Ottawa, Ontario, April 3, 2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
AND IMMIGRATION
and
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.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7631-05
STYLE OF CAUSE: MCI v. ESMAEIL POURBAHRI-GHESMAT
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 29, 2007
APPEARANCES:
David Tyndale FOR THE APPLICANT
Rocco Galati FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOHN H. SIMS, Q.C. FOR THE APPLICANT
Deputy Attorney General of Canada
ROCCO GALATI LAW FIRM FOR THE RESPONDENT
Toronto, Ontario