Date: 20031209
Docket: IMM-3344-02
Citation: 2003 FC 1433
Ottawa, Ontario, this 9th day of December, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
HASAN NOSHADI MOGHADAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in respect of the decision of the Immigration and Refugee Board (Convention Refugee Determination Division) (the "Board"), dated May 28, 2002, wherein it was determined that the applicant was not a Convention refugee.
[2] The applicant requests an order that the decision of the Board be set aside and the matter be referred back for determination by a differently constituted panel in accordance with such directions as the Court considers appropriate.
Background
Introduction
[3] The applicant is a citizen of Iran. He claims to have a well-founded fear of persecution in Iran based on his political opinion and his ethnicity as a Kurd. In his Personal Information Form ("PIF") he also bases his claim on membership in a particular social group, namely, his family. The alleged agents of persecution are the government of Iran and its agents.
[4] In 1997 and again in 1999, Iranian authorities detained the applicant. The 1997 arrest occurred when the applicant was sitting in a taxi with a woman who allegedly was the wife of a political activist. He was detained for five nights and questioned about his relationship with her. He argued with the arresting pasdar and was charged with insulting Islam, fined and sentenced to lashes. The 1999 detention followed from the applicant throwing two men out of his taxi. In his PIF, he claims that he was detained for 11 days, beaten and interrogated. He was then pardoned because of a general amnesty to mark the anniversary of a victory. However, his license was taken away from him.
[5] In 2000, a friend of the applicant, Bahram, set up his shop in premises in the building in which the applicant and his parents lived. The applicant assisted Bahram in photocopying anti-regime leaflets in his shop. In October 2000, while the applicant was in Tehran, he learned that Bahram and some of his other friends had been arrested. The applicant's father and brother, along with the owner of the building, were also arrested. The applicant learned that the authorities were looking for him and accused him of being a conspirator against the regime.
Reasons of the Immigration and Refugee Board (Convention Refugee Determination Division)
[6] A hearing was held on March 20, 2002. By reasons dated May 28, 2002 the Board determined the applicant not to be a Convention refugee.
[7] The Board found that there was a lack of credible evidence regarding the incidents that allegedly led the applicant to flee his country. The Board did not find that his ethnicity, his family background or the other incidents recounted by the applicant gave him good grounds on which to fear persecution should he return to Iran. As such, the Board found his fear was not well-founded.
[8] The Board found the applicant was far from a forthcoming witness at his hearing. The Board often had to repeat questions and the applicant's frequent use of the word "perhaps" made it difficult for the Board to ascertain whether he was speculating or stating a fact.
[9] The Board found that the applicant's testimony with respect to why it had taken him so long to obtain his Iranian birth certificate to be contradictory.
[10] The Board found that the applicant's lack of knowledge of the demonstrations in Hamedan, where the applicant and Bahram lived, to cast serious doubts on his story. The Board did not even find him to even be in Hamedan at the time of the demonstrations. The Board found that there was no political interaction between the applicant and the allegedly politically aware and active Bahram.
[11] The Board did not find plausible the applicant's description of arrangements when Bahram would allegedly be photocopying anti-regime material in a back room of the shop downstairs in the applicant's family home. The applicant said he would watch the area to ensure no one knew what was going on, but there was no sort of signal worked out between him and Bahram if the authorities came into the shop. The Board also found there to be differences between the applicant's PIF and his testimony.
[12] The Board found that the applicant's ethnicity as a Kurd did not give him good grounds on which to fear persecution upon return to Iran.
[13] The Board found that the alleged events of 1997 and 1999 did not lead the applicant to feel that he had to leave Iran and seek protection elsewhere.
Applicants' Submissions
[14] The applicant submits that the Board erred in not finding the events which occurred in 1997 and 1999 to be persecutory. It is submitted that the applicant was beaten and detained because he was perceived as being against the interests of agents of the authorities and that the Board erred in finding that this does not fall within the definition of persecution.
[15] The applicant submits that the Board failed to assess credible evidence as to the risk he might face upon return to Iran. It is also submitted that the applicant's file will be reviewed again by the authorities when he returns to Iran.
[16] The applicant submits that the Board failed to deal with a ground of persecution, being his association with his family, which is indicated on his PIF.
[17] The applicant submits that the Board erred in finding that because the applicant was not aware of demonstrations in Hamedan that he was not credible in respect of the precipitating events which led to his flight from Iran. It is submitted that it was unreasonable for the Board to find that because the President had spoken in Hamedan that the applicant ought to have known about demonstrations there.
[18] The applicant submits that the Board breached the principles of fairness and legitimate expectations in relation to its findings concerning his oral evidence. It is submitted that the Board used the fact the applicant asked questions to be repeated to impugn the applicant's evidence, when it was the Board who encouraged the applicant to have questions repeated if they were unclear or if he did not understand their meaning.
[19] In regard to other points concerning credibility, the applicant submits that he presented an original birth certificate to the Board, that it was unreasonable to impugn his credibility on the basis that he used the word "perhaps" frequently, that his evidence in relation to copying of the flyers was not reasonable, and that his evidence was not contradictory as to when Bahram began to open his eyes to political issues.
Respondent's Submissions
[20] The respondent submits the applicant has failed to show that the Board's adverse credibility findings are perverse or capricious or that the Board erred in finding that the applicant does not have a well-founded fear of persecution.
[21] The respondent submits that it was open to the Board to find that the applicant's requests to repeat questions was not simply an attempt to clarify questions, but indicative of a problem with the trustworthiness of the applicant's story. It is submitted that it was also open to the Board to find that the applicant's use of the word "perhaps" was indicative of a problem with his story, and not just a stylistic convention.
[22] The respondent submits that contrary to the applicant's submissions, the Board did not find that the applicant's evidence made no sense regarding the mailing of his birth certificate. Rather, it is submitted that the contradiction arose from the applicant initially stating that he told his landlord that he was expecting a letter with his birth certificate, and then later stating he had not told his landlord about the expected letter.
[23] The respondent submits that the applicant has not shown that it was perverse or capricious for the Board to find the applicant's ignorance of the protest in Hamedan cast doubt on his credibility.
[24] The respondent submits that the applicant contradicted himself as to when his friend Bahram opened his eyes to political matters and that the Board explicitly stated that this occurred during his hearing testimony. It is submitted that the applicant has failed to give any credible evidence as to why this Court should disbelieve the Board.
[25] The respondent submits that the applicant's ignorance of the protests in 1999 cast further doubt on his relationship with Bahram, and that if Bahram were truly his political tutor, local demonstrations would have led the applicant to question him in 1999.
[26] The respondent submits the applicant has failed to show that it was perverse or capricious for the Board to find that the applicant's description of arrangements when Bahram allegedly photocopied fliers in the backroom was implausible.
[27] The respondent submits that the factual basis the applicant gave upon his arrival in Canada is different from the version of events given in his PIF and at his hearing.
[28] The respondent submits that the applicant has failed to show that the Board should have treated his arrests in 1997 and 1999 as incidents which could support a well-founded fear of persecution.
[29] The respondent submits that the applicant's arguments regarding the risk he will face upon return to Iran are speculative. It is submitted that there is no evidence that any past incident he was involved in personally or his family were involved in would cause the Iranian authorities to be interested in him in the future.
Issues
[30] The following are the issues:
1. Did the Board err in law in respect of the definition of persecution?
2. Did the Board fail to assess the applicant's credible evidence as to the risk he might face upon return?
3. Did the Board err in determining that the applicant was not at risk?
4. Did the Board fail to deal with a ground of persecution?
5. Did the Board misconstrue the documentary evidence?
6. Did the Board breach the principles of fairness and of legitimate expectations in relation to its findings concerning the applicant's oral evidence?
7. Did the Board err in relation to some of the negative credibility findings?
8. Did the Board violate the benefit of the doubt principle?
Relevant Statutory Provision
[31] Subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, states:
|
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
"réfugié au sens de la Convention" Toute personne:
a) 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:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
Analysis and Decision
[32] I propose to deal first with Issue 4.
Did the Board fail to deal with a ground of persecution?
The applicant, in the section 10 addendum to his PIF stated that his claim was based on the Convention grounds of race, political opinion and family. Paragraph 1 of his PIF narrative reads:
I am a citizen of Iran and a Kurd with no other country of nationality. My father was a wealthy capitalist. He and a number of his relatives were arrested by the regime in the early days of the revolution and their properties confiscated on the grounds they were "Savakis". Other relatives were detained and tortured because they were opponents of the regime. One fled to Germany in 1991/92 where he was determined to be a Convention refugee.
[33] The Board at page 7 of its decision stated:
. . . We cannot find that his ethnicity, his family background or the other incidents recounted by the claimant together give him good grounds on which to fear persecution should he return to Iran. . . .
There is no other reference to the Convention ground of particular social group in the Board's decision. In fact, the Board at page 1 of its decision states the applicant's claim for Convention refugee status is based on:
. . . a well-founded fear of persecution in Iran based on political opinion and his ethnicity as a Kurd. The alleged agents of persecution are the government of Iran and its agents.
Here, the Board makes no mention of the Convention ground of membership in a particular social group, namely, family.
[34] On the circumstances of this case, I am of the view that the Board did not address its mind to the potential Convention ground of membership in a particular social group (family) as it did not list it as a basis for the claim and gave no decision other than the passing references noted above.
[35] I am of the view that on any standard of review, this Court must intervene because the Board failed to deal with an alleged ground on which the applicant based his claim.
[36] The application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
[37] Because of my finding on Issue 4, I will not deal with the other issues.
[38] Neither party wished to submit for my consideration a serious question of general importance.
ORDER
[39] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
December 9, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3344-02
STYLE OF CAUSE: HASAN NOSHADI MOGHADAM
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, June 10, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Tuesday, December 9, 2003
APPEARANCES:
Michael Crane
FOR APPLICANT
Ann Margaret Oberst
FOR RESPONDENT
SOLICITORS OF RECORD:
Michael Crane
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT