Date: 20070213
Docket: IMM-3863-06
Citation: 2007 FC 160
Ottawa, Ontario, the 13th day of February 2007
PRESENT:
THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
MARGARETH VAVAL
MELISSA PIERRE
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision delivered
on May 29, 2006 by the Refugee Protection Division (RPD) of the Immigration and
Refugee Board (IRB) that Margareth Vaval (principal applicant) and her daughter
Melissa Pierre, both citizens of Haiti, were neither “refugees” within the
meaning of section 96 of the IRPA nor “persons in need of protection” under
section 97 of the IRPA.
I. Facts
[2]
The
principal applicant, a teacher, set up a foodstuffs business. The applicant
claimed that, as owner of this business, she met opponents of the existing
regime.
[3]
On July 7,
2005, she was allegedly the victim of a kidnapping attempt. She filed a
complaint with the police, but her efforts were in vain. Moreover, a police
officer advised her to cease contact with the opponents.
[4]
On July 9,
2005, the principal applicant received an anonymous call threatening her again.
On this date, she learned that armed men had broken into her business,
ransacked everything and murdered her sister, despite the fact that the police
station was only a few doors down from her business.
[5]
On July
15, 2005, the applicant’s husband disappeared.
[6]
On July
18, 2005, the principal applicant was allegedly threatened by an individual on
her way to work. Consequently, the applicant decided to leave Haiti
temporarily, leaving the task of finding her husband to her family.
II. Issues
(1) Did the RPD err in deciding
that the applicants are neither Convention refugees nor persons in need of
protection under section 97 of the IRPA?
(2) Did the RPD err in not
considering the issue of state protection or the problems that women in Haiti
face?
III. Analysis
(1) Did the RPD err in deciding
that the applicants are neither Convention refugees nor persons in need of
protection under section 97 of the IRPA?
[7]
Section 96
of the IRPA is clear. To be considered a Convention refugee, a refugee
claimant must have a well‑founded fear “…of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion”. The existence of a nexus between the alleged persecution
and one of the five grounds listed in the definition of “Convention refugee”
under section 96 of the IRPA is principally a question of mixed fact and law.
Mr. Justice Blanchard in La Hoz v. Canada (Minister of Citizenship and
Immigration), 2005 FC 762, [2005] F.C.J. No. 940 (QL), following a
pragmatic and functional analysis, found that the appropriate standard of
review for such an issue is reasonableness simpliciter. At paragraph 44
of La Hoz, supra, Blanchard J. states the following:
After
reviewing the criteria of the pragmatic and functional analysis, I find that,
with respect to determining whether there is a nexus between a refugee claim
and the persecution grounds under section 96 of the Act, the appropriate
standard of review is reasonableness simpliciter. This was Gibson J.’s
finding in Jayesekara v. Canada (Minister of Citizenship and Immigration),
2001 FCT 1014.
[8]
The
principal applicant argues that the acts to which she was subjected in Haiti
and her fears if she returned to Haiti are political in nature because, in the
context of
her business, she
did business with opponents of the existing regime. The RPD did not agree and
found that these acts and her fears if she returned to Haiti are not related to
her political opinion, but rather because she has money, or is believed to have
money. In other words, the RDP found that there was no nexus between the fears
alleged by the principal applicant and the five grounds set out in the
Convention. The RPD also found that the principal applicant was not a person in
need of protection under section 97 of the IRPA.
[9]
The RPD
decision was delivered orally. Oral decisions are not in and of themselves
problematic. That being said, procedural fairness requires that decision‑makers
provide adequate reasons to justify their decisions. In VIA Rail Canada Inc.
v. National Transport Agency et al., [2001] 2 F.C. 25 (C.A.), [2000] F.C.J.
No. 1685, the Federal Court of Appeal explained the obligation to provide
adequate reasons at paragraph 22:
[22] The obligation to provide adequate
reasons is not satisfied by merely reciting the submissions and evidence of the
parties and stating a conclusion…. Rather, the decision‑maker must set
out its findings of fact and the principal evidence upon which those findings
were based…. The reasons must address the major points in issue. The reasoning
process followed by the decision-maker must be set out…and must reflect
consideration of the main relevant factors….
This case was cited with approval by Mr. Justice Pinard in Zarghami
v. Canada (Minister of Citizenshp and Immigration), 2006 FC 151, [2006]
F.C.J. No. 215 (QL), to explain the obligation on the IRB to provide adequate
reasons. Based on VIA Rail Canada Inc., supra, and Zarghami,
supra, the RPD in this case had a duty to set out its findings of fact
and the principal evidence upon which those findings were based.
[10]
With
regard to the analysis involving section 96 of the IRPA, the RPD’s decision
appears to meet the duty of procedural fairness to provide adequate reasons.
However, the analysis of section 97 of the IRPA leaves something to be desired.
I will explain.
[11]
In this
case, the RPD, by limiting itself to stating the law, raises an issue of
procedural fairness. No references to the facts were made to contextualize the
legal process followed. In Anthonimuthu v. Canada (Minister of Citizenship
and Immigration), 2005 FC 141, [2005] F.C.J. No. 162 (QL), Mr. Justice
De Montigny states the following at paragraphs 51 and 52:
[51] The Applicant also contends that the Refugee Division
erred in not assessing her claim under section 97 of the IRPA, taking it for
granted that she must fail on the grounds of a risk to like [sic] or to a risk
of cruel and unusual treatment or punishment and danger to torture if she could
not establish a well‑founded fear of persecution. The Court has
repeated on a number of occasions that the analysis under section 97 is
different from the analysis required under section 96 and that claims made
under both sections therefore warrant separate treatment. The Court said,
in Bouaouni, supra, at paragraph 41:
It follows
that a negative credibility determination, which may be determinative of a
refugee claim under s. 96 of the Act, is not necessarily determinative of a
claim under subsection 97(1) of the Act. The elements required to establish
a claim under section 97 differ from those required under section 96 of the Act
where a well‑founder [sic] fear of persecution to a convention [sic]
ground must be established. Although the evidentiary basis may well be the same
for both claims, it is essential that both claims be considered as separate.
[52] The
only circumstance in which the Refugee Division may dispense with a separate
section 97 analysis is where there is absolutely no evidence that could support
a claim that a person is in need of protection: Soliemanian, supra,
at paragraph 22.
[Emphasis added.]
[12]
I am in
complete agreement with De Montigny J.’s observations. In this case, the RPD
had a duty to justify its finding that the principal applicant was not a
“person in need of protection” within the meaning of section 97 of the IRPA in
order not to breach the principles of procedural fairness. This was not done:
the decision of the RPD did not in any way show the legal reasoning followed to
come to the conclusion that the applicant was not a “person in need of
protection” under section 97 of the IRPA. The fact that the decision in this
case was an oral decision, reported in writing, does not justify the absence of
legal reasoning or the lack of an analysis applying the evidence and the facts to
the relevant legislative provisions. It seems to me that the RPD assumed that
its analysis of section 96 of the IRPA automatically applied to section 97.
These are separate issues of law that must be treated differently. This was not
the case in the analysis of section 97 of the IRPA.
[13]
The
appropriate standard of review for issues of procedural fairness is correctness
(Sketchley v. Canada (Attorney
General), 2005
FCA 404, [2005] F.C.J. No. 2056 (QL)). Since the duty of procedural fairness to
provide adequate reasons was breached in this case, I set aside in part the
decision of the RPD and refer the matter for a rehearing addressing the
applicability of section 97 of the IRPA to determine if the applicants are
“persons in need of protection”. It is therefore not necessary to address the
second issue.
V. Conclusion
[14]
Based on
the foregoing reasons, the Court’s intervention is warranted in this case, and
the application for judicial review is allowed in part.
[15]
The
parties were invited to submit a question to be certified but none was
submitted.
JUDGMENT
THE COURT
ORDERS THAT:
-
The
application for judicial review be allowed in part and the matter be referred
to another member of the RPD to address the issue of law arising from the
applicability of section 97 of the IRPA.
-
There is
no question to be certified.
“Simon Noël”
Certified true translation
Gwendolyn May, LLB
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