Thanni c. Canada (Minister of Citizenship and Immigration), 2001 FCT 353

                                                                                                                                            Date: 20010419

                                                                                                                               Docket: IMM-2132-00

Neutral Citation: 2001 FCT 353

BETWEEN:

WASIU IBIYINKA THANNI

Applicant

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

BLAIS J.

[1]         This is an application for leave and judicial review of the decision of the Refugee Division (hereinafter the "panel") rendered orally on April 7, 2000 (written reasons signed April 19, 2000), according to which the applicant is not a Convention refugee.

FACTS

[2]         The applicant is a citizen of Nigeria, 38 years of age. He alleges a well-founded fear of persecution owing to his political opinions and his membership in the organization Egbe Omo Yoruba ("EOY").

[3]         The applicant alleges that he was arrested the first time in Nigeria in November 1996 and held for eleven months owing to his political activities and that he was released after paying a large bribe.

[4]         The applicant alleges he was arrested a second time in March 1998, when he was on his way to a demonstration in favour of democracy and that he was held for nine days. He was released after bribing the authorities.

PANEL'S DECISION

[5]         At the hearing the panel rendered its decision orally and found that in general the applicant did not have a very important role as a political activist since his role consisted of distributing new information and speaking to people.

[6]         The panel subsequently issued some written reasons for its decision. In its written reasons the panel, in addition to providing some details and minor corrections, added some additional reasons in support of its conclusion.

ISSUES

[7]         The following are the issues in dispute in this case:

1.          Did the panel err in adding in its written decision some reasons that did not appear in its decision rendered orally during the hearing?

2.          Did the panel err in law in ruling that the change in circumstances that had occurred in Nigeria had brought an end to the applicant's objective fear of persecution?

3.          Did the panel err in law in its assessment of the documentary evidence filed at the hearing?

ANALYSIS

1.          Did the panel err in adding in its written decision some reasons that do not appear in its decision rendered orally during the hearing?

[8]         There is nothing wrong with a panel rendering an oral decision during a hearing and subsequently sending the claimant written reasons for that decision, accompanied by the written notification of the decision: see Isiaku v. Canada (M.C.I.), [1998] F.C.J. no. 879 (F.C.T.D.), aff'd by the Court of Appeal in Isiaku v. Canada (MCI) (1999), 247 N.R. 292 (F.C.A.), Eslami v. Canada (M.C.I.), [1999] F.C.J. no. 1007 (F.C.T.D.). This is not challenged by the applicant, moreover.

[9]         The situation becomes more complicated when the panel, as in this case, renders an oral decision during the hearing and sends written reasons for the decision, adding in the written version some reasons that had not been cited in the oral decision.

[10]       Subsections 69.1(9) and 69.1(11) of the Immigration Act specify:

[11]       The cases hold that an oral decision constitutes a decision under section 69.1. In the case at bar, the issue is whether, in its written reasons, the panel can add reasons other than those that were expressed orally in order to provide a more ample explanation for its decision.

[12]       The cases seem to require that the written reasons for a decision be consistent with the oral reasons.

[13]       In Isiaku, supra, Wetston J. stated:

I therefore agree with the Respondent that the amendment to subsection 69.1(11) had the effect of curing the anomaly that previously existed such that the Board is no longer required to deliver written reasons simultaneously with their oral decisions. The Board can provide written reasons after a decision has been made, by providing them in conjunction with the written notice of the decision. While the practice of providing oral reasons may lead to some difficulties where differences arise between the oral reasons and written reasons, these problems can be addressed on a case-by-case basis, as in Vaszilyova, supra.

[14]       In rendering his decision in Isiaku, supra, Wetston J. seemed to say that a significant difference between the oral and written reasons could constitute a breach of fairness:

Moreover, as I have not found that any material difference has been demonstrated between the oral and written reasons, I do not find that there has been a breach of procedural fairness in this case.

[15]       In Vaszilyova v. Canada (M.E.I.), [1994] F.C.J. no. 1027 (F.C.T.D.), Teitelbaum J. examined the situation in which the panel gave oral reasons at the hearing while reserving the right to "[Translation] complete the reasons in a more structured way". Teitelbaum J. concluded that the panel reserved the right to correct the grammar of the reasons. However, in that case, one month later, the written reasons differed from those given orally. Teitelbaum J. stated:

An example of this is found in the 4th paragraph on page 209 of the Board's dossier in the decision given on April 14, 1993 and in the last paragraph on page 7 of the Board's dossier in the signed decision of May 25, 1993:

[Translation] The difficulties she had during the year and a half in which she lived there are certainly problems. It can't be said they are not serious: they are important enough as it is in the life of most people, but these are problems that result above all from discriminatory acts and even if these acts are combined and even if all these problems are combined they don't amount to the concept of persecution..

(4th paragraph, page 209, Board's dossier)

[Translation] The difficulties she had during the year and a half after she returned to Slovakia are certainly problems but it can't be said they result from persecutory acts. Rather, these acts are discriminatory, and even if they are combined they do not amount to a concept of persecution.

(last paragraph, page 7, Board's dossier)

There is, I believe, a substantial difference in the two paragraphs. On page 209, the Board speaks of the fact that what the applicant complained of was serious, not so in the May 25, 1993 decision. The word ‘surtout" [above all] is also omitted in the May 25, 1993 decision.

There are other, lesser important omissions.

[16]       Teitelbaum J. allowed the application for judicial review since he thought the difference between the oral and written reasons was important but also for a second reason: because the panel had not discussed the issue of the claimant's fear of persecution owing to her membership in a particular social group.

[17]       In Islamaj v. Canada (M.C.I.), [2000] F.C.J. no. 1169, one of the panel members had added a comment to the oral decision but the written reasons did not refer to it. Dawson J. held that there was a significant difference between the oral and written reasons and stated:

In written argument filed, at the Court's request, after the oral hearing, it was submitted on the Minister's behalf that even if the oral comments were a rationale for member Rossi's decision, one must conclude that by the time he signed the written decision, he no longer considered his oral comments to be explanatory of his decision.

The Minister relied upon the decision of the Federal Court of Appeal in Shairp v. M.N.R., [1989] 1 F.C. 562 (F.C.A.), to argue that the determination of a judge has no decisive effect, and is subject to reconsideration, until a formal judgment is reduced to writing and signed. Therefore, she submitted, member Rossi was free to change his mind until the time when he signed the written reasons.

I do not find this additional submission persuasive for two reasons.

First, there is no evidence or indication that the member changed his mind. The deletion from the written record might equally be inadvertent, or because the additional comments were, erroneously, considered not to be material. The panel only reserved to itself the right to edit the oral reasons for syntax and grammar, and to add references to the case law. An unexplained significant change in the reasons cannot by itself, in my view, be attributed to a change of mind.

Second, this Court has required there to be consistency between the oral and written reasons delivered by the CRDD. See: Vaszilyova v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1027. In Isiaku v. Canada (Minister of Citizenship and Immigration) (1998), 46 Imm. L.R. (2d) 79 (F.C.T.D.), aff"d [1999] F.C.J. No. 1452 (F.C.A.), the Court stated (at page 83 of the report of the Trial Division) that:

                 ...while the practice of providing oral reasons may lead to some difficulties where differences arise between the oral reasons and written reasons, these problems can be addressed on a case-by-case basis, as in: Vaszilyova, supra.

I am advised by counsel that the Shairp, supra, decision was cited to both the Trial and Appeal Divisions in Isiaku, supra. That did not, however, affect the requirement of consistency.

Having concluded that Mr. Rossi's comments were reasons for his decision given at the time the oral decision was rendered, it follows that there was a substantial difference between the CRDD's reasons delivered orally and in writing.

In consequence, the application for judicial review must be allowed and the matter remitted to a differently constituted panel of the CRDD for redetermination.

[18]       Finally, in Haoua v. Canada (M.C.I.), [2000] F.C.J. no. 224 (F.C.T.D.), in the reasons given orally the Board had found that the claimant did not really feel endangered since he had remained in Algeria for two years after the end of his contract of employment. In its written reasons, the Board commented that the claimant had remained in Algeria for two months and not two years. However, it reached the same conclusion. Nadon J. held:

With respect to the discrepancy between the two decisions, the Applicant submits that the oral decision takes precedence over the written decision. I note that these decisions are essentially the same, with one substantial difference: the oral decision indicates that the Applicant remained in Algeria two years after the termination of his employment contract in July 1996, whereas the written decision states that the Applicant remained in Algeria only two months after July 1996. According to the Applicant, the Board had no jurisdiction to make such an alteration as it had already issued its decision orally. Further, the Applicant submits that this error of fact led to the Board's conclusion that the Applicant's story about impending flight lacked credibility.

The Board was clearly wrong in its oral delivery, but this error was subsequently corrected in its written reasons. In my view, this mistake was clearly inadvertent given that earlier in the same decision, the Board noted that the Applicant left Algeria in September 1996, worked in South Korea for over one year, and arrived in Canada in April 1998. Therefore, it is evident that the Board meant to say two months. More importantly, but for the two-month correction, the passages are exactly the same:

...

Thus, the error is clearly not determinative and had no material effect on the decision since the Board arrived at the same conclusion. Consequently, I reject the Applicant's submission on this point.

[19]       The above decisions indicate that some conformity has been required between the written and oral reasons. The test applied is whether the differences between the written and oral reasons are substantial.

[20]       It should be noted, however, that the decisions in which it was held that the difference between the written and oral reasons was substantial related to cases in which the panel's conclusion was no longer the same in the written decision, or where some findings appeared in the oral reasons and not in the written reasons: Vaszilyova, supra; Islamaj, supra. In Isiaku, supra and Haoua, supra, it was held that the differences were not substantial enough to warrant the Court's intervention.

[21]       These decisions differ from the case at bar. In the present case the panel's conclusion is the same and the oral reasons all appear in the written reasons. The difference stems from the fact that some written reasons were added in support of the panel's conclusions. Furthermore, contrary to certain other cases, in this case the panel had not indicated that it reserved the right to make some alterations or additions to the reasons given orally.

[22]       The written reasons state unequivocally that in the panel's view, the applicant's "history is a complete fabrication, designed to obtain resident status in Canada without going through the proper channels" (page 1 of the decision).

[23]       Reading the oral reasons, one can only conclude that the panel accorded very limited credibility to the applicant, and the written reasons simply confirmed that perception.

[24]       The cases require some conformity between the written and oral reasons. I must say that in the case at bar the difference between the written reasons and the oral reasons is "substantial" since a number of written reasons were added.

[25]       Although some reasons are added to sustain the conclusion rendered at the hearing, and the oral reasons appear integrally within the written reasons, this procedure is disquieting to me.

[26]       The panel is under no obligation to render its decision immediately at the conclusion of the hearing. It may deliberate and render its decision later in writing.

[27]       If it chooses to render its decision at the conclusion of the hearing, it must be concluded that the panel has completed its thinking about the case that is before it and that it is prepared to present its decision and the reasons for it.

[28]       If the panel continues to deliberate afterwards on the question and even to add some reasons to its decision, one could easily be led to believe that its thinking had not ended.

[29]       The cases readily accept that the panel may make some corrections in its written decision for purposes of syntax and comprehension; to accept that the panel could perfect its decision because it had forgotten to address one or two questions that it thought were important to the review of its case would constitute a miscarriage of justice.

[30]       Many judges and tribunal members would probably appreciate being able to rewrite their decisions occasionally and to add some reasons, but that is not what the law says.

[31]       In my opinion, the panel erred in adding in its written decision some reasons that did not appear in the decision it rendered orally at the hearing, and this error warrants the intervention of this Court.

[32]       I find, however, that the panel did not err in its analysis of the other issues in dispute.

[33]       Consequently, the decision is set aside and the matter is returned to the Board for reconsideration by a differently constituted panel in light of the present decision.

[34]       None of the counsel has submitted any question for certification.

Pierre Blais

J.

OTTAWA, ONTARIO

April 19, 2001

Certified true translation

Suzanne M. Gauthier, LL.L., Trad. a.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET NO:                          IMM-2132-00

STYLE:                                       WASIU IBIYINKA THANNI

v.

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:            MONTRÉAL, QUEBEC

DATE OF HEARING: MARCH 27, 2001

REASONS FOR ORDER AND ORDER OF BLAIS J.

DATED:                                     APRIL 19, 2001

APPEARANCES:

MICHELLE LANGELIER                                                            FOR THE APPLICANT

CAROLINE DOYON                                                                  FOR THE RESPONDENT

SOLICITORS OF RECORD:

MICHELLE LANGELIER                                                            FOR THE APPLICANT

MONTRÉAL, QUEBEC

MORRIS ROSENBERG                                                              FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA