Date: 19980106
Docket: IMM-1179-97
BETWEEN:
AHMADIAN SASAN
AHMADIAN MELIKA
SAATCHI MOJGAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.
[1] This is a judicial review of a March 5th, 1997 decision of a panel of the Immigration and Refugee Board which found that the applicants, citizens of Iran, were not Convention refugees. The applicants left Iran on September 18, 1994 and arrived in Canada on October 31, 1994. Although the panel found the applicants' evidence respecting an incident of detention and harassment in 1993 to be credible and trustworthy, the panel did not believe the evidence respecting the demand for money by two Revolutionary Guards in 1994. The panel considered the 1993 incident a single isolated act of harassment which episode was closed with the payment of a bribe and that the applicants did not have a well-founded fear of persecution should they return to Iran.
| [2] The panel's conclusion as to the lack of credibility of the applicants respecting the 1994 incidents was based on four areas of concern. The first related to the evidence that the applicants were pursued by two Revolutionary Guards for payment of U.S. $2,500 from January to September 1994. The evidence of the applicants was that they moved their residence when they were discovered by the guards. However, the panel interpreted the evidence to the effect that after being discovered, the applicants did not move for many months. The panel concluded: |
| It is not clear to the panel what the point of these alleged moves was when the evidence shows that the guards found the claimants immediately afterwards and that, once discovered, the claimants did not move again for many months. The panel finds that, on a balance of probabilities, the claimants' moves in 1994 did not take place. |
The respondent concedes the panel misinterpreted the evidence and that the evidence was that the applicants did move as soon as they were discovered.
[3] The second incident which the panel found highly improbable was that the male applicant was stopped by the guards in September 1994 while driving his taxi in Teheran. The male applicant said that on that occasion the guards demanded money within 48 hours. One reason that the panel did not believe that the incident took place was that it apparently took place "outside the catchment area of the two guards who were allegedly pursuing him". Counsel for the respondent concedes there is no evidence about the catchment area of the two guards.
[4] The panel's third area of concern was the "pattern of alleged ultimatums by the guards followed by total inaction once the deadline had passed". In this respect, the panel states:
| Not only did the guards not enforce their ultimatums against the claimants, they also took no action to expropriate the home of the male claimant's parents, the deed to which had been posted at the Komiteh when the claimants were released from custody in 1993. |
Respondent's counsel concedes there was no evidence of the deed to the parents' home being posted at the Komiteh.
[5] Based on the three areas of concern referred to, the panel concludes:
| The panel finds that, on a balance of probabilities, the demands for additional money by the guards in 1994 did not take place. |
[6] The final concern of the panel was that in September of 1994, after the alleged taxi incident, the applicants continued to live with the male applicant's parents until they left Iran later that month. The panel states:
| According to the claimants, this was the period of time when they were in maximum danger. And, yet, they chose to remain at the address where they could most easily be located by the guards. |
[7] The panel then concludes:
| The panel finds that, on a balance of probabilities, the claimants were facing no danger at this time. We find their actions to be totally inconsistent with a well-founded fear of persecution. |
[8] It is conceded by the respondent that the panel made a number of factual errors. However, the respondent says that there were sufficient plausibility and credibility findings, independent of the errors, to support the decision.
[9] There is one further circumstance that is relevant to the Court's deliberation in this case. The applicants' hearing commenced on October 15, 1995 when the bulk of the applicants' evidence was given. It was then adjourned to January 10, 1996, but at that time the presiding member of the panel was ill. The hearing did not resume until August 7, 1996 when it was completed. The panel's decision was rendered on March 5, 1997. It is a three and a half page decision in which the only issue is credibility. A period of some eighteen months elapsed between the hearing of the majority of the evidence and the panel's credibility determination. Even if the time from the conclusion of the hearing on August 7, 1996 to the date of the decision is considered, a period of some seven months elapsed.
[10] The Court is loath to interfere with credibility determination made by tribunals and it is very unusual to do so. However, in my view, this is one of those unusual cases. The panel finds "on a balance of probabilities that the demands for money by the guards in 1994 did not take place". In assessing the probabilities, the panel had to take account of the evidence before it. In this case, the panel's assessment of the probabilities was based on at least three significant factual errors in the evidence.
[11] I accept that the panel's fourth area of concern was independent of its decision, based on its first three areas of concern, not to believe that the demand for money in 1994 took place. However, the panel's reasons make it obvious that in coming to its final conclusion that the applicants were facing no danger and had no well-founded fear of persecution, it was relying on all four of its areas of concern and that three of these areas were affected with factual errors by the panel. The fourth credibility finding is not independent with respect to the panel's final conclusion and is therefore not sufficient on its own to justify the decision. With the elapse of some 18 months after the bulk of the evidence was given to the date of the credibility decision, it is not surprising the panel made a number of factual errors.
[12] In these circumstances, I am not satisfied that in coming to its conclusion respecting the applicants' credibility, the panel had regard to the evidence before it. I hasten to add that it is not for the Court to decide if the applicants were telling the truth about the 1994 incidents. That is for a panel to determine. All that I can say is that because the panel in this case made a number of factual errors that were critical to its decision and assessed credibility long after the evidence was given, I do not have confidence that the decision was made having regard to the evidence before the panel.
[13] The issue of the length of time that the matter was before the panel requires further comment. The Court has little information as to why, when the hearing did not conclude on October 15, 1995, it took until August 7, 1996 for it to be resumed. It appears from the transcript that the parties and panel were able to resume on December 7, 1995. For some unexplained reason the resumed hearing date became January 10, 1996. It was on that date that the presiding member was ill. The hearing was rescheduled to March 29, 1996, but again for no explained reason it did not proceed on that date. On May 3, 1996, the August 7, 1996 date was fixed for the resumption of the hearing. Without further information, I am only able to say that the panel seems to have been proceeding with this case at a rather relaxed pace. Of course panel members and counsel have other obligations. However, if timing conflicts or other extraneous considerations are unreasonably extending a case, a panel must adjust its own schedule and require counsel to make adjustment in their schedules so that the case can be concluded in a timely manner.
[14] The seven months that elapsed between the end of the hearing and the rendering of the decision is inexplicable. As stated, the decision is three and a half pages in length and deals only with credibility. There were no difficult legal issues. A panel's decision is called into question when the decision is based solely on credibility, it is demonstrated that the panel made a number of factual errors and when an excessive period of time elapses before the decision is rendered. There is no reason why a simple decision based on credibility should take seven months to issue. In order to avoid factual errors caused by delay and the Court questioning credibility decisions for this reason, the CRDD should ensure that its decisions are issued in a timely manner.
[15] Respondent's counsel submits the following question for certification.
| In an application for judicial review, is the delay by the Refugee Division in issuing reasons a material factor in an assessment of the reasonableness of any findings of lack of credibility. |
It should be born in mind that the general rule is that delay will rarely be grounds for a successful judicial review. In Akthar v. Minister of Employment and Immigration (1991), 129 N.R. 71, Hugessen J.A. states at page 76:
| In my view, any claim in a non-criminal case to Charter breach based on delay requires to be supported either by evidence or at the very least by some inference from the surrounding circumstances that the claimant has in fact suffered prejudice or unfairness because of the delay. There is no such support to be found in the present cases. |
[16] In Hernandez v. M.E.I. (1993), 154 N.R. 231, Robertson J.A. states at page 232:
| It is understandable that an appellate court would not wish to foreclose absolutely on a Charter argument. A rule without exceptions has more often than not proven to be a source of controversy rather than consensus. At the same time, I am of the view that the above statement must be placed in the context of the incisive analysis which preceded it. Within that framework, it is abundantly clear that the "unreasonable delay" argument cannot be perceived as a fertile basis for setting aside decisions of tribunals. It is probably closer to legal reality for one to presuppose that rarely, if ever, will the argument be successfully invoked. Counsel should be guided accordingly. |
[17] However, those decisions were rendered in the context of applicants seeking to have negative convention refugee determinations turned into positive ones solely by reason of alleged Charter violations arising from delay. In that context delay alone will not ground a successful argument. The circumstances here are different. The applicants are not asking that the CRDD's negative determination be turned into a positive one, but that the claim be referred back to the CRDD to be heard by a differently constituted panel. In addition, this case is not about simple delay but is about factual errors made by a panel in assessing the witnesses' credibility and the evidence, which appear to be attributable to delay. This combination of delay and errors calls into question whether the panel had regard for the evidence before it. Each case of this nature must be decided on its own facts. No question will be certified.
[18] The judicial review is allowed and the matter is remitted to a different panel of the CRDD for redetermination without delay.
"Marshall Rothstein"
Judge
Winnipeg, Manitoba
January 6, 1998
Date: 19980106
Docket: IMM-1179-97
BETWEEN:
AHMADIAN SASAN
AHMADIAN MELIKA
SAATCHI MOJGAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario on December 10, 1997
Order delivered at Winnipeg, Manitoba on January 6, 1998
REASONS FOR ORDER BY: ROTHSTEIN, J.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-1179-97
STYLE OF CAUSE: Ahmadian Sasan, Ahmadian Melika, Saatchi Mojgan
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 10, 1997
REASONS FOR ORDER
OF THE COURT: The Honourable Mr. Justice Rothstein
DATED: January 6, 1998
APPEARANCES:
Douglas Lehrer for the Applicants
John Loncar
Dept. of Justice
Toronto, Ontario for the Respondent
SOLICITORS OF RECORD:
Vandervenen, Lehrer
45 Saint Nicholas Street
Toronto, Ontario
M4Y 1W6
for the Applicants
Mr. George Thomson, Q.C.
Deputy Attorney General of Canada for the Respondent
FEDERAL COURT OF TRIAL
Date: 19980106
Docket: IMM-1179-97
BETWEEN:
AHMADIAN SASAN
AHMADIAN MELIKA
SAATCHI MOJGAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER