the evidence before it and in no time did the Board ignore or misconstrue the evidence.
[23] The respondent goes on to stress out that the credibility findings are findings of fact that are clearly within the Board's mandate and expertise and do not warrant intervention of this Court unless they are patently unreasonable.
[24] Finally, the respondent states that the applicants' argument alleging bad faith is without merit as there is no evidence of bad faith on the part of the Board. Moreover, the principle of bad faith in the dismissal of an employee, as authority underlying this approach, is not relevant to the judicial review of a decision of the Board.
[25] It is trite law that the appropriate standard of review relating to the Refugee Board's findings of credibility is that of patent unreasonableness, as emphasized by Justice Snider in Ozo v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 561 (F.C.T.D.):
10 [ ...] the appropriate standard of review is one of patent unreasonableness, which means that findings of credibility must be supported by the evidence and must not be made capriciously or based on erroneous findings of fact (Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.) (Q.L.); Singh v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 514 (C.A.) (QL); Muhammed v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 815 (T.D.) (QL)).
11 Although this Court may be equally well-placed to assess the plausibility of the Applicant's claim in light of the documentary evidence, it is not the role of the Court to re-weigh the evidence before the Board and the burden is still on the Applicant to show that the Board's inferences could not have reasonably been drawn (Aguebor, supra). Even if this Court would have reached a different conclusion based on the evidence, the Board's decision should not be overturned unless it was perverse, capricious or made without regard to the evidence before it (Oduro v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 560 (T.D.) (QL); Tao v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 622 (T.D.) (QL); Grewal v. Canada (Minister of Employment and Immigration), [1983] F.C.J. No. 129 (C.A.) (Q.L.); Muhammed, supra).
[26] Furthermore, the Federal Court of appeal has held that the Board is entitled to make reasonable findings based on implausibilities, common sense and rationality :
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.
Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.)
[27] The standard of proof for findings of credibility is the balance of probabilities. In the case at hand, when the Board's decision is read as a whole, it is clear that the Board gave sufficient reasons for determining that the applicants are not credible.
[28] In fact, the Board cited many reasons for finding the applicants not credible, notably the implausibility of a young woman distributing pamphlets alone in a Tehran alley in the early morning hours; the principal applicant's failure to demonstrate familiarity with student protest organizations; the documentary evidence contradicting the principal applicant's alleged alliance to the Democratic Front of Iran; the significant discrepancies between the information the principal claimant gave in her ROE and her testimony; the implausibility that the applicants would be able to make three trouble-free trips through the strict security of the airport in Tehran, using their own passports, after their home had allegedly been raided and their political involvement confirmed.
[29] All the above-mentioned reasons are more than enough to convince me that the Board applied the correct standard of proof and thus the applicants' argument that the Board relied on some unknown test to conclude that the applicants were not credible is without merit. More specifically, the significant inconsistencies between the information the principal applicant gave in her ROE and her testimony and the Board's assessment that most of the principal applicant's testimony was improvised are alone sufficient to conclude to a lack of credibility of the applicants' claim.
[30] The decision of the Board must be interpreted as a whole and be analysed in the context of the evidence itself in order to determine whether the conclusions reached were reasonable, as indicated by Justice Joyal in Miranda v. Canada (M.E.I.) (1993), 63 F.T.R. 81 (T.D.) :
[3] For purposes of judicial review, however, it is my view that a Refugee Board's decision must be interpreted as a whole. One might approach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable or patently unreasonable.
[31] In summary, even though the Board does not articulate all the reasons supporting its findings, it sufficiently substantiated and clearly illustrated the numerous inconsistencies in the applicants' evidence. Accordingly this Court's intervention is not justified.
[32] For all the reasons above, this application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
October 16, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1374-03
STYLE OF CAUSE: Nazila Naghashzadeh v. M.C.I.
PLACE OF HEARING: Vancouver, B. C.
DATE OF HEARING: October 1, 2003
REASONS FOR JUDGMENT: Justice Rouleau
DATED: October 16, 2003
APPEARANCES:
Bediako K. Buahene FOR THE APPLICANTS
Caroline Christiaens FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bediako K. Buahene
Vancouver, B. C. FOR THE APPLICANTS
Department of Justice
Vancouver, B. C. FOR THE RESPONDENT