Docket:
IMM-10936-12
Citation: 2014 FC 366
Ottawa, Ontario, this 16th
day of April 2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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NASREEN IMTIAZ
and
IMITIAZ AHMED
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Applicants
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And
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THE MINISTER OF CITIZENSHIP
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AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR ORDER AND ORDER
[1]
The respondents in this case applied to the
Refugee Protection Division of the Immigration and Refugee Board (the “RPD”)
for the purpose of vacating a decision made to allow the applicants their claim
for refugee protection. The RPD, in a decision released on September 22, 2012,
concluded that the decision to allow the claim for refugee protection had to be
vacated.
[2]
It is from that decision of the RPD that
judicial review is sought, in accordance with section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the “Act”). For the reasons that
follow, I believe it would be safer to return the matter to the Refugee
Protection Division for a redetermination of the matter.
[3]
It is not disputed that the standard of review
is that of reasonableness. That, in turn, calls for a measure of deference.
However, the role of the reviewing court is not to substitute its view of the
matter or to conduct its own examination of the evidence for the purpose of
making a determination. In Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190, the Supreme Court of Canada described thus the role of the Court:
[47] …
A court conducting a review for reasonableness inquires into the qualities that
make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes. In judicial review, reasonableness is concerned mostly
with the existence of justification, transparency and intelligibility within
the decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[4]
An examination of the decision made by the RPD
leaves one wondering what exactly happened. The only thing that is clear is
that there is a lack of clarity around the identity of the applicants. However,
the record also reveals that was disclosed to the authorities, shortly after
their arrival in Canada, that the applicants had travelled on false
documentation. If it is right that the determining issue in the case is
“whether the decision to allow the claims of the respondents for refugee
protection resulted from, directly or indirectly, misrepresenting the identity
of Mrs. Nasreen Imtiaz as well as the real situation of Mr. Imitiaz Ahmed,
or from withholding material facts relating to her identity and to his personal
situation” one would have expected the RPD to explain why the disclosure of the
use of false identification documents did not suffice.
[5]
Instead, we are confronted to a convoluted
explanation about the possibility that the female applicant would in fact be a
British citizen. To put it plainly, the decision under review does not have the
features of intelligibility and justification required in the decision-making
process. At the end of the day, the test as described in Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708, requires that reasons “allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes …” (at paragraph
16).
[6]
In the case at bar, I have found it impossible
to come to that understanding. Obviously, the issue raised before this panel of
the RPD is that of the identity of the applicants. The decision of the RPD
which was to be vacated found the following: “their identities are supported by
several documents, including a passport from Madam, national identity cards,
marriage certificate and a family registration certificate. They have also
presented documents which confirm both their professional background of Mrs.
Imtiaz and, documents as well confirming their legal difficulties in Pakistan.” The panel that concluded that the initial decision had to be vacated never
referred to that evidence nor, for that matter, the affidavit of March 21,
2005, about a month after the arrival of the applicants, in which was disclosed
that they had travelled on false documents.
[7]
Having reviewed the record carefully, heard the
parties and reviewed the record again, I am still confused. The decision of the
RPD did not assist in clarifying the situation.
[8]
In the circumstances, I conclude that the
decision under review lacks the features required in order to conclude that it
is reasonable. In my view, the matter has to be sent back for a redetermination
by a different panel. A more systematic attempt at explaining the
identification discrepancies should be made by the respondent and the
applicants would be expected to provide a clear explanation of the
circumstances surrounding their arrival in Canada on February 18, 2005.
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