Date: 20000724
Docket: IMM-6428-98
BETWEEN:
AMIR HOMAN KAZEMIAN
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated November 23, 1998 wherein the Refugee Division determined the applicant was not a Convention refugee.
[2] The applicant is a 33 year old citizen of Iran. He fears persecution because of his religion, political opinion, as well as membership in a particular social group - his family.
[3] He left Iran on July 7, 1997 with a Canadian visitor"s visa he had obtained on June 2, 1997. He arrived in Canada on July 10, 1997 and claimed refugee status on August 25, 1997.
[4] The applicant claimed that because his father supports a federated government in Iran, his family is subject to persecution. Furthermore, he himself was imprisoned and abused for harbouring anti-Islamic views. He also fears persecution because he would be seen as an apostate for his conversion to Christianity since his arrival in Canada.
[5] The Refugee Division determined that the applicant was not a credible witness. He failed to set out important evidence in his Personal Information Form. His explanations at the hearing were inadequate. Some parts of his story were implausible; some were not credible.
[6] The Refugee Division found that the applicant"s delay in claiming refugee status undermined hisclaim, and that his claim of a fear of persecution on the basis of his alleged conversion to Christianity was not credible.
[7] The questions which must be determined is whether the Refugee Division failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe, and whether it erred in law in making its decision.
[8] The applicant submits that three major issues occurred that place the validity of the translation provided at the hearing in question. There was an error as to whether the applicant had a sister whom he did not include in his Personal Information Form. The applicant suggests that until this matter was clarified by the interpreter following the hearing, it gave rise to a serious question of credibility.
[9] The applicant then raises the issue about the tapes of the hearing. He was apparently not able to properly audit the tapes because of blanks due to failure of the recording device. According to the applicant "there were numerous issues raised relating to the applicant"s credibility. A number of those issues did not appear on the tapes at all and so could not be audited at all. Even where issues were covered, counsel"s redirect was not to be found on the tapes".
[10] The applicant emphasizes that there were numerous omissions with respect to converting dates to the Iranian calendar during the hearing. In light of the fact that the decision of the Refugee Division indicates that there were discrepancies with respect to dates, the applicant asks whether these discrepancies occurred because dates had not been converted for the applicant as required. He also asks whether these discrepancies could have been avoided and whether this could have affected his credibility before the Refugee Division. In the applicant"s view, the benefit of any doubt as to the overall quality of interpretation at the hearing should go in his favour.
[11] The respondent submits that it is well established that the Refugee Division is entitled to decide adversely with respect to a claimant"s credibility on the basis of contradictions and inconsistencies in the claimant"s story, or on the basis that the claimant"s story is simply not plausible. The Court will not intervene unless it is satisfied that the panel"s conclusion is based on irrelevant considerations or that it ignored evidence of significance. The respondent contends that this is clearly not a case where the tribunal based its decision on irrelevant considerations or ignored evidence of significance.
[12] The respondent further submits that the Refugee Division"s determination that the applicant was not credible was based on a thorough review of the evidence, documentary and oral, that was before it. He maintains that the Refugee Division gave reasons for its negative finding of credibility in clear and unmistakable terms so that there are no grounds that warrant the interference of the Court in this finding.
[13] The respondent notes that the applicant himself has not provided evidence stating that the qualify of the interpretation at the hearing caused him prejudice. Nor has he provided evidence to explain what perceived problems occurred during the portions of the hearing that are unrecorded. Neither the applicant nor his counsel raised the issue of interpretation during the hearing. According to the respondent, the evidence that was provided by the applicant fails to demonstrate that the applicant has been prejudiced by the alleged errors in interpretation. None of the errors can be said to be material to the decision of the Refugee Division since the Refugee Division"s decision in this case was based on the applicant"s lack of credibility, and the adverse credibility finding was based primarily on the implausibilities and omissions in the applicant"s evidence (between the applicant"s PIF and his oral testimony), the Refugee Division"s belief that the applicant had not converted to Christianity as he had alleged, as well as upon the applicant"s delay in making his claim.
[14] The respondent further submits that there is no evidence before the Court that had the interpreter not made the alleged errors in interpretation in this case, the decision of the Refugee Division would have been any different.
[15] I agree with the respondent that the central issue in the Refugee Division"s determination that the applicant was not a Convention refugee was the applicant"s credibility. Most of the Refugee Division"s decision is concerned with outlining "some - but by no means all - of the problems with [the applicant"s] evidence".
[16] It is well established that:
| "Questions of credibility and weight of evidence are for the CRDD panel in considering refugee claims. Thus, the panel may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence or it is found to be implausible. Parlicularly where there has been an oral hearing and the panel"s assessment appears clearly dependant, as in this case, at least in part, upon seeing and hearing the witness, this Court will not intervene unless it is satisfied that the panel"s conclusion is based on irrelevant considerations or that it ignored evidence of significance. In short, this decision must be found to be patently unreasonable on the basis of the evidence before the panel. |
| Where the determination of the panel ultimately turns on its assessment of credibility, an applicant for judicial review has a heavy burden, as the reviewing Court must be persuaded that the determination made by the panel is perverse or capricious or without regard to the evidence before it. Thus, even where the reviewing Court might itself have come to a different conclusion on the evidence it will not intervene unless the applicant establishes that the decision of the panel is essentially without foundation in the evidence." (Akinlolu v. M.E.I. (March 14, 1997), Imm-551-96 (F.C.T.D.) at pages 5-6. See also: Sun v. M.E.I. (June 23, 1993), 92-A-7176 (F.C.T.D.) at p. 3, and Leung v. M.E.I. (July 8, 1993), A-7456-91 (F.C.A.) at pp. 1-2) |
[17] In the present case, I believe that the applicant has failed to establish that the decision of the Refugee Division is "essentially without foundation in the evidence". The Refugee Division"s determination that the applicant was not credible was based on a thorough review of the evidence, documentary and oral, that was before it. The Refugee Division gave reasons for its negative finding of credibility in clear and unmistakable terms. (See: Hilo v. Canada (Minister of Employment & Immigration (1991), 15 Imm. L.R. (2d) 199 (F.C.A.), where it was established that the Refugee Division had such a duty).
[18] Portions are missing from the tapes of the transcript of the hearing before the Refugee Division. The applicant attacks the accuracy of the interpretation provided at the hearing. In order to succeed, the applicant must, according to the case law, show evidence of prejudice or at least potential prejudice. (Tung v. M.E.I. (1991), 124 N.R. 388 (F.C.T.D.) and Mosa v. M.E.I. (1993), 154 N.R. 200 (F.C.T.D.)).
[19] After reading the affidavit provided by the applicant"s interpreter, I can only agree with the respondent that the evidence fails to demonstrate that the applicant has been prejudiced by the alleged errors in interpretation. None of the alleged errors can be said to be material to the decision of the Refugee Division since the Refugee Division"s decision is based on the applicant"s overall lack of credibility. The Refugee Division provided various examples of the inconsistencies and problems with the applicant"s evidence. The enumeration was extensive. As for the issue of dates not being converted to the Iranian calendar, it is not likely this could have in any way confused the applicant at the hearing. The Refugee Division explicitly stated that the applicant "is not an unsophysticated person unused to international travel".
[20] As for the unavailable portions of the recording of the hearing, I do not believe that they could help the applicant in this particular case. Madam Justice L"Heureux-Dubé, in the Supreme Court decision Public Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R. 793, held:
| In Kandiah [Kandiah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 321 (F.C.A.)], the Federal Court of Appeal acknowledged the concern underlying the decision in Tung [supra], that is, that an applicant may be deprived of his or her grounds of review or appeal given an absence of a transcript of what transpired at the impugned hearing. It held, however, that if the decision facing the court could be made on the basis of evidence established through other means, the principles of natural justice would not be infringed. |
[21] The available portions of the transcripts have not been filed before this Court, but the decision of the Refugee Division shows that it is the overall credibility of the applicant that has been deemed lacking.
[22] There is no evidence before the Court that had the interpreter not made the alleged errors in this case, the decision of the Refugee Division would have been any different. It is my opinion that it would not have been different, since it is based on the applicant"s overall lack of credibility. I believe that the applicant has failed to establish that the Refugee Division"s decision had no reasonable basis on the evidence. The fact that the transcripts of the hearing are incomplete does not breach principles of natural justice. No affidavit evidence filed by the applicant suggests that those portions of the tape that are missing are relevant nor have they raised any issue of credibility that could be set aside had the entire recording been available. No allegation as to what occurred would set aside the numerous findings of lack of credibility.
[23] The application is dismissed.
JUDGE
OTTAWA, Ontario
July 24, 2000