Paiani v. Canada (Minister of Citizenship and Immigration), 2005 FC 514

Date: 20050421

Docket: IMM-2742-04

Citation: 2005 FC 514

Ottawa, Ontario, April 21, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

BEEHROUS PAIANI

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

OVERVIEW

[1]    A judicial review is not an appeal. An assessment of facts by a trier of fact, not only warrants, but must be given due deference unless the assessment is patently unreasonable. It is not for this Court in judicial review to substitute its point of view, in an assessment of facts and thereby refer the matter to a newly constituted panel due to its difference of view, unless the decision is patently unreasonable. An assessment of an application of the law by a trier of fact is subject to a wholly different scrutiny and thus a lower degree of deference by this Court; however, fact-based issues of credibility are for a specialized tribunal to assess without unwarranted intrusion.

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JUDICIAL PROCEDURE

[2]    This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act^[1] (IRPA) of the decision of the Immigration and Refugee Board, Refugee Protection Division (Board) which, on February 19, 2004, dismissed the Applicant's claim for "refugee" status pursuant to section 96 and also that of a "person in need of protection" pursuant to subsection 97(1) of IRPA.

BACKGROUND

[3]    A citizen of Iran, the Applicant Mr. Beehrous Paiani alleges a well-founded fear of persecution based on his religion, as a convert from Islam to Buddhism, and as a member of a particular social group, namely religious converts from Islam to Buddhism.

[4]    The alleged facts were described by the Board as follows. Until about 2000, Mr. Paiani considered himself a Muslim, the faith that his family practices. Then a good friend invited him to a session held by a Buddhist group, which he attended on January 30, 2000. He attended a second session and slowly began to appreciate and believe in Buddhism, recognizing that it was changing his life.

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[5]    After a while, he became one of the members of the group, which met secretly every first and third Wednesday of the month. He started to read books about Buddhism and discussed his beliefs with his table tennis students and encouraged them to attend group meetings. Subsequent to reading about Buddhism and its mission, Mr. Paiani changed his religion from Islam to Buddhism.

[6]    Due to traffic, he was late for a session at one of the member's homes on April 25, 2003. Mr. Paiani was to have brought booklets on the subject of Buddha for new members of the group. When he arrived at the particular member's home, he noticed cars in front of the residence and therefore hid behind a wall. He saw Ansar-e-Hezbollah guards leaving the house accompanied by members of the group. Mr. Paiani ran home and explained what had occurred to his family. He was afraid that, under the torture of Hezbollah guards, group members would devulge his name and address. He drove to Karaj to the home of a friend, Morteza, and remained there for a few days.

[7]    Morteza called Mr. Painai's wife and was told that three Hezbollah guards had entered the house; had searched everywhere for Mr. Paiani and had also threatened his family. Mr. Paianai determined that his only chance for safety was to leave the country. He found an agent, with whose help he left Iran for Turkey on May 10, 2003. On June 7, 2003, Mr. Paiani, subsequently, arrived in Montreal where he claimed refugee status on June 13, 2003.

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DECISION UNDER REVIEW

[8]    Despite certain problems encountered in the assessment of Mr. Paiani's personal identity documents, the Board finally found that he had established his identity. The Board concluded that Mr. Paiani was not a refugee nor a person in need of protection as his testimony to the effect that he was a Buddhist was not considered credible; there were discrepancies in both Mr. Paiani's written evidence and oral testimony, notably, concerning his conversion to Buddhism, involvement in meetings and lack of knowledge in regard to the Buddhist faith.

ISSUES

[9]    1. Did the Board fail to provide the Applicant a fair and full opportunity to be heard?

2. Did the Board err by failing to confront the Applicant with its specific concerns about the Applicant's identity as a Buddhist?

3. Did the Board make a reviewable error with respect to its credibility findings?

ANALYSIS

1.       Did the Board fail to provide the Applicant a fair and full opportunity to be heard?

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[10]                        Mr. Paiani argued that within 10 minutes or so after his counsel started the direct examination, the Board member abruptly interrupted counsel and advised the latter that he would be asking the questions for the remainder of the hearing.

[11]                        This is not what the record reflects. There is no evidence of any objection by counsel with respect to the manner in which the hearing was conducted. The record indicates that the hearing began at 1:15 pm and concluded at 5:05 pm. The transcript indicates that at 3:15 pm, Mr. Paiani's counsel was still in the process of examining him. Counsel requested a 10 minute break at that point. After the break, which took place two hours after the hearing commenced, the Board member indicated that he would like to hear the testimony of Mr. Paiani in regard to his belief in Buddhism. The Board member asked a series of questions about Buddhism and counsel made no objection (Tribunal Record, p. 248):

PRESIDING MEMBER: Well, you mentioned one. Are there - is there more than one Buddha?

CLAIMANT: No.

COUNSEL: Do you want to know -

PRESIDING MEMBER: I'm going to continue to ask questions. What is karma?

¼

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[12]                        In fact, after the Board member asked his questions, counsel indicated that he had no re-examination (Tribunal Record, p. 266):

PRESIDING MEMBER: In the ten minutes that's left, here's what I suggest we do, the ten minutes that's left today.

COUNSEL: Yes?

PRESIDING MEMBER: I suggest that if there's any question that I have asked that you would like to ask questions about -

COUNSEL: No, not really. (Emphasis added)

[13]                        Mr. Paiani established no breach of natural justice. The Board member was entirely within his jurisdiction to question Mr. Paiani to clarify testimony and the very basis for the claim, as stated in Quiroa v. Canada (Minister of Citizenship and Immigration)^[2]:

Neither RPD members nor judges are required to sit in monk-like silence throughout a proceeding. It is more than legitimate for a member to ask questions to clarify testimony or to address issues which are relevant to the RPD's determination. There is a procedure for this and a tone and demeanor required to ensure that the member is not seen to have reached a conclusion prematurely.

2. Did the Board err by failing to confront the Applicant with its specific concerns about the Applicant's identity as a Buddhist?

[14]                        Mr. Paiani suggested that he was not given notice that his identity as a Buddhist remained an issue at the end of the hearing.

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[15]                        At numerous points throughout the proceeding, the Board indeed advised Mr. Paiani that identity and credibility were an issue. At no point in time did the Board member indicate that he accepted Mr. Paiani's account (see for example Tribunal Record, pp. 214, 235, 261, 263, 266, 267, 272).

[16]                        The issues of credibility and identity were confirmed in counsel's post-hearing submissions (Tribunal Record, p. 191):

By the end of the hearing the Board, after hearing much oral evidence from the claimant, re-stated the main issues of concern as: identity and credibility. (Emphasis added.)

[17]                        At the outset of the hearing, the Board noted that personal and national identity was in question and Mr. Paiani's adherence to Buddhism was also at issue (Tribunal Record, p. 215). At no point did the Board member indicate that he was satisfied Mr. Paiani was a Buddhist. Rather, the Board member made it understood by counsel, as stated in the counsel's own words, "to narrow things¼credibility and identity, both personal and religious." were at issue (Tribunal Record, pp. 266-267):

PRESIDING MEMBER: Okay. I mean, his position is, as I understand it, that he believes he's a Buddhist, and whether he is a Buddhist or not, that these other people would implicate him who were picked up and that's why he left, right?

COUNSEL: Absolutely.

PRESIDING MEMBER: Right?

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COUNSEL: Yes, that's what I think. I will waive his right to that for a second. I think we're just going to clarify where we're going with this.

PRESIDING MEMBER: Right. So, the issue of his Buddhist identity is, whether he is or isn't a Buddhist, to me isn't the pre-eminent issue. Identity to me, is still the pre-eminent issue.

COUNSEL: I mean, I can - sorry to interrupt. I can give you submissions on identity now, if that's the pre-eminent issue.

PRESIDING MEMBER: Well, to me, that is -I mean, identity is the pre-eminent issue and the second issue is credibility as it relates to his identity, and identity as it relates to credibility.

COUNSEL: Yes, because just to narrow things so we know what we're doing, that, to me, going in was it, based on the objective component either in 96 or 97, was credibility and identity, both personal and religious.

PRESIDING MEMBER: Right.

3. Did the Board make a reviewable error with respect to its credibility findings?

[18]                        In conclusion, the Board accepted Mr. Paiani's personal and national identity, therefore, the Court does not need to analyze the alleged problems with the Board's findings in that area.

[19]                        As for a credibility finding with regard to Mr. Paiani's religious identity as a Buddhist, the Court would only intervene if the Board had erred in a patently unreasonable manner (Aguebor v. Canada (Minister of Employment and Immigration)^[3], Pissareva v. Canada (Minister of Citizenship and Immigration)^[4], Singh v. Canada (Minister of Citizenship and Immigration)^[5]).

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[20]                        The Board was obliged to state its negative credibility finding in clear and unmistakable terms (Hilo v. Canada (Minister of Employment and Immigration)^[6] ). The finding should have been supported by examples which led the Board to doubt Mr. Paiani's testimony. The Board indeed explained why it doubted that Mr. Paiani was a Buddhist, underlining in particular inconsistencies with respect to his conversion to Buddhism, his involvement in meetings and in giving examples of Mr. Paiani's lack of basic knowledge of the Buddhist faith. The Court does not find the Board's findings to be patently unreasonable.

CONCLUSION

[21]                        For these reasons, the Court answers the three questions in the negative. Consequently, the application for judicial review is dismissed.

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ORDER

THIS COURT ORDERS that

1.         The application for judicial review be dismissed;

2.         No question be certified.

"Michel M.J. Shore"