Gharkhani v. Canada (Minister of Citizenship and Immigration), 2004 FC 965

Date: 20040707

Docket: IMM-7227-03

Citation: 2004 FC 965

Ottawa, Ontario this 7^th day of July, 2004

Present:           THE HONOURABLE MR. JUSTICE MICHAEL KELEN                                  

BETWEEN:

                                               HOSSEIN MIRZAEI GHARKHANI

Applicant

and

THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("the Board") dated August 29, 2003, which determined that the applicant is not a Convention refugee or a person in need of protection. The Board's conclusion

is based on a negative assessment of the applicant's credibility both with respect to his alleged persecution in Iran as a homosexual, and with respect to his sexual orientation. It was clear that Iran persecutes homosexuals. If the Board had believed the applicant was a homosexual, then he would be a person in need of protection from the Iranian law against homosexuals, which includes imprisonment, lashes and even stoning to death for being a homosexual in Iran.

THE FACTS

[2]                Hossein Mirzaei Gharkhani ("the applicant") is a citizen of Iran who alleges a well-founded fear of persecution from the government by reason of his membership in a particular social group, as a homosexual. The applicant also claims to be a person in need of protection because he faces a risk to his life or to cruel and unusual treatment of punishment in Iran. The applicant's claim for protection arises out of two sexual encounters that resulted in his arrest by Iranian authorities.

[3]                The first incident occurred when the applicant was at a party in 2000 where he engaged in a sexual act with another man. Ten to twelve Iranian Sepah Pasdaran agents raided the party and arrested the applicant as well as other men at the party. The applicant was taken to the police station and detained for two days. The Islamic court sentenced the applicant to three months imprisonment and 45 lashes. However, the applicant's sentence was suspended because his parents undertook to rehabilitate him.

[4]                On the second occasion, three Komite members caught the applicant in a sexual act with a man in Mellat Park in Tehran in February 2002 and took him to the police station. After a few hours he was released through the intervention of a close friend who was an influential member of the Komite. After this incident, the applicant fled to his uncle's house outside of Tehran where he remained in hiding until July 10, 2002. At that time, the applicant's uncle arranged to have him smuggled out of Iran to Canada. The applicant arrived in Canada on September 6^th, 2002 and claimed refugee protection that same day.

[5]                The Board concluded that the applicant was not a Convention refugee because he does not have a well-founded fear of persecution on a Convention ground. The Board also concluded that the applicant is not a person in need of protection because his removal to Iran would not subject him personally to a risk to his life or to a risk of cruel and unusual treatment or punishment and there are no grounds to believe that his removal to Iran will subject him personally to a danger to torture.

[6]                The Board found that the applicant was not a credible witness. The Board reached its conclusion on the basis of the following inconsistencies, omissions, and implausibilities in the applicant's evidence:

(1)        according to the Citizenship and Immigration Canada ("CIC") interview notes, the first incident occurred in mid to late January 2001 in the applicant's home where he was with his long-time partner Mehdi Asadi. The notes further indicate that the applicant was detained for three days and that he was released after signing a declaration that he would not engage in homosexual acts in the future. However, the applicant later indicated in his Personal Information Form ("PIF") and in his testimony that the incident occurred in the spring of 2002 at a house party where he was engaging in sexual acts with a man named Behzad. The applicant also indicated that he was detained for two days and released pursuant to a court sentence. Furthermore, although the applicant indicated in his PIF that his parents were in court with him, he later testified that they were not. Confronted with these inconsistencies, the applicant was unable to provide any credible explanation;

(2)                the applicant testified that the police beat him to the point of near unconsciousness and handcuffed him when he was apprehended in Mellat Park. The applicant stated that this was the only time he had been beaten by the authorities. However, this incident was not mentioned in the applicant's PIF. The Board found that if the applicant had suffered such a beating, it would have been reported in the PIF;

(3)        according to the applicant's PIF, the authorities visited his parents' home looking for him on several occasions but his parents did not know where he was. However, the applicant later testified that his mother would often call him and even visited him on a couple of occasions. The Board rejected the applicant's explanation that he meant to say that it was his father who did not know where he was;

(4)        the applicant did not mention the fraudulent Iranian passport he used to exit Iran to the CIC or in this PIF. The Board rejects the applicant's explanation that he did not mention this passport because he was not asked about it;

(5)        it is implausible that the Iranian authorities, who were allegedly looking for the applicant for more than five months and who had visited his parents' home on a number of occasions, would not have been able to trace him to his uncle's home; and,

(6)        the applicant failed to meet his burden of establishing his homosexuality. The Board noted that no one testified in support of the applicant's sexual orientation and that he seemed to be unaware that Daneshju Park in central Tehran is a well known homosexual meeting place. The applicant's lack of familiarity with this park casts doubt on his sexual orientation as well as on his claim to have lived in Tehran.

ISSUE

[7]                The issue in this case is whether the Board's credibility finding was patently unreasonable.

ANALYSIS

[8]                The applicant submits that the Board's credibility finding in this case is patently unreasonable because the inconsistencies upon which it relies arise from a faulty interpretation of the evidence. Consequently, the applicant submits that the Board drew unwarranted inferences from his statements. According to the applicant, his many explanations dispelled the inconsistencies retained by the Board. In addition, the applicant submits that the Board erred in requiring proof of his sexual orientation because the lack of corroborating evidence cannot be used to impeach the credibility of uncontradicted evidence. Further, the applicant argues that the Board erred in preferring the documentary evidence to the applicant's sworn testimony with respect to the notoriety of Daneshju Park. Finally, the applicant submits that the Board erred in casting doubt on his allegation that he lived in Tehran because he demonstrated thorough knowledge of the city throughout his testimony.

[9]                The respondent submits that the Board has not committed any reviewable errors in its assessment of the applicant's credibility. The respondent argues that in this case, the Board justified its negative credibility finding on the basis of contradictions in the evidence as a whole. Furthermore, the respondent underlines that the Board provided the applicant with an opportunity to address the problems in his evidence but it was not satisfied with the answers he provided. Finally, the respondent submits that the weighing of the evidence is the proper function of the Board and it was open to it to either accept or reject the applicant's explanations.

[10]            After reviewing the Board's detailed reasons and the Certified Record, I am unable to agree with the applicant's submissions. The standard of review applicable to the Board's findings of fact and its assessment of the applicant's credibility is patent unreasonableness. Where such a standard is applicable, the Court will not substitute the Board's decision with its own unless the Board's decision is clearly wrong. See Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), and De (Da) Li Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.). In this case, the Board identified a significant number of inconsistencies and implausibilities and I do not find them to be patently unreasonable, based on the evidence that was presented before the Board.

[11]            It is open to the Board to make a negative credibility finding based on inconsistencies and omissions within an applicant's evidence. I have reviewed the applicant's submissions with respect to the inferences drawn by the Board, and I find that to accept those submissions would require this Court to reweigh the evidence and substitute its decision for that of the Board. This is not the Court's function on judicial review.

[12]            The applicant's submission that the Board erred in requiring proof of his sexual orientation is unfounded. It is important to recognize that the applicant's credibility was not uncontradicted. Rather, the Board seriously called into question all of the applicant's allegations. Furthermore, the submission that the Board erred in preferring the documentary evidence to the applicant's sworn testimony with respect to the notoriety of Daneshju Park is equally without merit. As the Federal Court of Appeal has stated in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 at 244 (F.C.A.), a tribunal's perception that a claimant is not credible with respect to a material element of his or her claim for refugee status may amount to a finding that there is no credible evidence for that claim. Moreover, the Board may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence. See Monteiro v. Canada (M.C.I.), [2002] F.C.J. No. 1720 (F.C.T.D.) Martineau J. at para. 15; Akinlolu v. Canada (M.E.I.), [1997] F.C.J. No. 296 (F.C.T.D.) MacKay, J. at para. 13.

[13]            Since I have found that the Board did not err in reaching its decision in this case, this application for judicial review must be dismissed.

[14]            Since neither counsel recommended the certification of a question, no question will be certified.

ORDER

THIS COURT ORDERS THAT:

This application for judicial review is dismissed

                                                    "Michael A. Kelen"                                                                                                      _______________________________

              JUDGE       

                                                             FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                               IMM-7227-03

STYLE OF CAUSE:            HOSSEIN MIRZAEI GHARKHANI

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:        Vancouver, BC

DATE OF HEARING:           June 30, 2004

REASONS FOR ORDER

AND ORDER OF:                  THE HONOURABLE MR. JUSTICE KELEN

APPEARANCES:

MS. ANTYA SCHRACK                                            for APPLICANT

MR. PETER BELL                                                     for RESPONDENT

SOLICITORS OF RECORD:

Antya Schrack                                                            for APPLICANT

Barrister and Solicitor

Vancouver, BC

Morris Rosenberg                                                      for RESPONDENT

Deputy Attorney General of Canada           

Vancouver, BC

                         FEDERAL COURT

                                                          Date: 20040707

                                              Docket: IMM-7227-03

BETWEEN:

HOSSEIN MIRZAEI GHARKHANI

                                                                    Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                Respondent

REASONS FOR ORDER

AND ORDER