Docket: IMM-6854-13
Citation:
2015 FC 168
Ottawa, Ontario, February
10, 2015
PRESENT: The
Honourable Mr. Justice Shore
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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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TOMAS GABOR
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
This is a decision which could have been, in all
likelihood, positive to the Respondent; however, it was not adequate in its
articulation to grant refugee status to the Respondent. This is due to its
vagueness as it has no reference to the significant subjective and objective
evidence whatsoever.
[2]
The fragility or vulnerability of the human
condition of the Respondent appears evident from the credible evidentiary
record; however, the Refugee Protection Division [RPD] says nothing of significance
to demonstrate the encyclopaedia of references, the dictionary of terms, the
gallery of portraits and the harmony between the subjective and objective
evidence.
[3]
This decision is an editorial; thus, it is not a
reasonable decision with adequate reasons, be they even brief. A decision, to
be reasonable, must show, not tell; otherwise, the decision becomes an
editorial. Reasons, in a decision must describe, by the trier of fact, albeit
briefly, how the trier of fact reached a conclusion; that is not shown in this case.
The watch words must be: “show, don’t tell”.
II.
Background
[4]
This is an application for judicial review by
the Applicant Minister pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision dated September 6,
2013, wherein the RPD accepted the Respondent’s claim for refugee protection
under section 96 of the IRPA.
[5]
The Respondent is a 20-year old man of the Roma ethnic
group and citizen of the Czech Republic. The Respondent is deaf and
communicates through sign language.
[6]
The Respondent has been subjected to harassment
and verbal abuse on account of his Roma ethnicity. At the age of twelve, on his
way home from school, the Respondent was attacked, pushed and kicked to the
ground by skinheads.
III.
Impugned Decision
[7]
The RPD rendered its decision orally on
July 24, 2013 and issued written reasons on September 6, 2013.
[8]
The RPD’s analysis of the Respondent’s claim is
limited to five paragraphs.
[9]
First, relying on a letter provided by the
Respondent’s school principal, the RPD finds that the Respondent would not be
able to effectively access state protection in the Czech Republic because of
his intellectual and communicational difficulties.
[10]
Second, the RPD concludes that, “given that he is likely to face problems based on being Roma
and [m]any other issued, and this lack of the ability to access state
protection”, the Applicant is a Convention refugee under section 96 of
the IRPA (RPD Decision, at para 9).
IV.
Analysis
[11]
The issue central to the application is whether
the RPD’s decision is reasonable.
A.
Availability of State Protection
[12]
The jurisprudence establishes that in order for
a finding to be made under section 96 of the IRPA, a refugee claimant must
establish both a subjective and an objectively well-founded fear of persecution
(Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 [Ward]).
[13]
In assessing the availability of state
protection, the RPD is required to conduct a case-by-case analysis, on the
basis of the documentary evidence before it and having regard to a claimant’s
particular circumstances (Ward, above at p 724; Hinzman v Canada
(Minister of Citizenship and Immigration), 2007 FCA 171 at para 44 [Hinzman];
Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94
at para 36).
[14]
Moreover, the burden of proof which lies upon
claimants in rebutting the presumption of state protection is directly
proportional to the level of democracy in the country considered (Hinzman,
above at para 45; Kadenko v Canada (Minister of Citizenship and Immigration),
[1996] FCJ 1376).
[15]
Accordingly, the RPD is required to assess the
availability of state protection at the operational level. The RPD must not
only consider the practical effectiveness of measures taken by the state in
protecting its citizens, but also evidence of a claimant’s concrete efforts in
seeking such protection (E.Y.M.V. v Canada (Minister of Citizenship and
Immigration), 2011 FC 1364 at para 16; Lakatos v Canada (Minister of
Citizenship and Immigration), 2014 FC 785 at para 30; Kovacs v Canada
(Minister of Citizenship and Immigration), 2010 FC 1003 at para 66 [Kovacs];
Csurgo v Canada (Minister of Citizenship and Immigration), 2014 FC 1182
at para 26).
B.
Adequacy of Reasons
[16]
In determining the reasonableness of the RPD’s
decision, the Court is required to consider the RPD’s reasons “together with the outcome”, while serving “the purpose of showing whether the result falls within a range
of possible outcomes”. By corollary, the Court is required to show “respect for the decision-making process of adjudicative bodies
with regard to both the facts and the law” (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
para 14 [Newfoundland Nurses]; Juncaj v Canada (Minister of
Citizenship and Immigration), 2014 FC 1183 at para 5; Dunsmuir v New
Brunswick, [2008] 1 S.C.R. 190 at para 48 [Dunsmuir]).
[17]
Although, insufficiency of reasons is not, in
and of itself, a ground upon which a decision may be overturned, this Court has
found that the RPD’s reasons must nevertheless meet a minimal threshold:
[4] While the decision of the Board
should not be read hyper-critically, it must meet certain standards. If the
reasons for decision given by the Board are so inadequate that they fail to
provide a clear basis for the reasoning behind its decision, the decision will
be quashed (Hussain v. Canada (Minister of Employment and Immigration)
(1994), 174 N.R. 76 at paragraph 3 (F.C.A.)). As stated in Via Rail Canada
Inc. v. Canada (National Transportation Agency), [2001] 2 F.C. 25, (2000)
193 D.L.R. (4th) 357 at para. 22, "the reasoning process followed by the
decision-maker must be set out and must reflect consideration of the main
relevant factors". Most importantly, a rejected claimant (and this Court)
should be able to understand the reasons why the claim was rejected. In this
case, that is impossible.
(Contreras v Canada (Minister of Citizenship
and Immigration), 2007 FC 589 at para 4).
[18]
Moreover, notwithstanding the presumption that
the RPD considered the evidence as a whole, its burden of considering specific
evidence increases with the relevance of the evidence to the disputed facts (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ 1425 at
paras 15 and 17; Balogh v Canada (Minister of Citizenship and Immigration),
2014 FC 771 at para 48; Flores v Canada (Minister of Citizenship and
Immigration), 2008 FC 723 at para 15).
[19]
In Newfoundland Nurses, the Supreme Court
provides guidance in assessing the adequacy of reasons:
[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 [citation omitted]. 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. [Emphasis
added.]
(Newfoundland Nurses, above at
para 16).
C.
The Reasonableness of the RPD’s Decision
[20]
The RPD’s reasons are minimal, and rather
opaque. In determining the availability of state protection, the RPD failed to
adequately consider the evidentiary record before it in conjunction with
evidence attesting to the Respondent’s particular circumstances (Kovacs,
above at para 83). The RPD provides little – if any – guidance as to how it
came to its conclusion.
[21]
Mindful of the deference owed by this Court
towards the RPD’s decision and the Supreme Court’s reasoning in Newfoundland
Nurses, the Court finds that the requirements of adequacy of reasons and
overall reasonableness of the RPD’s decision have not been met (Canada
(Minister of Citizenship and Immigration) v Kornienko, 2015 FC 85 at para
28; Newfoundland Nurses, above at para 12).
[22]
Indeed, it is insufficient for a decision maker
to simply state a conclusion (Sketchley v Canada (Attorney General),
2004 FC 1151; Rolfe v Canada (Minister of Citizenship and Immigration),
2005 FC 1514; De Alvarez v Canada (Minister of Citizenship and Immigration),
2011 FC 1287). Similarly, Justice Douglas R. Campbell states in Buri v Canada (Minister of Citizenship and Immigration), 2012 FC 1538:
[5] In my opinion, in a forward looking
analysis of a claim under s. 96 and s. 97 it is first necessary to accurately
describe who it is and what it is against which protection is to be provided,
and then to determine whether the protection that is provided is, in fact,
adequate. In the present case, in reaching the conclusion that "there is
adequate state protection in Hungary", I find that the RPD's cursory
analysis of the issue certainly fails to meet this reasonable expectation.
V.
Conclusion
[23]
In light of the above, by failing to provide
minimal reasons and analysis in rendering its decisions, the RPD’s decision
fails to meet the requirements of justification, transparency and
intelligibility within the decision-making process (Dunsmuir, above; Newfoundland
Nurses, above at para 13; Canada (Citizenship and Immigration) v Khosa,
[2009] 1 S.C.R. 339).
[24]
The application for judicial review must
therefore be granted.
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