Docket: IMM-5479-13
Citation:
2014 FC 932
Ottawa, Ontario, October 1, 2014
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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GERGO BALOGH
(A.K.A. GERGOE BALOGH)
ADRIENN JUHASZ
JAZMIN LEILA BALOGH
MERCEDESZ ADRIE LIPTAI
(A.K.A. MERCEDESZ ADRIENN LIPTAI) GABOR JUHASZ
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review
brought by the Minister of Citizenship and Immigration [the applicant] under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the IRPA] of a decision by the Immigration and Refugee Board of Canada,
Refugee Protection Division [the RPD], dated July 31, 2013 (and rendered orally
on July 3, 2013), in which the RPD determined that Gergo Balogh, Adrienn
Juhasz, Jazmin Leila Balogh, Mercedesz Adrie Liptai, and Gabor Juhasz, [the respondents]
were Convention refugees.
[2]
In my opinion, this application for judicial
review should be allowed for the reasons set out below.
II.
Facts
[3]
The respondents arrived in Canada on November 21, 2010, and applied for refugee protection the same day on the basis of well
founded fear of persecution in Hungary on account of their Roma ethnicity.
[4]
Gergo Balogh was the principal claimant [PC]. The claims of Adrienn Juhasz (the PC’s spouse), Gabor Juhasz (the
PC’s brother-in-law), Jazmin Leila Balogh and Mercedesz Adrie Liptai (the PC’s minor
children) were joined to the PC’s claim pursuant to Rule 55 of the Refugee
Protection Division Rules, SOR/2012-256.
[5]
The RPD heard the respondents’ refugee
protection claim on July 3, 2013 in Toronto and rendered its oral decision and
reasons on the same day. Written reasons are dated July 31, 2013.
III.
Decision under Review
[6]
The respondents’ identities were established
through a certified copy of their passports.
[7]
The RPD found the respondents all testified in a
consistent manner, although it also found them to be “somewhat
credible”. Some inconsistencies were noted, but none of which were
considered enough to impugn their testimonies.
[8]
The RPD noted the existence of a presumption of state
protection, except in situations where the State is in a complete breakdown.
The RPD also noted that the respondents had the burden, on a balance of
probabilities, of rebutting the presumption of state protection by adducing clear
and convincing evidence.
[9]
The RPD noted that while the effectiveness of
the protection is a relevant consideration, the test for a finding of state
protection is whether the protection is adequate rather than effective per
se. In other words, the state protection does not need to be perfect.
[10]
In determining the adequacy of state protection,
the RPD noted the importance of considering whether a legislative and
procedural framework exists to that effect, as well as whether the State,
through the police or other authorities, is able and willing to effectively
implement that framework. The RPD also noted that failures by the local authorities
to provide protection do not amount to failure by the State as a whole.
[11]
The RPD noted that the burden of rebutting the
presumption of state protection is directly proportional to the degree of
democracy in that State. The RPD then noted that, based on the evidence before
it: Hungary is a democracy; has free and fair elections; a relatively independent
and impartial judiciary; is in control of its territory; has a functioning
security force to uphold the laws and constitution in place; and was not in a
state of complete breakdown. The RPD noted the existence of a new Fundamental
Law, as well as more than twenty new Cardinal Laws that “gave
rise to concerns” that the country’s democratic institutions could be
undermined, but concluded that there was no persuasive evidence to show that
Hungary was not a democracy, and that any parts of the new legislation that do
not comply with the basic tenets of the European Union could be challenged.
[12]
However, the RPD found that, in this case, the
respondents were persecuted in Hungary on the basis of the cumulative acts of
discrimination directed at them, and that the respondents had rebutted the
presumption of state protection.
[13]
The RPD concluded that, “[h]aving
considered all the evidence and Counsel’s submissions” as well as case
law, the respondents were Convention refugees.
IV.
Issue
[14]
This matter raises the following issue: did the
RPD err by failing to provide adequate written reasons on the issue of state
protection, and as to how it concluded that the respondents experienced
persecution?
V.
Standard of Review
[15]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question”.
[16]
In Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 14, 22 [Newfoundland
Nurses], the Supreme Court of Canada held that the adequacy of reasons is
not a stand-alone basis for quashing a decision and that any challenge to the
reasoning/result of a decision should therefore be made within the
reasonableness standard of review.
[17]
In Dunsmuir at para 47, the Supreme Court
of Canada explained what is required of a court reviewing on the reasonableness
standard of review:
[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.
[18]
In Newfoundland Nurses at para 16, the
Supreme Court explained what is required of a tribunal’s reasons in order to
meet the Dunsmuir criteria:
[16] Reasons may not include all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either the
reasons or the result under a reasonableness analysis. A decision-maker is not
required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion (Service Employees’
International Union, Local No 333 v Nipawin District Staff Nurses Assn.,
[1975] 1 S.C.R. 382, at p 391). In other words, if the 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,
the Dunsmuir criteria are met.
VI.
Submissions of the Parties and Analysis
[19]
Section 169 of the IRPA requires that the RPD
gives reasons for the disposition of all claims:
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Decisions and reasons
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Décisions
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169. In the case of a decision of a
Division, other than an interlocutory decision:
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169. Les dispositions qui suivent
s’appliquent aux décisions, autres qu’interlocutoires, des sections:
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(a) the decision takes effect in
accordance with the rules;
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a) elles prennent effet conformément aux
règles;
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(b) reasons for the decision must be
given;
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b) elles sont motivées;
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(c) the decision may be rendered orally
or in writing, except a decision of the Refugee Appeal Division, which must
be rendered in writing;
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c) elles sont rendues oralement ou par
écrit, celles de la Section d’appel des réfugiés devant toutefois être
rendues par écrit;
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(d) if the Refugee Protection Division
rejects a claim, written reasons must be provided to the claimant and the
Minister;
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d) le rejet de la demande d’asile par la
Section de la protection des réfugiés est motivé par écrit et les motifs sont
transmis au demandeur et au ministre;
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(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
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e) les motifs écrits sont transmis à la
personne en cause et au ministre sur demande faite dans les dix jours suivant
la notification ou dans les cas prévus par les règles de la Commission;
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(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.
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f) les délais de contrôle judiciaire
courent à compter du dernier en date des faits suivants : notification de la
décision et transmission des motifs écrits.
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[20]
Accordingly, this Court has held that a refugee
claimant, the Minister, and the public at large equally have the right to know
the reasons for which a claim was or was not allowed (see Canada (Minister
of Citizenship and Immigration) v Shwaba, 2007 FC 80 at para 23; Canada
(Minister of Citizenship and Immigration) v Mokono, 2005 FC 1331 at para
14).
[21]
In VIA Rail Canada Inc v Canada (National Transportation Agency) (2001), 193 DLR (4th) 357 at paras 17-20, the
Federal Court of Appeal listed some of the beneficial purposes served by
reasons:
[17] … 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.
[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.
[20] Finally, in the case of a regulated
industry, the regulator's reasons for making a particular decision provide
guidance to others who are subject to the regulator's jurisdiction. They
provide a standard by which future activities of those affected by the decision
can be measured.
[22]
The applicant submits that the RPD’s reasons
fail to address the issue of state protection and articulate how the
discrimination that the respondents experienced amounts to persecution, thus
rendering the decision unreasonable for lack of justification, transparency and
intelligibility.
[23]
The respondents submit that the RPD provided
adequate reasons, addressed the issue of Hungary as a democracy, articulated
the evidence of the claimant on which it relied, considered evidence of
Hungary’s ability to protect (contrary and otherwise), and sufficiently
analyzed the issue of persecution.
A.
Adequacy of reasons regarding state protection
[24]
The respondents submit, and I agree, that “the starting point for the inquiry in respect of an argument
regarding the impact of failure to mention key evidence is that the reviewing
court must presume that the tribunal considered the entire record” (see Herrera
Andrade v Canada (Citizenship and Immigration), 2012 FC 1490 at para 11).
[25]
The respondents also correctly submit that the
RPD is not required to comment on every piece of evidence in the record (see Newfoundland
Nurses at para 16) and that its duty to expressly refer to evidence that
contradicts its key findings does not apply where the contrary evidence in
question is only general country documentary evidence (Salazar v Canada
(Citizenship and Immigration), 2013 FC 466 at para 59; Quinatzin v
Canada (Citizenship and Immigration), 2008 FC 937 at para 29-30).
[26]
However, in Navarrete Andrade v Canada (Citizenship and Immigration), 2013 FC 436 at para 28 this Court held:
[28] The Board must actually analyse the
evidence it references and consider how that evidence relates to the issue of
state protection. It is insufficient to merely summarize large volumes of
evidence and then state a conclusion that state protection is adequate. The
evidence and the conclusion must be connected with a line of reasoning that is
transparent and intelligible.
[27]
I agree with the applicant. It is not evident
from the RPD’s reasons that it turned its mind to key issues such as how the
respondents rebutted the presumption of state protection with clear and
convincing evidence. This is because the RPD did not reference any basis for
its conclusion; the RPD simply stated it had concluded that the respondents “have rebutted the presumption of protection in their personal
circumstances”.
[28]
There is no doubt that the RPD recited a great
deal of relevant law in connection with the doctrine of state protection. However,
the critical failure was to leap from that legal summary to the conclusion that
the presumption of state protection was rebutted. It is simply not possible for
this Court to determine how that result was obtained. This is not a case where
the Court can fill in the dots. Rather it is a case where there are no dots to
fill in.
[29]
It is not the duty of this Court is to review
the (conflicting) evidence on State protection and make its own determination. This
is judicial review, not a hearing de novo. Given the very serious
deficiency in these reasons, I am compelled to conclude that this decision does
not meet the tests of Dunsmuir and Newfoundland Nurses. There is
an analytical vacuum in that the reasons lack the necessary elements of justification,
transparency and intelligibility.
B.
Adequacy of reasons regarding discrimination
amounting to persecution
[30]
I also agree with the applicant that the RPD
erred by failing to substantiate its conclusion that the cumulative acts of
discrimination directed at the respondents amounts to persecution. The RPD
failed in its duty to conduct a careful analysis of the evidence adduced and a
proper balancing of the various elements contained therein. As held by the
Federal Court of Appeal in Sagharichi v Canada (Minister of Employment &
Immigration) (1993), 182 NR 398 at para 3:
It is true that the dividing line between
persecution and discrimination or harassment is difficult to establish, the
more so since, in the refugee law context, it has been found that discrimination
may very well be seen as amounting to persecution. It is true also that the
identification of persecution behind incidents of discrimination or harassment
is not purely a question of fact but a mixed question of law and fact, legal
concepts being involved. It remains, however, that, in all cases, it is for
the Board to draw the conclusion in a particular factual context by proceeding
with a careful analysis of the evidence adduced and a proper balancing of the
various elements contained therein, and the intervention of this Court is
not warranted unless the conclusion reached appears to be capricious or
unreasonable. [Emphasis added]
[31]
The RPD’s conclusion is not supported by any
analysis or balancing of factors.
[32]
This Court has repeatedly stated that a failure
to provide any real explanation as to why the cumulative actions do not amount
to persecution is a reviewable error (Hegedüs v Canada (Citizenship and
Immigration), 2011 FC 1366 at para 2).
[33]
In Mbo Wato v Canada (Citizenship and
Immigration), 2012 FC 1113 at para 20, this Court held that the standard
set forth in Newfoundland Nurses was not met where there was a gap in
the reasoning, at a critical juncture, such that it is unclear as to how and
why the conclusion was reached.
[34]
The applicant rightly refers to Canada (Public Safety and Emergency Preparedness) v Ramirez, 2013 FC 387 at para 36
and Ralph v Canada (Attorney General), 2010 FCA 256 at paras 17-19 to
the effect that:
[36] … the reasons for decision must
contain enough information about the decision and its bases so that, first, a
party can understand the basis for the decision and decide whether or not to
apply for judicial review, and second, the supervising court can assess,
meaningfully, whether the panel met minimum standards of legality. A decision
is therefore justified and intelligible when its basis has been given and the
basis is understandable, with some discernable rationality and logic.
[35]
In Komolafe v Canada (Citizenship and
Immigration), 2013 FC 431 at para 11 this Court held:
[11] Newfoundland Nurses is
not an open invitation to the Court to provide reasons that were not given, nor
is it licence to guess what findings might have been made or to speculate as to
what the tribunal might have been thinking. This is particularly so where the
reasons are silent on a critical issue… Newfoundland Nurses allows
reviewing courts to connect the dots on the page where the lines, and the
direction they are headed, may be readily drawn. Here, there were no dots on
the page.
[36]
In my opinion, these principles are directly
applicable to the present case and support my conclusion that the RPD’s
decision was unreasonable for lack of justification, transparency and
intelligibility in this respect as well. The RPD’s reasons do not allow either the
Court, the parties, or the public to understand why the tribunal made its
decision, nor do they allow one to determine whether the conclusion is within
the range of acceptable outcomes without guessing what finding might have been
made or speculating as to what the RPD might have been thinking.
[37]
The Dunsmuir and Newfoundland Nurses
criteria have not been met.
VII.
Conclusion
[38]
The application for judicial review must
therefore be allowed. The RPD’s decision is set aside and the matter is
remitted for re-determination by a differently constituted panel of the RPD. There
are no costs. Neither party requested the certification of a question, nor is
there a question of general importance to certify.
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