Federal Court Decisions

Date: 20050823

Docket: IMM-6166-04

Citation: 2005 FC 1152

BETWEEN:

FATEMEH VALADKHANI, NILOUFAR DOUSHABCHI

and AMIRHOSSEIN DOUSHABCHI

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

SIMPSON J.

[1]    This application is for judicial review of a decision of a member of the Immigration and Refugee Board (the "Board"), dated June 9, 2004 in which the Board determined that the applicants are not Convention refugees (the "Decision").

THE EVIDENCE

[2]    The adult Applicant (the "Applicant") is a 40 year old woman from Tehran, Iran. The other applicants are her children aged ten and fifteen.

[3]    In September of 2003, a relative of the Applicant's husband, a young man named Zia, moved in with the family while attending university. The same month, the Applicant arranged to visit her sister in Canada.

[4]    The Applicant and her children flew to Canada on December 11, 2003. Once in Canada, she booked her return tickets for January 22, 2004. She was also wait-listed on a flight leaving January 4.

[5]    On January 1, the Applicant received the first of a series of phone calls from her sister-in-law. On that day she was informed that their house in Tehran had been raided and that Zia and two other men were taken away by the Revolutionary Guards. They were also reported to be questioning the neighbours. Her husband was away at the time of the raid.

[6]    On January 3, the Applicant received another call, informing her that the Guards were claiming that they found anti-regime and anti-revolutionary literature in the home, that they had arrested two of her husband's employees and that her husband was in hiding.

[7]    On January 4, she received another call informing her that Zia's mother and relatives had been interrogated and that her husband had instructed her not to return to Iran. She then cancelled her return flight.

[8]    On January 7, the Applicant received a call saying that Zia's mother told the Guards that Zia was not political and that the Applicant and her husband were responsible for his activities. In addition, two more of her husband's employees were taken in for questioning.

[9]    On January 10, the Applicant was informed that, during interrogations, Zia had informed the Guards that the Applicant and her husband were active in helping him in his activities and denied knowledge of some of the literature found in the home. In addition, the Applicant's sister-in-law's husband was accusing the Applicant and her husband of being anti-revolutionary.

[10]                        In the following weeks a number of the Applicant's business clients (she was a seamstress) were questioned regarding her activities.

[11]                        On January 29, the Applicant's husband told her he was paying a smuggler to get him to Canada. However, on February 4 the Applicant was informed that the smuggler had cheated the husband and that he continued to hide in the north of Iran.

[12]                        These facts will be collectively described as the "Events".

DECISION

[13]                        The Board concluded that the Events had not occurred and denied the applicants' claim for refugee status and protection.

DISCUSSION

[14]                        The issue is whether the Board's negative credibility finding is patently unreasonable. The information about the Events came to the Applicant from family members and friends because all the events took place after the Applicant and her two children had left Tehran for a visit to Canada.

[15]                        The Events are the only basis for the Applicant's claim for refugee status and protection. However, in her Personal Information Form and during the hearing in response to her counsel's questions, the Applicant provided the Board with information about her health and well-being.

[16]                        The Board learned that the Applicant's marriage was unhappy and that she had been and continued to be in need of psychiatric care.

[17]                        The Board concluded that the Events were a fabrication. It decided, because it knew that the Applicant was unhappy and unwell and had all her daughters and family in Canada, that she had been motivated, after she arrived, to use Canada's refugee system to improve her personal situation.

[18]                        The difficulty lies in the fact that this conclusion was not based on inconsistencies or contradictions in the Applicant's story. She described the Events in an identical manner at all points in the refugee process. As well, the Board did not identify any specific implausibilities. The Board knew that it was not making a traditional credibility finding and, in this regard, it said:

Counsel contends that the principal claimant's story is not inherently implausible. I have considered all of the evidence in this claim and, although there are no inconsistencies and contradictions, the story, in my opinion, does not ring true. A decision-maker does not necessarily have to accept a witness's testimony, which is uncontradicted, if that evidence does not accord with the probabilities affecting the case as a whole. In Faryna v. Chorny, the Court of Appeal stated that the real test of the truth of a story must be in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. In my opinion, the preponderance of evidence before me suggests the principal claimant left Iran on account of a desire to live apart from her husband and be close to family members in Canada.

[19]                        It is unfortunate that the Board used the words "does not ring true" since those words are similar to those in the findings which were criticized by the Federal Court in Khrystych v. The Minister of Citizenship and Immigration 2005 FC 498. However, the language used is not determinative if the Decision provides clear and unmistakable reasons (see Hilo v. Canada, [1991] F.C.J. 228 (F.C.A.)

[20]                        In my view it was open to the Board to conclude that the "Events" had not occurred in the particular circumstances of this case. Accordingly, the Decision was not patently unreasonable and the application will be dismissed.

"Sandra J. Simspon"