Date: 19980923
Docket: IMM-2317-97
BETWEEN:
AHMAD MORADI
MEHRDAD MORADI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.:
[1] The applicants seek judicial review of, and an order setting aside, the decision of the Convention Refugee Determination division (the "panel") of the Immigration and Refugee Board, dated May 7, 1997, that the applicants are not Convention refugees.
[2] The applicants are a father and his infant son. The latter's claim is dependant upon that of his father (hereafter referred to as the "applicant"), and it is the father's claim that is the basis of their status and the claim which was rejected by the panel.
[3] The applicant was a supporter of the Shah's regime in Iran, working as an administrator for the Ministry of Finance. He enjoyed a high standard of living during the Shah's reign and maintained this standard of living after the revolution when he destroyed any evidence showing that he was friends with people within the monarchy.
[4] While the applicant was able to keep his property after the revolution, his brother was detained for five years after the authorities found evidence that the brother was continuing to support the Shah. The applicant, fearing that resignation on his part might be viewed as opposition to the government and hoping to have his brother freed, did not resign from the Ministry following the Shah's overthrow. After his brother's release, the applicant tendered his resignation in 1984, but withdrew this request when he was questioned as to whether he opposed the regime. Thereafter he was demoted and began working as a tax collector. In 1988, he had an argument with shop-keepers regarding their taxes. These business people had connections with the local security forces who arrested and beat the applicant.
[5] In 1988, his brother was re-arrested and, in 1989, was executed. When the applicant held a funeral service for his brother, he was arrested and detained for a month, during which time he was beaten. He was released on an undertaking that he would not again commemorate his brother.
[6] At his job, the applicant was demoted again to work in a storage room. In 1993, he was detained for several months and beaten when he commented to another employee that the government was wasteful with money. The applicant was threatened that his son would be killed if the father withheld information from the authorities. Following his release, the applicant was fired and prohibited from leaving the country. He was obliged to sign a decree that he would not act against the regime.
[7] From August 1994 until February 1995, the applicant was detained when, by coincidence, he was in the vicinity of a protest. On his release he was required to sign yet another undertaking to refrain from anti-revolutionary activity on the threat he would be sentenced by the Revolutionary Court if he were arrested for such activity. Following his release, the applicant went to work for a family friend who owned an auto-dealership. Angered at the way he had been imprisoned, the applicant claims he gave secret financial support to a clandestine monarchist movement, the Saltanat Talaban. He attended meetings and was associated with an effort to distribute pamphlets, which was interrupted by a police raid. In the wake of the raid, the applicant went into hiding, taking with him his son whom he feared would be used to get at him or would be harmed. He did not harbour similar fears for his wife.
[8] The applicant fled Iran sometime in late 1995 or early 1996, arriving in this country in April 1996. Following his departure, two of his colleagues in the clandestine monarchist group were executed. The applicant's relatives, including several cousins, have had difficulties with the regime owing to their association with the Mujahedin guerilla movement, and for opposing the regime's human rights policies.
[9] The panel found that the applicants did not have a well-founded fear of persecution. The finding reflects the panel's determination that the applicant's claim was not credible because of inconsistencies and implausibilities in his evidence. The panel's decision notes that while no one finding was significant in itself for its determination, taken together its various findings, cumulatively, led it to its conclusions.
[10] Decisions based on the panel's assessment of credibility are not lightly set aside. As I noted in Akinlolu v. Canada (Minister of Citizenship and Immigration), Unreported, Court file No. IMM-551-96, March 14, 1997 at p. 6; [1997] F.C.J. No. 296 (F.C.T.D.) at para. [14]:
| 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. |
[11] In my opinion the decision of the panel in this case is not based on the evidence adduced, and it is appropriate that it be set aside. What the panel described as inconsistencies were not inconsistencies in the evidence of the applicant but inconsistencies between his story and his action, based in part on the panel's misconstruction of the evidence. Further, a number of the implausibilities found simply were not warranted on the basis of the evidence.
[12] The panel found that the applicant's failure to leave the country until late 1995 was inconsistent with any well-founded fear of persecution, and his excuse for not leaving earlier, namely that he loved his country and did not fear persecution until late 1995, was unbelievable if his story of his experience in Iran was true. In my view, the panel misconstrued his evidence of his contemplating resignation from his post in the Ministry of Finance in 1984 as the commencement of his identification as an opponent of the revolutionary regime. In the panel's view, that and his subsequent experiences, together with persecution of his relatives, should have led to a fear of persecution on his part earlier than 1995. The panel perceived that, in view of the attitude of the revolutionary regime to its opponents, the applicant's experiences would have led to his actual persecution before 1995. But that was not his evidence, and the assessment of the panel was its own, not based on the evidence before it.
[13] The second matter found to be an inconsistency by the panel was that the applicant left Iran with his infant son but left his wife behind. In the view of the panel, if there were a risk to the son as the applicant claimed, then the applicant's wife would also have been at risk. The applicant's evidence was that authorities had threatened his son's life as a means of controlling the applicant, but no threat was made to his wife's safety, and his wife did not want to leave Iran. Relying on her failure to leave with the applicant as a basis for discounting his story, while not assessing the evidence he did adduce, simply is inappropriate, in my opinion.
[14] Among implausibilities found by the panel, a number were based on its misconstruction of the applicant's evidence that, from the time of his contemplating resignation from his post in the Finance Ministry in 1984, the applicant was "identified as a monarchist opponent of the regime". That early identification was not the evidence of the applicant. Nevertheless, in light of documentary evidence that opponents of the regime were harshly treated, the panel found it implausible that the applicant was continually released after relatively short detentions, and implausible that "Iranian authorities would keep on releasing a suspected political dissident upon signed undertakings when the person has an established track record of not complying with those undertakings? ... we think not." Further, the panel found it implausible that "the Iranian regime would maintain on the public payroll a person who was a suspected political dissident, a person who continually (in their eyes) violated undertakings? Once again, we think not."
[15] Reviewing documentary evidence about the Iranian regime's harsh treatment of monarchist groups and the lack of reports of any such groups being active currently in Iran, the panel found it implausible that the applicant's evidence of association with a monarchist group in recent years could be credible, even though his evidence was that the group he associated with was clandestine.
[16] Finally, the panel declined to accept the applicant's evidence that he had difficulty with a translator, who did not speak Farsi, the applicant's language, through whom he had told his story to immigration officers on arrival in Canada. That explanation for the lack of any mention, in notes made on that occasion, of any detention except that in 1993-94, was not acceptable to the panel which then found his subsequent claim, referring to other occasions of detention, to lack credibility.
[17] In my opinion, the panel's main findings of inconsistencies and implausibilities are not warranted on the evidence before it. Moreover, the panel failed to address an issue raised by the applicant's evidence of his active participation in a monarchist group in Canada as a possible basis for a claim to be a refugee sur place. Whether or not the applicant made a specific claim to that status, there was evidence of the applicant's pro-monarchist activities in Canada which ought not to have been ignored by the panel, particularly in light of its ready recognition of the suppression of monarchists by the Iranian authorities.
[18] In argument when this matter was heard counsel for the applicant urged that in this case the decision of the panel included significant passages that were "boiler plate", in the sense that they appeared in other decisions of the same panel members, and here without sufficient reference to the evidence adduced in this case. Indeed, it was urged that "boiler plate" passages in this case could be traced to other claims arising in one or more other countries than Iran. I agree that a panel may resort to "boiler plate" expressions or passages in its decision where those are made referable, or on their face are clearly so, to the evidence before the panel. Whether that is adequately done is a matter of judgment, and unless the panel's references can be said to be perverse or without relevance to the evidence, a Court should be, as I am, reluctant to intervene simply because the panel uses "boiler plate" expressions in its decision.
[19] I make no finding in regard to the applicant's argument on this ground and I decline to certify a question proposed by counsel for the applicant, for consideration by the Court of Appeal pursuant to s-s. 83(1) of the Immigration Act, about the use of "boiler plate" passages in its decision by a panel of the Refugee Division.
Conclusion
[20] For the reasons here set out, an order goes allowing the application for judicial review and setting aside the decision here impugned. The applicant's claim, and that of his son which is dependant upon it, are referred back to the Convention Refugee Determination Division for reconsideration by a different panel.
W. Andrew MacKay
Judge
OTTAWA, Ontario
September 23, 1998