Date: 20050322
Docket: IMM-7232-04
Citation: 2005 FC 398
Ottawa, Ontario, March 22, 2005
Present: THE HONOURABLE MADAM JUSTICE GAUTHIER
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
AZMAT ALI KHAN and
DIANA ALEXANDRO BUSYLEVA
Respondents
REASONS FOR ORDER AND ORDER
[1] The Minister of Citizenship and Immigration seeks judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (RPD) granting refugee status to Azmat Ali Khan and his wife, Diana Alexandro Busyleva.
[2] Mr. Ali Khan is a citizen of Afghanistan and a Shia Muslim. He claims that he originally feared persecution from the Taliban because he was not a "strong believer" and refused to join them. Since his departure from Afghanistan in 1994, his mother was killed in 2001 by the Taliban who also killed his cousin and his family. His parents' house was destroyed and his parents forced to flee to Pakistan where they live in a refugee camp.
[3] Mrs. Alexandro Busyleva is a citizen of Russia and she is Jewish. She claims to fear persecution because of her religion and because she was an activist.
[4] After living in Russia, both claimants sought refuge in the United States where they lived for about three years. They had a son who is an American citizen. When their refugee claims were rejected in the United States, they came to Canada to claim refugee status as a family.
[5] The RPD rejected the claim of their son but accepted the respondents' claims in a very unusual two-page decision. The analysis of these claims is as follows:
After evaluating your testimony and analyzing the documentary evidence for both the three countries, Russia, Afghanistan and United States, the panel determines that your son is not a "convention refugee" nor a "person in need of protection". Questioned at the beginning of the hearing, Madam, you admitted that he was not in danger in the United States.
Mr. Khan, although I do not necessarily believe that at the time you left Afghanistan in 1999 [sic] you were personally persecuted, however, the documentary evidence of the time does state that there were many conflicts between different factions of Muslims and that the fundamentalists were extremely busy persecuting people who did not have the same way of thinking.
However, if you were an outspoken person, you could have been seen as an enemy of the Talibans. Moreover, the fact that your brother was killed, that your parents' house was destroyed, that your parents had to leave their country and take refuge in a refugee camp are cause enough to create in your mind a subjective fear that upon your return, you may encounter problems with your western way of life.
Also, when we evaluate a claim, we have to project in the future. You are now married to a Jewish woman and if you went back to your country with your wife and child, there would be a real possibility that you could encounter serious problems in Afghanistan. For these reasons, the panel will grant you the benefit of the doubt and recognize you as a "convention refugee" and a "person in need of protection".
Mrs. Busyleva, your testimony was less than candid. You embellished your testimony, adding events that should have been included in your PIF. However, as it is today your wedding anniversary and that the panel has no intention of separating what love has united, I will also grant you the benefit of the doubt and recognize you as a "convention refugee" and a "person in need of protection".
The panel, in its very unusual decision, will also refer to the principle enounced [sic] in article 181 to 185 fo the UNHCR Handbook on Procedures and Criteria for determining refugee status. This is unusual, I am touching on humanitarian grounds, but my excuse to that is that I am saving time and money to the Canadian taxpayers.
Be happy in Canada, your new country.
[6] For the following reasons, the Court finds that this decision must be set aside.
[7] As it appears from the decision, the RPD based its conclusion at least in part, on humanitarian grounds and on paragraphs 181 to 185 of the Handbook on Procedures and Criteria for determing refugee status which deals with the principle of "family unity".
[8] As indicated in Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.), the more humanitarian grounds are allowed to enter the determination of a refugee claim, the more the refugee procedure resembles and blends into the humanitarian and compassionate procedure provided for in section 25 of the Immigration and Refugee Protection Act (IRPA). This has the effect of replacing in practice the concept of persecution by that of hardship.
[9] As submitted by the applicant, only the Minister has jurisdiction under section 25 of IRPA to waive the requirements set out in the Act when he is of the opinion that it is justified by humanitarian and compassionate considerations. This authority has not been delegated to the RPD with respect to the requirements set out in sections 96 and 97 of IRPA.
[10] Thus, even if the intent of the RPD was a good one, that is, saving taxpayers' money and avoiding the multiplication of administrative procedures, the fact remains that the RPD simply did not have the power to grant any status to the respondents without properly qualifying each of them as persons who fear persecution and are unable or unwilling to claim the protection of their own country.
[11] Family unity is not a concept that exists in Canadian refugee law. In effect, this specific issue was discussed in Casetellanos v. Canada (Solicitor General) [1995] 2 F.C. 190 (T.D.). After reviewing section 181 and following of the Handbook on Procedure and Criteria for Determination of Refugee Status, this Court held that the definition of Convention refugee to which Canada subscribes by virtue of it being a signatory of the United Nation Convention Relating to the Status of Refugees (Geneva, July 28, 1951) does not incorporate the concept of family unity. This did not change when Parliament adopted the Act. As pointed out in Pour-Shariati v. Canada (Minister of Employment and Immigration), [1997] F.C.J. 810 (C.A.) (QL), Parliament did consider the issue referred to in this handbook by providing for the landing of dependants of persons to whom refugee status has been granted, in sections 175 and following of the Immigration and Refugee Protection Regulations SOR/2002-227.
[12] More recently, in Lakatos v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. 657 (T.D.) (QL), at paragraph 12, this Court confirmed that the fact that a family member is persecuted does not automatically grant the status of refugee under the Convention to all other members of the family.
[13] The respondents relied on the decision of the Federal Court of Appeal in Cheung v. Canada (Minister of Citizenship and Immigration) [1993] 2 F.C. 314 (C.A.), which according to them still stood for the proposition that family unity is an accepted principle in Canadian refugee law.
[14] This decision was specifically discussed in Casetellanos, supra, and Nadon, J. (as he then was) stated:
It is clear that the Court in the Cheung case considers that the minor applicant is eligible to refugee status primarily on the basis of discrimination as a member of the social group of second children rather than by virtue of the family unity principle. Given this and the lack of any elucidation by the Court on how it came to the conclusion that family unity existed and should be applied, the Cheung case should be distinguished from the case at bar as it cannot be stated to lay down a principle of family unity.
[15] In view of the foregoing, it was clearly an error of law to rely on the concept of family unity and on sections 181 to 185 of the Handbook to support the claims of the respondents under sections 96 and 97 of the Act.
[16] The respondents argue that such an error is not material because the RPD also relied on other valid grounds to support its positive determination of their claims.
[17] In that respect, the applicant submits that there was no proper analysis of any other basis for these claims in this decision. Thus, it must be set aside.
[18] With respect to Mr. Ali Khan's claim, the RPD expressly found that it did not believe that this respondent was ever personally persecuted in Afghanistan before his departure. The fact that documentary evidence of the time indicates that the fundamentalists were indeed persecuting other people is irrelevant.
[19] This does not mean that this respondent could not face persecution in the future. The RPD does not discuss the impact of the fall of the Taliban; rather, it discusses in its next paragraph that the punishment suffered by members of this respondent's family were cause enough to create a subjective fear that Mr. Ali Khan may encounter problems with his western way of life. However, there is no link in the evidence between these punishments and the fact that any such family members lived a western way of life.
[20] The respondent could not point to any documentary evidence supporting a finding that fundamentalists today persecuted anybody for their western way of life or because they were married to a person of Jewish faith.
[21] This is why the RPD had to resort to the concept of the benefit of the doubt in order to find that there was an objective basis to this claim. The Court does not agree that it was not entitled to do so because it clearly accepted the testimony of Mr. Ali Khan as credible on those issues.
[22] However, the Court agrees that the decision does not indicate what sanctions or punishment that would amount to persecution in the future, Mr. Ali Khan may be expected to face, (Canada (Minister of Citizenship and Immigration) v. Gao, [2001] F.C.J. No. 1794 (T.D.) (QL), paras. 20 to 23). The Court cannot accept the respondents' argument that the expression "problems" must be referring to treatment similar to those suffered by Mr. Ali Khan's cousin's family, particularly his cousin who was burned alive. There is absolutely no evidence in the record that these treatments were inflicted because of these persons' western ways. There is no evidence that they can be considered similarly-situated persons.
[23] In fact, the use of the expressions "problems with your western way of life" and "serious problems in Afghanistan" seems to confirm that the RPD may again be confusing the concept of persecution with the concept of hardship. The decision is clearly ambiguous in that respect and the Court is not satisfied that it can conclude that the error of law identified above did not influence the RPD's conclusion with respect to Mr. Ali Khan's claim.
[24] Turning now to the analysis of the objective basis of Mrs. Busyleva's fear of persecution, the Court finds that the decision is simply incomprehensible and there is no finding with respect to the subjective basis of her claim.
[25] The respondents concede that the reasons were brief and could easily have been more detailed but they submit that the adequacy of such reasons should be analysed in the particular context of this decision. In effect, in the case of a positive determination of a refugee claim, the Board is only required pursuant to paragraph 169(b) and (e) of the Act to give reasons if requested to do so, within ten days of the decision. For the respondents, this is an implicit recognition by Parliament that the duty of fairness due to the Minister in that respect is lower than the one owed to claimants. The Court should thus consider the evidenciary record as a whole to cure any deficiency in the Board's reasons.
[26] The Court agrees that the adequacy and sufficiency of reasons depends on the circumstances and that the duty of fairness is also a flexible concept that depends on the context. However, I cannot agree that this entitles the RPD to issue reasons that are so "skimpy" that the Minister's ability to properly exercise its right to seek judicial review of this decision is negatively affected.
[27] The Minister expressly requested reasons on June 8, 2004. It was entitled to clear, precise and intelligible reasons (Canada (Minister of Citizenship and Immigration) v. Koriagin, [2003] F.C.J. No. 1534, 2003 FC 1210).
[28] It is not possible to determine which part of the testimony of Mrs. Busyleva was rejected as an embellishment because the RPD does not specify it. It does not say either what events exactly were added to the personal information form (PIF). The Court carefully reviewed the transcript and the PIF. Contrary to what was argued by the respondents, it does not find that this is a "clear cut" situation.
[29] At the hearing, the parties could not agree on how many events were actually added during the testimony for they each construed the evidence differently. Neither could give a satisfactory answer to the Court's query in that respect.
[30] If the RPD considered any grounds other than humanitarian grounds it specifically refers to in the last two paragraphs, it certainly failed to give proper reasons for its conclusion in that respect. This was a breach of procedural fairness. This is a reviewable error (Ha v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. 174 (C.A.)).
[31] In the circumstances, the decision must be set aside.
[32] The parties did not propose any question for certification and the Court finds that this case turns on its own facts.
ORDER
THE COURT ORDERS that:
1. The application for judicial review is granted. Both claims shall be redetermined by a differently constituted panel.
2. No question is certified.
"Johanne Gauthier"
Judge
I have applied the standard of correctness to this issue Harb v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. 108 (C.A.).
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