Docket: IMM-631-16
Citation: 2016 FC 1216
Toronto, Ontario,
November 2, 2016
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
AREE QASIM AHMED BRINDAR
(A.K.A. AREE QASIM AHMED BRI, AREE)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND
REASONS
[1]
Mr. Aree Qasim Ahmed Brindar (the “Applicant”) seeks judicial review of a decision made
by the Immigration and Refugee Board, Refugee Protection Division (the “Board”), dismissing his claim for recognition as a Convention
refugee or a person in need of protection, pursuant to subsections 96 (a) and
97 (1)(b), respectively, of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”). The Board found,
pursuant to section 107.1 of the Act, that the Applicant’s claim was “manifestly unfounded”.
[2]
The Applicant is a citizen of Iraq. He is of Kurdish
ethnicity. He left Iraq on June 26, 2015 and travelled to the United States of
America on the same day, holding a visa for entry into that country.
[3]
On September 14, 2015 the Applicant entered
Canada with the aid of a smuggler. He claimed protection in Canada on the basis
of a fear of persecution in his home country arising from his conversion to
Christianity and political opinion.
[4]
The Board found that the Applicant was not
credible and that his claims about conversion to Christianity and political
opinion, as the basis of his risk of persecution, were “both
invented”. The Board concluded that the Applicant’s claim was manifestly
unfounded.
[5]
The Applicant advances several arguments,
including unreasonable findings of credibility, a failure of the Board to
properly consider the sur place aspect of his conversion to Christianity, and a breach of
procedural fairness arising from the Board’s failure to apply the correct
principles in dismissing an application to introduce post-hearing evidence.
[6]
The Minister of Citizenship and Immigration (the
“Respondent”) argues that the Board committed no
reviewable error that would justify the intervention of this Court.
[7]
It is not necessary for me to review the
submissions of the parties in detail. In my opinion, the dispositive issue in
this application is the Board’s conclusion that the claim is manifestly
unfounded.
[8]
That finding, involving assessment of the
evidence and the application of section 107.1 of the Act, is a question
of mixed fact and law. Accordingly, subject to review on the standard of
reasonableness; see the decision in New Brunswick (Board of Management) v.
Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 51.
[9]
The reasonableness standard requires that the
decision be justifiable, transparent, intelligible and fall within a range of
possible, acceptable outcomes; see the decision in Dunsmuir, supra
at paragraph 47.
[10]
In my opinion, the Board’s decision does not
meet this standard. I am not persuaded that the Board’s credibility findings
justify the application of section 107.1.
[11]
A negative credibility finding is not synonymous
with submission of a fraudulent claim. The decision does not show if this
distinction was appreciated by the Board. The Board’s reliance upon s. 107.1
was not reasonable.
[12]
In the result, this application for judicial
review is allowed, the decision of the Board is set aside and the matter
remitted to a different decision-maker for re-determination. There is no
question for certification arising.
JUDGMENT
THIS COURT’S JUDGMENT is
that this application for judicial review is allowed, the decision of the Board
is set aside and the matter remitted to a different decision-maker for
re-determination. There is no question for certification arising.
“E. Heneghan”
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