Date: 20011116
Docket: IMM-389-01
Neutral citation: 2001 FCT 1228
BETWEEN:
AMIRHOSHANG GHODRATOLAPOUR HERABADI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON J.
[1] This applicant is a citizen of Iran who has converted to Christianity. In his hearing before the Convention Refugee Determination Division of the Immigration and Refugee Board (the ABoard@) he claimed to have a well founded fear of persecution based on his religious beliefs. However, in a decision dated January 2, 2001, (the ADecision@) the Board concluded that the applicant was not a convention refugee. These reasons deal with the applicant's application for judicial review of the Decision. Although a number of issues were raised, I will only consider in detail the issue which caused me concern.
[2] At the end of its hearing, the Board advised the applicant's counsel that, if he wished, he could submit additional material dealing with the applicant's well founded fear of persecution on his return to Iran. Two weeks after the hearing, counsel for the applicant delivered four documents to the Board. The documents were voluminous and dealt with the problems faced by Christians in Iran. One of the documents was exhibit R-2 at the hearing. I will describe the other three documents as the APost-Hearing Material@.
[3] The problem arises because, in its Decision, the Board failed to mention that it had received and considered the Post-Hearing Material and failed to refer to any of the evidence it contained.
[4] Understandably, the applicant doubts whether the Post-Hearing Material was in fact considered and submits that the Board erred in law when it ignored relevant evidence. In the applicant's submission, the Board could not have reached the Decision if it had read the Post-Hearing Material.
[5] The starting point for a discussion of this issue is the decision of Muldoon J. in Iordanov v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 367 in which he stated at paragraphs 10 and 11:
[10] In Hassan v. Canada (Minister of Employment and Immigration), (1992), 147 N.R. 317 (F.C./A.), the Appeal Division of this Court stated, with regard to documentary evidence, that the CRDD is not required to mention each piece of evidence in its reasons. Justice Heald, writing for the unanimous court, stated at page 318:
In my view the conclusions of the Board were reasonably open to it based on the totality of the evidence adduced, and consequently, it did not err in law. The fact that some of the documentary evidence was not mentioned in the Board's reasons is not fatal to its decision. The passages from the documentary evidence that are relied on by the appellant are part of the total evidence which the Board is entitled to weigh as to reliability and cogency. My examination of the record before the Board persuades me that it did, in fact, consider and weigh the total evidence in a proper fashion.
[11] From the above, it can be concluded that there are two types of evidence which can be presented at CRDD hearings: evidence which is specific to the applicant's claim and which corroborates the applicant's evidence and evidence which is general in form (documentary evidence) and does not specifically deal with the applicant's claim, but which generally deals with country conditions. The Court of Appeal has clearly established that the failure of the CRDD to consider the first type of evidence, and a failure to refer specifically to the first type of evidence in its reasons may vitiate the decision. However, with respect to the second type of evidence, the CRDD is not bound to refer to each piece of evidence. The CRDD must simply weigh the totality of the evidence. Failure to consider the totality of this second type of evidence will result in court intervention.
[6] Although none of the Post-Hearing material was mentioned in the Decision, counsel for the respondent pointed out that it is in the official Tribunal Record. He therefore submitted, and I accept, that it is reasonable to conclude that the material reached the Board and was considered. He also said that, because none of the Post-Hearing Material contradicted the evidence at the hearing, it need not be referred to in the Decision.
[7] With regard to this submission, I have noted that the Board concluded that the applicant was of the Christian Faith but also concluded that he was a Afollower@ and not the kind of high profile evangelistic Christian who would be likely to come to the attention of the Iranian authorities by reason of his preaching, teaching or missionary zeal.
[8] Based on Exhibit R-2 at the hearing, the Board noted that a relatively small number (15-22) of Iranian Christians, who appear to have been Afollowers@, had disappeared during 1997 and the first half of 1998. However, it did not conclude that either the evidence in exhibit R-2 or the applicant's own detention, beating and release raised a serious possibility that he would be singled out in future for harsh treatment amounting to persecution.
[9] The evidence in the Post-Hearing Material confirmed the Board's understanding that those who convert from Islam to another religion are subject to arrest and possible execution. It included descriptions of the arrests of two people who were Muslim converts to Christianity and who did not have high profile roles. However, they were released and there was no evidence that they experienced further problems.
[10] Although the Board failed to refer to the Post-Hearing Material, I have concluded that it did not contradict the evidence which was before the Board at the hearing. Accordingly, I am not prepared to say that the Board erred in law in failing to mention it. I should note, however, that as a matter of practice, it would be helpful if the Board were to include in its reasons an acknowledgment of the receipt and review of documents received after a hearing.
[11] The applicant also alleged that:
a. The Board acted contrary to the principles of Natural Justice because it stipulated that credibility was not an issue during the hearing but commented negatively or used a negative tone about the applicant's credibility in the Decision. On this issue I have concluded that there were no material negative credibility conclusions.
b. The Board did not consider whether the applicant had a well founded fear of persecution because he left Iran illegally. However, following a review of the applicant's PIF which does not mention such a fear, I am not persuaded that the Board erred in this regard.
c. The Board erred in fact when it concluded that the church the applicant joined in Canada had no equivalent in Iran. It is my conclusion that this finding was technically correct in the sense that the Toronto Iranian Alliance Church does not exist in Iran. However, the applicant suggested that the Board had concluded that, because of this fact, the applicant could not be a Protestant Christian in Iran. In my view this submission cannot succeed . The Board's conclusion about the lack of equivalent Churches did not cause it to overlook the important issue. It clearly understood that there were many Christian Churches in Iran where the applicant might worship.
Conclusion
[12] For all these reasons, the application for judicial review will be dismissed.
"Sandra J. Simpson"
JUDGE
Ottawa, Ontario
November 16, 2001