Docket: IMM-2826-11
Citation: 2012 FC 66
Ottawa, Ontario, January 18,
2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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SATIT NINTAWAT
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This
is an application by Satit Nintawat (the Applicant), pursuant to section 72(1)
of the Immigration and refugee Protection Act, SC 2001 [IRPA],
for judicial review of the decision of the Immigration and refugee Board (the
Board) rendered on March 23, 2011, where the Board concluded that the Applicant
is neither a Convention refugee nor a person in need of protection as
contemplated by sections 96 and 97 of the IRPA.
[2]
For
the reasons that follow, this application for judicial review is allowed.
II. Facts
A. Contextual
background
[3]
The
Applicant is a citizen of Thailand who borrowed money from
his neighbour to come to Canada in order to find work and provide a better
source of income for his family.
[4]
On
his arrival in Canada, he started working for National Bait in Toronto. He picked
worms and was paid by the pail. He was barely making enough money to eat and was
not able to reimburse the loan contracted from his neighbour.
[5]
He
then worked for a greenhouse in Leamington, Ontario, where he was
making enough money to repay his loan and provide for his wife and daughter
back in Thailand.
[6]
The
applicant claimed refugee protection because he alleged owing money to a loan
shark in Thailand.
[7]
However,
in his amended Personal Information Form [PIF] narrative, he writes that he
would like to stay in Canada to be able to give his family a better
life. He also indicates that he is afraid of the political instability in Thailand, and
consequently, of the impact it would have on him, while seeking a job.
B. Impugned
decision
[8]
The
Board’s decision is contained in the following paragraphs:
IDENTITY
… I am satisfied that the claimant is a
citizen of Thailand and as to his personal
identity based on certified copy of his passport.
ALLEGATIONS
The details of the claimant’s allegations
appear in the narrative to his Personal Information Form (PIF). In short, the
claimant fears returning to Thailand for economic reasons. The
claimant admitted that his fears were “purely economic” in response to
questioning by his counsel during the hearing.
DETERMINATION
For the following reasons, I find that
the claimant is not a Convention refugee and not a person in need of
protection.
ANALYSIS
The claimant’s economic fears have no
nexus to Convention refugee reasons or grounds. Furthermore, they also clearly
do not trigger a risk to life or of cruel or unusual treatment or punishment,
or a danger of torture within the meaning of subsection 97(1) of the IRPA. For
these reasons, I find that the harm feared is not related to a Convention
ground and that any risk to him in Thailand
is an economic risk that is not protected by subsection 97(1) of the IRPA.
CONCLUSION
I therefore conclude that Satit Nintawat
is not a Convention refugee under section 96 of the IRPA and not a person in
need of protection under subsection 97(1) of the IRPA. Furthermore, having
considered the facts, the country evidence and the law in a manner consistent
with the context and mission of the Refugee protection Division, I find that
these conclusions fall within the range of reasonable outcomes.
III. Legislation
[9]
Sections
96 and 97 of the IRPA provide as follows:
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Convention refugee
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Définition de « réfugié »
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96. A Convention refugee
is a person who, by reason of a well-founded fear of persecution for reasons
of race, religion, nationality, membership in a particular social group or
political opinion,
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96. A qualité de réfugié
au sens de la Convention — le réfugié — la personne qui, craignant avec
raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
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(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
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a) soit se trouve hors
de tout pays dont elle a la nationalité et ne peut ou, du fait de cette
crainte, ne veut se réclamer de la protection de chacun de ces pays;
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(b) not having a country of nationality,
is outside the country of their former habitual residence and is unable or,
by reason of that fear, unwilling to return to that country.
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b) soit, si elle n’a pas
de nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need of protection
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Personne à protéger
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97. (1) A person in
need of protection is a person in Canada whose removal to their country or countries
of nationality or, if they do not have a country of nationality, their
country of former habitual residence, would subject them personally
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97. (1) A qualité de
personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
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(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
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a) soit au risque, s’il
y a des motifs sérieux de le croire, d’être soumise à la torture au sens de
l’article premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of
cruel and unusual treatment or punishment if
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b) soit à une menace à
sa vie ou au risque de traitements ou peines cruels et inusités dans le cas
suivant :
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(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait,
ne veut se réclamer de la protection de ce pays,
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(ii) the risk would be faced by the person in every
part of that country and is not faced generally by other individuals in or
from that country,
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(ii) elle y est exposée en tout
lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui
s’y trouvent ne le sont généralement pas,
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(iii) the risk is not inherent or incidental to
lawful sanctions, unless imposed in disregard of accepted international
standards, and
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(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
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(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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Person in need of protection
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Personne à protéger
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(2) A
person in Canada who is a member of
a class of persons prescribed by the regulations as being in need of
protection is also a person in need of protection.
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(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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IV. Issues and
standard of review
A. Issues
·
Did
the Board err by failing to provide adequate reasons in support of its decision?
B. Standard of review
[10]
The
question of the adequacy of reasons is a matter of procedural fairness and the
appropriate standard of review is correctness (see Pushpanathan v
Canada (Minister of
Citizenship and Immigration), [1998] 1 SRC 982, [1998] SCJ No 46).
V. Parties’
submissions
A. Applicant’s
submissions
[11]
In
his submissions, the Applicant argues that the reasons given by the Board are
not adequate as they fail to address the issue of the money lender. He also
submits that the Board failed to consider all of the evidence adduced.
[12]
The
applicant also cites Syed v Canada (Minister of Employment
and Immigration), [1994] FCJ No 1331 at para 8, for the proposition that
“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.”
[13]
In
addition, the Applicant submits that the Board erred in the interpretation of
sections 96 and 97 of the IRPA.
B. Respondent’s
submissions
[14]
The
Respondent alleges that the Applicant’s fears are purely economic. Consequently,
there is no nexus to a Convention ground under section 96 of the IRPA
and the economic risk he fears does not trigger the application of section 97
of the IRPA.
[15]
The
Respondent submits that, in reading the Applicant’s PIF narrative and
affidavit, it is clear that the Applicant borrowed money from his neighbour and
that he did not raise a risk of persecution by a loan shark. Consequently, the
Board did not ignore any evidence in its assessment of the file.
[16]
The
Respondent also argues that the Board provided sufficient and adequate reasons
to support its conclusion. Moreover, in cases where the claim is clearly
invalid, even minimal reasons are adequate if they inform the individual of the
basis of the Board’s decision.
[17]
According
to the Respondent, the inadequacy of reasons does not automatically establish
grounds for judicial review. The Applicant must show the deficiency in the
reasons and that he is prejudiced by this inadequacy in the exercise of his
legal right to seek leave and judicial review of the decision (see R v
Sheppard, [2002] 1 S.C.R. 869 at paras 33, 46 and 53). The Applicant was
informed of the reasons for the Board’s decision and there is no prejudice to
the Applicant’s right to seek leave and judicial review.
[18]
The
Respondent argues that a reading of the transcript of the hearing clearly
indicates that the reasons, as written, were sufficient in this instance.
VI. Analysis
·
Did
the Board err by failing to provide adequate reasons in support of its
decision?
[19]
The
Court finds that the Board failed to provide adequate reasons in support of its
decision.
[20]
In
its decision, the Board concluded that the Applicant feared returning to Thailand solely for
economic reasons. In reading the transcript of the hearing, it appears that the
Applicant completely reimbursed his loan, with interest, and that his prime
reason to stay in Canada was economic.
Counsel: Okay when you are first making
your claim, you indicated that you feared for the money lender. Is that
correct?
Claimant: That is correct.
Counsel: Okay and who is this lender?
Claimant: Neighbour.
Counsel: It is a neighbour?
Claimant: It is money lender in the same
village.
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Counsel: Is this a relative of yours?
Claimant: No, no relation, just live in
the same village.
Counsel: Okay and how much money did you
borrow from Lian?
Claimant: 200,000 [bhats]
…
Counsel: And how much is that in Canadian
currency?
Claimant: Around 8,000.
…
Counsel: what was the interest rate?
Claimant: I borrowed 200,000 so I return
50,000 [bhats].
…
Counsel: Okay, so how much have you paid
so far?
Claimant: I pay it off already.
Counsel: You paid all the 200,000
together with the 50,000 [bhats]?
Claimant: yes.
Counsel: so you do not owe any money now
to Lian?
Claimant: That is correct.
…
Counsel: So your fear to go back to Thailand is that you may not be able
to get a job?
Claimant: That is correct.
Counsel: And there is no other reason?
There is no other reason?
Claimant: There is some.
…
Claimant: So because now my children just
want to continue to get a degree so I am afraid that if I do not have money, so
I cannot support them.
Counsel: So your reason for wanting to
stay in Canada is mostly economic reason, is
that correct?
Claimant: That is correct.
Counsel: Just last question.
Member: Sure.
Counsel: Do you have anybody in Thailand who you fear if you were to
go back?
Claimant:
No. (see the Tribunal Record at pages 100 to103)
[21]
In
Baker v Canada (Minister of Citizenship and Immigration), [1999]
2 SRC 817, the Supreme Court of Canada held, in paragraph 43, that a
decision-maker, in a refugee claim, owes the claimant procedural fairness which
entails the obligation to provide adequate reasons for a decision.
[22]
In
Lake v Canada (Minister of Justice), 2008 SCC 23, [2008] 1
SCR 761, the Supreme Court underlines the importance of the duty to provide
reasons for a decision maker when it writes, in paragraph 46: “The purpose
of providing reasons is twofold: to allow the individual to understand why the
decision was made; and to allow the reviewing court to assess the validity of
the decision. The Minister's reasons must make it clear that he considered the
individual's submissions against extradition and must provide some basis for
understanding why those submissions were rejected”.
[23]
The
Board’s decision is quite brief. It addressed the issue of the money lender
since this particular question became moot on the basis of the Applicant’s
answers during the hearing. There was no need to comment further on this issue.
But the Board failed to provide any explanation as to why the Applicant’s
economic fears have no connection to sections 96 and 97 of the IRPA. It
writes: “I find that the harm feared is not related to a Convention ground and
that any risk to him in Thailand is an economic risk
that is not protected by subsection 97(1) of the IRPA” (see the Board’s
decision at para 5). For a Board member this was obviously most apparent but
for the lay person in this instance, a thai who is a mechanic by training, the subtleties
of sections 96 and 97 warranted a minimum of explanation.
[24]
The
Board failed to provide sufficient reasons that would allow the Applicant to
understand the basis of the decision.
[25]
Reasons
also “provide a basis for an assessment of possible grounds for appeal or
review. They allow the appellate or reviewing body to determine whether the
decision-maker erred and thereby render him or her accountable to that body”
(see Via rail Canada Inc v Lemonde, [2000] FCJ No 1685,
[2001] 2 FC 25 at para 19).
[26]
The
Supreme Court recently specified that a “[…] breach of a duty of procedural fairness is
an error in law. Where there are no reasons in circumstances where they
are required, there is nothing to review. But where, as here, there are reasons,
there is no such breach. Any challenge to the reasoning/result of the
decision should therefore be made within the reasonableness analysis (see Nurses’ Union v Newfoundland and Labrador, 2011 SCC 62
at para 22). In the present case, it is impossible for the Court to review the
decision without referring to the transcript of the hearing, since the wording the
Board’s decision is incomplete.
[27]
It
could well be argued that allowing this application will most probably lead to
a similar end result. Notwithstanding our concern for judicial efficiency, it
is our belief that the judicial system will be better served if the Board
ensures that its decision are “justified, transparent, intelligible” (see Dunsmuir
v New
Brunswick,
2008 SCC 9 at para 47).
VII. Conclusion
[28]
The
Board failed to provide adequate reasons for its decision. As a result, this
application for judicial review is allowed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
the
application for judicial review is allowed; and
2.
there
is no question of general interest to certify.
"André
F.J. Scott"
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