[1] In this judicial review proceeding, the Minister of Citizenship and Immigration (the "Minister" and /or the "applicant") seeks to set aside the September 14, 2004 decision of the Refugee Protection Division (the "tribunal") who found Andrei Ryjkov and his wife Natalia Chpakova, (the "claimants" or the "respondents") both citizens of Russia, to be Convention refugees having a well-founded fear of persecution at the hands of a criminal gang, the Balashika group ("Balashika"), and corrupt state authorities who support them.
[2] Counsel for the Minister argued four principal grounds:
(a) the inadequacy of the tribunal's reasons by reason of the failure to address salient evidence;
(b) the failure to make clear central points on matters such as the forward looking nature of the fear;
(c) conflating the concepts of state protection and persecution;
(d) lack of nexus.
[3] The applicant's claim is not a complicated one. Andrei Ryjkov, a graduate from the Institute of Physical Culture, wanted to open a luge training school and needed a loan. His friend Vladimir, who worked at a bank as a security guard, offered to introduce him to the bank manager. Immediately on his arrival at the bank on April 25, 1994, Mr. Ryjkov says he was arrested and accused of having robbed it a few days earlier.
[4] After his arrest, his friend Vladimir came to see him in prison the next day. Vladimir told Andrei Ryjkov that he had been set up by he and his friends in Balashika and offered the applicant two options: (1) take the blame, serve his sentence and be paid money afterwards or (2) not confess, spend time in jail and get nothing.
[5] Andrei Ryjkov says he rejected the bribe. He was only provided with a lawyer five minutes before his trial. He alleges he was forced by the police to confess. He was convicted despite telling the judge his confession was coerced.
[6] After serving a sentence of four years, he returned in 1998 to the school where he had been employed prior to his conviction. Some parents complained that a convicted felon should not be teaching their children. He was demoted to being a mechanic at the school. This motivated him to attempt to clear his name. He told his friend Nikolai his story. Nikolai was a lawyer. He advised the applicant his chances were not good but publicity might help. Nikolai said his brother might help have his story published in a newspaper since his brother worked there. Andrei Ryjkov states he wrote his story down and gave it to Nikolai's brother on December 18, 1999, but it was never published.
[7] In his Personal Information Form ("PIF") he wrote as follows that on December 20, 1999, he was badly beaten in the street (Minister's record page 113):
[...] The three men who beat me, came up to me. They said I better stop writing or these men from Balashika group will get serious and I may get killed. I was treated by the ambulance people. I went to the prosecutor's office in the city of Cheliabinsk. I complained. The complaint was not taken from me. They said there was not enough evidence. We used to get threatening calls after that. At this point, Natalia got pregnant and, because we were afraid for our lives we decided to run away. We moved to several places. However, the phone calls continued in the different places.
. . .
We fled from Russia because we were afraid that we could be murdered either by the criminals. My wife was under so much stress that she feared a miscarriage. I exposed criminals and the authorities in government who support them and who did not want me to expose their corruption as they would be politically embarrassing. We are both at risk of physical harm from criminals and the authorities who will try to punish us for my activities. [emphasis mine]
[8] In her PIF, Natalia Chpakova exclusively relied on her husband's claim as the basis for her claim. She did not testify.
[9] Before analysing the tribunal's decision, I note the Minister participated in the hearing before the tribunal only by filing documents. Counsel for the Minister did not appear at the hearing nor did she cross-examine Mr. Ryjkov nor did she deliver argument.
[10] The evidence filed with the tribunal by Minister's counsel consisted of documentation related to Mr. Ryjkov's application as a member of the Russian luge team for a visitor's visa at the Canadian Consulate in Moscow on February 22, 2000 and documentation related to his conviction. A visa was issued valid until April 30, 2000. In Canada, Mr. Ryjkov sought an extension on the basis that he would like to continue his sports training at the Ontario Luge Association (the "Luge Association"). The extension was refused when Citizenship and Immigration Canada obtained information that he had never attended training at the Luge Association. It was after this refusal the applicants filed for refugee status on June 1, 2000.
[11] The other document filed by counsel for the Minister was the visa extension application in which Mr. Ryjkov answered "no" to the question whether he or his dependents had ever been convicted or charged with a crime in any country.
THE TRIBUNAL'S DECISION
[12] The tribunal's decision essentially consists of two parts. The first part is a description of the claimants' allegations which need not be repeated here and the second part is the tribunal's analysis consisting of two pages.
[13] The tribunal found the respondents to be credible witnesses and believed what they had alleged in support of their claim (notwithstanding that Natalia Chpakova had not testified). The tribunal stated:
[...] The claimants testified in a straightforward manner and there were no material inconsistencies in their testimony or contradictions between their testimony and the other evidence before me, which have not been satisfactorily explained. [emphasis mine]
[14] The tribunal accepted:
[...] that the claimants fear persecution at the hands of the Balashika group and the law enforcement authorities in Russia. I find that this constitutes a fear of persecution and that this fear results from the grounds of perceived political opinion. On a balance of probabilities, I find that the state is an agent of persecution not because of any links to the Balashika group but because of its unlawful actions in 1994 and in 1998. The state did not carry out a proper criminal investigation in 1994. They tortured the claimant to obtain a confession that was admitted into evidence and used to convict the claimant. As well, the state did not ensure that the principal claimant had proper legal counsel. In 1998, the state on two levels refused to proceed with the principal claimant's complaint despite a clear link between giving his story to the newspaper and the assault by members of the Balashika group. [emphasis mine]
[15] The tribunal then found the claimants' fear to be well-founded:
[...] They provided credible and trustworthy evidence that the Balashika group will persecute them if the principal claimant took steps to clear his name. They also provided clear and convincing evidence that the state persecuted the claimants and failed to provide adequate protection. It is clear that state protection would not be reasonably forthcoming. [emphasis mine]
[16] The tribunal then turned to a consideration of the documentary evidence and referred, in particular, to a document entitled "Confessions at any Cost" published in 1999 by Human Rights Watch, which deals with police torture in Russia. The tribunal quoted from its summary which stated that torture and ill-treatment of detainees at the time of and immediately after arrest is rampant in Russia, that in the first hours after detention, police regularly beat their captives, that with the exception of a few particularly grave cases in which police exposure led to prosecutions, police carry out torture with complete immunity as the provincial and federal prosecutors close their eyes to evidence of abuse, that courts commonly accept forced confessions at face value and use them for convictions and that despite overwhelming evidence that torture has become an integral part of police practice, the Russian government and law enforcement agencies generally - with some notable exceptions - deny that torture or ill treatment is a problem and are not taking any measures to end these abusive practices.
[17] After quoting the above, the tribunal stated:
I find that there is a reasonable possibility that the Balashika group and state authorities will persecute the claimants if they return to Russia and that the state will not adequately protect the claimants. [emphasis mine]
[18] The tribunal concluded:
Having considered the totality of the evidence, for these reasons, these claims are accepted.
ANALYSIS
(1) Standard of Review
[19] In Via Rail Canada Inc. v. Canada (National Transportation Agency), 193 D.L.R. (4th) 357, Justice Sexton, on behalf of the Federal Court of Appeal, agreed with the submissions of counsel that the appropriate standard of review was reasonableness where the grounds of attack of a tribunal's decision was the inadequacy of the reasons provided by that tribunal. Findings on credibility are findings of fact which cannot be cast aside unless such findings were arbitrary or capricious or made without regard to the evidence.
(2) Statutory and interpretative principles
[20] Section 169(b) of the Immigration and Refugee Protection Act ("Act") as did the Immigration Act ("former Act") which it repealed, imposes a statutory duty on the tribunal in these terms: "Reasons for the decision must be given".
[21] I set out section 169 in its entirety:
| 169. In the case of a decision of a Division, other than an interlocutory decision:
(a) the decision takes effect in accordance with the rules;
(b) reasons for the decision must be given;
(c) the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which must be rendered in writing;
(d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;
(e) if the person who is the subject of proceedings before the Board or the Minister requests reasons for a decision within 10 days of notification of the decision, or in circumstances set out in the rules of the Board, the Division must provide written reasons; and
(f) the period in which to apply for judicial review with respect to a decision of the Board is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later.
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169. Les dispositions qui suivent s'appliquent aux décisions, autres qu'interlocutoires, des sections :
a) elles prennent effet conformément aux règles;
b) elles sont motivées;
c) elles sont rendues oralement ou par écrit, celles de la Section d'appel des réfugiés devant toutefois être rendues par écrit;
d) le rejet de la demande d'asile par la Section de la protection des réfugiés est motivé par écrit et les motifs sont transmis au demandeur et au ministre;
e) les motifs écrits sont transmis à la personne en cause et au ministre sur demande faite dans les dix jours suivant la notification ou dans les cas prévus par les règles de la Commission;
f) les délais de contrôle judiciaire courent à compter du dernier en date des faits suivants : notification de la décision et transmission des motifs écrits.
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[22] InThanabalasingham v. Canada (Minister of Citizenship and Immigration), 2005 FC 172, I had an opportunity to canvass the jurisprudence providing guidance when the courts will find reasons inadequate. I reproduce paragraphs 81, 82, 83 and 84 of those reasons:
¶ 81 This is the way Justice Hugessen, then a member of the Federal Court of Appeal, expressed himself in Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.A. No. 545:
Subsection 69.1(11) of the Immigration Act [R.S.C. 1985, c. 1-2.] requires that the Refugee Division "give written reasons" for any decision against the claimant. If this obligation is 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.
We are all of the opinion that the reasons given by the Refugee Division in this case do not meet these criteria. Stating that the claimant "did not prove the existence of the reasonable fear of persecution", without saying any more, may mean that the panel did not believe the claimant, or that it believed him but that the reasons for the alleged persecution do not fall within the reasons listed in the Act, or that the reasonable fear which existed in the past is no longer reasonable because of changed circumstances in the country of origin. There are several other possibilities, inter alia that the Refugee Division interpreted the Act itself badly.
¶ 82 I cite Justice Layden-Stevenson's decision in Liang v. Canada (Minister of Citizenship and Immigration), 2003 CF 1501 at paragraph 42:
para. 42 It is important not to lose sight of the purpose of reasons. In Li v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 413 (T.D.), Mr. Justice Teitelbaum, citing Syed v. Canada (Minister of Employment and Immigration) (1994), 83 F.T.R. 283 (T.D.), stated:
The function of written reasons is to allow an individual adversely affected by an administrative tribunal's decision to know the underlying rationale for the decision. To that end, the reasons must be proper, adequate and intelligible and must give consideration to the substantial points of argument raised by the parties ... The Refugee Division is obligated, at the very least, to comment on the evidence adduced by the applicant at the hearing. If that evidence is accepted or rejected, the applicant should be advised of the reasons why.
At the same time, the reasons are not to be read microscopically and held to a standard of perfection. They must be read as a whole: Medina v. Canada (Minister of Employment and Immigration) (1990), 120 N.R. 385 (F.C.A.); Ahmed v. Canada (Minister of Employment and Immigration) (1993), 156 N.R. 221 (F.C.A.).
¶ 83 I add as another reference Justice Martineau's decision in Canada (Minister of Citizenship and Immigration) v. Koriagin, 2003 FC 1210 at paragraphs 5 and 6:
para. 5 To fulfil the obligation under paragraph 69.1(11)(b) of the Act, the reasons must be sufficiently clear, precise and intelligible to allow the Minister or the person making the claim to understand the grounds on which the decision is based and, where applicable should the decision be appealed, to allow the Court to satisfy itself that the Refugee Division exercised its jurisdiction in accordance with the Act.. See inter alia: Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.) (QL); Minister of Citizenship and Immigration v. Roitman, [2001] F.C.J. No. 718 (F.C.T.D.) (QL); Zannat v. Minister of Citizenship and Immigration (2000), 188 F.T.R. 148; Zoga v. Minister of Citizenship and Immigration, [1999] F.C.J. No. 1253 (F.C.T.D.) (QL); Khan v. Minister of Citizenship and Immigration, [1998] F.C.J. No. 1187 (F.C.T.D.) (QL).
para. 6 A determination that there is a reasonable fear of persecution based on one of the grounds listed in the Convention raises a question of mixed fact and law. In Chan v. Canada (Minister of Employment and Immigration) (1995), 187 N.R. 321, the Supreme Court of Canada reaffirmed that a refugee claimant has the burden of proof in establishing a well-founded fear of persecution. Clearly, this determination calls for a careful analysis of the claimant's testimony and of the documentary evidence concerning the conditions in the country. When written reasons are required, it is not sufficient to state that the determination in the affirmative is based on the evidence without further explanation.
¶ 84 I conclude by reference to Justice Binnie's decision in 2002 SCC 26">R. v. Sheppard, 2002 SCC 26, at paragraph 46 and in doing so, I appreciate the penal context is not the same as the immigration context but, in my view, at the level of principles, the underlying rationale for providing written reasons is apt:
para. 46 These cases make it clear, I think, that the duty to give reasons, where it exists, arises out of the [page893] circumstances of a particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function.
(3) Conclusions
[23] In my view, this judicial review application must be allowed on the grounds the tribunal's reasons are inadequate as they fail to disclose how the tribunal came to grips with the concerns the Refugee Protection Officer ("RPO") suggested the tribunal address. In reaching this conclusion, I am mindful that the tribunal's record is available to "check on the Board's conclusions" (see [1974] S.C.R. 875">Boulis v. Minister of Manpower and Immigration, [1974] S.C.R. 875 at 885).
[24] I examined the tribunal's certified record in its entirety and, in particular, the RPO's submissions at pages 534 to 542 of the tribunal record as well as the submissions made by counsel for the respondents, the refugee claimants. It is clear the issue of credibility was in the forefront of the RPO's submissions.
[25] I identify the following principal deficiencies in terms of lack of analysis:
(1) No consideration of delay in making their refugee claims after coming to Canada and the impact such delay might have on their credibility and their subjective fear. On this point, Justice Martineau in Canada (Minister of Citizenship and Immigration) v. Koriagin, 2003 F.C. 1210, stated the following at paragraph 7:
¶ 7 The subjective fear of the claimant must always be assessed. When the evidence shows that the claimant did not take advantage of the first opportunity to claim refugee status this could compromise his claim under certain circumstances. Although this consideration is not determinative in itself, it is relevant in assessing the claimant's credibility: Gavryushenko v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 1209 (QL); Ilie v. Minister of Citizenship and Immigration (1994), 88 F.T.R. 220; Huerta v. Minister of Employment and Immigration, [1993] 157 N.R. 225, paragraph 4 (F.C.A.). [emphasis mine]
(2) No analysis of whether the claimants had a viable IFA in Russia. This element was the subject of extensive conflicting evidence during the hearing.
(3) No analysis of credibility concerns and their impact on the truthfulness or plausibility of the applicants' story. I identify the following, the list not being exhaustive:
(a) no mention or analysis of Exhibit R-2 as to the existence of the Balashika group in Moscow at the relevant time;
(b) Mr. Ryjkov's continued return to his job at the school despite receiving threats;
(c) conflict between the PIF and the story apparently told by Natalia Chpakova to Dr. Palowski on the subject whether Mr. Ryjkov's story was published or not in the newspapers;
(d) the consistency between what Mr. Ryjkov wrote in his PIF and what he told Dr. Palowski;
(e) a consideration of the evidence concerning the lack of efforts to clear his name while at the penal colony particularly when he had told the Court, but apparently not his lawyer who came to see him only a few minutes before trial, that he had a witness who could confirm his alibi on March 23, 1994, when he apparently robbed the bank;
(f) the impact of the lack of truthfulness with Canadian immigration authorities and his deceit to obtain a Canadian CVV including a false answer when he was in Canada that he had no criminal record when he sought his visa extension;
(g) the fact that Natalia Chpakova was pregnant when she came to Canada and delivered birth in August 2000.
(4) The lack of analysis surrounding the issue of state protection and the adequacy of state protection particularly after the alleged beating of Mr. Ryjkov on December 20, 1999 and the suggestion seemingly accepted by the tribunal that in 1999, the state was an agent of his persecution. In addition, there was no analysis by the tribunal of the admissions by Mr. Ryjkov that after he left Russia neither the police nor the Balashika group were looking for him.
[26] I close by referring to Justice L'Heureux-Dubé's reasons in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 39 as to the importance of reasons:
¶ 39 Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review: R. A. Macdonald and D. Lametti, "Reasons for Decision in Administrative Law" (1990), 3 C.J.A.L.P. 123, at p. 146; Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.), at para. 38. Those affected may [page846] be more likely to feel they were treated fairly and appropriately if reasons are given: de Smith, Woolf, & Jowell, Judicial Review of Administrative Action (5th ed. 1995), at pp. 459-60. I agree that these are significant benefits of written reasons.
ORDER
THIS COURT ORDERS that this judicial review application is allowed, the tribunal's decision is quashed and the refugee claims of the respondents are remitted to the Immigration and Refugee Board for reconsideration by a differently constituted panel. No certified question was proposed.
"François Lemieux"
J U D G E
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8694-04
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
- and -
ANDREI RYJKOV AND
NATALIA CHPAKOVA
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, AUGUST 10, 2005
REASONS FOR ORDER
and ORDER : HON. MR. JUSTICE LEMIEUX
DATED: November 16, 2005
APPEARANCES:
Mr. Gordon Lee FOR THE APPLICANT
Mr. David Yerzy
FOR THE RESPONDENTS
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE APPLICANT
David P. Yerzy
Toronto, Ontario FOR THE RESPONDENTS
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