Date: 20101118
Docket: IMM-5491-09
Citation: 2010
FC 1160
Ottawa, Ontario, November 18, 2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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MOHAMMED ABED
(A.K.A. MOHAMED HASSAN ABED)
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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 ORDER AND ORDER
[1]
The
Applicant applies for judicial review of the October 2, 2009 decision of the
Immigration and Refugee Board, Refugee Protection Division (the Board) in which
the Board refused the Applicant’s claim for refugee status.
[2]
The Respondent also brings a motion for an order to quash the Board’s
decision and remit the matter back for redetermination.
[3]
Where the
Applicant and Respondent differ is on the appropriate remedy attendant on
granting the judicial review. The Respondent, on its motion, sought to have
the Board’s decision quashed and referred back for redetermination by a
different panel member without costs. On its application for judicial review,
the Applicant sought various remedies including:
a.
that the
Board be ordered by the Court to declare the Applicant to be a Convention
Refugee and/or a person in need of protection;
b.
in the
alternative the matter be referred back on the existing record, to reconsider
the matter in accordance with the reasons/order of this Court;
c.
in the
further alternative, the matter be referred back to the Board for a new hearing
before a different panel; and
d.
costs
[4]
I am
satisfied that judicial review should be granted. The question is whether the
Court should provide directions on redetermination.
Background
[5]
The
Applicant had applied for refugee status along with his brother because each
had converted from the Muslim religion to Christianity, albeit with different
churches. Their claims were based on the hostile attitude by Muslims in Egypt towards apostates who have converted. In
its written decision the Board decided the Applicant was not a true convert
from the Muslim faith to Christianity because he did not know the basic tenets
of his faith. The Board went on to consider an alternative claim which it
dismissed on credibility grounds in reliance in part on its earlier conclusion
that the Applicant lacked the knowledge that a convert to Christianity would
have.
Decision Under Review
[6]
The
Applicant, who had converted to Christianity by joining the United Church, had testified that the
Church has only two sacraments: communion (the Eucharist) and baptism. The
Board dismissed the Applicant’s claim stating:
“It is not reasonable that person [sic]
who attends Church weekly and reads the bible on his own would not know the
faith’s basic tenets, such as, the names and number of the faith’s sacraments.
It is for this reason that I find the claimant is not a true convert to
Christianity.”
Standard of Review
[7]
Section
18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7 provides that a
decision may be set aside if the decision is made on an erroneous finding of
fact in a perverse or capricious manner without regard to the material before
it.
Analysis
[8]
The
documentary evidence discloses that the Applicant was correct: the United Church only celebrates two
sacraments, the Eucharist and baptism. Further, the Board had earlier stated on
the record that it accepted the Applicant’s answer as credible, only to change
its conclusion later in its written decision because of error. The Respondent
concedes the Board erred and has moved for an order granting the application
for judicial review.
[9]
The Board
found the Applicant was not a true convert to Christianity but one of
convenience. The Board must decide on evidence and not on speculation. Its
only perfunctory reference to evidence on the question of conversion to
Christianity is in error. Later, when the Board discusses the Applicant’s
account about problems with Egyptian authorities because of religious issues,
it states “these could be due to other reasons not before the panel” which is
clearly speculative.
[10]
The
Applicant’s evidence about his growing religious belief was neither short nor
perfunctory. The Applicant had been questioned on this religious topic by the
Refugee Protection Officer and his own counsel. The Applicant also submitted
unchallenged documentary evidence.
[11]
Not only
had the Applicant answered the question about the sacraments correctly, he
provided documentation in support of the fact of his conversion to
Christianity. It was not a recent conversion. The Applicant converted through
baptism, a sacrament of the United
Church. He has produced a baptismal
certificate documenting his baptism in 2003 and the United Church Minister
confirmed his membership and contribution to the United Church community since that time. His
brother’s wife, who the Board accepted as a credible witness, testified about
the Applicant’s preferred use of his Christian name. The Applicant also
testified and provided documentation in relation to his earlier interest in
Christianity and his resultant difficulties in Egypt. The Board makes no reference to this
documentation.
[12]
In result,
I find the Board erred in basing its decision on an erroneous finding of fact
in a perverse or capricious manner without regard to the material before it.
[13]
In
considering the question of remedies, I am mindful that the Applicant’s claim
had been joined with that of his brother. The brother had suffered a serious
accident that left him unable to testify and the Applicant subsequently sought
to proceed separately. The Board decided the claims would not be severed
because evidence had already been disclosed with respect to both brothers.
[14]
At the
hearing, the brother’s wife testified about the brother’s conversion to
Christianity, specifically to joining the Roman Catholic Church. She also
testified the Applicant was known to her by his Christian name which I take to
be confirmatory of his conversion to Christianity. I note that the brother’s
refugee claim was accepted by the Board on the basis that he had converted to
Christianity. I see no difference between the two brothers’ claims other than
that one elected to join the Roman Catholic Church and the other to join the United Church. The issue about conversion
to Christianity is in itself determinative and was accepted as such by the
Board in the brother’s case.
[15]
This Court
may provide directions with respect to the way a case is redetermined pursuant
to paragraph 18.1(3)(b) of the Federal Courts Act. This is an
extraordinary power. The Federal Court of Appeal found in Canada (Minister of Human Resources
Development) v. Rafuse, 2002
FCA 31 at para. 14:
While directions that the Court may issue
when setting aside a tribunal’s decision include directions in the nature of a
directed verdict, this is an exceptional power that should be exercised only in
the clearest of circumstances: … Such will rarely be the case when the issue in
dispute is essentially factual in nature (Ali v. Canada (Minister of Employment and
Immigration), [1994] 3 F.C. 73 (T.D.), particularly when, as here the tribunal
has not made the relevant finding.
[16]
I have
been provided with a number of cases where the Court has referred the matter
back with and without direction. In Antwi-Boasiako v. Canada (Minister of Citizenship and
Immigration),
[1995] 96 F.T.R. 186 (T.D.), the Court directed the matter be redetermined
on the basis the applicant had a credible basis for his refugee claim. In Dhanai
v. Minister of Citizenship and Immigration, [1994] F.C.J. No. 636, Justice
Rothstein, now on the Supreme Court of Canada, referred the matter back with a
direction the applicant have the opportunity to adduce further evidence.
[17]
The authority
to recognize an applicant’s claim for refugee status is vested in the Refugee
Protection Board by virtue of sections 162 and 170 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27. Accordingly, the matter is to be
referred back to a differently constituted panel for redetermination. It is to
be redetermined on the record on the issue of whether the Applicant has
converted from the Muslim faith to Christianity with such additional evidence
as the Applicant may choose to submit.
[18]
In my
view, this is not a case where a general question of importance should be
certified.
[19]
Since the evidence on record will be available on redetermination and
since the Respondent has not opposed the application for judicial review
itself, I make no order for costs.
ORDER
THIS COURT ORDERS that:
1. The application for judicial
review is granted.
2. The matter is referred back
for redetermination by a differently constituted panel in accordance with the
reasons given in this Order.
3.
No
question of general importance is certified.
4.
I make no
order for costs.
“Leonard
S. Mandamin”
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