Date: 20030508
Docket: IMM-5573-02
Neutral citation: 2003 FCT 570
Toronto, Ontario, Thursday, the 8th day of May, 2003
Present: The Honourable Mr. Justice Campbell
BETWEEN:
MEHRDAD SOBHESEDGH
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the "RPD"), dated September 27, 2002, wherein the RPD determined that the Applicant is not a Convention Refugee.
[2] The Applicant is a citizen of Iran. He claimed a well-founded fear of persecution based on his sexual orientation as a gay man in Iran. The Applicant also claimed to be a person in need of protection as a person in danger of death, punishment, or cruel and unusual treatment by the Iranian government.
[3] At the Port Of Entry ("POE"), the Applicant claimed to be a member of the Mujaheeden, an organization that the Canadian government considers to be terrorist. On his Personal Information Form ("PIF"), the Applicant claimed to be a victim of persecution as a Sunni Muslim in a Shia-majority country. Two years after arriving, the Applicant submitted a second PIF in which he claimed that the persecution arose as a result of his sexual orientation and the fact that, according to Islamic Shariah Law (the governing law of Iran), the punishment for practising homosexuality is execution.
[4] Regarding the Applicant's POE statement, the RPD found as follows:
When asked why did he lie to the PEO, about the basis of his claim, the claimant stated that he was given bad advice by the agent, who told him that he should state to the Immigration Officer that he was involved with the Mujaheeden, and that he accepted the advice. When asked why did he not disclose to his first lawyer that he was gay, the claimant stated that since this lawyer was hired by his uncle he did not dare to disclose his sexual orientation, as he feared that the lawyer may relate this information to his uncle. The claimant stated that his uncle, who is in the USA, is an extremely religious person and the claimant did not want him to know he was gay.
The panel is not satisfied with this explanation. In our opinion, it is not reasonable to accept that the claimant, who is a well traveled [sic]and sophisticated person, would adopt a false story just because of the agent's misguided advice. This is especially so given that during his long stay of seven years in Japan, he was in active gay relationship with another Iranian person, and visited gay bars and restaurants. Moreover, it is inconceivable that the claimant would not know that he could instruct counsel that the sensitive information about his case should remain confidential.
(RPD Decision, p.3)
I find that the essential element of the negative determination made in the second paragraph just quoted is the apparent acceptance of the Applicant's testimony that he is gay.
[5] However, despite cogent, detailed, and apparently reliable evidence produced by the Applicant before the RPD that, indeed he is gay, on a basis of a number of highly contested and contentious findings of fact, the RPD found he is not gay. In my opinion, the only way to interpret this finding is to conclude that the Applicant lied in his maintenance that he is gay.
[6] Therefore, for some inexplicable reason, apparent on the face of the RPD's decision is the use of evidence to refute the Applicant's POE statement, but such evidence later being found to be part of an elaborate lie. I find that this manifest contradiction in the making of critical findings is of such importance so as to render the RPD's decision as patently unreasonable.
ORDER
Accordingly, I set aside the RPD's decision and refer this matter back for redetermination before a different and constituted panel.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5573-02
STYLE OF CAUSE: MEHRDAD SOBHESEDGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, MAY 7, 2003
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: THURSDAY, MAY 8, 2003
APPEARANCES:
Mr. Micheal Crane
For the Applicant
Ms. Lisa Hutt
For the Respondent
SOLICITORS OF RECORD:
Mr. Micheal Crane
Barrister and Solicitor
166 Pearl Street
Toronto, Ontario M5H 1L3
For the Applicant
Ms. Lisa Hutt
Department of Justice
130 King Street West
Suite 3400, Box 36
Toronto, Ontario M5X 1K6
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030508
Docket: IMM-5573-02
BETWEEN:
MEHRDAD SOBHESEDGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER