Date: 20021104
Docket: IMM-5749-01
Neutral citation:2002 FCT 1137
Ottawa, Ontario, this 4th day of November, 2002
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
MOHAMMAD SALEH ZAMANIBAKHSH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application, pursuant to section 82.1(1) of the Immigration Act, R.S.C. 1985, c.I-2, for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), rendered on November 5, 2001, wherein the applicant was determined not to be a Convention Refugee.
STATEMENT OF FACTS
[2] The applicant is a 25 year old citizen of Iran who claimed a well-founded fear of persecution on the basis of membership to a particular social group, namely a practising homosexual male in Iran. The alleged agents of persecution are the government of Iran and its agents, including a Judge in the name of Judge Nasser Mohammedy. The applicant arrived in Canada on June 19, 2000 and claimed refugee status upon arrival.
[3] The applicant related in his PIF that he had been arrested three times in Iran since 1997, although only one time allegedly related to his homosexuality. The claims that he was arrested after a raid at a gay party, that he was detained for five days and sentenced to 35 lashes. The applicant states that he also had to sign an undertaking stating that he was morally corrupt and not homosexual.
[4] The applicant's story revolves primarily around his relationship with one of his clients in his work as a taxi driver, Judge Nasser Mohammedy. The CRDD summarized the applicant's encounter with this man and the ensuing incidents as follows:
...In the autumn of 1999 through his work as a taxi driver the claimant encountered the judge, Nasser Mohammedy. While the claimant was at the judge's home the judge attempted a sexual advance after drugging the claimant. The claimant refused to drive the judge again. The claimant was fooled into accepting a call for a taxi from the judge who used a false name. The claimant sought the judge's help in arranging the return to the claimant's father of the deed of his house. (This deed had been given to the authorities in 1999 as a surety after the claimant's father was released from a two-day detention during which he had been accused of belonging to a Jewish political group.) In March of 2000 the judge invited the claimant to his home and again drugged him. Two bearded men and the judge raped the claimant. The claimant reported the action of the judge to the Revolutionary Court...
[5] Following this incident, in 2000, while away at his aunt's for a visit, the applicant heard that his house was raided and that his father had been arrested and questioned. The authorities told his father that the applicant was homosexual and that he had falsely accused a judge of raping him. The applicant claims that since this incident, his father won't talk to him and wanted him out of the country.
THE CRDD DECISION
[6] Because of inconsistencies and because of the applicant's demeanour at the hearing, the CRDD did not find the applicant's story credible or plausible.
[7] The CRDD found that the applicant "behaviour was an amazing performance of what appeared to be self-induced hysteria and that he looked like someone acting on cue."
[8] The CRDD stated that the applicant's story lacked information on the alleged rapes. Particularly, the CRDD referred to the Point of Entry (POE) notes of the Immigration officer and observed that there was no mention of any rapes but only that "advances" were made. The applicant testified that he told the Immigration officer that the judge raped him. The CRDD acknowledged that POE notes are not a verbatim record of an interview, however it found on a balance of probabilities, that, had the applicant mentioned to the Immigration officer that he had been raped by the men and the judge, this would have been included in the POE notes. Therefore the CRDD preferred the POE notes to the testimony of the applicant and found that he did not tell the Immigration officer about the rapes.
[9] The CRDD's findings of inconsistencies include, among the many findings of inconsistencies, the fact that the applicant testified that he did not want anyone to know about the rapes and he did not want the issue to be talked about, and yet, the applicant himself reported the incident to the Revolutionary Court.
[10] Also, the CRDD noticed that the POE notes recorded that the applicant was accused of being involved with the Jewish community and being an informer. However, in the PIF, there is no mention of the applicant having been accused of being an informer or having connections to the Jewish community, except for a reference to a Jewish girl, the daughter of a friend of the family, living in the applicant's family apartment for one year.
[11] The CRDD found the applicant's testimony so unreliable that it was unable to find on a balance of probabilities that he was indeed a practising homosexual. The only material evidence submitted by the applicant is a photograph of himself at a gay parade in Toronto and a membership card in his name from a Community Centre where he was allegedly put in contact with homosexuals in Toronto.
[12] Nonetheless, the CRDD attempted to determined whether the applicant would have good grounds to fear persecution as an homosexual in Iran. Relying on independent sources of documentary evidence, the CRDD concluded that the applicant did not have good grounds on which to fear persecution should he return to Iran. It acknowledged that homosexuals in Iran theoretically face the death penalty, but found that in practice, there is a wide difference when it comes to how homosexual behaviour is treated in Iran.
ISSUES
[13] a) Did the CRDD err in determining that the applicant was not credible?
b) Did the CRDD misconstrue the documentary evidence in determining that a "practising homosexual" would not be at risk of persecution in Iran?
SUBMISSIONS AND ANALYSIS
[14] From the outset, caselaw has established that in assessing the credibility of the evidence of a claimant, the CRDD can evaluate the general demeanor of the witness as he is testifying. This involves assessing the manner in which the witness replies to questions, his facial expressions, tone of voice, physical movements, general integrity and intelligence, and powers of recollection [see: Waldman, Immigration Law and Practice, Markham: Butterworths Canada Ltd. 1992, para. 8.17]. The CRDD's decision clearly demonstrates its perception of the applicant's testimony.
[15] In relation to the CRDD's credibility findings, the applicant argued that it was an error for the CRDD to find specifically that the applicant is not homosexual as there was no separate analysis, but merely a capricious conclusion based on other findings. He further submits that there was no contradictory evidence on which to base a finding that the applicant was not a practising homosexual [see: Selvakumaran v. Canada (M.C.I.), 2002 F.C.T. 623, and paragraph 12 of the applicant's further memorandum of fact and law.] It is true that the applicant submitted a photograph of himself at a gay parade in Toronto and a membership card from a Community centre where he was put in contact with other homosexuals. However, this evidence is not conclusive proof that the applicant is a practising homosexual. The CRDD could not conclude on a balance of probabilities that he was indeed an homosexual because it simply did not believe the applicant's story. My reading of the decision is that the CRDD made a general finding of non credibility and that he was not a practising homosexual.
[16] Homosexuality is an integral part of a human being. In order to prove such a state, the applicant must present factual evidence that demonstrates such a way of being. The applicant bears the onus of proof, and the CRDD found that he did not satisfy this onus.
[17] In relation to another credibility finding, the applicant also submitted that the CRDD erred in rejecting his evidence as to why he went to the police to report the incident concerning the judge. The applicant stated in his affidavit that he testified at the hearing that his "blood was boiling". It is submitted, without any reference to case law or principle, that to subject the applicant's evidence to a rational criteria is erroneous, at least without taking into account the entirety of the applicant's evidence. It appears to me that there is no evidence indicating that the CRDD, in assessing the alleged reporting of the incident, subjected the applicant's evidence to a "rational criteria". In fact, the wording of the decision pertaining to this issue is very clear:
"The panel finds the claimant's answers regarding what he wished others to know and what he didn't to be inconsistent. Further we find his action in going to the Revolutionary Court three days after the alleged event to report a state official to be implausible in the circumstances."
[18] Nonetheless, the CRDD is entitled to rely on criteria such as rationality and common sense [Shahamati v. Canada (M.E.I.), [1994] F.C.J. No. 415 (F.C.A.)]
[19] The credibility findings were based on contradictions, inconsistencies and findings of implausibilities in the testimony of the applicant. In the case of Leung v. Canada (M.E.I.), (1994) 81 F.T.R. 303, at paragraphs 14 to 16 the court noted the difference between findings of facts made by the CRDD based on internal contradictions and those based upon implausibilities in the evidence:
Both divisions of this Court have consistently held that the Board's decisions must be based on the totality of the evidence contained in the Record. [See for example Toro v. M.E.I., [1981] 1 F.C. 652 (F.C.A.) and Okyere-Akosah v. Canada (M.E.I.) (6 May 1992), A-92-91 (F.C.A.) [Please see [1992] F.C.J. No. 411] This does not mean, however, that the Board must summarize all of the evidence, or that a decision will be quashed simply because the Board has failed to refer to some minor piece of documentary evidence in its reasons. [Noor Hassan v. M.E.I. (9 October 1992), A-831-90 (F.C.A.) [Please see [1992] F.C.J. No. 946].] Nevertheless, the Board is under a very clear duty to justify its credibility findings with specific and clear reference to the evidence. [See for example Armson v. M.E.I. (1989), 9 Imm. L.R. (2d) 150 (F.C.A.) and Rajaratnam v. Canada (M.E.I.) (1991), 135 N.R. 300 (F.C.A.).]
This duty becomes particularly important in cases such as this one where the Board has based its non-credibility finding on perceived "implausibilities" in the claimants' stories rather than on internal inconsistencies and contradictions in their narratives or their demeanour while testifying. Findings of implausibility are inherently subjective assessments which are largely dependant on the individual Board member's perceptions of what constitutes rational behaviour. The appropriateness of a particular finding can therefore only be assessed if the Board's decision clearly identifies all of the facts which form the basis for their conclusions.
Given this clear obligation on the Board to base its decision on the totality of the evidence, combined with the duty to justify its credibility findings, it must be assumed that the Board's reasons contain a reasonably complete account of the facts which form the basis of their decision. The Board will therefore err when it fails to refer to relevant evidence which could potentially refute their conclusions of implausibility. My review of the Board's implausibility findings reveals that such an error has occurred here. I will deal with each implausibility finding. [Emphasis added]
[20] In the case at bar, the CRDD based its conclusions of credibility on relevant facts, on the documentary evidence before it, and on the inconsistencies. I believe that the inference they made with regards to the POE Notes and the existence of the rapes was reasonable and can be viewed as an inconsistency with the applicant's PIF narrative.
[21] Having reviewed the transcript of the hearing, I note that the other inconsistencies in the testimony, related in pages 4 and 5 of the CRDD's decision, are also reasonable.
[22] With respect to the implausibility finding about the reporting of the rape incident, I am of the view that there is no relevant evidence which could potentially refute the CRDD's conclusion. No material evidence proving that the applicant reported the incident was submitted and, moreover, the applicant testified that he did not want the issue to be talked about, and he did not want his family and doctors to know. Thus, it is difficult to believe that the applicant really reported the rapes. In my opinion, it was reasonably open to the CRDD to draw a negative inference based on the implausibility.
[23] The next issue to address is whether the CRDD misconstrued evidence in determining that the applicant, as a homosexual in Iran, would not be at risk of being persecuted. The applicant argued that the CRDD's review of the document entitled "(Response to Information Request (IRN28636.E)" was highly selective. He submits that the CRDD ignored the evidence from that document which indicates that if discovered, a practising homosexual would be treated severely. I do not agree with the applicant's contention because the CRDD clearly referred to documentary evidence that pertained that sexual intercourse between males is illegal and is punishable by death (Articles of the Islamic Penal Code of Iran, dealing with homosexuality). However, the CRDD also referred to evidence relating to the implementation of this treatment and found that there was a wide difference between theory and practice. The CRDD thus had a solid basis to draw its conclusion that, as homosexual, the applicant is not at risk of persecution.
[24] The CRDD's conclusion is based on an independent source of information, and thus it was reasonably open to it to believe what it wanted. Therefore, the conclusion that the applicant, by virtue of being a practising homosexual male did not have good grounds on which to fear persecution, should not be interfered with.
[25] In its further memorandum of fact and law, the applicant submitted that the CRDD's determination with respect to the well-founded fear of persecution is undermined by its own following contradictory comment: "...given the context of Iran where people are known to disappear after dealing with law enforcement agencies...". He further argues that from these terms expressly stated in the decision, it is erroneous for the CRDD to conclude that the applicant would face only "a short time in custody/jail".
[26] I cannot accept these arguments, first because the CRDD did not reach the conclusion that the applicant would only face a short time in jail, and second because the comment in question does not contradict the finding that there was no evidence of a well founded fear of persecution.
[27] Bearing in mind that in relation to issues of fact, the applicable standard of review established by case law is patent unreasonableness, I find that the factual findings based on the inconsistencies and implausibilities of the applicant's story and testimony were reasonably made with proper references to the documentary and oral evidence which was before the CRDD. I see no error on which this Court should intervene.
[28] The applicant proposed the following questions for certification:
Can sexual identity be rejected for reasons that do not relate to the sexual identity of the claimant if the claimant's personal identity is accepted?
Is it persecution if a person who is an homosexual is required to live in a manner so as to conceal his sexual orientation?
Is the benefit of the doubt as set out in the UNHCR Handbook, paragraph 203, a principle of the law that he CRDD is required to consider in relation to the assessment of a refugee claim? [note: Counsel for the applicant renounced to the certification of this third question at the hearing.]
[29] As established by the Court, the legal test for certification of a proposed question is that it must be determinative of the case and must bring an affirmative reply to the following questions:
1. Does the proposed question transcends the interest of the parties and,
2. Is the question of general importance or contemplates issues of broad significance? (see: Liyanagamage v. Canada (Secretary of State) (1994), 176 N.R. 4 (F.C.T.D.).
[30] Since the CRDD made a finding on the non-credibility of the applicant, the two questions left are not determinative of the case. Therefore, they cannot be subject to a certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed and no question is certified.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5749-01
STYLE OF CAUSE : MOHAMMAD SALEH ZAMANIBAKHSH and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Toronto, Ontario
DATE OF HEARING : October 30th, 2002
REASONS FOR ORDER : THE HONOURABLE JUSTICE SIMON NOËL
DATED : November 4, 2002
APPEARANCES :
Micheal Crane FOR THE APPLICANT
Lorne McClenaghan FOR THE RESPONDENT
SOLICITORS OF RECORD :
Micheal Crane FOR THE APPLICANT
Toronto, Ontario
Department of Justice FOR THE RESPONDENT
Toronto, Ontario
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