Date: 20110708
Docket: IMM-6089-10
Citation: 2011 FC 847
Ottawa, Ontario, July 8,
2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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SHAMDAI MOHAN
RUPAN MOHAN
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Although
I am not convinced that the Immigration and Refugee Board unreasonably rejected
the applicants’ application for refugee protection, I cannot find that its section
96 analysis addressed the whole of the application or constituted adequate
reasons. As such, I will allow this application.
[2]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) of the decision
rendered orally on July 28, 2010
with written reasons to follow on September
10, 2010, of the Refugee Protection Division of the Immigration and Refugee
Board in Toronto, rejecting
the applicants’ claim for protection as a Convention Refugee.
BACKGROUND
[3]
The
principal applicant, Ms. Shamdai Mohan and her former common-law spouse, Rupan
Mohan are citizens of Guyana. They owned 110 acres of land, 51 of which
bordered the Buxton, a predominantly Afro-Guyanese village. The applicants are
Indo-Guyanese and allege fear of persecution at the hands of the Afro-Guyanese
community. They claim that their livestock were stolen, mistreated and killed due
to their Indian ethnicity and in 2005, their house was set afire. In 2006, the
principal applicant’s husband was robbed at gunpoint by two Afro-Guyanese men. The
principal applicant was robbed and threatened while on a bus with other
individuals of Indo-Guyanese descent.
[4]
The
principal applicant came to Canada on a number of different occasions for
vacations: August to September 2000, August to September 2003 and March to
April 2005. In 2003, the principal applicant applied for permanent residence as
an economic class immigrant but the application was refused. The applicants then
arrived in Canada on July 11,
2007 and filed claims for refugee protection on September 9, 2007.
DECISION UNDER REVIEW
[5]
The
Board made a negative finding relating to the applicants’ subjective fear. This
was because their lives had been threatened and their property damaged for 10
years yet they returned to Guyana after each visit to Canada. The Board
also found that there was no nexus between the harm feared by the applicants
and the Convention grounds. It determined that the risk they faced was generalized
crime faced by other citizens in Guyana. As such, the Board
held that the applicants did not meet the criteria for refugee protection as
set out under sections 96 and 97 of the IRPA.
ISSUES
[6]
This
application turns on whether the Board erred in failing to provide adequate
reasons for determining that there was no nexus to one of the Convention
grounds.
ANALYSIS
Did the Member err in failing to provide
adequate reasons for determining that there was no nexus to one of the
Convention grounds?
[7]
It
is well established that “adequate reasons are those that serve the functions
for which the duty to provide them was imposed”: Via Rail Canada Inc. v.
National Transportation Agency (C.A.), [2001] 2 F.C. 25, [2000] F.C.J. No.
1685 (QL) at para. 21. In the administrative law context, the purpose for
providing reasons includes: fairness to the parties, justification,
transparency and intelligibility: Vancouver International Airport Authority
v. Public Service Alliance of Canada, 2010 FCA 158, 9 Admin. L.R. (5th)
79 at para. 13, citing Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 43 and Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47. With that said, there is no
obligation on the part of an administrative decision-maker to “write reasons on
arguments that,
in light of the record and the governing law, have no hope of success”: Ralph
v. Canada (Attorney General), 2010 FCA 256, 410 N.R. 175 at para. 19. Failure
to provide adequate reasons is an error of law and thus no deference is
afforded by this Court when reviewing decisions of boards or tribunals for this
purpose: Via Rail, above, at para. 33.
[8]
The
applicants allege that the Board’s section 96 analysis provided insufficient
reasons for determining that there was no nexus to one of the Convention
grounds. Section 96 reads as follows:
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96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
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96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
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(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
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a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
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(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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b) soit, si elle n’a pas de nationalité
et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
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[9]
The
Board’s analysis on nexus is located at paragraphs 9-11 of its decision:
[9]
The determinative issue in this section 96 analysis is nexus. That is, whether
the harm feared by yourself has any connection to one of the Convention
grounds. I find that it does not.
[10]
The activity which you fear is a criminal activity. The Federal Court has held
that victims of crime, corruption or vendettas generally fail to establish a
link between their fear of persecution and one of the Convention grounds and
the Board has been upheld in its finding of lack of nexus, where the claimant
was a target of a personal vendetta or where the claimant was a victim of
crime.
[11]
You fear criminals and criminal acts. Your fear in this case is not linked to
race, religion, nationality, political opinion, or membership in a particular social
group. Therefore, I find that you are victims of crime which does not provide
you with a link to a Convention ground. As a result, your claims must fail
under section 96 of the IRPA. However, a separate analysis under
section 97 of the IRPA follows. [References omitted.]
[10]
I
agree with the applicants that this analysis is neither substantiated nor a
reflection of the evidence submitted. In particular, it does not discuss the
principal applicant’s Personal Information Form (“PIF”) wherein she explicitly
refers to the ethnic divide in Guyana between Indo and Afro Guyanese communities:
Regrettably,
the Guyanese population remains extremely divided on ethnic-racial grounds,
involving both the Indo-Guyanese or those of east-Indian/Hindu ethnic
background and the Afro-Guyanese or those of the
African/Christian background. This particular set of circumstances has caused
our family and I, including our children, serious difficulties and conflicts
such as various incidents of targeting, mistreatment, abuse and a kidnapping
threat against my daughter.
[…]
While
residing in Guyana, where we operated a 51-acre dairy farm,
we were often targeted by members of the Afro-Guyanese community and, as a
result, we faced multiple attacks and incidents of robbery, abuse and damage to
our property. [Underlining in original.]
[11]
It
also fails to address why the incidents of threats and violence have no
connection to the applicants’ ethnicity. Their refugee claim was based on fear
of crime because of their wealth, and as a result of their membership in
the Indo-Guyanese community.
[12]
The
Board was correct to note that victims of crime, corruption or vendettas
generally fail to establish a link between their fear of persecution and one of
the Convention grounds. However, this Court has also held that being the victim
of a private vendetta and being a Convention refugee are not necessarily mutually
exclusive: Pepa v. Canada (Minister of Citizenship and Immigration), 2002 FCT 834, 222
F.T.R. 315 at paragraph 9. As the claim was based largely on the applicants
ethnicity as members of the Indo-Guyanese community, the Board ought to have
discussed why, or in what way, the criminality they faced was not due to their
membership in that particular group. Because it failed to do this, its reasons
cannot be held to be adequate.
[13]
No
questions were proposed for certification and none will be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted and
the matter is remitted for reconsideration by a differently constituted panel
of the Refugee Protection Division of the Immigration and Refugee Board. No
questions are certified.
“Richard
G. Mosley”
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