Federal Court Decisions

     IMM-3684-96

BETWEEN:

     KUOMARS ALIGOLIAN,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

HEALD D.J.

     This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board wherein the Division dismissed the applicant's application for Convention Refugee Status.

THE FACTS

     The applicant was born and raised in Iran and resided in the City of Teheran. From 1992 to 1995 he was employed as a bus driver for a government-operated milk manufacturing firm. His duties involved the transportation of approximately fifteen labourers to and from work each day. He also delivered milk during the day. The applicant testified that on April 4, 1995, between 3:00 and 4:00 p.m. while transporting workers home, he was caught in a demonstration in the Islamshahr area. Many thousands of people had gathered and were shouting slogans against the government. He stated that he and his passengers left the bus and joined the demonstration. He also said that, about 4:00 p.m., there was a confrontation between the demonstrators and government troops. The troops shot tear gas and bullets into the crowd around 4:30 p.m. He said that he did not leave the area until approximately 6:00 to 6:30 p.m. He testified that his fear of being identified as a supporter of the uprising caused him to seek protection for two days at the house of a friend. He also stated that, on the evening of April 4th, government officials went to his house to look for him and since he was not present, they detained his younger brother. He further believes that he faces persecution from the authorities because they summoned him to appear at the police station by a summons dated April 11, 1995.

THE C.R.D.D. DECISION

     The sole basis for the board's negative decision on the applicant's claim was the applicant's lack of credibility. The panel's adverse findings on this issue were primarily because the applicant's evidence on the Islamshahr uprising was substantially different from the documentary evidence relative to that matter. The panel relied on abstracts from several news reports, including articles from the Foreign Broadcast Information Service (F.B.I.S.), the New York Times, the Globe and Mail, the Agence France Presse and The Independent. Relying on the reports, the panel members stated:

According to the claimant, confrontations between demonstrators and government forces started around 4:00 p.m. According to news accounts, however, the demonstration was well underway by 10:00 a.m. and the government's armed response was in progress by later in the morning.1

     The panel subsequently concluded:

We prefer the documentary evidence to the claimant's testimony because it comes from different sources which have no interest in the outcome of this claim. We find the inconsistencies between the claimant's testimony and the documentary evidence to be material and lead us to disbelieve that the claimant participated in the Islamshahr uprising in the manner he alleged.2

     Since the panel did not find the applicant credible concerning his participation in the Islamshahr uprising, which was central to his claim of persecution, they, likewise, made negative findings of credibility concerning his evidence as to the police search for him on the night of April 4, 1995. As to the applicant's evidence concerning the issuance of a warrant against him, that document simply stated:

A warrant will be issued against the defendant--in case of his illegal absence.

     The panel concluded, quite properly, in my view, that this document in itself gives no indication that the applicant is wanted because of his participation in the Islamshahr uprising.

ANALYSIS

     The central issue raised by this application is whether the panel can properly choose to believe documentary evidence over the sworn testimony of the applicant. The relevant jurisprudence suggests that such an approach is proper provided that the panel states clearly and unmistakably why it prefers the documentary evidence over the viva voce evidence of the applicant.³

     Applying that view of the matter to the facts at bar, I am persuaded that the board did clearly and unmistakably articulate its reasons for preferring the documentary evidence over the applicant's oral testimony. As the panel noted, the documentary evidence came from different sources, none of whom had any interest in the result of the applicant's claim. The documentary evidence reveals some discrepancies with the applicant's evidence. The applicant sated that the events in issue took place at approximately 4:00 p.m. The documentary evidence suggest that the riots and the troops' intervention took place in the late morning. The applicant was unable to satisfactorily explain this inconsistency. On this basis, I am unable to conclude that the panel's adverse credibility findings were unreasonable and thus subject to review. Furthermore, as stated by Rothstein J. in Eghianrywa v. M.C.I.⁴, a panel's credibility findings are "...for the panel before whom the applicant testified and not for the Court on judicial review".

CONCLUSION

     Accordingly, and for the above reasons, the application for judicial review is dismissed.

     Neither counsel requested that a serious question of general importance be certified pursuant to Section 83 of the Immigration Act. I agree with that view. Therefore, no question will be certified.

                         Darrel V. Heald

                         Deputy Judge

Ottawa, Ontario

April 22, 1997

__________________

     ¹      Tribunal Record - Page 00006.

     ²      Tribunal Record - Page 00008.

     ³      Kwame Okyere-Akosah v. M.E.I., May 6, 1992, File No. A-92-91.      See also Hilo v. M.E.I., March 15, 1991, File No. A-260-90 (F.C.A.) at 3-4.

     ⁴      File A-1009-92, June 11, 1996.