Date: 20000719
Docket: IMM-3140-99
BETWEEN:
ZEQIR ISLAMAJ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Zeqir Islamaj, the applicant, is a 71 year old male citizen of Albania. He sought status as a Convention refugee, claiming to fear persecution in Albania at the hands of the members or agents of the Democratic party on the basis of his political opinion. This was due, he said, to his prior involvement with the communist regime and, subsequently, with the Socialist party in Albania.
[2] Mr. Islamaj"s claim was heard by a two-member panel of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD").
[3] At the end of the hearing held on March 15, 1999, the presiding member, Mr. N. Tahiri, rendered an oral decision rejecting the applicant"s claim. Immediately following Mr. Tahiri"s giving of oral reasons, the other panel member, Mr. R. Rossi, made additional comments. Written reasons were provided on May 10, 1999.
[4] This application for judicial review turns on the narrow question of the effect to be given to the oral comments made by Mr. Rossi. It was agreed by counsel for the parties that if those comments constituted reasons, the application must be allowed.
[5] The transcript of the hearing shows that at the conclusion of the giving of evidence, and after hearing the submissions of counsel, the panel took a short recess. After the recess, the panel advised that the members had reached a decision. Oral reasons were then given.
[6] In material part, the oral reasons were as follows:
| We are back on the record, all parties present. |
| Mr. Zeqir Islamaj, during the recess I had an opportunity to discuss the issues with my colleague. We have considered your testimony and other evidence in the case and are ready to render our decision orally. |
| Regrettably this is going to be a negative decision. I would like to add that a written form of these reasons will be forwarded to you, but these written reasons will be edited for syntax and grammar, and references to the applicable case law may be included. |
| To sum up, I believe the principal element in our determination is that you don"t fit into the profile of people who are targeted by the Democratic Party and, secondly, the party that you claim to be affiliated with, is the party in power at this point, and therefore that decreases the level of risk. |
| For the reasons that I stated here, we believe that there is no objective basis for your well-founded fear of persecution in Albania, although there is general climate of risk and violence, but it was not established that there is a nexus between that risk and any ground of the definition of the Convention Refugee. So, therefore, we determine you, Mr. Zeqir Islamaj, not to be a Convention Refugee, but thank you for your participation. Thank you, Counsel; thank you, Madam RCO; thank you, Mr. Interpreter, and before conclusion, I will ask my colleague if he has any comment. |
| MR. ROSSI: I concur almost 100 per cent with my colleague on this decision. The only thing is I would go a step further and say that I believe the state of anarchy ended in 1997 when elections were held, the Socialist Party came to power. Thank you, I concur with your decision. |
| PRESIDING MEMBER: I"m returning the original documents back to Counsel. Thank you. |
[7] When the written reasons were delivered, they contained no reference to Mr. Rossi"s oral comments. They simply concluded as follows:
| For the reasons that I stated here, we believe there is no objective basis for your well-founded fear of persecution in Albania. Although there is a general climate of risk and violence, it was not established that there is a nexus between that risk and any of the grounds of the definition of the Convention refugee. |
| Therefore, we determine you, Mr. Zequir Islamaj, not to be a Convention refugee. |
[8] The written reasons were signed by Mr. Tahiri and below his signature, following the words "Concurred in by:", the reasons were signed by Mr. Rossi.
Were Mr. Rossi"s oral remarks reasons?
[9] Central to the reasons delivered by Mr. Tahiri was the view that Mr. Islamaj had not been targeted personally in the incidents of violence he described. Rather, the incidents were attributed to the general chaotic situation in the country. If Mr. Rossi"s comments are to be characterized as reasons, the application for judicial review must be allowed, counsel agreed, because without consensus as to the existence of a general chaotic situation, the rationale for finding Mr. Islamaj to be a victim of that general chaos disappears.
[10] In arguing that Mr. Rossi"s oral comments were something other than reasons, the Minister noted that Mr. Rossi did not in any way describe his comments as reasons.
[11] The Minister further submitted that reasons are an explanation for why a claim fails, or conversely, succeeds. Therefore, she submitted, because Mr. Rossi concluded his comments by saying, "Thank you, I concur with your decision", those words were the explanation for Mr. Rossi"s decision.
[12] The Minister argued that her position was buttressed by the fact that if Mr. Rossi actually felt there were more "reasons" to give in explanation, they would have been reduced to writing.
[13]
The importance of reasons in the context of the determination of refugee status is recognized in paragraph 69.1(11)(a) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, which requires:
| (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.
|
(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.
|
| [14] The Federal Court of Appeal has held that for this requirement to be met, "... the reasons must be sufficiently clear, precise and intelligible that the claimant may know why his claim has failed and decide whether to seek leave to appeal, where necessary" (see: Mehterian v. Canada (Minister of Employment and Immigration) , [1992] F.C.J. No. 545 (F.C.A.)). |
| [15] Thus, I accept the Minister"s submission that reasons are to indicate why a certain result was reached. |
| [16] Given that understanding as to what reasons are, I can find no rational explanation for member Rossi"s remarks other than that he was elucidating the basis on which he had concluded that Mr. Islamaj"s claim should fail. |
| [17] I can conceive of no other legitimate purpose for his comments. |
| [18] Mr. Rossi need not have expressly described his comments as reasons to make them so. I cannot, as the Minister asked, parse Mr. Rossi"s remarks about the cessation of the state of anarchy from his statement, "Thank you, I concur with your decision". Together, they must be taken to be his reasons. To quote counsel for Mr. Islamaj, there is "no air of reality" to the contrary conclusion. |
| [19] I am not prepared to speculate as to why those oral reasons did not then find their way into the written version. While the Minister encouraged me to conclude that it was reflective of the fact that the oral comments were not reasons, the applicant suggested a far less charitable motive: an effort to make the panel"s reasons consistent and coherent. Either interpretation is, in my view, conjecture. I am not prepared to conclude that the deletion of the oral comments from the written reasons confirms in any way that they were not reasons. |
| [20] 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. |
| [21] 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. |
| [22] I do not find this additional submission persuasive for two reasons. |
| [23] 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. |
| [24] 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. |
| [25] 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. |
| [26] In consequence, the application for judicial review must be allowed and the matter remitted to a differently constituted panel of the CRDD for redetermination. |
| [27] Counsel have not sought certification of a question, therefore no question is certified. |