Date: 20100428
Docket: IMM-4492-09
Citation: 2010 FC 465
Ottawa, Ontario, April 28,
2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
NINO
KEDELASHVILI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Applicant, a
citizen of Georgia, seeks protection in Canada on the basis of her fear of her ex-employer. She alleges
that, because of her opposition to the appointment of an individual in her
government department, her sister was arrested and charged with corruption and
the Applicant was demoted and physically attacked by co-workers.
[2]
In a decision, dated
August 20, 2009, a panel of the Refugee Protection Division of the Immigration
and Refugee Board (the Board) determined that the Applicant was not a
Convention
refugee
or person in need of protection. The Applicant seeks to overturn that decision,
submitting that the Board committed three reviewable errors:
1.
Having regard to the
Board’s lack of a credibility finding, it was unreasonable of the Board to
conclude that the Applicant would experience no greater harm than would other
members of the general population;
2.
The Board applied an
incorrect test for a determination under s. 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, when it stated that “[o]n a balance of
probabilities, I find that she would not face any torture or cruel and unusual
treatment should she return”; and
3.
Given the Board’s own
evidence regarding corruption within the legal system of Georgia, it was
unreasonable of the Board to rely on the participation of the Applicant in the
legal system with respect to her sister’s conviction as evidence that
protection of her own government is available to her.
[3]
For the reasons that
follow, I will allow this judicial review.
[4]
I begin by noting
that the Board’s decision is extremely brief. The entirety of the Applicant’s
case is disposed of in seven bulleted points. While the essence of the
Applicant’s claim
is
accurately set out, I believe that the Board, in its analysis, fails to explain
the rationale of its decision. As noted by Justice Binnie in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at para. 47:
In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process.
[5]
It appears that the
Board did not believe part of the Applicant’s story when it states that “[n]ever
reporting nor identifying her alleged assailants to police raises a question
regarding the credibility of her description of the alleged assault” [emphasis
added]. A number of the Board’s conclusions appear to follow from this vague
statement about credibility. For example, I believe (although it is not entirely
clear) that the Board uses this finding as support for its conclusion that “[s]hould
she return to Georgia today, she would experience no greater
harm than would other members of the general population”.
[6]
The problem is that
the Board never directly states that it does not believe all or a portion of
the Applicant’s story. As is well-established in the jurisprudence, the Board
is under a duty to give its reasons for casting doubt upon a claimant’s
credibility in clear and unmistakable terms (Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236, 15 Imm. L.R. (2d)
199 (F.C.A.)).
[7]
The Board’s lack of a
clear conclusion on credibility does not meet the requirements for
reasonableness. The Board has failed to provide the reader or this Court with
justification, transparency or intelligibility in its decision. On this basis
alone, the application may be allowed.
[8]
The Applicant further
asserts that the Board applied an incorrect test for its s. 97 analysis. In its
final bullet, the Board states that “[o]n balance of probabilities, I find she
would not face any torture or cruel and unusual treatment.”
[9]
Under s. 97 of IRPA,
a person is in need of Canada’s protection if their return would
subject them personally to a risk to their life or to a risk of
cruel and unusual treatment or punishment. The Respondent argues that the
omission of the two words “risk of” is not a substantive error. If I could look
elsewhere in the decision to confirm that the Board truly understood its
mandate under s. 97, I might have been able to conclude that this was an
oversight or clerical error. In this case, beyond the one bullet, there is no
other portion of the decision that considers the operation of s. 97.
Accordingly, I conclude that the Board erred.
[10]
Thirdly, the
Applicant argues that the Board erred in its analysis of state protection and
failed to have regard to any of its own documents describing the degree of
corruption in the government and the judicial system. Once again, there is very
little in the decision to assist the Court. The bullet dealing with state
protection states that:
Before
seeking international protection, a claimant must seek the protection of her
own government or provide evidence that it is not available. The claimant did
neither and, in fact, participated with the legal system of Georgia with respect to her sister’s conviction under its laws.
[11]
In these two
sentences – which are the sum of the analysis on state protection – the Board
appears to tie the Applicant’s participation in the legal system of Georgia during her sister’s trial to the availability of state
protection. I find this very confusing. It certainly does nothing to address
the Applicant’s concern (as described in the Board’s own documentary evidence)
of corruption in state authorities.
[12]
In conclusion, the
decision does not demonstrate the necessary justification, transparency and
intelligibility within the decision-making process. Accordingly, this decision
will be quashed.
[13]
Neither party
proposes a question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The application for
judicial review is allowed, the decision of the Board is quashed and the matter
is sent back for re-determination by a different panel of the Board; and
2.
No question of
general importance is certified.
“Judith
A. Snider”
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