Date: 19990615
Docket: IMM-2090-98
BETWEEN:
PARVIZ ESLAMI
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.:
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (Refugee Division) dated April 17, 1998, wherein the Refugee Division determined that the applicant was not a Convention refugee.
REFUGEE BOARD DECISION
[2] The Board rendered an oral decision on April 17, 1998 and written reasons on June 10, 1998, which is a transcript of the oral decision, after editing for syntax and grammar.
[3] The decision of the Board reads in part as follows:
| One, we have major concerns about the credibility of your evidence and the credibility of you as a witness. And secondly, we have a very major concern about the plausibility of the events surrounding your refugee claim in Germany. |
| ... Because now, as you see, we have four occasions, maybe five occasions when you have misled people: you misled the Germany authorities, misled the port of entry officers when you came to Canada, misled your counsel, and there is a pattern developing. It is a pattern, frankly of dishonesty on your part in answering questions and giving information. |
| We have no reason to believe, we have no confidence that what you are telling us today is the truth or not the truth. The clear pattern that you have established is to mislead persons and authorities on this issue of your refugee claim. |
| When we couple that with what we find to be the implausibility of your reason for making a refugee claim in Germany, couple that implausibility with our concerns about your truthfulness, we do not have any confidence that we have any reliable evidence before us today on which we can assess the well-foundedness of your fear of persecution in Iran. |
APPLICANT'S ARGUMENT
[4] The applicant suggests that the Refugee Division found that the applicant had entered Germany on a false Swedish passport and made a claim there later, and that this finding was wrong.
[5] It is submitted that the applicant waited in a transit area for a couple of hours (as the smuggler had advised him to do) before presenting himself to a policeman and advising him that he wanted to make a claim.
[6] The applicant suggests that the Refugee Division was wrong because they found that the applicant got into the country and then later, made a refugee claim.
[7] The applicant also raises another argument that the Refugee Division reserved for only about ten minutes and then gave its reasons. It is submitted that it simply cannot be that the Refugee Division can have considered all the evidence and the arguments of the applicant.
[8] The applicant also suggests that the panel did not comply with the requirement in subsection 69.1(11)(a) of the Immigration Act in rendering an oral decision two months before serving written reasons with a notice of a decision.
[9] It is submitted that the written notice of the decision must be provided with the written reasons, which must be provided with the decision.
[10] It is submitted that rendering an oral decision ten minutes after the hearing and sending a notice of a decision with the decision and written reasons that are a transcript of all the reasons given the day of the hearing, constitute a reviewable error.
RESPONDENT'S ARGUMENT
[11] The respondent suggests that the requirements of subsection 69.1(9) and subsection 69.1(11)(a) of the Immigration Act were met. There is no provision in the Immigration Act that precludes the Refugee Division from delivering a decision and reasons for decision orally from the Bench upon completion of the hearing.
[12] Subsection 69.1(9) of the Act requires the Refugee Division to determine the claim and render a decision as soon as possible, once the hearing is completed. It also requires the panel to send out a written notice of the decision.
[13] The respondent submits that pursuant to subsection 69.1(11)(a) of the Immigration Act, the Refugee Division is not required to deliver written reasons simultaneously with an oral decision.
[14] Formerly, subsection 69.1(11) required that written reasons be provided at the same time as the decision be it oral or written, was rendered. Contrary to the applicant's contentions, the respondent submits that the amendment to subsection 69.1(11)(a) had the effect of curing the anomaly that previously existed such that the Refugee Division is no longer required to deliver written reasons simultaneously with their oral decisions. By the legislature amending the subsection as it did, the Refugee Division is not prevented from delivering a decision and reasons for its decision orally so long as it complies with the statutory requirements under the Act.
[15] The respondent submits that the panel in the present case complied with the obligations of the amended provision and did not offend the principles as set out in Vaszilyova v. M.E.I. (F.C.T.D., July 4, 1994, IMM-3321-93), since there is no evidence to show that the written reasons differed substantially from the oral reasons. On the contrary, the reasons are a transcript of the oral ones.
[16] The respondent suggests that due to the deficiencies in the applicant's testimony, a thorough analysis of the documentary evidence was unnecessary and therefore, the brevity of any deliberation by the Refugee Division did not breach any principle of natural justice or fairness.
[17] The respondent submits that the Refugee Division, in stating that the applicant entered Germany, clearly had evidence before it that the applicant showed his false Swedish passport to inspectors in Zurich prior to making his refugee claim. This is evidenced by the testimony of the applicant himself (transcript pp. 169, 170). Furthermore, the Refugee Division acknowledges that he made his refugee claim upon entering Germany.
ANALYSIS
[18] Relating to the validity of the delivery of oral decisions and reasons by the tribunal, it may not be necessary to debate on the issue for very long since the legislation is quite clear:
| 69.1(9) The Refugee Division shall determine whether or not the person referred to in subsection (1) is a Convention refugee and shall render its decision as soon as possible after completion of the hearing and send a written notice of the decision to the person and to the Minister. 69.1(11) Written reasons (11) The Refugee Division may give written reasons for its decision on a claim, except that (a) if the decision is against the person making the claim, the Division shall, with the written notice of the decision referred to in subsection (9), give written reasons with the decision; and |
69.1(9) La section du statut rend sa décision sur la revendication du statut de réfugié au sens de la Convention le plus tôt possible après l'audience et la notifie à l'intéressé et au ministre par écrit. 69.1(11) Motifs (11) La section du statut n'est tenue de motiver par écrit sa décision que dans les cas suivants a) la décision est défavorable à l'intéressé, auquel cas la transmission des motifs se fait avec sa notification; |
[19] The wording in itself provides for clear requirements. First, the Refugee Division shall render its decision as soon as possible after completion of the hearing - which it definitely did in this case. And second, the Refugee Division shall, with the written notice of the decision, give written reasons with the decision if the decision is against the person making the claim. This last requirement was also complied with by the Refugee Division.
[20] There is nothing to suggest that the Refugee Division could never render an oral decision. On the contrary, subsection 69.1(11) provides that "the Refugee Division may give written reasons" [emphasis added] which means that it can give oral reasons. The only supplementary requirement in cases where the decision is against the person making the claim, is to give written reasons with the written notice.
[21] This straight forward interpretation of the statute is totally in agreement with the principle that the claimant should be allowed to know in good time the precise reasons why a claim is rejected and thereby, enable him to assess his chances before incurring the trouble and expense of further proceedings. Therefore, the provision as amended, respects this principle which was stated in the Hussain case, Hussain v. Canada (Minister of Employment and Immigration) (July 8, 1994) Appeal No. A-1212-91 (F.C.A.).
[22] As for the other principle submitted by the applicant that a tribunal must reflect on the case before rendering a decision, it is not something that can be forced upon the members of a tribunal. The possibility is there for a tribunal to take any matter under reserve if necessary. But if the case appears clear to the tribunal after hearing the witnesses and upon consideration of the evidence presented, it is at liberty to render a decision from the bench. It would serve no purpose to force the tribunal to take every case under reserve and such mandatory procedural step would not serve the interest of justice.
[23] In my opinion, the amount of time devoted to deliberation does not constitute a breach of fairness of natural justice when the panel is satisfied upon conclusion of the hearing that it is ready to render its decision on a case that does not warrant any further deliberation.
[24] Upon reading the decision rendered by the Refugee Division, the Court sees no reason to intervene on the assessment of the applicant's credibility conducted by the tribunal. The decision is clearly motivated and does not appear to be unreasonable.
[25] The applicant referred to the case Behzad Ahangaran v. Canada (Minister of Citizenship and Immigration) (May 19, 1999), Court File No. IMM-301-98 (Federal Court of Canada - Trial Division). In that particular case, the Board's decision was reversed because the Board erred by failing to consider the totality of the evidence tendered in support of the claim, and the Judge considered that it constituted an error of law. In that case, "certain documents tendered by the applicant to support his allegations of persecution in Iran were found to be authentic". It seems that the tribunal had not considered this important element in making its decision.
[26] In the present case, I have reviewed the transcript of the hearing and also the documentary evidence and in my opinion, I cannot in any way, conclude that the Board failed to consider the totality of the evidence before it. In my opinion, the Ahangaran case cannot be applied here.
[27] Counsel for the applicant brought up a new issue in it's further memorandum regarding a breach of solicitor-client privilege and I will address it only to dismiss it. The Refugee Division made a reasonable inference that the applicant misled everyone, including his counsel with respect to his making a refugee claim in Germany, and that led the tribunal to conclude that:
We have no reason to believe, we have no confidence that what you are telling us today is the truth or not the truth. The clear pattern that you have established is to mislead persons and authorities on this issue of your refugee claim.
[28] The applicant has prepared his two PIFs with the help of his counsel; the second PIF was different from the first PIF and constituted an admission that the applicant was lying in preparing his first PIF. It was then obvious that the applicant misled not only the authorities, but also his counsel.
[29] In view of the evidence and the circumstances surrounding the applicant's claim, the Court considers that it was not unreasonable for the tribunal to conclude as it did.
[30] For all the above reasons the application for judicial review is dismissed.
[31] Counsel for the applicant has submitted 3 questions:
| Question 1: |
| Does the Refugee Division err in law and fail to consider the totality of the evidence if the Refugee Division does not consider the credibility of the Applicant's evidence concerning the substance of the claimant's refugee claim and considers only matters following the Applicant's departure from Iran? |
In my opinion, the Refugee Division did not consider only matters following the applicant's departure from Iran as mentioned in the question and it is not a serious question of general importance.
| Question 2: |
| When after the completion of a hearing, a Board has determined that a claimant is not a Convention refugee, and provides its reasons for decision orally, which are later reduced to writing and sent, along with the written notice of decision to the claimant, has the Board complied with ss.69.1(9) & 69.1(11)(a) of the Immigration Act? |
Counsel for the respondent indicated that there was no objection to this question being certified. In my opinion, the issue regarding oral reasons in this case is obviously not the basis for the decision of this Court and, as was suggested by counsel for the respondent, this question will not be certified because the issue is not determinative of the case.
| Question 3: |
| (a) Does the Refugee Division err in law if it relies on a finding that the Applicant misled his own counsel, a Barrister and Solicitor, to determine that the Applicant is not credible, in the absence of any evidence of a waiver of solicitor client privilege? |
| (b) Does the Refugee Division err in law and breach the principles of natural justice if it relies on a finding that the Applicant misled his own counsel, a Barrister and Solicitor, to determine that the Applicant is not credible, if the Refugee Division instructed the Refugee Claims Officer not to question the Applicant on what he told his counsel? |
Question 3 is not certified because it does not constitute a serious question of general importance since it was reasonably opened to the Refugee Division to make an inference based on common sense and something that was obvious.
Pierre Blais
Judge
OTTAWA, ONTARIO
June 15, 1999