BETWEEN:
MEHDI ATRI also known as MAZIYAR ATRI
and
Heard at Vancouver, British Columbia, on May 2, 2007.
Judgment delivered from the Bench at Vancouver, British Columbia, on May 2, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Docket: A-242-06
Citation: 2007 FCA 178
CORAM: LÉTOURNEAU J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
MEHDI ATRI also known as MAZIYAR ATRI
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on May 2, 2007)
[1] This is an application for judicial review by Mehdi Atri, also known as Maziyar Atri, of a decision of the Pension Appeals Board, dated April 17, 2006, allowing an appeal by the Minister of Social Development from a decision of the Review Tribunal. The Tribunal had allowed Mr Atri’s appeal from the Minister’s decision that he was not eligible for a retirement pension because he was not 60 years of age.
[2] Mr Atri came to Canada from Iran in 1985 as a refugee. Like many refugees, Mr Atri arrived without any identity documents which, he said, he had given to those who had assisted him to travel to Canada.
[3] The dispute between Mr Atri and the Minister concerns his date of birth. Mr Atri says that he was born in Iran on August 20, 1942, and has attained the age of 60. Relying on Canadian documents in the name of Maziyar Atri (including a record of landing, an application for permanent residence, a certificate of Canadian citizenship, a health care card, and a British Columbia identity card), the Minister says that the applicant was born in 1953 and has therefore not reached pensionable age.
[4] The factual background of this case is confusing, and it is not the function of this Court on an application for judicial review to attempt to sort it out. On the record before us, the Court cannot accede to Mr Atri’s request for an order requiring the Board to find as a fact that he was born on August 20, 1942. Nonetheless, a short summary is necessary to understand the issue that we must decide.
[5] Mr Atri says that his date of birth according to the Persian calendar is 29, Mordad 1321, which translates into August 20, 1942 in the Gregorian calendar. The Board seems to have accepted Mr Atri’s testimony that he had little knowledge of English, and none of French when he arrived in Canada. He said that he does not know how the immigration officer entered his date of birth as September 1, 1953.
[6] This date was entered on his visa and record of landing, and application for permanent residence. He says that on his application for permanent residence he entered the years of his schooling in Iran to make them consistent with a date of birth in 1953. Since 2000, Mr Atri has attempted, without success, to persuade Canadian authorities to amend these documents to show his date of birth as August 20, 1942.
[7] Mr Atri also states that in 1995 he obtained from Iran, through his sister, a duplicate copy of a re-issued Identification Booklet, with an original issue date of September 2, 1942. He says that this is a birth certificate. It is in the name of Mehdi Atri; the applicant’s Canadian documents are in the name of Maziyar Atri. He also produced an Exemption from Military Service Booklet, issued in Iran in 1964, showing Mehdi Atri’s year of birth as 1942.
[8] In its reasons, the Board does not refer specifically to these documents, nor explain why it prefers the immigration documents as proof of Mr Atri’s age. In our view, Mr Atri is entitled as a matter of fairness to be told by the Board why it did not accept the Iranian documents as proof of his age, especially since he says that the Identification Booklet is a birth certificate.
[9] Birth certificates are one of the categories of documents on which the Minister must determine the age and identity of a claimant: Canada Pension Plan Regulations, C.R.C. c. 385, subsections 47(1) and (3). The Board does not refer in its reasons to the provisions of section 47.
[10] We are all of the view that, by not analysing the conflicting evidence before it, the Board has failed to discharge its statutory duty to provide adequate reasons for its decision. On the basis of the reasons given by the Board, we cannot perform a meaningful judicial review in order to determine whether it committed any reviewable error in reversing the Review Tribunal.
[11] Accordingly, the application for judicial review will be allowed with costs, the decision of the Board will be set aside and the matter remitted for re-determination by the Board differently constituted.
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-242-06
STYLE OF CAUSE: MEHDI ATRI (MAZIYAR ATRI) v. AGC
PLACE OF HEARING: Vancouver, British Columbia
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
EVANS J.A.
SHARLOW J.A.
DELIVERED FROM THE BENCH BY: EVANS J.A.
DATED: May 2, 2007
APPEARANCES:
Kevin O’Callaghan FOR THE APPLICANT
Carole Vary FOR THE RESPONDENT
SOLICITORS OF RECORD:
|
Fasken Martineau DuMoulin LLP Vancouver, B.C.
|
FOR THE APPLICANT |
|
John H. Sims, Q.C. Deputy Attorney General of Canada |
|