MAEDAH ALAVI MOFRAD ZOHA ALAVI MOFRAD Applicants v. THE MINISTER OF CITIZENSHIP AND, 2012 FC 901

Date: 20120718 Docket: IMM-9276-11 Citation: 2012 FC 901 Toronto , Ontario , July 18, 2012 PRESENT: The Honourable Madam Justice Gleason BETWEEN: MAEDAH ALAVI MOFRAD ZOHA ALAVI MOFRAD Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] The applicants, Maedah Alavi Mofrad and Zoha Alavi Mofrad, are sisters and citizens of Iran, who fled that country and made refugee claims in Canada.

They claim they would be at risk if returned to Iran by reason of their actual or perceived political opinions. [ 2 ] The applicants’ father was a civil servant in Iran and was detained by government authorities for approximately six months from 2008 to early 2009. Neither sister has a clear notion of the exact reasons for Mr. Mofrad’s detention, other than it was apparently due to a belief that he was opposed to the Ahmadinejad regime. In March 2009, Mr. Mofrad sent Maedah to England to study on a student visa, because he feared for her safety in Iran. That visa was set to expire in October 2009. Mr.

Mofrad did not originally send Zoha out of Iran because she was then engaged to be married, and the family believed that she was accordingly less vulnerable than Maedah. [ 3 ] In 2009, Zoha became active in the anti-regime “Green Movement”, and claims to have attended its meetings, distributed flyers, de-faced pro-Ahmadinejad billboards and participated in anti-regime demonstrations. She alleges that in August 2009 she was interrogated by members of the governmental security service at her work about her activities and politics and that following the questioning was summarily fired.

Zoha claims that shortly thereafter her fiancé broke off their engagement, due to fear that he might be viewed as being complicit in her anti-regime activities or to share her anti-regime beliefs. [ 4 ] In August 2009, by reason of what had transpired with Zoha, Mr. Mofrad made arrangements for Maedah to be brought to Canada, where she made a refugee claim in August 2009. A few months later, Zoha left Iran and went first to England and then, briefly,

to Germany before coming to Canada. She arrived in Canada in May 2010 and, like her sister before her, made a refugee claim. Shestates she did not seek refugee status in England or Germany as she wanted to join her sister in Canada. [5] Although the sisters filed separate claims and were represented by different counsel before the RPD, the Board joined theirfiles for hearing and issued a single decision in respect of them.

In its decision dated November 22, 2011, the RPD rejected theapplicants’ claims, finding neither to be a Convention refugee or a person in need of protection, within the meaning of sections 96 and 97of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA or the Act]. Most of the hearing before the Board and virtually allof its decision were devoted to consideration of Zoha’s situation.

The Board premised its decision on a finding that Zoha was not credibleand accordingly determined that both applicants’ claims were not well-founded. [6] In this application for judicial review, the applicants seek to set aside the decision of the RPD, arguing that the Board’scredibility determinations were unreasonable, that the RPD erred in not fully considering or discussing Maedah’s claim and that itsassessment of their sur place claim, or claim to be at risk by reason of the demonstrations they participated in while in Canada, wasunreasonable.

While the applicants make several arguments regarding the unreasonable nature of the Board's credibility determinations,only one of them need be considered by me, as, for the reasons discussed below, it is determinative and results in the Board's decisionbeing set aside.

The applicable standard of review [7] It is well-settled that the reasonableness standard of review is applicable to credibility findings made by the RPD (Aguebor vCanada (Minister of Employment and Immigration) (1993), 160 NR 315, [1993] FCJ No 732 (FCA) at para 4; Singh v Canada (Ministerof Employment and Immigration) (1994), 169 NR 107, [1994] FCJ No 486 (FCA) at para 3 [Singh]; Cetinkaya v Canada (Minister ofCitizenship and Immigration), 2012 FC 8 at para 17, [2012] FCJ No 13). [8] The reasonableness standard is an exacting one and requires the reviewing court afford deference to the tribunal’s decision; acourt cannot intervene unless it is satisfied that the reasons of the tribunal are not “justified, transparent or intelligible” and that the resultdoes not fall “within the range of possible, acceptable outcomes which are defensible in respect of facts and law” (Dunsmuir v NewBrunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190).

In applying this deferential standard, it matters not whether the reviewing courtagrees with the tribunal’s conclusion, would have reached a different result, or might have reasoned differently.

So long as the reasonsare understandable and the result is one that is rational and supportable in light of the facts and the applicable law, a court should notoverturn an inferior tribunal’s decision under the reasonableness standard of review. [9] In assessing the reasonableness of a tribunal’s factual findings, the reviewing court cannot and should not re-weigh theevidence (Khosa v Canada (Minister of Citizenship and Immigration), 2009 SCC 12 at para 64, [2009] 1 SCR 339; Nekoie v Canada(Minister of Citizenship and Immigration), 2012 FC 363 at para 40, 214 ACWS (3d) 572; Matsko v Canada (Minister of Citizenship andImmigration), 2008 FC 691 at para 11).

Indeed, the yardstick for determining the reasonableness of the RPD’s factual determinations,including credibility findings, is set out in paragraph 18.1(4)(

d) of the Federal Courts Act, RSC, 1985, c F-7 [FCA], which provides thatthe impugned finding must meet three criteria for relief to be granted: first, the finding must be palpably erroneous; second, it must bemade capriciously, perversely or without regard to the evidence; and, finally, the tribunal’s decision must be based on the erroneousfinding (Rohm & Haas Canada Limited v Canada (Anti-Dumping Tribunal) (1978), (FCA), 22 NR 175, [1978] FCJNo 522 at para 5 [Rohm & Haas]; Buttar v Canada (Minister of Citizenship and Immigration), 2006 FC 1281 at para 12, [2006] FCJ No1607).

Where a finding, including a credibility funding, contradicts the evidence before the tribunal, it falls within the scope ofparagraph 18.1(4)(

d) of the FCA as such a finding is made without regard to the evidence (see e.g. Rahal v Canada (Minister ofCitizenship and Immigration), 2012 FC 319 at para 38, 213 ACWS (3d) 1003; Obeid v Canada (Minister of Citizenship andImmigration), 2008 FC 503 at para 13, [2008] FCJ No 633). [10] The starting point in reviewing a credibility finding is the recognition that the role of a court is a very limited one because thetribunal had the advantage of hearing the witnesses testify, observed their demeanor and is alive to all of the factual nuances andcontradictions in the evidence.

Moreover, in many cases, the tribunal has expertise in the subject matter at issue that the reviewing courtlacks. It is therefore much better placed to make credibility findings, including those related to implausibility. Also, the efficientadministration of justice, which is at the heart of the notion of deference, requires that review of these sorts of issues be the exception asopposed to the general rule. [11] The recognition of the primacy of a tribunal’s role in making credibility determinations has important implications in judicialreview applications such as the present.

On one hand, such recognition mandates a truly restrained approach by the court in concludingthat a credibility determination is unreasonable and requires that the reviewing court assess both the reasons and the record beforedeciding that a decision is unreasonable due to an unreasonable credibility determination. On the other hand, where a tribunal’s decisionis determined to be based on an unreasonable credibility finding and the decision is therefore held to be unreasonable, the matter must beremitted to the tribunal for a re-hearing because it is for the tribunal, and not the court, to re-assess credibility.

The impugned credibility finding [ 12 ] T he applicants assert that the key credibility finding made by the Board in the decision was made without regard to the evidence before the RPD. This finding centres on the RPD’s determination that Zoha did not offer any explanation for why she did not elaborate on her reasons for seeking refugee protection in Canada when she was interviewed by the port of entry official, prior to stating during her testimony before the Board that she was too frightened to do so and suffers from a heart condition that is worsened by stress.

The Board found the delay in offering this explanation to significantly impugn Zoha’s credibility. [ 13 ] In terms of the delay in providing the explanation, the Board stated as follows: “It was only subsequent to the panel noting such serious omissions [i.e. the absence of details regarding the reason for her refugee claim in the statements made to the port of entry official] did the claimant inform the panel, for the first time , that she was too scared to explain why she was seeking Canada's protection when she first made her claim” (decision at para 14) [emphasis added].

In terms of the heart condition, the panel wrote: “With respect to her subsequent explanation [i.e. given during her testimony] that she was taking some sort of medication, not only was this the first time she informed the panel of this, as a result of her counsel's line of questioning, but she disclosed no documentation concerning such medication and/or that this medication would [affect] her ability to explain her refugee claim, until after the hearing” (decision at para 15) [emphasis added]. [ 14 ] Counsel for both parties concur that these findings are erroneous.

Zoha mentioned her heart condition and the fact that she was taking medication for it to the port of entry official and explained in her Personal Identification Form [PIF], which she completed shortly after her arrival in Canada, that she was too frightened to say more than she had to the port of entry official regarding the reasons for her seeking refugee status in Canada. [ 15 ] As noted, the applicant asserts that these erroneous findings are sufficient, of themselves, to set aside the Board’s decision as it was premised in large part on these findings.

The applicant points in this regard to the fact that these issues were the ones first discussed by the Board in the decision, that they were discussed in detail and that the Board concluded in respect of them that Zoha’s “significant omissions in this regard seriously undermine her credibility” (decision at para 16). [ 16 ] Counsel for the respondent, on the other hand, asserts that the erroneous findings are not so central to the Board’s decision that their erroneous nature should lead to the Board’s decision being overturned.

Rather, the respondent asserts that the Board’s negative credibility determination can be upheld based on some of the other factors the Board considered.

However, counsel candidly admitted that not all of these other factors are tenable and conceded that the Board’s drawing a negative inference from the fact that Zoha did not attend a major Green Movement rally was unreasonable as missing a single rally is not inconsistent with the claim of being a Green Movement supporter and Zoha had offered an explanation for not having attended. [ 17 ] In my view, the applicant’s position must prevail and the decision must be set aside because it does turn in large part on the erroneous findings made by the RPD.

The most significant basis for the Board’s negative credibility determination was the finding that Zoha had not given the details behind her refugee claim until the hearing. As noted, following its erroneous determinations in this regard, the RPD stated that these erroneous determinations “seriously undermined” Zoha’s credibility.

The other points relied on by the RPD to undercut her credibility are much less significant and, as conceded by the respondent, at least one of them bears no weight. [ 18 ] Because the Board’s determination that Zoha lacked credibility is largely based on findings which contradict the evidence, the determination is unreasonable as it was made without regard to the material before the Board. And, because the Board rejected Zoha’s refugee claim by reason of its credibility determination, it follows that the entire decision is unreasonable.

This is not a situation where the Board failed to discuss a point or issued inadequate reasons such that the result might nonetheless be upheld as being reasonable. The core of the Board’s conclusion centres on the unreasonable determination that Zoha failed to provide details of her refugee claim until the hearing, which is unsupportable in view of the uncontradicted evidence that was before the Board.

Accordingly, the portion of the Board’s decision that relates to Zoha’s claim must be set aside. [ 19 ] The parties concurred that if the decision in respect of Zoha’s claim was set aside, the decision pertaining to Maedah’s claim must likewise be set aside as the Board in effect treated it as being derivative of Zoha’s claim. Thus, this portion of the decision will be set aside as well. [ 20 ] No question for certification under

section 74 of IRPA was presented and none arises in this case.

JUDGMENT THIS COURT’S JUDGMENT is that: 1. This application for judicial review is granted; 2. The decision of the RPD dated November 22, 2011 in these matters is set aside; 3. The applicants’ refugee claims shall be remitted to the RPD for reconsideration by a differently constituted panel; 4. No question of general importance is certified; and 5. There is no order as to costs. "Mary J.L. Gleason" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-9276-11 STYLE OF CAUSE: Maedah Alavi Mofrad et al v The Minister of Citizenship and Immigration PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: July 16, 2012 REASONS FOR JUDGMENT AND JUDGMENT: GLEASON J. DATED: July 18, 2012 APPEARANCES :

Micheal Crane FOR THE APPLICANTS Michael Butterfield FOR THE RESPONDENT SOLICITORS OF RECORD : Micheal Crane, Barrister & Solicitor Toronto , Ontario FOR THE APPLICANTS Myles J. Kirvan, Deputy Attorney General of Canada Toronto , Ontario FOR THE RESPONDENT