Mobarekeh v. Canada (Minister of Citizenship and Immigration)

Mobarekeh v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2004-08-11
Neutral citation
2004 FC 1102
File numbers
IMM-5995-03
Decision Content
Date: 20040811
Docket: IMM-5995-03
Citation: 2004 FC 1102
Toronto, Ontario, August 11th, 2004
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
FARIBA FARAHMAD MOBAREKEH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Mobarekeh, an Iranian citizen, claims to be a victim of sexual abuse at the hands of her husband, a dual Iranian and United States citizen. The Refugee Protection Division (RPD) of the Immigration and Refugee Board determined that she is not a Convention refugee or a person in need of protection. Ms. Mobarekeh asks that I set aside the decision and order a new hearing.
[2] Ms. Morabarekeh's counsel attacks the RPD decision on several fronts while the respondent's counsel characterizes the issue as one of credibility. At the outset of its decision, the RPD identified the major issue as "credibility". However, I am unable to ascertain with any degree of accuracy what conclusion the board reached in relation to this issue.
[3] The respondent's counsel submitted a chronology of events and meticulously noted numerous inconsistencies and contradictions between the personal information form (PIF) and the applicant's testimony at the hearing. None of them were recorded in the RPD's decision. While the board did conclude that some aspects of Ms. Mobarekeh's evidence were not credible, it refrained from making a credibility determination notwithstanding its identification of it as the major issue. To the contrary, it stated:
The claimant did appear to be an abused woman who was very emotional in describing the sexual and physical abuse she experienced at the hands of her husband. In fact, it appeared too difficult for her to recount the incidents.
Later, in its reasons, the board concurred with counsel's submissions that Ms. Mobarakeh's "demeanour and testimony show that she was credible in her distress" and further indicated that it was "sympathetic to the plight of the claimant".
[4] It appears that the decision was based, at least in part, on a finding that state protection was available to Ms. Mobarakeh in the United States. There was, however, no claim with respect to the United States. Although the refugee claim officer provided notification of a potential exclusion under Article 1E of the Convention, the respondent apparently chose not to participate in the hearing. There is no indication in either the transcript or the decision that Article 1E was considered.
[5] It is common ground that credibility findings must be stated in clear and unmistakable, not vague and general, terms: Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.). The reasons of the RPD are ambiguous because although the board rejects specific portions of the applicant's evidence, it appears to find her credible. It rejects her claim presumably on the basis of the availability of state protection in the United States when her claim is with respect to Iran.
[6] In Alemu v. Canada (Minister of Citizenship and Immigration) 2004 FC 997, I allowed an application for judicial review because of a deficient analysis in relation to the findings of the decision maker. There, as here, counsel for the respondent coherently articulated various potential options or explanations to support the [board's] conclusion. I determined that such explanations must somehow be found to exist within the reasoning of the decision maker. Neither an applicant nor the court should be left in the dark, or left to speculate, as to why an application was refused.
[7] In this instance, the RPD got off on the right foot and then got side-tracked. It returned, then got side-tracked again and it never did connect the dots. The analysis was deficient and the reasons were inadequate. I will therefore, with reluctance, remit the matter for redetermination before a differently constituted panel of the RPD.
[8] Counsel did not suggest a question for certification and no question is certified.
ORDER
IT IS HEREBY ORDERED THAT the application for judicial review is allowed and the matter is remitted for redetermination before a differently constituted panel of the RPD. No question is certified.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5995-03
STYLE OF CAUSE: FARIBA FARAHMAD MOBAREKEH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 10, 2004
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: AUGUST 11, 2004
APPEARANCES BY:
Mr. Micheal Crane FOR THE APPLICANT
Mr. Michael Butterfield FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michael Crane
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20040811
Docket: IMM-5995-03
BETWEEN:
FARIBA FARAHMAD MOBAREKEH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER