Date: 20010813
Docket: IMM-222-00
Neutral citation: 2001 FCT 886
BETWEEN:
ROSITA TAHERI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated November 9, 1999, in which the Board found that the applicant was not a Convention Refugee.
[2] There are two issues:
(i) Did the Board err in making a negative credibility finding against the applicant by basing its conclusion on omissions not evident on the face of the record or so insignificant as to not warrant such a finding?
(ii) Did the Board err in favouring some documentary evidence against the applicant's uncontradicted evidence and other documentary evidence supporting the contention that lesbians face persecution in Iran?
[3] The applicant submitted that there were four areas of its decision where the Board erred in making certain negative credibility findings. The Board claimed that a 1997 raid by revolutionary guards on a gathering of women held at her home did not take place. This finding is problematic, but it is not material to the decision in light of the other findings of credibility.
[4] The Board also found that the applicant was not credible because she omitted from her PIF that she received 100 lashes while being detained for twenty days after this raid. She did state in her PIF that she was detained and beaten. However, I cannot find that the evidence of the administration of 100 lashes given at her hearing was simply an expansion of her earlier evidence. The evidence of the 100 lashes only came out on questioning by the Refugee Claims Officer and not by her own counsel. This negative credibility finding is reasonable.
[5] There are two other credibility findings which are challenged by the applicant. Both findings concern the applicant's failure to mention in her original PIF narrative two pieces of information that she later testified about at her hearing. The first piece of information concerns the applicant's testimony that a raid on her home took place while she was in detention and that her diary was uncovered and taken by the security forces at this time. The second concerns her testimony that an accusation of apostasy was also levied against her on account of the discovery of the Bible and some philosophical texts during that raid. In view of the fact that the diary had references to her sexual orientation contained therein, it would, as the Board stated, be "unbelievable" that she would omit these facts from her PIF, since they are the very foundation of her claim. Secondly, the severe penalties for having illegal religious beliefs would also make it highly unlikely that she would omit reference to the discovery of the Bible and the philosophical texts from her original PIF narrative. Accordingly, the Board was not in error in finding that the evidence of confiscation of the applicant's diary, Bible and certain philosophical texts from her home and the ensuing detention and torture of the applicant is not credible.
[6] In a related matter, the applicant submits that the Board erred in making a negative credibility finding with regard to the omission from her original PIF narrative of information concerning the raid of her home and the seizure of her diary, Bible and certain philosophical texts. Counsel submits that the Board should not have considered this omission because the applicant's narrative was amended to rectify it at the beginning of her hearing before the Board. In this regard, I refer to the following statement of Simpson J. in Kutuk v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1754 (T.D.):
Contrary to the applicant's submission, it is my view that the Board was entitled to consider the contents of the PIF before and after its amendment. It was also entitled to draw negative inferences about credibility, if matters it considered important were only added to the PIF by amendments made at the hearing.
[7] The Board also went on to find that the documentary evidence shows no particular targeting of homosexuals in Iran and that the authorities do not seek out homosexual activity that occurs behind the "veil of decency" of closed doors. The Board reviewed several very recent documents on this subject and it was open to the Board on the evidence to make the finding that it made. Other contrary documentary evidence was before the Board which is not referred to in its decision, but the Board is entitled to select the evidence which it believes is the correct evidence. The Board referred to the Islamic Punishment Law regarding lesbianism and the severe penalties of 100 lashes and death if there are more than three offences of lesbianism. The Board also acknowledged that:
The evidence does not say that life for lesbians in Iran is easy. Indeed, it acknowledges that homosexuality is not well accepted in the Iranian community and there are somewhat vague reports of very harsh treatment of particular gay individuals.
However, the Board concluded that the documentary evidence does not:
... indicate generally that a fear of persecution in Iran on account of membership in this particular social group is a well founded one.
[8] The application for judicial review is dismissed.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
August 13, 2001