Date: 20010308
Docket: IMM-2310-00
Neutral citation: 2001 FCT 160
BETWEEN:
GHASEM MOHAJERPOUR
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] Mr. Ghasem Mohajerpour (the "Applicant") seeks judicial review of the April 6, 2000 decision of the Immigration and Refugee Division Board, Convention and Refugee Determination Division (the "Board") which denied his claim to be recognized as a Convention refugee in Canada.
[2] The Applicant is an Iranian national. He came to Canada from Iran in 1990 and sought Convention refugee status on the basis of political opinion, that is a perception of being a Mujahadeen supporter.
[3] The Applicant was determined not to be a Convention refugee in 1993 and an application to seek judicial review of that decision by the Board was denied.
[4] Nonetheless, the Applicant remained in Canada. He lived in Toronto and worked at various jobs between 1990 and 1997. He testified before the Board that, after several years in Canada without having obtained permanent status, he decided to return to Iran. He consulted with his older brother in Iran and in early 1997, he obtained an Iranian passport from the Iranian Embassy in Ottawa, even after advising those authorities that he had formerly been a Mujahadeen supporter.
[5] The Applicant testified that he left Canada on September 14, 1997, en route to Haiti. He had decided to go to Haiti in order to establish residence in that country. He said that he had recently met an acquaintance who told him that residence could be established without much difficulty. The Applicant paid his "friend" some $2000.00 to assist with the paper-work. The Applicant left Canada from a Montreal airport without prior notice to Canadian immigration officials of his departure.
[6] The Applicant said that he arrived in Haiti but was unable to locate his friend at the address provided to him. He concluded that he had been cheated and then decided to continue travelling to Iran.
[7] He testified that upon his arrival at Mehrabad Airport in Tehran, he was detained, tortured and interrogated for two weeks by the Iranian authorities. He was then taken to Ghasr prison. He said that he was able to escape from the prison after having been drugged. That episode was arranged by his brother and the Applicant was removed to the house of a friend of his brother, for safety.
[8] After staying in that house for approximately a month, the Applicant travelled to Turkey and later to France. He left France and eventually arrived in Canada, apparently via the Dominican Republic, although the Applicant was uncertain about his passage to and from that country.
[9] He re-entered Canada on January 3, 1998 at Quebec City, Quebec. He submitted a new Convention refugee claim on that date and completed his Personal Information Form ("PIF") in support of that claim on April 28, 1998. His claim was heard on November 23, 1999 and the Board delivered its decision on April 6, 2000.
[10] The Applicant raised several issues challenging the credibility findings made by the Board, as well as its alleged failure to consider all the evidence presented by him and its microscopic review of the evidence which it chose to assess.
[11] On the other hand, the Respondent takes the position that the credibility findings are reasonably supported by the evidence and the decision of the Board should be respected by the Court. Furthermore, the Respondent submits that it is unnecessary for the Board to analyse every aspect of the Applicant's evidence and in that regard, relies upon the decision of the Federal Court of Appeal in Sheikh v. Canada (Minister of Employment and Immigration) (1990), 11 Imm L.R. (2d) 81.
[12] In its decision, the Board focused on the Applicant's evidence concerning his passport, that is the type of passport which he obtained in 1997, his answers on the PIF about holding one upon his return to Canada, and the lack of written confirmation from the Embassy that a passport had been issued to him. The Board also demonstrated special interest in the absence of any mention in the PIF about his sojourn in Haiti in September 1997. The Board made several negative comments about the Applicant's lack of credibility, specifically in relation to these matters.
[13] However, in spite of the attention paid by the Board to the Applicant's credibility in relation to these matters, the Board failed to direct its mind to the totality of the evidence relating to the critical element of the Applicant's claim, that is his fear of persecution in Iran.
[14] This is an error of law. In this regard, see Armson v. Canada (Minister of Citizenship and Immigration) (1989), 9 Imm L.R. (2d) 150 and Ahanagaran v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 172 where Justice McGillis said at paragraph 5:
Counsel for the applicant submitted, among other things, that the Board erred by failing to consider the totality of the evidence tendered in support of the claim. I agree with that submission. A review of the Board's reasons confirms that it failed to consider the substance of the claim advanced by the applicant concerning his alleged persecution in Iran. Indeed, the Board's credibility findings are based solely on matters pertaining to his travel following his departure from Iran, including matters such as his use of false documents and identities. Although the Board was entitled to consider all of the matters relied on by it in assessing the applicant's credibility, it was also required to evaluate the credibility of his evidence concerning the substance of his refugee claim. The failure of the Board to consider the totality of the evidence before it constitutes an error of law.
[15] It is the mandate of the Board to determine whether or not a claimant meets the definition of Convention refugee as defined in the Act. In discharging this responsibility, the Board is obliged to provide reasons for its findings. Those reasons are to be clear and unambiguous; see Hilo v. Minister of Employment and Immigration (1991), 130 N.R. 236 (F.C.A.).
[16] In the present case, I find the reasons of the Board concerning the issuance of an Iranian passport to the Applicant are ambiguous. An obvious example of ambiguity is the following statement:
The panel did not find the claimant's evidence credible and trustworthy with respect to the issuance to him of an Iranian passport by the Iranian Embassy in Ottawa in 1997.
[17] The statement can be interpreted as meaning either that the Board did not believe that the Applicant obtained a passport or that it believed that he did, but disbelieved his evidence about the process he followed in doing so. In the result, the Board's statement is capable of two alternate and contradictory interpretations.
[18] Having regard to the importance which the Board apparently attached to the question of the passport and the Applicant's evidence on that point, the loose language employed by the Board in reaching the above-noted conclusion does not meet the requisite standard of "clear and unambiguous" reasoning.
[19] For these reasons, I am persuaded that the application for judicial review should be allowed and the matter remitted for determination before a differently constituted panel.
[20] Although counsel for the Applicant submitted two questions for certification, I am of the opinion that no question should be certified in this case.
"E. Heneghan"
J.F.C.C.
Ottawa, Ontario
March 8, 2001