Date: 19981007
Docket: IMM-4860-97
BETWEEN:
MOHAMMAD HOSSIN ROSHANI
ACIEH ROSHANI LIRSIAH
SHADY ROSHANI LIRSIAH
SHRVIN ROSHANI LIRSIAH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
McGILLIS J.
[1] The applicant has challenged by way of judicial review the decision of the Immigration and Refugee Board ("Board") that he was not a Convention refugee. The applicant is a citizen of Iran.
[2] Counsel for the applicant submitted, among other things, that the Board breached the rules of natural justice by failing to provide the applicant with a reasonable opportunity to adduce evidence in order to discredit the information in a document created by its Research Branch. The document in question concerned the use of fraudulent passports to leave Iran, the bribery of security officers at airports, and the general prevalence of bribery in Iran.
[3] At the hearing, the former counsel for the applicant advised the Board that, in the context of another case, she was scheduled to cross-examine two of the persons who were the sources of information in the document. As a result, she proposed to file the transcripts of the cross-examinations at a later date. At the conclusion of the hearing in June 1997, the Board agreed to the proposed procedure, and granted an extension to August 1, 1997, in order to permit counsel to adduce the transcripts of the cross-examinations. On August 6, 1997, counsel requested a further extension to the end of October 1997, on the basis that the cross-examinations had been rescheduled. The Board refused to extend the matter further. In her written submissions, counsel requested the Board not to accord any weight to the information in the document.
[4] Counsel for the respondent fairly and properly conceded during the course of argument that the Board had committed a breach of the principles of natural justice by failing to provide the applicant with the opportunity to adduce the evidence in question. However, she submitted that the breach of natural justice was inconsequential, in that the decision of the Board did not turn on the question of the applicant's use of bribery to leave Iran.
[5] In order to determine whether a new hearing is warranted by virtue of the breach of natural justice that occurred in the present case, the decision of the Board must be reviewed.
[6] In its decision, the Board rejected the applicant's claim to Convention refugee status on the basis of his lack of credibility. The reasons of the Board read, in part, as follows:
| Counsel for the claimant argued because the claimant admitted that he lied about the passports does not mean that his entire account is lacking credibility. The panel does not agree with counsel in this case. It is not unusual for claimants to misrepresent certain aspects of their claims and admit to having done so at the hearing. This panel has, in the past given such claimants the benefit of the doubt. However, in the case at hand the panel has no confidence and is not satisfied as to the general credibility of the claimant. |
| The claimant testified in a vague and hesitant manner. His testimony was inconsistent with the information he provided at the interview with the immigration officer when he first made his claim. When the inconsistency was first put to him at the first sitting, the claimant denied having told the officer that the passport he used was in his real name. When the claimant was questioned by the RCO his story began to fall apart and his demeanour changed completely. The claimant became extremely nervous when he was asked about his alleged military desertion to the point that counsel, realizing that there was serious credibility issue, requested an adjournment. It was only at the second sitting that the claimant, carefully questioned by counsel, admitted to having lied about the real names on the passports. While this may appear to be a peripheral issue in some claims it is a central one in this case. If the claimant left Iran with his real name then he would not be wanted by the authorities as he alleged. Neither for desertion nor his alleged harbouring and assistance to Amir. According to his PIF the alleged incident took place December/November 1995. His wife was allegedly arrested and detained for nine days on December 5, 1995. He learned that he was being sought and was about to be arrested in January 1996. He and his family left Iran legally and through the tightly controlled Iranian airport on March 11, 1996. The explanation he gave that his name had been removed from the blacklist through bribery in 1993/1994 when his sister had had to leave the country is totally acceptable and highly implausible. Even if the claimant had his name removed in 1993/1994 his alleged difficulties with the authorities occurred in late December/early January 1996. He left the country in March 1996. The authorities would have been aware of his most recent entanglement with them. On the basis of the foregoing - the fact that the claimant was issued a passport, given an exit visa and was able to leave Iran legally and openly - the panel rejects the claimant's assertion that he was, or is in any way, being sought by the Iranian authorities. |
[7] A review of the reasons confirms that the Board rejected the applicant's evidence concerning the use of bribery to remove his name from the blacklist in 1993 to 1994, at a time when his sister had to flee from Iran, as being "totally unacceptable and highly implausible." However, the evidence sought to be adduced at the hearing by the former counsel of the applicant was directly relevant to that issue, and may have affected the Board's finding. Given the importance of that finding in the Board's analysis pertaining to the applicant's credibility, I am satisfied that the breach of natural justice requires a new hearing. In arriving at this decision, I recognize that the Board also rejected the applicant's evidence on the alternate basis that his apparently legal departure from Iran indicated that the authorities were not seeking him. However, I cannot be satisfied, in the circumstances of the present case, that "...the adverse finding of credibility was properly made", particularly given that the breach of natural justice related directly to evidence relevant to the assessment of credibility. [See Yassine v. M.E.I. (1994) 172 N.R. 308, 312 (F.C.A.)].
[8] The application for judicial review is allowed. The decision of the Board is quashed, and the matter is remitted to a differently constituted Board for rehearing and redetermination. The case raises no serious question of general importance.
"D. McGillis"
Judge
TORONTO, ONTARIO
October 7, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4860-97
| STYLE OF CAUSE: MOHAMMAD HOSSIN ROSHANI |
ACIEH ROSHANI LIRSIAH
SHADY ROSHANI LIRSIAH
SHRVIN ROSHANI LIRSIAH
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, OCTOBER 7, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: McGILLIS, J.
DATED: WEDNESDAY, OCTOBER 7, 1998
APPEARANCES: Mr. Micheal Crane
For the Applicant
Ms. Sally Thomas
For the Respondent
SOLICITORS OF RECORD: Micheal Crane
Barrister & Solicitor
166 Pearl Street, Suite 200
Toronto, Ontario
M5H 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981007
Docket: IMM-4860-97
Between:
| MOHAMMAD HOSSIN ROSHANI |
ACIEH ROSHANI LIRSIAH
SHADY ROSHANI LIRSIAH
SHRVIN ROSHANI LIRSIAH
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR JUDGMENT