2016 FC, 2016 FC 1216

Date: 20161102 Docket: IMM-631-16 Citation: 2016 FC 1216 Toronto, Ontario, November 2, 2016 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: AREE QASIM AHMED BRINDAR (A.K.A. AREE QASIM AHMED BRI, AREE) Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS [1] Mr. Aree Qasim Ahmed Brindar (the “Applicant”) seeks judicial review of a decision made by the Immigration and RefugeeBoard, Refugee Protection Division (the “Board”), dismissing his claim for recognition as a Convention refugee or a person in need ofprotection, pursuant to subsections 96 (

a) and 97 (1)(b), respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27(the “Act”). The Board found, pursuant to

section 107.1 of the Act, that the Applicant’s claim was “manifestly unfounded”. [2] The Applicant is a citizen of Iraq. He is of Kurdish ethnicity. He left Iraq on June 26, 2015 and travelled to the United Statesof America on the same day, holding a visa for entry into that country. [3] On September 14, 2015 the Applicant entered Canada with the aid of a smuggler.

He claimed protection in Canada on thebasis of a fear of persecution in his home country arising from his conversion to Christianity and political opinion. [4] The Board found that the Applicant was not credible and that his claims about conversion to Christianity and politicalopinion, as the basis of his risk of persecution, were “both invented”.

The Board concluded that the Applicant’s claim was manifestlyunfounded. [5] The Applicant advances several arguments, including unreasonable findings of credibility, a failure of the Board to properlyconsider the sur place aspect of his conversion to Christianity, and a breach of procedural fairness arising from the Board’s failure toapply the correct principles in dismissing an application to introduce post-hearing evidence. [6] The Minister of Citizenship and Immigration (the “Respondent”) argues that the Board committed no reviewable error thatwould justify the intervention of this Court. [7] It is not necessary for me to review the submissions of the parties in detail.

In my opinion, the dispositive issue in thisapplication is the Board’s conclusion that the claim is manifestly unfounded. [8] That finding, involving assessment of the evidence and the application of

section 107.1 of the Act, is a question of mixed factand law. Accordingly, subject to review on the standard of reasonableness; see the decision in New Brunswick (Board of Management) v.Dunsmuir, 2008 SCC 9 , [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 51. [9] The reasonableness standard requires that the decision be justifiable, transparent, intelligible and fall within a range ofpossible, acceptable outcomes; see the decision in Dunsmuir, supra at paragraph 47. [10] In my opinion, the Board’s decision does not meet this standard. I am not persuaded that the Board’s credibility findingsjustify the application of

section 107.1. [11] A negative credibility finding is not synonymous with submission of a fraudulent claim. The decision does not show if thisdistinction was appreciated by the Board. The Board’s reliance upon s. 107.1 was not reasonable. [12] In the result, this application for judicial review is allowed, the decision of the Board is set aside and the matter remitted to adifferent decision-maker for re-determination. There is no question for certification arising.

JUDGMENT THIS COURT’S JUDGMENT is that this application for judicial review is allowed, the decision of the Board is set aside and thematter remitted to a different decision-maker for re-determination. There is no question for certification arising.

“E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-631-16 STYLE OF CAUSE: AREE QASIM AHMED BRINDAR (A.K.A. AREE QASIM AHMED BRI, AREE) v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: OCTOBER 31, 2016 JUDGMENT AND REASONS: HENEGHAN J. DATED: NOVEMBER 2, 2016 APPEARANCES : Geraldine MacDonald FOR THE APPLICANT Laoura Christodoulides FOR THE RESPONDENT SOLICITORS OF RECORD : Geraldine MacDonald Barrister and Solicitor Toronto, Ontario FOR THE APPLICANT William F. Pentney Deputy Attorney General of Canada FOR THE RESPONDENT