Docket: IMM-6821-10
Citation: 2011 FC 997
Ottawa, Ontario, August 15, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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MOHAMMAD ORAMINEJAD
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
A
decision cannot be rendered in a vacuum without considering the person who is
before a first-instance tribunal. Without taking into context all testimony, evidence,
both subjective and objective (country of origin condition evidence) and
understanding the clear nuances that form threads to comprehending a case, a
first-instance tribunal may have heard a case but not necessarily have listened
to it. An encyclopaedia of references (of the country conditions of origin in
question), a dictionary of terms (of the person testifying) and a gallery of
portraits (of both the subjective and objective evidence) must be understood in
comprehensive context for a decision to be said to be reasonable or reflect
reasonableness in the analysis of the above.
II. Introduction
[2]
This
is an application for judicial review in respect of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (Board), rendered on
October 20, 2010, wherein, the Applicant was found to be neither a
“Convention refugee” nor “a person in need of protection” pursuant to sections
96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]
because he was not credible.
[3]
Essentially,
the Applicant’s arguments point to his disagreement with the weight that was
given by the Board to the evidence in his regard.
III. Background
[4]
The
Applicant, Mr.
Mohammad Oraminejad, an
individual of few words (as perceived in the transcript of the first-instance
hearing) is an uneducated, 70-year old Kurd citizen of Iran who was baptized in
Canada. (He is not of Persian origin).
IV. Analysis
[5]
It
appears that a rather hasty decision was drafted by the first-instance tribunal
member. The decision has clearly not taken into account that the Applicant is
70 years old, uneducated and the references of the counsel of the Applicant in
regard of the transcript of the hearing bear out the essence of the arguments
of the Memorandum of Fact and Law as submitted by the counsel of the Applicant.
[6]
The
findings of the first-instance tribunal member are unreasonable; the level of
education, the ethnic origin of the Applicant and the official ceremonial
baptism evidence of the Applicant in Canada (with testimony, supporting
letter from the officiating member of the church as well as eight pictures of
the Applicant in a church setting – in addition to the fact that it appears
that the Applicant might even be considered a bona fide “réfugié sur
place”). The analysis of the first-instance decision-maker in paragraph 16 of his
decision is sketchy, at best, without adequate analysis having been
demonstrated in respect of the official conversion and baptism in Canada.
[7]
It
is important to note that certain questions, asked of the Applicant, apply to
the practice, rites and symbols (example: the crossing of a person) of Catholics
but not of Protestants (except high Anglicans), again, depending on the
actual denomination of Protestantism; such specialized knowledge may not be
common knowledge; thus, it must often be sought in specialized documentation
requested and not decided on that which a first-instance decision-maker thinks
he knows on his own or on a whim! It could be a very costly whim in regard to
the life and limb of an applicant who could be returned to his country of
origin to a situation of peril. It is significant that throughout history and
even modern history: e.g. Christians of various denominations, Jews, Moslems, Buddhists,
Hindus and Bahais have been killed for their beliefs without necessarily even
having had deep knowledge, or even any knowledge, of their religions, other
than adherence to their faith. Many died for their faiths but, according to the
annals of history, did not live according to their faiths; yet, that did not
stop their slaughter. Therefore, it is important to view the evidence in this
case such as provided by the specific church in question and additional
evidence therefrom that was provided.
[8]
The
conclusions of the first instance tribunal member are speculative and not
reasonable; and, it is evident that the evidence was heard but no listening (in
respect of the actual person before the panel) appears to have taken place on a
comprehensive review of the whole transcript of the hearing when carefully read
in context.
V. Conclusion
[9]
Therefore,
the decision is unreasonable. The decision of the first instance tribunal is
returned for determination anew by a different panel.
JUDGMENT
THIS COURT
ORDERS that the Applicant’s
application for judicial review be granted and the decision of the first-instance
tribunal be returned for determination anew by a different panel. No question
to be certified.
“Michel
M.J. Shore”
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