Date: 20080326
Docket: IMM-2616-07
Citation: 2008 FC 383
Ottawa, Ontario, March 26, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
SEYED AMIRHOSSEIN HEMMATI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Seyed Amirhossein Hemmati, brings this application for judicial
review of a decision of the Refugee Protection Division of the Immigration and
Refugee Board (the Board) dated June 5, 2007. In that decision, the Board concluded
that the Applicant was not a Convention refugee or person in need of protection
under sections 96 and 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act). Leave authorizing the judicial review from
the above decision was granted on December 14, 2007.
I. Facts
[2]
Mr.
Hemmati is a citizen of Iran who seeks refugee protection in Canada
because of a fear that if returned to Iran he will be persecuted
because of his homosexuality and his conversion to the Baha’i faith.
A. Specific
pertinent facts
[3]
According
to his Personal Information Form (PIF), Mr. Hemmati was introduced to the
Baha’i faith while living in Iran. After reading some literature on the
religion, and with the permission of his parents, he met with several Baha’i
religious figures to discuss his beliefs. Eventually, in the summer of 2005,
and after several private discussions with Baha’i officials, he considered
himself to be Baha’i and inquired about applying for official membership in the
religion. Mr. Hemmati was told that his official conversion would have to wait
approval from the Baha’i office in Haifa, Israel, and was
cautioned about the dangers of practising Baha’ism in Iran. However, he
was told that if he left Iran he could contact the Baha’i religious
authorities directly and participate in Baha’i activities.
[4]
While
in Iran, Mr. Hemmati
worked as a musician. This activity, however, got him into trouble with the
Iranian authorities and he was arrested while performing at a party in July
2006. He was only released after signing an undertaking not to participate in
such activities again.
[5]
Mr.
Hemmati also claims to be a homosexual. On September 13, 2006, while performing
music at a “gay party”, Mr. Hemmati was beaten into unconsciousness and
arrested after police raided the party. He regained consciousness in a
government hospital but was able to escape with the help of his mother and a
friend. Mr. Hemmati then fled Iran and was smuggled across the border into Turkey. Flying via
Thailand, Hong Kong, and Japan, Mr. Hemmati eventually arrived in Canada and claimed
refugee status on September 27, 2006.
B. The
decision under review
[6]
Mr.
Hemmati’s refugee claim was heard by the Board on May 9, 2007. At the hearing,
two witnesses testified on his behalf. The first witness, Suhail Abual Sameed,
helps run a support service for gay youth administered through the Sherbourne
Health Centre in Toronto, and testified as to how he came to know Mr.
Hemmati. Mr. Sameed also provided his personal opinion as to why he thought Mr.
Hemmati was gay. The second witness, Amando Gose Montero (a.k.a. Sheri),
testified as to her personal knowledge of Mr. Hemmati’s relationship with his (later
ex) boyfriend in Canada.
[7]
The
Board, in a five-page decision rendered on June 5, 2007, considered Mr. Hemmati’s
allegations on the basis of being a Convention refugee and person in need of
protection pursuant to sections 96 and 97 of the Act. The Board
determined the following with respect to his claim of religious persecution:
1.
Mr.
Hemmati did not have adequate knowledge of the Baha’i faith;
2.
It
was implausible that Mr. Hemmati’s parents would agree to Mr. Hemmati joining
in on meetings of the Baha’i faith;
3.
There
was no corroborative evidence that Mr. Hemmati had converted to the Baha’i
faith; and
4.
Mr.
Hemmati’s real fear for returning to Iran was because of his
alleged homosexuality.
[8]
In
sum, the Board concluded that Mr. Hemmati’s claim to be a convert to Baha’ism
was not credible.
[9]
With
respect to Mr. Hemmati’s claim on the basis of his homosexuality, the Board:
1.
noted
Mr. Hemmati’s failure to mention his homosexual relationships in Iran in his PIF;
2.
drew
an adverse inference from the lack of written documentation to show that he had
a musical education;
3.
drew
an adverse inference from the lack of corroborative evidence from his stay at
the government hospital;
4.
found
that the testimony of Mr. Sameed did “not add anything but just puts forth that
the claimant was only introduced to the group through Sheri and that he just
attends the group, which does not confirm his sexual orientation”;
5.
found
that testimony of Sheri was not credible given that the witness did not (i)
know the circumstances of Mr. Hemmati; and (ii) testified that she met Mr.
Hemmati’s boyfriend but did not know his name.
[10]
In
sum, the Board found that Mr. Hemmati had not established his sexual
orientation due to the credibility concerns with his evidence.
II. The issues
[11]
Mr.
Hemmati, in his Memorandum of Argument has raised a number of issues in
relation to the Board’s credibility findings:
A. Baha’i
Faith
1.
Did
the Board err in making a negative inference with respect to the lack of
documentation as to Mr. Hemmati’s Baha’i faith?
2.
Did
the Board err in concluding that Mr. Hemmati had limited knowledge of the
Baha’i faith?
3.
Did
the Board err in making an implausibility finding that Mr. Hemmati’s parents
would not have permitted Mr. Hemmati to attend Baha’i meetings?
4.
Did
the Board err in concluding that there was no evidence that Mr. Hemmati had
converted?
5.
Was
the Board overzealous when it noted the lack of documentation with respect to
his musical education?
B. Homosexuality
6.
Did
the Board err by overlooking Mr. Sameed’s evidence that, in his opinion, Mr.
Hemmati was gay?
7.
Did
the Board fail to accord any weight to Mr. Sameed’s evidence on the basis that
most of the members of his support group are refugee claimants?
8.
Did
the Board err by rejecting Sheri’s evidence without identifying any reasons to
reject her credibility?
9.
Did
the Board err in concluding that Sherri did not provide any evidence that
indicated Mr. Hemmati was active in the gay community?
10.
Did
the Board err in making a negative inference with respect to the omission of
the names of Mr. Hemmati’s boyfriends in his PIF?
III. The standard of
review
[12]
The Board’s primary determination in
rejecting Mr. Hemmati’s refugee claim was that he had not provided credible
evidence to establish that he was a convert to the Baha’i faith or that he was
a homosexual. In Juan v. Canada (Minister of
Citizenship and Immigration), 2006 FC 809, Justice Eleanor Dawson
held that the standard of review applicable to the Board’s determination with
respect to credibility is that of unreasonableness. Accordingly, the Court will
award the Board’s credibility and related factual findings a level of
deference.
IV. Analysis
1. Did
the Board err in making a negative inference with respect to the lack of
documentation as to the Applicant’s Baha’i faith?
[13]
Mr.
Hemmati claims that the Board erred by making a negative inference from the
fact that he did not have a letter from Baha’i officials indicating that he had
converted given his counsel’s offer at his hearing to provide evidence that
Baha’i officials never provide such written proof.
[14]
A
review of the Board’s decision reveals that Mr. Hemmati has oversimplified the
Board’s conclusions. In fact, the Board wrote, “there is no corroborative
evidence that the claimant converted to the Baha’i faith…” In other words,
there was no evidence, beyond Mr. Hemmati’s own testimony, supporting his claim
to practice Baha’ism. Given the Board’s many doubts as to Mr. Hemmati’s
credibility, I do not find it was patently unreasonable for it to seek
corroborative evidence - in any form, written or otherwise - on his Baha’i
faith. Although his counsel stated that she was prepared to provide documentary
evidence that Baha’i officials do not provide written proof, such evidence
would not have confirmed whether Mr. Hemmati was an adherent to Baha’ism and
addressed the Board’s concerns. In sum, I do not find the Board committed an
unreasonable error on this issue.
2. Did
the Board err in concluding that the Applicant had limited knowledge of the
Baha’i faith?
[15]
Mr.
Hemmati submits that the Board erred by stating he had a limited but adequate
knowledge of the Baha’i faith without elaborating on what it meant by “adequate
knowledge”.
[16]
The
case law in this area indicates that while the Board is entitled to find that a
claimant has insufficient understanding of his professed faith (Chen v.
Canada (Minister of Citizenship and Immigration), 2003 FCT 805 at paras.
9-11; Paiani v. Canada (Minister of Citizenship and Immigration), 2005
FC 514 at para. 20; Roy v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 1425 at paras. 6-8 (T.D.) (QL)), it must be careful not to
require that a claimant possess an overly high amount of religious knowledge (Chen
v. Canada (Minister of Citizenship and Immigration), 2007 FC 270 at para.
16; Feradov v. Canada (Minister of Citizenship and Immigration), 2007 FC
101 at para. 16; Ullah
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1918
at para. 11 (T.D.) (QL)).
[17]
In
the case at bar, Mr. Hemmati, when asked, provided several general answers
concerning the practices of the Baha’i faith and claimed no knowledge of the
religion’s holy days or practises, as he had not been allowed to participate on
those days. Considering this vague evidence, and the deference owed to the
Board in this area, I cannot find any error in the Board’s decision to draw an
adverse inference on this point.
3. Did
the Board err in making an implausibility finding that the Applicant’s parents
would not have permitted the Applicant to attend Baha’i meetings?
[18]
The
Board wrote at page two of its decision:
The
panel finds it implausible that his parents would agree for him to join in the
meetings of the Baha’i faith due to the documentary evidence indicating
discriminations of Baha’is.
[19]
Mr.
Hemmati argues that this finding is based on a stereotypical view of parents in
Iran. Justice Dawson states
in Dosmakova v. Canada (Minister of Citizenship and Immigration), 2007 FC 1357 at para.
12 “[t]his court has repeatedly warned that implausibility findings cannot be
made on the basis of stereotypical attitudes or projected behavior that is
unsupported by the evidence”. Mr. Hemmati claims there is no evidence to
support this finding.
[20]
A
reading of Mr. Hemmati’s declaration to an immigration officer on his arrival
to Canada (page 118 of the
Tribunal Record (T.R.)), shows that he participated in a Baha’i reception with
his parents’ approval. He further writes that the police in the city of Mashhad arrested a Baha’i
supervisor and later the Basij broke up a meeting and he was attacked by the
police. In his testimony, he states that he does not believe the Iranian
authorities know he was involved with Baha’ism and that he could return to Iran (page 175 of the T.R.).
He also adds, starting at page 179-180 of the T.R., that after being arrested
and hospitalized, his mother came to see him at the hospital.
[21]
From
this evidence, I believe that the Board could rationally infer that Mr. Hemmati’s
parents would not have supported his joining the Baha’i religion if they knew
he could be arrested, tortured or discriminated against. Therefore, this
finding does not constitute a reviewable error.
4. Did
the Board err in concluding that there was no evidence that the Applicant had
converted?
[22]
Mr.
Hemmati submits that the Board erred in concluding, at page three of its
reasons, that the Board “finds that [Mr. Hemmati] is not a convert…” given that
his testimony was that he did not officially convert.
[23]
On
this issue, I agree with the Respondent that Mr. Hemmati is placing too much
emphasis on the word “convert” in the Board’s reasons. Turning to page one of
the decision, I note the Board accurately summarized the facts surrounding his
“conversion” to Baha’ism. Accordingly, having reviewed the decision as a whole,
I am satisfied that the Board understood that Mr. Hemmati only understood
himself to be a convert, and had not formalized his conversion to the religion.
5. Was
the Board overzealous when it noted the lack of documentation with respect to
the Applicant’s musical education?
[24]
The
Board’s negative inference on the lack of documentation could be considered
unnecessary on such a minor point but I do not agree that it became overzealous
and microscopic. It seems strange that a person who studied classical Islamic
music at an authorized school in Iran could not provide a letter attesting this fact.
[25]
Even
though Mr. Hemmati’s explanation is that he ceased this course and then
followed various tutoring in music and singing, he could not give the names of
his tutors. Yet he listed in his PIF the names of all the other schools he
attended. To me this is part of the general analysis of the credibility issue.
I find no reviewable error on this point.
6. Did
the Board err by overlooking Mr. Sameed’s evidence that, in his opinion, the
Applicant was gay?
[26]
Mr.
Hemmati claims that the Board overlooked some of the evidence provided by his
first witness, Mr. Sameed.
[27]
It
is well established that the Board is presumed to have considered all of the
evidence before it (Hassan v. Canada (Minister of Employment and
Immigration) (1992), 147 N.R. 317 at 318 (F.C.A.)). However, where the
Board fails to mention or analyze important evidence in its reasons, the Court
may find that the Board made an erroneous finding of fact without regard to the
evidence (Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 1425 at para. 17 (T.D.) (QL)).
[28]
Turning
to the impugned decision, with respect to Mr. Sameed, the Board stated:
The claimant testified that he
was introduced to Suhail y Sheri who he met two or three months ago in a club.
They meet on a Tuesday as part of this group. Suhail was asked what happened in
the meeting. He said it was to socialize, hear guest speakers and arrange youth
field trips.
The witness testified that the
other thing discussed was having safe sex. The witness was asked if he had ever
met the alleged boyfriend of the claimant and said he had not and that he was
not part of the group.
The witness was asked if he knew
the claimant’s circumstances and replied that he did not know. The witness
testified that 80-90% of the people who attend this group are refugee claimants
as was the other witness who was also going to testify.
The panel finds that the
testimony of the witness does not add anything but just puts forth that the
claimant was only introduced to the group through Sheri and that he just
attends the group, which does not confirm his sexual orientation. The witness
testified that anyone could be part of that group.
[29]
Mr.
Hemmati reproaches the Board for the fact that it did not express its opinion
as to Mr.
Sameed’s
evidence as to his sexuality. However, the Board discussed this issue over
three pages of its decision, ultimately concluding that he was not a homosexual
for the reasons they elaborated. It therefore gave its opinion on this point.
There was no reviewable error in this reasoning.
7. Did
the Board fail to accord any weight to Mr. Sameed’s evidence on the basis that
most of the members of his support group are refugee claimants?
[30]
Mr.
Hemmati
claims
the Board discounted the evidence of Mr. Sameed as Mr. Sameed works for an
organization mostly comprised of refugee claimants.
[31]
The
Federal Court of Appeal in Gonzalez v. Canada (Minister of
Employment and Immigration), [1991] F.C.J. No. 408 (C.A.) (QL) has held
that it is an expression of bias for the Board to exclude evidence from a
refugee on the presumption that it is false or self-serving.
[32]
Turning
to the decision of the Board, I find that while the Board commented on the
clientele at Mr. Sameed’s practice, its comments, while irrelevant, were merely
a statement of fact and were neither positive nor negative. In particular, the
Board’s statement that, “[t]he witness testified 80-90% of the people who
attend this group are refugee claimants as was the other witness who was also
going to testify” does not indicate the Board failed to consider Mr. Sameed’s
evidence or discounted it in any way. The Board’s statement that Sheri was “a
failed refugee claimant” is similarly neutral.
[33]
In
sum, I find the
Board did not commit a reviewable error on this issue.
8. Did
the Board err by rejecting Sheri’s evidence without identifying any reasons to
reject her credibility?
[34]
Mr.
Hemmati claims the Board rejected the evidence of his second witness, Sheri,
without explanation and cites Hilo v. Canada (Minister of
Employment and Immigration), [1991] F.C.J. No. 228 (C.A.) (QL).
[35]
Mr.
Hemmati’s
reliance
on Hilo, in this
instance, is
misplaced. In Hilo, the Board’s credibility finding was set
aside as it was couched in “vague and general terms”. Conversely, in the case
at bar the Board provided two reasons why it rejected Sheri’s evidence: (i)
Sheri did not know the name of Mr. Hemmati’s boyfriend
despite having met him several times; and (ii) Sheri and Mr. Hemmati’s had no
information about each other. While Mr. Hemmati might disagree with these
reasons, they are supported by the transcript of his hearing, and I do not find
them to be vague or general. Accordingly, I do not find the Board committed a
reviewable error with respect to this issue.
9. Did
the Board err in concluding that Sherri did not provide any evidence that
indicated the Applicant was active in the gay community?
[36]
Mr.
Hemmati submits that that the Board erred in finding that Sheri did not provide
evidence setting out that he was active in the gay community in Canada and
highlights portions of the impugned decision where the Board appears to accept
as fact Sherri’s testimony that she saw Mr. Hemmati engage in homosexual
activities with his boyfriend. I agree, at first glance, that the Board appears
to have contradicted itself as to the evidence provided by Sherri. However,
when one reads the Board’s decision as a whole, it is evident that the Board
merely summarized the evidence Sherri had provided, and then subsequently
discounted that evidence on the basis that it did not find Sherri to be
credible:
When asked how she could tell that person
was the claimant’s boyfriend, she said because she saw them kiss sometimes and
that she would meet them two to three times a week. When asked if the witness
knew the name of the claimant’s boyfriend, she said that she did not know the
name. The panel finds that implausible…The panel finds that this witness
even though she testified that she had met the alleged boyfriend, did not know
his name but stated that she could identify the picture. The panel does not
find her testimony credible… [Emphasis added.]
[37]
In
other words, at no point did the Board accept that Sherri’s testimony provided
corroborative evidence that the claimant is gay. If a Board does not find a
witness to be generally credible, it is open to it to the discount the evidence
provided by that witness (Perjaku v. Canada (Minister of Citizenship and
Immigration), 2007 FC 496 at para. 29; Sheikh v. Canada (Minister of Employment
and Immigration),
[1990] 3 F.C. 238 (C.A.)). Accordingly, I do not find the Board
committed a reviewable error with respect to this issue.
10.
Did the Board err in making a negative inference with respect to the omission
of the names of the Applicant’s boyfriends in his PIF?
[38]
In
the circumstances of this case, it is a very debatable issue whether Mr.
Hemmati should have given the names of his sexual partners in his PIF, but I
believe in the general assessment of his credibility as to his homosexuality,
the Board could draw a adverse inference from this omission. The Board did not
commit a reviewable error on this point.
V. Summary
[39]
Mr.
Hemmati has pleaded elements of credibility and implausibilities which were the
basis of the Board’s decision. Findings on these points are within the domain
of the Board who, with its experience on these matters and having heard and
seen the witnesses testify before them, are in the best position to determine
these elements.
[40]
An
applicant has the onus to establish his claim with credible evidence. Findings
of implausibility are basically inherent subjective assessments which are largely
based upon evidence but also upon the Board’s perceptions of what constitutes
rational behaviour (Santos v. Canada (Minister of
Citizenship and Immigration), 2004 FC 937).
[41]
Credibility
findings are to be granted a high level of deference because the Board has had
the benefit of hearing and seeing the witnesses and considered their interests
(Aguebor v. (Canada) Minister of Employment and Immigration (1993), 160
N.R. 315, [1993] F.C.J. no. 732 (QL) (F.C.A.)).
[42]
While
the use of the phrase “patently unreasonable” is no longer appropriate, the law
on this point has not been changed by the Supreme Court in Dunsmuir v. New
Brunswick,
2008 SCC 9. Rather, it has been re-affirmed. Determinations of facts are based
on a deferential, reasonable, standard “[d]eference in the context of the
reasonableness standard therefore implies that courts will give due
consideration to the determinations of decision makers” (Dunsmuir, above
at para. 49).
[43]
The
points raised by Mr. Hemmati relating to credibility and implausibility findings
fall under the above rule. As long as the findings can logically and rationally
be based upon the evidence, a court cannot intervene. This is the case in this
application.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application is dismissed. No question for certification was submitted.
"Orville
Frenette"
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