Date: 20040830
Docket: IMM-1235-03
Citation: 2004 FC 1187
Ottawa, Ontario, this 30th day of August, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
MOHAMMAD HOSSEIN SAHRA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Mohammad Hossein Sahra claims to need the protection of Canada against the persecution he suffered in Iran. A panel of the Immigration and Refugee Board dismissed his claim on the basis that there was insufficient reliable evidence supporting it. The Board found Mr. Sahra's evidence to be less than credible and portions of his story to be implausible. Mr. Sahra argues that the Board made serious errors in its analysis of his evidence and asks me to order a new hearing.
[2] I agree that the Board erred and will grant this application for judicial review.
I. Issues
[3] Mr. Sahra raises two main issues:
1. Did the Board err when it found Mr. Sahra's evidence to be devoid of credibility?
2. Did the Board dismiss Mr. Sahra's explanations for a lack of documentary evidence precipitously?
[4] Mr. Sahra also argued that the Board made a clear error when it stated that Mr. Sahra's father was detained for signing a petition against the imprisonment of a friend. In fact, the father was detained after fighting with a person who was circulating a petition condemning his imprisoned friend. The Board stated the facts correctly at the beginning of its reasons, but misstated them later on. Given my conclusions on the other issues, I need not decide the significance of that error.
II. Analysis
A. Did the Board err when it found Mr. Sahra's evidence to be devoid of credibility?
[5] The Board said that Mr. Sahra's testimony was "not reliable, not trustworthy and not credible". When Mr. Sahra arrived in Canada, he told authorities at the port of entry that he had been politically active in Iran. He stated that this was the reason for his flight to Canada and the basis for his claim for refugee protection. Later, he said that his problems arose from his father's activities, not his. He gave an explanation for this discrepancy. He said that the smuggler who facilitated his travel to Canada advised him to concoct a story about political activism or else he would fail in his refugee claim. He decided to change his story and to tell the truth when he realized his version of events did not stand up to close scrutiny. The Board simply said that it found Mr. Sahra's explanation for his conduct "not satisfactory".
[6] It is certainly open to the Board to draw an adverse inference from discrepancies in a claimant's evidence. But it must also consider the claimant's explanation for a change of story, and set out in its reasons why it finds the explanation unsatisfactory.
[7] Here, the Board had an obligation to consider Mr. Sahra's explanation. Mr. Sahra was only 17 when he arrived in Canada. It is possible that he was misled by the smuggler who had assisted him. He went on to give, in both his written narrative and oral testimony, a detailed account of his mistreatment in Iran. In these circumstances, the Board's dismissal of the entirety of Mr. Sahra's evidence was inadequately explained.
B. Did the Board dismiss Mr. Sahra's explanations for a lack of documentary evidence precipitously?
[8] Mr. Sahra failed to supply the Board with any documentary evidence supporting his claim. The Board wondered why he did not provide school records and police reports that would corroborate his account of mistreatment in school and of his father's detention.
[9] Mr. Sahra explained that schools normally retain records of enrollment and progress and release them only after the student graduates. The Board said it did "not accept his explanation as reliable". It felt that Mr. Sahra could reasonably have obtained his records. However, the Board did not consider Mr. Sahra's explanation for failing to ask his mother to try to obtain school records. He testified that this might put her in danger because he had left the country illegally and was sought by the authorities. If she asked for his records, it would be obvious that she knew his whereabouts.
[10] As for the lack of documentary evidence of the father's detention, the Board did not address Mr. Sahra's explanation that Iranian authorities would not provide evidence of their own wrongdoing.
[11] Again, the Board failed to set out in its reasons a basis for rejecting Mr. Sahra's explanations. It was certainly open to the Board to find those explanations implausible. But the Board had a duty at least to consider them and identify the basis on which it found them unsatisfactory.
[12] Accordingly, I must grant this application for judicial review and order a different panel of the Board to reconsider Mr. Sahra's claim. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed;
2. The matter is returned for reconsideration before a different panel;
3. No question of general importance is stated.
"James W. O'Reilly"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1235-03
STYLE OF CAUSE: MOHAMMAD HOSSEIN SAHRA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: June 2, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HON. MR. JUSTICE O'REILLY
DATED: August 30, 2004
APPEARANCES BY:
Mr. Michael Crane FOR THE APPLICANT
Ms. Bridget O'Leary FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHAEL CRANE
Toronto, Ont. FOR THE APPLICANT
MORRIS ROSENBERG
Deputy Attorney General of Canada FOR THE RESPONDENT