Docket: IMM-5140-13
Citation:
2014 FC 1183
Ottawa, Ontario, December 8, 2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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LJUCA JUNCAJ, DIELL LUCA (A.K.A. DIELL JUNCAJ), VINCE JUNCAJ AND
VIKTOR JUNCAJ
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Applicants
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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ORDER AND REASONS
[1]
UPON an
application for judicial review of a decision of the Refugee Protection
Division [RPD] of the Immigration and Refugee Board made pursuant to section 72
of the Immigration and Refugee Protection Act, SC 2001, c 27;
[2]
AND UPON
reviewing the record and receiving the representations of counsel;
[3]
For the reasons that follow, the application for
judicial review is granted.
[4]
This case brings forth the tension between
insufficient reasons for a decision and what appears to be significant
confusion in the reasons for the decision.
[5]
On one hand, the Supreme Court of Canada states
unequivocally that inadequate reasons are not a stand-alone basis for quashing
a decision (Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Nurses’ Union]).
Indeed, reviewing judges are invited to consider “the
record for the purpose of assessing the reasonableness of the outcome” (at
para 15).
[6]
On the other hand, it must be possible for the
reviewing judges to ascertain the reasonableness of a decision. Repeated
mistakes on important issues affect the reasonableness of the decision (Nurses’
Union, at para 22).
[7]
In its reasons, the RPD made many serious errors
and mistakes about the evidence presented before it by the applicants, as
reflected in the hearing transcripts. Multiple events and circumstances are
incorrectly attributed to the wrong adult applicant, such that the narrative laid
out by the RPD simply does not make sense. The nationalities of the two adult
applicants are confused. Some events which the applicants testified as occurring
in Montenegro are presented by the RPD as happening in Albania. The overall, combined effect of these errors is that the decision was drafted and rendered
without consideration and appreciation of the evidence before it.
[8]
A reasonableness review is “concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process”: Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 47. In my view,
these mistakes go to the heart of the matter and lead to an unreasonable result;
the RPD decision is neither transparent nor intelligible. Without substituting
the Court’s view of the evidence for that of the RPD, which is not permissible
on judicial review, it is not possible to decipher with any measure of
precision if the decision under review is reasonable.
[9]
The comments of the Federal Court of Appeal more
than 22 years ago in Uddin v Canada (Minister of Employment and Immigration),
[1992] ACF No 445 appear to me to be apposite:
-- Despite the
admirable submissions by counsel for the respondent, we are all of the opinion
that the decision a quo cannot be upheld.
The number of
inaccuracies and errors counsel for the appellant was able to identify in the
statement of facts as set out in the decision, some of which were of major
importance, leave the Court with the impression that the members had difficulty
following the claimant’s testimony, and that accordingly their analysis of the
evidence and their assessment of the appellant’s credibility are too suspect
not to require the intervention of this Court.
[10]
The Crown, in a valiant effort to salvage the
impugned decision, argues that the RPD’s decision on the availability of state
protection is reasonable and that, all by itself, is enough to dispose of the
matter.
[11]
There is something to be said for that argument.
The presumption of availability of state protection can only be rebutted by
clear and convincing evidence (Canada (Attorney General) v Ward, [1993]
2 SCR 689). The law does not require that there be perfect protection. I share
the view expressed by the Chief Justice of this Court that “[i]t is not unreasonable to expect a person who wishes to seek
the assistance and generosity of Canada to make a serious effort to identify
and exhaust all reasonably available sources of potential protection in his or
her home state, unless there is such a compelling or persuasive basis for
refraining from doing so” (Ruszo v Canada (Citizenship and
Immigration), 2013 FC 1004, at para 50).
[12]
However, in view of the numerous mistakes made
throughout the decision, it would be unsafe to dispose of this matter on the
basis that the decision on the availability of state protection is
satisfactory. In my estimation, it is not. Even the passage of the transcript
referred to specifically in the Crown’s memorandum of fact and law on the issue
of state protection tends to show a measure of confusion on the part of the
RPD. Its decision also reveals what would appear to be non sequitur. The
same confusion about the facts appears to transpire in the reasons given to
support the availability of state protection, in spite of the acknowledgement
that the phenomenon of “blood feuds” may not have been eradicated.
[13]
The adjudication of this matter was deficient
and it is in the interests of justice that it be sent back to the RPD for redetermination
by a different panel. These reasons should not be taken as supporting a view as
to whether the applicants are entitled to refugee status. That issue is
entirely in the province of the new RPD panel to consider.
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