Date: 20070125
Docket: IMM-1098-06
Citation: 2007 FC 80
Ottawa, Ontario, January 25,
2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
CHRIS JOHN SHWABA
(A.K.A. JOHN CHRIS SHWABA)
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In
this judicial review proceeding, the Minister of Citizenship and Immigration
(the Minister) seeks to set aside a decision of the Immigration and Refugee
Board’s Refugee Protection Division (the Board). In its decision, dated
February 8, 2006, the Board determined the respondent, Chris John Shwaba, was a
Convention refugee, pursuant to section 96 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the IRPA).
[2]
For
the reasons that follow, I am allowing the Minister’s application for judicial
review.
FACTS
[3]
Mr.
Shwaba, a citizen of Grenada born April 18, 1988,
arrived in Canada on
November15, 2004, and stated his intention to take up permanent residence. His
claim for refugee protection was referred to the Board on May 10, 2005.
[4]
In
his Personal Information Form (PIF), Mr. Shwaba alleges that his stepfather
began sexually abusing him when he was five years old. He apparently told his
mother, despite his stepfather’s warning not to tell anyone, but she did nothing
about it.
[5]
Then,
as he grew up, Mr. Shwaba says he developed an interest for both boys and
girls. When he was fifteen years old, he became sexually intimate with a male
student. Nobody knew about this relationship until his friend was caught with
another man who had HIV. His friend was then questioned about his partners,
because the authorities wanted to test them for HIV. At that point, Mr. Shwaba
decided to leave Grenada. He came to Canada on a visitor’s
visa he had obtained prior to these events.
[6]
Mr.
Shwaba also told the officer at the point of entry that he is afraid of his
stepfather, because he has told his aunt, with whom he is now living in Canada, about his
stepfather’s behaviour and sexual harassment.
THE BOARD’S DECISION
[7]
The
Board heard Mr. Shwaba’s claim on December 21, 2005. At the end of a forty-minute
hearing, the Member provided oral reasons for accepting Mr. Shwaba’s refugee
claim under section 96 of the IRPA. By correspondence, dated January 3, 2006,
the Minister requested written reasons for the Board’s decision.
[8]
The
Board rendered written reasons on February 8, 2006, which are set out in the
following three brief paragraphs:
These are the reasons for the
decision of the Refugee Protection Division (RPD) with respect to the refugee
protection claim made by Chris John Shwaba, a citizen of Grenada. The hearing for this claim
was held pursuant to section 170(b) of the Immigration and Refugee
Protection Act (IRPA) on December 21, 2005 at Toronto, Ontario. At the conclusion of the hearing the
panel rendered an oral positive decision. These are the written reasons which
have been edited and syntax and grammar with added references to the
documentary evidence and relevant case law where appropriate.
I find that Chris John Shwaba,
is a Convention refugee based on his orientation as a homosexual or bisexual
male.
I am satisfied by his
straightforward evidence today that this is his sexual orientation. Based on
the documentary evidence in the file, I know that there is legislation in Grenada that does not protect people
of his sexual orientation and for this reason I find him to be a Convention
refugee.
ISSUE
[9]
The
only issue to be decided in this application for judicial review is whether the
Board erred by failing to meet its obligation to provide adequate written
reasons.
ANALYSIS
[10]
It
is by now well established that the duty of procedural fairness requires, in
certain circumstances, that reasons be provided by administrative authorities. The
reasons most commonly invoked to support such a requirement are that it leads
to better reasoned and more articulate decisions, that it reinforces public
confidence in the judgment and fairness of administrative tribunals, and that
it allows parties to assess the strength of a particular ruling and to
determine the grounds upon which they may wish to appeal or to apply for
judicial review: see, in particular, Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[11]
In
the present case, it is not necessary to go through the factors that have been
considered relevant to determining the content of the duty of fairness. The
IRPA, like its predecessor, the Immigration Act, R.S.C. 1985, c. I-2, imposes
a statutory duty on the Board to provide reasons. Section 169 of the IRPA provides
a complete code on the subject, as can be seen from a reading of that
provision:
169. Decisions and reasons – 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 much 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.
[12]
While
the Board provided oral reasons at the end of the hearing, counsel for the
Minister of Public Safety and Emergency Preparedness requested written reasons
for the decision of the Board pursuant to subsection 169(e) of the IRPA and rule
62 of the Refugee Protection Division Rules, SOR/2002-228. In response
to that request, the Minister received a transcript of the Board member’s oral
reasons.
[13]
The
Minister is of the view that these reasons are totally deficient, as they fail
to provide an adequate explanation for why the Board accepted Mr. Shwaba’s claim.
Mr. Shwaba, on the contrary and not unexpectedly, argues that the reasons are
intelligible and provide a sufficient explanation why the claim was accepted. In
any event, Mr. Shwaba claims, the Minister could have raised his concerns had
he chosen to be represented at the Board hearing.
[14]
There
is a long line of cases supporting the Minister’s argument that reasons must
not only be given, but must also be adequate and address the arguments and the
most salient part of the evidence submitted by the parties. My colleague Mr.
Justice Luc Martineau aptly summed up the relevant cases in Canada (Minister of
Citizenship and Immigration) v. Shpigelman, 2003 FC 1209:
5. To fulfill the obligation described in
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 to allow the
Court to ensure 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).
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 emphasized 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 about 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.
[15]
It
is not enough to summarize the parties’ submissions, and then state a
conclusion without more. Both of the parties are entitled to an analysis of
their arguments and of the supporting evidence if the reasons are to serve
their purpose: VIA Rail Canada Inc. v. Canada (National
Transportation Agency) (C.A.),
[2001] 2 F.C. 25; 193 D.L.R. (4th) 357. Of course, the adequacy of the reasons
in any particular case will be contingent on the particular facts of that case
and will also be assessed in light of the entire record. If, for example, the
transcript of the hearing allows the reader to understand the Board’s decision,
the reasons may not have to be as detailed.
[16]
Admittedly,
this jurisprudence derives from paragraph 69.1(11)(b) of the now repealed Immigration
Act, but that section was almost identically worded to subsection 169(e) of
the IRPA. The old provision provided that “if the Minister or the person making
the claim requests written reasons within ten days after the day on which the
Minister or the person is notified of the decision, the Division shall
forthwith give written reasons.” Indeed, my colleague Mr. Justice François
Lemieux reviewed these cases and applied them to subsection 169(e) of the IRPA
in his recent decision of Canada (Minister of Citizenship and Immigration) v. Ryjkov,
2005 FC 1540.
[17]
These
principles being too well established to dwell on any further, the only
question left to resolve is whether the Board met its obligation in the present
case. The simple and unequivocal answer is no. The Board’s reasons fail to meet
even a skeletal threshold. The absence of any analysis makes a mockery of the
right to judicial review. It is impossible to review a decision without being
able to evaluate the decision-maker’s reasons. Furthermore, the Board’s reasons
here do not refer to many issues that were critical to Mr. Shwaba’s claim.
[18]
In
fact, these very issues were raised by the Board itself at the outset of the
hearing (Tribunal Record, page 103). The first has to do with Mr. Shwaba’s
credibility. This Court has stated on a number of occasions that whether a
claimant has established a well-founded fear of persecution is a question of
mixed fact and law, and calls for a careful analysis of the claimant’s
testimony and of the documentary evidence about country conditions. Here, we
have none of the two.
[19]
For
example, it is not entirely clear what Mr. Shwaba’s precipitating reason was
for fleeing Grenada. His two stories respecting
this issue - first at the point of entry, and then in his PIF – are not
entirely consistent. Does he fear returning to Grenada because of his stepfather, or because gays
are persecuted in his country? And why would telling his aunt about his
stepfather’s abuse put him at risk? According to his PIF, Mr. Shwaba had
already told his mother (Tribunal Record, page 18). As well, according to the
notes at the Port of Entry, his community knows about his stepfather’s history
of abuse (Tribunal Record, page 84). Yet, the Board did not deal with these
issues, though the member actually raised them during the hearing, and did not
explain how these inconsistencies were resolved in Mr. Shwaba’s favour.
[20]
Similarly,
there is no discussion about the country conditions in Grenada with respect to the
alleged persecution of homosexuals. The only document dealing with the
situation of homosexuals listed in the Board’s Information Package (footnoted
in the third paragraph of the Board’s reasons) is ten years old. The U.S. Department
of State Report of February 28, 2005, does not mention this subject at all. How,
then, could the Board member be certain “that there is legislation in Grenada that does not protect
people of his sexual orientation”?
[21]
The
Board’s reasons are equally deficient because it is impossible to tell whether it
considered the issue of state protection. How do we know whether Mr. Shwaba
satisfied his burden and exhausted avenues of recourse available in his country
of origin? Does that mean all homosexuals from Grenada are eligible for refugee status? These
are all questions that beg for an assessment and analysis before they can be properly
answered.
[22]
The
reasons are also devoid of any comment about the fact that Mr. Shwaba returned
to Grenada twice, after having visited relatives in Trinidad. Nor is there any
consideration of the delay between Mr. Shwaba’s arrival in Canada and when he made his
refugee claim, and of the impact such delay might have on Mr. Shwaba’s
credibility and his subjective fear.
[23]
In
the result, I find the reasons to be clearly insufficient and inappropriate to
fulfill any of the rationales for requiring them. The Board cannot be absolved
of its duty to provide reasons, pursuant to section 169 of the IRPA, simply
because the Minister did not intervene at the hearing. The Minister and the
public at large have the right to see that the system is properly applied and
that the integrity of the Board’s decision-making process is maintained.
[24]
Accordingly,
this application for judicial review will be allowed, the Board’s decision will
be set aside and the matter will be referred back to the Board for rehearing
and redetermination by a differently constituted panel.
JUDGMENT
THIS COURT
ORDERS that the application for judicial review is allowed. The
decision of the Board dated December 21, 2005 (February 8, 2006 for the written
reasons) is set aside and the matter is referred back to the Board for
rehearing and redetermination by a differently constituted panel. No question
was proposed for certification and none will be certified.
"Yves
de Montigny"
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