Date: 20070403
Docket: IMM-7631-05
Citation: 2007 FC 357
Ottawa, Ontario, April 3,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Applicant
and
ESMAEIL
POURBAHRI-GHESMAT
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
At
the conclusion of Esmaeil Pourbahri-Ghesmat’s refugee hearing, the presiding
member rendered an oral decision allowing his claim. The member subsequently
provided written reasons for that decision. The Minister of Citizenship and
Immigration now seeks judicial review of the Board’s decision, asserting that there
were material differences between the Board’s oral and written reasons, such
that it is impossible to know with any certainty why the presiding member
allowed the claim.
[2]
The
Minister further contends that the Board erred in ignoring a major
inconsistency between Mr. Pourbahri-Ghesmat’s evidence at his hearing and that
contained in his Personal Information Form (or “PIF”), resulting in a patently
unreasonable finding that his claim to have undergone a conversion to
Christianity was credible.
[3]
For
the reasons that follow, I am satisfied that the Board did indeed err as
alleged by the Minister. As a consequence, the application will be allowed.
Standard of Review
[4]
There
are two principle issues in this application. The first relates to a question
as to the sufficiency of the Board’s reasons. This involves a question of
procedural fairness. Issues of procedural fairness are reviewed against the
standard of correctness: Fetherston v. Attorney General, 2005 FCA 111.
[5]
The
second issue relates to the Board’s factual finding that Mr.
Pourbahri-Ghesmat’s conversion to Christianity was genuine. Such a finding is
reviewable against the standard of patent unreasonableness.
The Duty to Give Reasons
[6]
At
the outset, I should note that I do not accept Mr. Pourbahri-Ghesmat’s
contention that the Minister has only a limited entitlement to procedural
fairness in relation to reasons for a decision, given that there is no
legislative right to reasons, and no Charter interests on the part of the
Minister are engaged.
[7]
This
submission is based on an incorrect factual premise – that is, section 62 of
the Refugee Protection Division Rules, SOR/2002-228 specifically
stipulates that the Board must provide written reasons for a decision allowing
a refugee claim where a request for such reasons is received from either the
refugee claimant or the Minister.
[8]
The
Refugee Protection Division Rules are Regulations enacted under the authority
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 and thus
the Minister does indeed have a legislative right to reasons in circumstances
such as this.
[9]
Mr.
Pourbahri-Ghesmat also submits that the Minister’s entitlement to reasons is
limited by virtue of the fact that the role of the Minister in refugee
proceedings is restricted to ensuring that the integrity of the process is
respected.
[10]
It
seems to me to be quite clear that the integrity of the refugee process
requires that Board decisions, whether they be positive or negative, are
intelligible, coherent and consistent.
[11]
Moreover,
I adopt the reasoning of Justice de Montigny in Canada (Minister of
Citizenship and Immigration) v. Shwaba, [2007] F.C.J. No. 119,
and find that the Board is not absolved of its duty to provide reasons simply
because the Minister did not appear at the hearing before the Board.
To What Extent must the
Written Reasons of the Board Conform to its Oral Reasons?
[12]
It
is clear from the Federal Court of Appeal's decision in Acvi v. Canada
(Minister of Citizenship and Immigration), 2003 FCA 359, and from other
decisions such as Sinnathamby v. Canada (Minister of Citizenship and
Immigration), 2005 FC 188, Thanni v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 353, Vaszilyova v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 1027, Islamaj v. Canada
(Minister of Citizenship and Immigration) (2000), 187 F.T.R. 78 and 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.), that where the Board
renders written reasons after orally disposing of a refugee claim, the written
reasons must accord with the oral reasons.
[13]
A
review of the jurisprudence referred to above makes it clear that where there
are significant or substantial differences between the oral and written reasons
for a refugee decision, the decision will be set aside, as the parties will not
be able to determine the basis for the decision with any degree of certainty.
The Inconsistencies in
the Reasons in This Case
[14]
A
review of the two decisions at issue in this case discloses that there are
fundamental discrepancies between them.
[15]
Most
troubling is the fact that in the oral decision, the presiding member accepted
as credible the portion of Mr. Pourbahri-Ghesmat’s refugee claim that was based
upon his alleged fear of persecution by the Iranian government because of his
political views.
[16]
In
contrast, in the Board’s written reasons, the presiding member determined that
Mr. Pourbahri-Ghesmat’s claim of persecution based on his political opinion was
not credible.
[17]
Moreover,
immediately prior to rendering her oral decision, the presiding member went on
at some length with respect to the financial situation of Mr. Pourbahri-Ghesmat’s
wife in Iran. While the
relevance of this is not immediately apparent, it evidently had some bearing on
the member’s conclusion that Mr. Pourbahri-Ghesmat had a well-founded fear of
persecution in Iran by reason of his political opinion, and was
thus referred to in the oral decision. This discussion is entirely absent from
the written decision, perhaps because that decision came to precisely the
opposite conclusion on this point.
[18]
The
written reasons also contain a lengthy summary of the facts that is entirely
missing from the oral decision.
[19]
Mr.
Pourbahri-Ghesmat submits that even if there were discrepancies between the
Board’s oral and written decisions, the two decisions were entirely consistent
with respect to the merits of his claim for protection based upon his
conversion to Christianity, and that as a consequence the application for
judicial review should be dismissed.
[20]
I
do not accept this submission for two reasons. Firstly, as will be explained
in the next section of this decision, I am of the view that the Board’s factual
finding with respect to the genuineness of Mr. Pourbahri-Ghesmat’s religious
conversion was patently unreasonable.
[21]
My
second reason for rejecting this submission is that it is clear from the
Board’s oral decision that to some extent, the two bases for the claim were
inter-related in the mind of the presiding member. That is, in assessing the
risk faced by converts to Christianity in Iran, the Board
considered that risk in the context of someone who came to the attention of the
authorities by reason of his political profile.
[22]
Given
the fundamental differences between the two decisions, I am left in
considerable doubt as to what the basis for the Board’s positive determination
really was. As a result, the application for judicial review will be allowed.
[23]
Given
that this matter will have to be re-determined, I am of the view that it is
appropriate to deal with the Minister’s argument relating to the Board’s
credibility finding as well, in order to ensure that the evidence is properly
assessed at the next hearing. This will be considered next.
Did
the Board Err in Finding that Mr. Pourbahri-Ghesmat’s Conversion to
Christianity was Genuine?
[24]
As
was noted above, in both the Board’s oral and written decisions, the Board
accepted as a fact that Mr. Pourbahri-Ghesmat’s conversion to Christianity was
genuine.
[25]
The
claim based on religion was a sur place claim, as according to Mr.
Pourbahri-Ghesmat, his conversion came about after his arrival in Canada. He
testified before the Board that he became a full member of the Way of Truth and
the Life
Church in January
of 2002.
[26]
Mr.
Pourbahri-Ghesmat completed his PIF on March 26, 2002 – some three months
later. Although he provided a lengthy and detailed narrative description of
the difficulties that he says that he encountered in Iran, there is no mention
anywhere in that narrative of his religious conversion, or of any fear on his
part with relating to his new religious faith.
[27]
Moreover,
Mr. Pourbahri-Ghesmat identifies his religion in the PIF as “Muslim”.
[28]
Mr.
Pourbahri-Ghesmat may have an explanation for this apparent discrepancy, which
explanation will have to be considered by the Board at the re-hearing of the
claim. However, this discrepancy relates to a matter of such central
importance to the claim that it was not open to the Board to fail to address it
in either set of reasons: Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) [1998] F.C.J. No. 1425, 157 F.T.R. 35 at
¶14 – 17.
Conclusion
[29]
For
these reasons, the application for judicial review is allowed.
Certification
[30]
Counsel
for Mr. Pourbahri-Ghesmat proposes the following question for certification:
In a positive decision by the
RPD, where the claimant is found credible, does a breach of natural justice
with respect to the legal analysis on one of the grounds of the definition of a
convention refugee vitiate the decision with respect to an otherwise sound
legal analysis on another ground of the definition?
[31]
This
question is premised on the assumption that the Board’s determination that the
religious aspect of Mr. Pourbahri-Ghesmat’s refugee claim was “otherwise
sound”. For the reasons given, I have found that this was not the case.
[32]
As
a result, the question proposed by counsel does not arise in this case, and I
decline to certify it.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different panel of the Board for re-determination; and
2. No serious question
of general importance is certified.
“Anne
Mactavish”
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