Date: 19991117
Docket: IMM-2742-98
Ottawa, Ontario, this 17th day of November, 1999
Present : The Honourable Mr. Justice Pinard
Between :
MASOUD KAHANDANI
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the May 14, 1998 decision of K. Desai and V. Bubrin, members of the Immigration and Refugee Board, Convention Refugee Determination Division, that the applicant is not a Convention refugee, is dismissed.
JUDGE
Date: 19991117
Docket: IMM-2742-98
Between :
MASOUD KAHANDANI
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an application for judicial review of the May 14, 1998 decision of K. Desai and V. Bubrin, members of the Immigration and Refugee Board, Convention Refugee Determination Division ("CRDD"), that the applicant is not a Convention refugee.
[2] K. Desai ("Desai") determined that conscription and service in the Revolutionary Guard corps was insufficient to exclude the applicant under Article 1F(a) of the United Nations Convention Relating to the Status of Refugees1. Moreover, he accepted the applicant's evidence that he was a conscript, rather than a volunteer, in the Revolutionary Guard. Finally, Desai concluded that, because of the applicant's activities associated with the monarchist group, there was a reasonable chance of persecution were he to return to Iran. Therefore, he found the applicant to be a Convention refugee.
[3] In his dissenting reasons, V. Bubrin ("Bubrin") concurred with Desai's decision that the applicant should not be excluded under Article 1F(a) of the Schedule of the Immigration Act (the Act). However, he determined that the applicant was not a Convention refugee and that he was neither politically involved in Iran nor sought by the authorities for political reasons. Bubrin found the applicant's evidence neither credible nor trustworthy and concluded that the applicant would not have a well-founded fear of persecution if he returned to Iran.
[4] First of all, Bubrin did not believe that the applicant would have been issued an Iranian passport following completion of his military service if his brother and father were active in the Monarchist Party of Iran. He found it even less plausible that with the type of family background the applicant describes, he would have been invited to participate as a trainer/coach of the Iranian national martial arts team.
[5] In addition, Bubrin assigns no probative value to the letter of dismissal from the Department of Education. If it was the case that the applicant's background was not checked when he was asked to join the national team, Bubrin does not see why the authorities would dismiss him for refusing to shout pro-Islamic slogans and participate in team prayers. Moreover, Bubrin believes that if this refusal was so serious, the applicant would have been dismissed shortly after he joined the team and not in 1993.
[6] Bubrin also states that the applicant gave an inconsistent account of his detention in 1991. The applicant testified that he was released because his father, who was being detained at the same time, probably told the authorities that he (i.e. the applicant) was not politically involved. However, it was noted in the applicant's port of entry interview that he said he was released because the national martial arts team needed his services.
[7] In addition to this inconsistency, Bubrin found both explanations for the applicant's release implausible. He considered it implausible that the authorities would give any weight to the father's statement. He also found it implausible that the applicant would be recalled to his position with the martial arts team just after having been detained for suspicion of anti-government political activity.
[8] Finally, Bubrin based his conclusion that the applicant was not involved in the political activities he alleges on three reasons. First, he found the applicant's testimony regarding his own involvement in the monarchist group vague and contradictory. The applicant was unable to describe the contents of the pamphlets he allegedly distributed in great detail. Second, the applicant's testimony about his involvement with the monarchists was contradicted by his statement at the port of entry that he was not a member of the monarchist group. The applicant testified that at the port of entry, he was thinking of a time when only his father and brother were involved in the monarchist group. Bubrin does not accept this explanation because he finds it unreasonable that, at the port of entry, the applicant would not focus on his own reasons for escaping Iran. Third, Bubrin does not believe that the applicant was ever dedicated to the monarchist cause because he is not in contact with any monarchist organizations in Canada.
[9] As regards findings of credibility, it is well established that it is a question of fact that is entirely within the jurisdiction of the CRDD as the trier of fact. The panel is free to find that an applicant is untrustworthy on the basis of implausibilities in his or her testimony, provided that its findings are not unreasonable (Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)) and that its reasons are set out in "clear and unmistakable terms" (Hilo v. M.E.I., 15 Imm.L.R. (2d) 199 (F.C.A.)). A reviewing court cannot therefore interfere with the CRDD's findings of fact unless the panel reached its decision in a perverse or capricious manner or without regard for relevant evidence submitted to it. Furthermore, the burden on an applicant to rebut the CRDD's finding that he or she lacks credibility is very heavy.
[10] Upon reviewing the evidence, I am not satisfied, in spite of the able presentation of counsel for the applicant, that the CRDD, which is a specialized tribunal, committed any significant errors and that it could not reasonably conclude as it did.
[11] More specifically, with respect to the applicant's contention that the CRDD erred in law by failing to confront him with the alleged inconsistencies in the evidence, the case law on this issue suggests that there is no such obligation on the tribunal:
| . . ., the tribunal's failure to confront the claimant with its concern with a direct response to a specific question is not a reviewable error. The parties were on notice that credibility was in issue. In assessing the plausibility of the applicant's assertions, the tribunal could take into consideration his failure to remember the names of the respondents in two habeas corpus proceedings he allegedly launched in Sri Lanka, without further highlighting the issue during the hearing. These were the same legal proceedings which allegedly resulted in his persecution and his decision to flee Sri Lanka. On the facts in this case, I adopt the statement of my colleague Justice Gibson in Ayodele v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1833 (QL) (F.C.T.D.) at paragraph 17, in interpreting the scope of Gracielome: |
| . . . to have a decision fail, by reason only of the failure on the part of the CRDD members to put the contradictions to a represented applicant goes well beyond what I take to be the position enunciated in Gracielome and places what, in my view, is an unwarranted burden on members of the CRDD.2 |
[12] Likewise, MacKay J. stated in Sarker v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm.L.R. (2d) 209, that "there is no obligation on the panel to signal its conclusions on implausibility or on the general credibility of the evidence, in advance of a decision. Rather, the onus remains on the applicant to establish by credible evidence his claim to be considered a Convention refugee.
[13] Moreover, in light of the evidence I am not convinced that the CRDD failed to confront the applicant with the alleged inconsistencies in his evidence. At the hearing on May 17, 1995, the applicant was given an opportunity to explain two inconsistencies between his port of entry interview and his later testimony. First, the applicant was asked why he said at the port of entry that he did not do anything for the monarchist group after his father and brother went to jail. He responded that when he was asked this question, he was thinking about a time when he was not involved with the monarchists. The applicant was also asked why he said at the port of entry that he was released from detention in 1991 because he was needed in his job as trainer for the national martial arts team. He answered that at the port of entry, he was under stress and just said what was in his mind. The applicant also stated that it was only speculation on his part that his father said something to the authorities. Finally, the applicant admitted that he didn't really know why he was released.
[14] Similarly, the applicant was asked during the May 17, 1995 hearing why he did not keep a photocopy of his Iranian passport when he had photocopies of his certificate of completion of military service. The applicant explained that he only kept photocopies of documents that were needed, such as his certificate, which was demanded everywhere in Iran.
[15] In addition, the applicant was asked how he was able to hold the position of coach of the national team when his religious ideology differed from that of the State. The applicant answered that he got the position because there was a need for his expertise.
[16] Finally, the applicant was asked why he was not involved with a monarchist group in Canada. The applicant explained that because he has no accurate information about his family members, it has not occurred to him to get involved in these types of activities.
[17] Therefore, even if the CRDD had a duty to alert the applicant to alleged inconsistencies in the evidence, which it did not have, it appears that its members fulfilled that obligation in this case.
[18] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
November 17, 1999
__________________
1 F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser: a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes;
2 Matarage v. The Minister of Citizenship and Immigration (April 9, 1998), IMM-1987-97, Lutfy J.