Date: 20101116
Docket: IMM-2365-10
Citation: 2010 FC 1145
Ottawa, Ontario, November 16,
2010
PRESENT: The Honourable Mr. Justice Phelan
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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BAO SHENG XU
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
This
is a judicial review filed by the Minister of Citizenship and Immigration in
respect of a “ship jumper” from China. The Immigration and
Refugee Board (Board) granted his refugee claim.
II. BACKGROUND
[2]
Xu
claimed to have been persecuted because of his Christian faith. In 2004 the
police alleged that Xu was engaged in illegal Christian activity and he was
required to report to the police monthly. When his employer learned of the
police involvement, he was fired and he claimed that no one would hire him.
[3]
Xu
apparently got a job as a seaman through family connections. He obtained a
passport despite his problems with the police and left China on a ship in
April 2005.
[4]
The
Respondent admits that he came to Canada four times before he
jumped ship. He had also gone to the U.S., South Korea and even China – although
re-availment was not pleaded.
[5]
Having
arrived in Canada in 2005, it
was not until April 2007 that he filed for refugee status and was baptized a
Christian.
[6]
There
was a litany of inconsistencies in his evidence but the Board found him to be
credible. His refugee claim was granted.
III. ANALYSIS
[7]
The
issues raised were a) whether the Board had failed to provide adequate reasons;
and b) whether the Board erred in making unreasonable findings on key issues.
[8]
As
the Court finds that the reasons were inadequate, there is no need to answer
the second issue although the Court has reservations concerning this issue as
well.
[9]
The
issue of adequacy of reasons is a matter of procedural fairness and as such is
subject to the correctness standard of review. With respect to the second
issue, the standard as it relates to findings of fact based on credibility is reasonableness
overlayed with deference owed to the Board.
[10]
The
judicial policy basis for the requirement of adequate reasons includes allowing
the parties to know the underlying rationale for the decision, to determine
whether to take further steps in the case, and to maintain a level of
transparency and intelligibility sufficient to ensure jurisdiction, fairness
and legality. Justice Lemieux in Thanabalasingham v. Canada (Minister of
Citizenship and Immigration), 2005 FC 172, at para. 81, held:
81 This is the way Justice Hugessen,
then a member of the Federal Court of Appeal, expressed himself in Mehterian
v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545:
Subsection
69.1(11) of the Immigration Act [R.S.C. 1985, c. 1-2.] requires that the
Refugee Division "give written reasons" for any decision against the
claimant. If this obligation is to be met, the reasons must be sufficiently
clear, precise and intelligible that the claimant may know why his claim has
failed and decide whether to seek leave to appeal, where necessary.
…
See also Canada (Minister of
Citizenship and Immigration) v. Koriagin, 2003 FC 1210, at para.
5:
5 To
fulfil the obligation under 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, where applicable should the decision be appealed, to
allow the Court to satisfy itself 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).
[11]
The
benefit of the rule is as applicable to an applicant for refugee status as it
is to the Minister. This is not a one way right.
[12]
The
determination of adequacy of reasons depends on the particular facts of the
case and must be assessed in light of the entire record. The requirement is for
“adequate” not “perfect” reasons.
[13]
In
this instance the reasons are deficient and lacking in analysis. The reasons
fail to address any of the compelling and contradictory evidence before the
Board. The following are merely examples of the problems with this decision.
[14]
The
Board failed to analyse the credibility and identity concerns of the Minister
and their impact on the finding of truthfulness. These can be summarized as the
failure to address significant discrepancies between the CIC interview, the
Respondent’s PIF and the hearing testimony.
[15]
The
Board reached inconsistent conclusions as to Xu’s fate upon return to China. First, the
Board held that he would be arrested and then it held that it was unclear
whether he would be arrested.
[16]
The
Board held that Xu was a Convention refugee in part because of his political
opinion and then concluded that it was unclear whether he would be considered a
political opponent.
[17]
The
Board merely said “the documents make it clear …”, with respect to the police
potentially arresting, detaining and torturing Xu without due process, but did
not refer to any of the contradictory evidence within the same documents.
[18]
There
is no analysis of the IFA finding but simply a conclusionary statement that IFA
was not available. There was no attempt to address the fact that it was only
the local police who had posed a problem; the absence of evidence that the
police were likely to pursue him; the failure to consider that Xu had returned
to China at least once with no problem and that he had never tried to relocate
to another part of China before he signed on as a sailor.
[19]
Taken
as a whole and without microscopic examination, the Board’s reasons are
inadequate.
IV. CONCLUSION
[20]
Therefore
this judicial review is allowed, the Board’s decision is set aside and the
matter is to be referred back to the Board for a new determination by a
differently constituted panel.
[21]
There
is no question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is allowed, the
Board’s decision is set aside and the matter is referred back to the Board for
a new determination by a differently constituted panel.
“Michael
L. Phelan”
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