Date: 19980819
Docket: IMM-4271-97
BETWEEN:
HASSAN SAMANI
TAHEREH NADERI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGEMENT
(Delivered from the Bench at Toronto, Ontario
on Tuesday, August 18, 1998)
HUGESSEN, J.:
[1] This is an application to review and set aside a decision of a panel of the Immigration and Refugee Board which found the principal applicant and with him the second applicant, his wife, not to be Convention refugees.
[2] The basis of the panel's decision was that the principal applicant's testimony was found not to be credible. As I read the decision, the panel assigned four reasons for that finding of lack of credibility. First, they say that the applicant's evidence was unresponsive and evasive in answering questions. This finding, by itself of course, is virtually impossible to review. It is based upon the panel's own assessment of what they saw and heard the applicant say and do in their presence. However, as is frequently the case, and this is no exception, the panel goes on to give particulars of their finding of lack of credibility and they assign three particular reasons as to why they did not believe the applicant. In the circumstances, I take those three paragraphs following the finding of unresponsiveness and evasiveness as being the explanation by the panel of the precise circumstances in which they felt that the applicant was unresponsive and evasive. That is particularly the case here in that the panel's written decision was issued over nine months after the hearing and clearly had to be based upon their own notes or perhaps a review of the transcript rather than on their immediate impression of his demeanour and conduct in the witness box before them.
[3] I turn, accordingly, to the three particular instances in which the panel found that the applicant's evidence was inadequate. The first has to do with a question put to him regarding other monarchist organizations in Iran. The panel says that the applicant was unable to give the names of monarchist organizations or their leaders. I refer to page 37 of the transcript (page 301 of the Tribunal Record) where the question is put to the applicant and is answered. In that answer, the applicant gives the names of three monarchists organizations. Admittedly, he does not give the names of their leaders, but it seems to me that the panel simply committed an error and misunderstood or misconstrued the evidence before it. It is simply not true to say that he was unable to give the names of those organizations. He did give them.
[4] Secondly, the panel makes a finding that it was implausible and an "affront to common sense" that the applicant should have been given a photocopier and monarchist material by the small monarchist group with which he was working since he had previously been arrested and convicted and, in effect, placed on probation and under surveillance by the police. There is no evidence in the record as to what the background of the other members of this very small group (there were only five of them) may have been. In those circumstances, I can only say that the Board's finding of implausibility is, to say the least, not a strong one. It is never particularly persuasive to say that an action is implausible simple because it may be dangerous for a politically committed person.
[5] Finally, the Board found that the applicant had contradicted himself in his evidence regarding the security arrangements, if they can be dignified with that term, of this small group for which he was working. The finding of contradiction is based entirely upon a passage from the transcript which I reproduce here in full:
| COUNSEL: And lastly, Babak's father, he knew your full name, did he ? |
| CLAIMANT #1: Did he knew my name, yes he did. |
| COUNSEL: And did he know where you lived? |
| CLAIMANT #1: Yes. |
| COUNSEL: These five friends that you recruited to help you, in your Personal Information Form it says that they were distributing leaflets. Did they know your full name and address? |
| CLAIMANT #1: My full name and address, no. |
| COUNSEL: What did they know? |
| CLAIMANT #1: Due to the security reasons, they should not have known. |
| COUNSEL: What did they know about your friends? |
| CLAIMANT #1: We were friends but in reality they knew my name and address, but in for security reason, f there is something comes up, they would say they don't. |
| COUNSEL: I want you to answer the question. Did the five friends know your name and address? |
| CLAIMANT #1: My name and address yes, they were my friends. |
[6] I am simply unable to see in this passage the contradiction which the Board seems to have found. The statement that the other members of the group did not know his "full" name and address is not a contradiction of the immediately following statement that they were his friends and did know his name and address. He specifically uses the word "full" and in the circumstances I think that it must have some significance. Other than that, even if he had not used the qualifying word "full", the explanation or contradiction follows so quickly upon the original statement that it is far better described as being a correction than a contradiction. It is not in my view a basis for the finding of absence of credibility which the Board made.
[7] In the circumstances, I find the Board's decision to be unreasonable and not based upon the evidence before it. Accordingly, I propose to enter an order setting aside the Board's decision and referring the matter back for a further determination. Before doing so, I invite counsel to make any submissions if they have any with regard to an important question to be certified.
"James K. Hugessen"
Judge
Toronto, Ontario
August 19, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4271-97
| STYLE OF CAUSE: HASSAN SAMANI |
| TAHEREH NADERI |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, AUGUST 18, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HUGESSEN, J.
DATED: WEDNESDAY, AUGUST 19, 1998
APPEARANCES: Mr. Michael T. Crane
For the Applicants
Mr. Brian Frimeth
For the Respondent
| SOLICITORS OF RECORD: Michael T. Crane |
| Barrister & Solicitor |
| 200-166 Pearl Street |
| Toronto, Ontario |
| M5H 1L3 |
For the Applicants
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980819
Docket: IMM-4271-97
Between:
| HASSAN SAMANI |
| TAHEREH NADERI |
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR JUDGEMENT