Date: 20090129
Docket: IMM-1497-08
Citation: 2009 FC 91
Ottawa, Ontario, January
29, 2009
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
Domingo CONTRERAS GARCIA
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review by the Minister of Citizenship and
Immigration (Minister) pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. (2001), c. 27 (Act), of a decision of the
Immigration and Refugee Board, Refugee Protection Division (RPD), dated March
12, 2008, allowing the respondent’s claim for refugee protection.
* * * * * * * *
[2]
The
respondent, Domingo Contreras Garcia, is a citizen of Peru. His claim
for refugee protection, granted by the RPD on March 12, 2008, was based on a
fear of persecution in Peru by reason of his political opinion.
[3]
The
Minister contends that the respondent is not a refugee because there are
serious reasons for considering that he committed acts referred to in Article 1F of the United
Nations Convention Relating to the Status of Refugees (Convention).
[4]
The
respondent alleges that he would be subjected to a
danger of torture, to a risk to his life or to a risk of cruel and unusual
treatment or punishment should he return to Peru because of the ties he had
with the National Intelligence Service (Servicio de
Inteligencia Nacional, or SIN), when he worked from 1991 to 2001 as chief
of security for Samuel and Mandel Winter (the Winter brothers), who were close
to the Alberto Fujimori government. During that period, he participated in the
takeover by the Winter brothers of a television station known as Canal 2.
[5]
On
August 9, 2001, the respondent left Peru for the United States, where he claimed
asylum, which was refused. He arrived in Canada on August
13, 2004, and claimed refugee protection at the port of entry. He filed his
Personal Information Form (PIF) on August 14, 2004. On January 18, 2005, the
respondent was questioned by the Security and War Crimes Unit.
[6]
The
first hearing before the RPD was held on February 20, 2006. However, the member
presiding at the proceeding was unable to make a decision because of health
reasons. It was then decided that a new member would hear the matter de novo.
The second hearing took place before the new member on March 30, 2006. The
Minister of Public Safety and Emergency Preparedness intervened to argue that
there are serious reasons for considering that the respondent committed acts
referred to in Article 1F of the Convention.
* * * * * * *
*
[7]
The
RPD’s decision was rendered on March 12, 2008. The first part deals with the
question of the respondent’s exclusion under section 98 of the Act, raised by
the Minister of Public Safety and Emergency Preparedness. The panel first
summarized the Minister’s arguments, as presented in his notice of
intervention:
- the claimant indicated
that he worked for Peru’s National Intelligence
Service;
- the existing documentary
evidence indicates that the National Intelligence Service allegedly
violated human and international rights;
- the claimant may have
participated in or have been an accomplice in crimes against humanity or
in acts that are contrary to the purposes and principles of the
United Nations.
[8]
The
panel noted that the respondent had categorically denied working for the SIN,
and invoked errors in translation or in comprehension to explain all of the
references to his ties to the SIN that are found in his PIF, in the interview
at the port of entry, in his file for his claim for asylum in the USA and in
the testimony of his friend, Pedro Ruiz Castro. The RPD concluded the
following:
Having considered all of the
testimony and the documentary evidence, the panel is of the opinion that the
claimant had ties to the SIN during the period of almost 10 years that he
worked for the Fujimori government as head of security for the Winter brothers.
The panel considers that the claimant’s arguments that the many references in
his file to his ties to the SIN are errors in interpretation or comprehension
are not reasonable.
However, the panel is of the
opinion that the claimant’s complicity in the activities that the National
Intelligence Service (SIN) is accused of having perpetrated has not been
established. The panel is also of the opinion that it has not been demonstrated
that the National Intelligence Service (SIN) of Peru, under the Fujimori
regime, was in fact an organization with limited, brutal purposes, as was the
case with the SAVAK under the Shah of Iran.
[9]
The
panel then considered the case law that applies to complicity in the acts
referred to in Article 1F of the Convention. He considered the decisions of the
Federal Court and of the Federal Court of Appeal in Ramirez v. Canada
(M.E.I.), [1992] 2 F.C. 306 (C.A.), Saridag v. Canada
(M.E.I.), [1994] F.C.J. No. 1516 (QL), 85 F.T.R. 307 and Ruiz v. Canada
(M.E.I.), 2003 FC 1177, [2003] F.C.J. No. 1507 (QL), before ruling as
follows at page 6 of his decision:
In light of the jurisprudence, and
given the evidence on file, the panel is of the opinion that the Minister’s
representative did not discharge her burden of establishing that there are
serious reasons to believe that the principal claimant committed or was an
accomplice in the perpetration of crimes against peace, war crimes, crimes
against humanity or in acts contrary to the purposes and principles of the
United Nations. Consequently, the panel determines that the claimant is not
excluded under articles 1F (a) and (c).
[10] The last part
of the decision concerns inclusion under sections 96 and 97 of the Act.
* * * * * * *
*
[11] The applicant
is raising the following questions:
1. Did
the panel err in not giving reasons for his determination that
- it has not
been established that the respondent was complicit in the SIN?
- it has not
been demonstrated that the SIN was under the Fujimori regime?
- it has not
been demonstrated that the Fujimori regime was an organization with
limited, brutal purposes?
- Did the panel
err in not correctly applying the tests for complicity developed by the
Federal Court of Appeal?
- Did the panel
take into account the documentary evidence on the role of the SIN in the
atrocities committed under the Fujimori regime?
* * * * * * * *
[12] Procedural
fairness requires that the RPD provide adequate reasons for its decision, which
is determined on a correctness standard (C.U.P.E. v. Ontario (Minister
of Labour), [2003] 1 S.C.R. 539; Minister of Citizenship and Immigration
v. Charles, 2007 FC 1146, [2007] F.C.J. No. 1493 (QL)).
[13] In the case
at bar, the applicant asserts that even without subjecting the RPD’s reasons to
a probing examination, they do not make it possible to understand the basis of
its decision, or to follow the reasoning leading to its determinations, and for
that reason alone, this Court’s intervention is warranted. I agree.
[14] It is
impossible to determine whether the decision is reasonable if the underlying
reasons are not sufficiently clear and detailed. It is not enough to quote the
law; reference must be made to the relevant evidence. In Via Rail
Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25, the
Court of Appeal pointed out the following:
[17]The duty to provide reasons is a
salutary one. Reasons serve a number of beneficial purposes including that of
focussing the decision maker on the relevant factors and evidence. In the words
of the Supreme Court of Canada:
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 [Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817, at p. 845].
[18]Reasons also provide the
parties with the assurance that their representations have been considered.
[19]In addition, reasons
allow the parties to effectuate any right of appeal or judicial review that
they might have. They 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. This is particularly important when the decision is subject to a
deferential standard of review.
…
[21]The duty to give reasons
is only fulfilled if the reasons provided are adequate. What constitutes
adequate reasons is a matter to be determined in light of the particular
circumstances of each case. However, as a general rule, adequate reasons are
those that serve the functions for which the duty to provide them was imposed.
In the words of my learned colleague Evans J.A., "[a]ny attempt to
formulate a standard of adequacy that must be met before a tribunal can be said
to have discharged its duty to give reasons must ultimately reflect the
purposes served by a duty to give reasons" [Administrative
Law: Cases, Text and Materials (4th ed.), (Toronto:
Emond Montgomery, 1995), at p. 507].
[22]The obligation to provide
adequate reasons is not satisfied by merely reciting the submissions and
evidence of the parties and stating a conclusion…. Rather, the decision maker
must set out its findings of fact and the principal evidence upon which those
findings were based…. The reasons must address the major points in issue. The
reasoning process followed by the decision maker must be set out and must
reflect consideration of the main relevant factors….
[15] Moreover, the
Supreme Court of Canada clearly stated in Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190, that the
reviewing court, in inquiring into the qualities
that make a decision reasonable, must be concerned with
the existence of justification, transparency and intelligibility within the
decision-making process. If the reasons are not adequate, the Court cannot assess
the decision. Thus, there must be adequate reasons for the Court to be able to analyze
the reasonableness of the decision.
[16] As Mr.
Justice Luc Martineau wrote at paragraph 5 of Minister of Citizenship and
Immigration v. Koriagin, 2003 FC 1210, [2003] F.C.J. No. 1534
(QL):
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.
[17] In this case,
the RPD, in making its determinations, did not refer to any element of the
voluminous documentary evidence. Despite the fact that it identified the
parties’ arguments and the correct principles of law, the Court is unable to follow
its reasoning. It is obvious that the RPD decided that the Minister of Public
Safety and Emergency Preparedness had not discharged his burden of establishing
that there are serious reasons for considering that the respondent committed or
was an accomplice in the commission of crimes against peace, war crimes, crimes
against humanity or acts contrary to the principles and purposes of the United
Nations. However, it did not explain, with regard to the evidence, how it arrived
at this determination. This is an error of law.
[18] In my view,
the respondent erred in focusing his arguments on the merits of the panel’s
decision, that is, on the correctness of its determinations, and not on the
adequacy of the justification and reasoning. On the contrary, it is not enough for
the determination to be correct, which does not concern the Court in this case;
the panel is required to provide adequate reasons so that the Court can validly
assess them.
[19] Finally,
concerning the respondent’s written claim that it was up to the intervener, the
Minister of Public Safety and Emergency Preparedness, to bring the application,
and not the Minister of Citizenship and Immigration, reference need only be
made to subsection 4(1) of the Act:
|
4.
(1) Except
as otherwise provided in this section, the Minister of Citizenship and
Immigration is responsible for the administration of this Act.
|
4.
(1) Sauf
disposition contraire du présent article, le ministre de la Citoyenneté et de
l’Immigration est chargé de l’application de la présente loi.
|
[20] Thus, I am of
the opinion that the application could be brought by the Minister of
Citizenship and Immigration.
* * * * * * *
*
[21] For all these
reasons, the application for judicial review is allowed and the matter is
referred back to the Refugee Protection Division for reconsideration by a
differently constituted panel, in accordance with these reasons.
JUDGMENT
The application for judicial review is allowed. The decision dated March
12, 2008, is set aside and the matter is referred back to the Refugee
Protection Division of the Immigration and Refugee Board for reconsideration by
a differently constituted panel, in accordance with the reasons given on this
date.
Yvon
Pinard
Certified
true translation
Susan
Deichert, LLB
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