OTTAWA, ONTARIO, December 19, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
Background
[1] Shahryar Sharifi Kalangestani (the “Applicant”) is a citizen of Iran. He fears persecution in Iran on the basis of his political opinion.
[2] He stated in his first Personal Information Form (PIF) signed September 26, 2005, that the government of Iran wanted to arrest him because they believed he was doing political activities, that his family had many problems with the regime, and that one of his brothers was killed by the regime. In his second PIF, he alleges that from 1991 to 2005, he was harassed and had to endure repressive measures by the Iranian authorities.
[3] He alleges that his current troubles started when he provided a satellite dish to individuals close to the regime opponent Dr. Hassan Massali. Later on, these individuals were allegedly arrested on charges of programming anti-revolutionary programmes. They disclosed information about the Applicant who was then considered a collaborator and was pursued by the Ministry of Information and Security. In fear of being arrested and jailed, the Applicant decided to leave Iran in August 14, 2005, and came to Canada via Turkey and France.
[4] The Immigration and Refugee Board of Canada, (the “Board”) found him not to be credible and turned down his claim by reason of contradictions in his testimony and omissions and divergences between his statements to the Immigration Officer at the Port-of-Entry (“POE”), the Schedule I form, and his two PIFs. Particular mention was made of the fact that in the POE he stated never to have been arrested, while in the second PIF he claimed to have been arrested four times.
Issues
[5] The Applicant seeks to set the Board’s decision aside by way of judicial review by arguing three points:
a) The letter written by Dr. Hassan Massali (“Massali letter”), a representative of National Alliance Front Abroad, should not have been rejected;
b) It was patently unreasonable for the Board to find a lack of credibility based on the differences between the first and second PIF given that it was explained his brother, who has little English knowledge, had prepared it using the POE notes; and
c) The translation of the POE interview was conducted over the phone and the completed form was not read and translated back to him over the phone.
Standard of Review
[6] It is settled law that findings of the Board regarding a claimant’s credibility are findings of fact that are subject to judicial review according to the standard of patent unreasonableness (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)).
[7] In my view, this application cannot succeed for the following reasons.
Point a) Massali Letter
[8] The substantive portion of the Massali Letter states:
I am informed that Mr. Shahryar Sharifi Kalangestani was cooperating with a group in Gilan (North Iran) for freedom & democracy and against Mullahs dictatorship in Iran. Mr. Shahryar Sharifi Kalangestani [sic] I got the information that some of his “contact persons” were arrested and the security forces of Islamic Republic of Iran was trying to arrest Mr. Shahryar Sharifi Kalangestani[. Because] of suppression in Iran, he was forced to leave the country. He has asked for political refugee in Canada.
I get my information through our organization and contact persons.
(A.R. at 16.)
[9] The Applicant submits that the Board erred when it rejected the Massali Letter because even if the Applicant’s evidence was found not credible, the Board still had the obligation to determine whether the supporting documents were credible.
[10] In considering the relevance of the letter and the weight that it should be afforded, a few general rules should be established. First, proceedings before a Refugee Board are of a particular nature such that the only evidence before the Board is evidence adduced by the Applicant. Section 170(g) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, provides that the Refugee Protection Division “is not bound by any legal or technical rules of evidence” Second, Justice Nadon in Hamid v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 1293 at para. 20 (F.C.T.D.) (Q.L.) found that once the Board decides that the applicant is not credible it will logically follow that the Board will not give much probative value to the documents provided by the Applicant. Justice Nadon states at para. 21 [emphasis added]:
21 Consequently, in my opinion, the applicant's assertion that the Board is bound to analyze the documentary evidence "independently from the applicant's testimony" must be examined in the context of the informal proceedings which prevail before the Board. Once a Board, as the present Board did, comes to the conclusion that an applicant is not credible, in most cases, it will necessarily follow that the Board will not give that applicant's documents much probative value, unless the applicant has been able to prove satisfactorily that the documents in question are truly genuine. In the present case, the Board was not satisfied with the applicant's proof and refused to give the documents at issue any probative value. Put another way, where the Board is of the view, like here, that the applicant is not credible, it will not be sufficient for the applicant to file a document and affirm that it is genuine and that the information contained therein is true. Some form of corroboration or independent proof will be required to "offset" the Board's negative conclusion on credibility.
[11] Hamid makes it clear that what is required is some “form of corroboration or independent proof”, but this is absent with regards to the Massali Letter. We only have the word of the Applicant himself that the letter is genuine.
[12] In addition, whether the Massali Letter was taken into account or not does not help the Applicant because the knowledge that Massali has regarding the events contained within the two PIFs is from third parties and not substantiated; i.e., there is no indication either way where the information was obtained from. It does not reveal that those were the events that actually occurred, but only that this was the information he was able to obtain from unspecified sources. In fact, the only detail that the Massali Letter may have been able to establish was the fact that the Applicant was “cooperating with a group in Gilan (North Iran).”
Point b) The PIFs
[13] The Board found that the Applicant changed almost his entire PIF by adding information that the Applicant did not mention to the Immigration Officer. The Applicant argues that the negative credibility finding was patently unreasonable since it was explained that his brother, who has little English knowledge and is not a legal counsel, had prepared the first PIF using the POE notes. Given that his brother is not an experienced counsel, the Applicant may not have had adequate advice as to what should be stated within the PIF (Yilmaz v. Canada (Minister of Citizenship and Immigration), 2003 FC 1498). However, that would only explain minor variations, but not whole sale or major changes, as the case is here.
[14] The Applicant argues that there are discrepancies because his “brother appears to have used the information as written in the POE notes to complete the PIF” (A.R. at 85). However, this is not necessarily true. For example, in the Immigration Officer’s notes it is written that the Applicant answered “no” to the question of whether he had ever been arrested/detained by the police/military in any country. Yet the first PIF clearly states that in fact, the Applicant had been sought/arrested/detained by the police/military. Therefore, this explanation does not sufficiently explain away the discrepancy.
[15] Furthermore, as was made clear during the hearing, it was the Applicant who prepared the first PIF with help from the brother.
Question: And both documents were translated to you from English to Farsi?
Applicant: Second one, yes. The one which I filled with my brother, the first one I did it with help of my brother, and the second one with the help of interpreter of my lawyer
(Minutes of Hearing of Immigration and Refugee Board’s Refugee Division, Tribunal Record at 160 [emphasis added].)
[16] At no time did the Applicant state that he was unaware of the information contained in the first PIF when it was submitted. Also, the Applicant does not dispute the other discrepancies relating to his address and employment. The only explanation provided was that he made a mistake and did not understand the importance of being precise. In his first PIF, he did not mention that he owned a store, which incidentally was where he was arrested for drinking.
[17] Given the cumulative effect of the inconsistencies and omissions and the totality of the evidence, it was reasonable for the Board to find a lack of credibility on the basis of the discrepancies between the PIFs (Mirza v. Canada (Minister of Citizenship and Immigration), 2004 FC 252).
Point c) The POE Interview
[18] The Applicant maintains that any discrepancies as a result of any statements he made at the POE interview should be discounted because of the circumstances surrounding the interpretation. The Applicant should have raised the concern regarding the quality of the interpretation at the POE interview if this was a concern that needed to be addressed at the time.
[19] It was reasonably open to the Board to make a negative credibility finding based on the discrepancy between his POE response that he was not being sought by the police or military in Iran and his oral testimony and his PIFs that he was being sought by the intelligence and security forces in Iran. It was also reasonably open to the Board to find a lack of credibility when the Applicant stated at the POE interview that he had never been arrested or detained by the police or military, but then later admit that in fact, he had been arrested or detained. These are clearly inconsistent statements and no explanation was provided from the Applicant that the Panel found was reasonable.
[20] The circumstances of the interpretation do not aid the Applicant in overcoming the negative credibility finding because first, it is not disputed that translation services were provided. Second, whether or not he was detained or sought are simple enough questions. He answered them negatively. I find it difficult to accept the Applicant’s contention that these are difficult intricate questions that require legal advice before answering or that they are likely to be confused in translation. Failure to read back the translated form, while preferable, is not a requirement that will render a decision reversible when it is absent.
[21] In my view, there was ample evidence to support the Board's credibility finding and I can find no obvious defects in the Board’s decision that would render it unreasonable, let alone patently unreasonable. Accordingly, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1155-06
STYLE OF CAUSE: Kalangestani
v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 14, 2006
REASONS FOR
ORDER AND ORDER: von FINCKENSTEIN J.
DATED: December 19, 2006
APPEARANCES:
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Micheal Crane |
FOR THE APPLICANT |
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Robert Bafaro |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Micheal Crane Toronto, Ontario |
FOR THE APPLICANT |
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John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |