Date: 20001130
Docket: IMM-4971-99
BETWEEN:
SOUDABEH VARASTEH BADRI
REZA VARASTEH BADRI
AMIN VARASTEH BADRI
BEHZAD BALANDARI
FARZAD BALANDARI
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicants not to be Convention refugees within the meaning ascribed to that phrase in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 9th of September, 1999.
BACKGROUND
[2] Soudabeh Varasteh Badri ("Soudabeh") is a citizen of Iran, as are all the other applicants. At the time of the hearing before the CRDD, she was thirty-seven years of age. Reza Varasteh Badri ("Reza") and Amin Varasteh Badri ("Amin") are brothers of Soudabeh who, at the time of the hearing before the CRDD, were eighteen years and sixteen years of age, respectively. Behzad Balandari and Farzad Balandari are sons of Soudabeh and, once again at the time of the hearing before the CRDD, were sixteen years and six years of age respectively.
[3] Soudabeh bases her claim to Convention refugee status on the ground that, if required to return to Iran, she would be persecuted because of her perceived political opinion and her perceived membership in a particular social group, namely, members of a pro-monarchy group within Iran. Both Reza and Amin base their claims to Convention refugee status on the same ground as does Soudabeh.
[4] Soudabeh' s two children base their claims to Convention refugee status on the claim of their mother.
[5] Reza alleges that he became politically active in Iran after another sister fled Iran by reason of her actual or perceived political opinion. At the age of twelve or thirteen, Reza alleges that he became involved with two schoolmates with whom he shared pro-monarchist views. The three engaged in sessions in which they read pro-monarchist literature and in distribution of pro-monarchist literature. They were detected by disciplinary forces in December of 1996 while they were distributing pro-monarchist literature. The three fled the disciplinary forces but one of them was caught. Reza's parents were very angry with him when they discovered the activities that he had been engaging in. They sent him to stay with a cousin. Disciplinary forces came looking for him at the family home. In the result, he left Iran on the 4th of January, 1997 and indirectly made his way to Canada on a fraudulent Iranian passport.
[6] Soudabeh and Amin came to the attention of Iranian security forces when, at the request of a family whose son had been wounded in an attempt to evade security forces, they came to the aid of the young man. Soudabeh was an advanced student of medicine and was able to attend to the wounds of the young man. With Amin's aid, Soudabeh conspired in an attempt to get the young man to safety. The young man was apprehended. After his apprehension, he apparently identified Soudabeh and Amin as co-pro-monarchist supporters. In the result, Soudabeh and Amin, together with Soudabeh's two children also fled Iran on false Iranian passports. As in the case of Reza, by a very circuitous route, they too made their way to Canada and made their claims to Convention refugee status.
THE DECISION OF THE CRDD
[7] A single member panel of the CRDD concluded in the following terms:
| In my view, the claims of Ms. Varasteh Badri, Amin Varasteh Badri and Reza Varasteh Badri fail because their stories are not credible. The claims of Ms. Varasteh Badri's two children must also fail as they are based on hers. |
[8] The CRDD based its finding of want of credibility on implausibilities. It identified no contradictions, inconsistencies or evasions on the part of Soudabeh, Reza and Amin.
[9] The implausibilities identified by the CRDD included the following. First, and here the implausibility finding was merely implied, the CRDD wrote in relation to Reza's claim:
| Soon, however, being an apparently politically precocious youngster, he decided to participate [in the pro-monarchist movement through the distribution of literature]. The movement he decided to join was fighting for the return of the monarchy that had been deposed some 16 years earlier, two years before his birth. |
[10] Second, the CRDD found it implausible that a pro-monarchist movement would exploit persons as young as Reza was at the time he distributed literature. The CRDD wrote:
| If true, Iran Paad's [the pro-monarchist movement] willingness to expose young teenage boys to such risk displays a remarkable callousness. |
Later in its reasons, on the same subject, the CRDD wrote:
| Sensitive to his [Reza's] youthfulness in the matter of membership, the organization by Reza Varasteh Badri's account had no qualms about putting him in harms way by having him do demonstrably dangerous work. |
Once again, while the foregoing is not a direct implausibility finding, I regard it as implying that the CRDD found Reza's testimony regarding his distribution of pamphlets to be implausible.
[11] Thirdly, while acknowledging that:
| Three photocopies of Notices to Appear alleged to have been issued by the Iranian judicial system for Amin Badri, Ms. Badri and Reza Badri were filed. |
the CRDD went on to question the plausibility of such actions on the part of Iranian authorities to the following effect:
| Why the regime would issue a Notice to Appear for alleged Monarchists as opposed to proceeding by warrant of arrest was not explored. One can only speculate at the number of people who would willingly turn themselves in to a repressive police apparatus after receiving such a notice. |
[12] Fourthly, the CRDD found implausible, largely by reference to its preference of certain documentary evidence before it over the testimony of the applicants and certain other documentary evidence, the appellants' position that Reza's work was in support of a pro-monarchist organization called Iran Paad and that the young person that Soudabeh and Amin aided also supported, from within Iran, the same organization. The CRDD wrote:
| One of the key issues in the claim is whether the documentation on country conditions supports the claimants in their contention that Iran Paad is a viable, functioning organization in Iran. |
Indeed, none of the applicants professed that Iran Paad was a "...viable, functioning organization in Iran." Rather, they testified that members of Iran Paad, and supporters of its ideals who were not members, worked within Iran, with or without the approbation or direction of the organization, in the distribution of its literature and in support of its objectives. The CRDD noted documentary evidence before it to the effect that Iran Paad does not have open operations in Iran "...because to do so would put its members at risk." The CRDD noted the same documentary evidence to the effect that parties or governments denying the involvement of Iran Paad within Iran were "...doing so in order that it might continue its work unmolested." The CRDD commented:
| I find this proposition absurd. |
No evidentiary basis and, indeed, no explanation for this finding of absurdity was provided.
[13] Fifthly, the CRDD found the applicants' explanation of their departures from Iran through Tehran International Airport on false Iranian passports to be implausible. The CRDD acknowledged evidence before it that bribery is common place in Iran and that it is regularly used to "...grease the wheels of the system..." in things such as exiting via the Tehran airport. The CRDD noted:
| In the case at hand there is no evidence that bribery was used to facilitate the exit. The evidence is that false documents were used. |
The evidence in fact was that the applicants relied on a smuggler to whom they paid substantial amounts. It would appear not to have entered the consideration of the CRDD that certain of the amounts paid to the smuggler might have indeed been used to bribe appropriate officials to facilitate the departures through Tehran airport.
[14] In relation to its view that the involvement of Reza in a "marginal organization at a very young age" was implausible, the CRDD wrote:
| He did not come across as a passionate political partisan at his hearing. Rather, he came across as an unassuming young man. It is difficult to imagine him having weekly political reading sessions with his friends at the age of 13 or 14. |
The CRDD apparently entertained a fixed perception of the characteristics of young political partisans in Iran. Counsel could point me to no evidence before the CRDD that would support the CRDD's position.
[15] Further, the CRDD found it implausible that Soudabeh would enlist the support of her much younger brother and that the two of them would take "...so many risks..." in looking after a young person who had been wounded in an attempt to flee Iranian authorities, particularly when members of that young person's family did nothing more themselves to support their young relative than attempt to enlist the aid of Soudabeh through her younger brother Amin. Soudabeh testified that her motivation in providing support derived from her medical knowledge and training and from her political ideology which was sympathetic to that of the young person, albeit that Soudabeh testified that she was not, herself, politically active. The CRDD would appear to have ignored this explanation which, in the absence of a finding that Soudabeh was not a reliable witness, would appear to be reasonable and persuasive. As to Soudabeh enlisting the aid of Amin, it would appear clear from the evidence that it was Amin, at the behest of the young man's family, who enlisted the aid of Soudabeh at a time when he was living in her home.
[16] Finally, the CRDD noted that:
| The allegation that Mehdi [the wounded young person] would be taken seriously when he identified them [Soudabeh and Amin] as his cell members is of note. It would have been a curious cell indeed - two boys and a female medical doctor more than twice their age. |
Once again, there was no evidence before the CRDD as to the usual or normal make-up of pro-monarchist cells in Iran. Further, and perhaps more importantly, the evidence before the CRDD was clearly not to the effect that Mehdi had identified Soudabeh and Amin as members of a cell with him but rather to the effect that he had identified them as sharing his pro-monarchist sympathies.
ANALYSIS
[17] In Aguebor v. Ministre de l'emploi et de l'immigration2, Mr. Justice Décary wrote at paragraph [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 finding are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. ... |
The references to Giron are to Giron v. Minister of Employment and Immigration3.
[18] Here, I am satisfied that counsel for the applicant, in the hearing before me and in his written material, discharged the burden resting on the applicants of showing that the inferences drawn by the CRDD could not reasonably have been drawn on the basis of the evidence that was before it. I am satisfied that those inferences are "...so unreasonable as to warrant [this Court's] intervention". While the conclusions reached by the CRDD with regard to the Convention refugee claims of the applicants might reasonably have been open to it, they simply were not open to it on the basis of the implausibility findings, largely or completely unsupported by the evidence before it, that are apparent on the face of its reasons that are before the Court.
CONCLUSION
[19] In the result, this application for judicial review will be allowed, the decision of the CRDD that is under review will be set aside and the matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel. Neither counsel recommended certification of a question. No question will be certified.
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J.F.C.C.
Ottawa, Ontario
November 30, 2000
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