Date: 20070604
Docket: IMM-4755-06
Citation: 2007
FC 589
Toronto, Ontario, June 4, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
WUALTER LIZCANO CONTRERAS
SOFI MARCELA CORTES LOZANO
NICOLE LIZCANO
LUIS EDUARDO LIZCANO CORTES
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
The following reasons, now edited for citations and grammar, were
delivered orally to the parties at the conclusion of the hearing of this
application for judicial review.
[1]
Mr. Wualter Lizcano Contreras (the Principal Applicant) and his wife and
children are citizens of Colombia who seek refugee protection in Canada. The family’s claim is based upon the claim of the Principal
Applicant who claims a fear of persecution at the hands of the Armed
Revolutionary Forces of Colombia (FARC). In a decision dated August 9, 2006, a
panel of the Refugee Protection Division of the
Immigration and Refugee Board (the Board) rejected the family’s claim. The
Applicants seek judicial review of that decision.
[2]
The decision of the Board dealt first with the
possible exclusion of the Principal Applicant from refugee protection pursuant
to Article 1F(a) of the United Nations Convention Relating to the Status of
Refugees. On that issue, the Board concluded that the Principal
Applicant was not excluded. This determination is not at issue in this judicial
review. The only issue before me is whether the Board erred in its conclusion
that the Applicants were not Convention refugees, pursuant to s. 96 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), or persons in need of
protection, under s. 97 of IRPA.
[3]
The determinative issue in this case is the adequacy of the
reasons. The question is one of procedural fairness,
reviewable on a correctness standard (Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392, 2005 FCA 404).
[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.
[5]
In the decision under review, the main focus of the Board on the
inclusion question was on the frequent returns to Colombia made by the
Principal Applicant. The Board made a number of specific findings that the
actions of the Principal Applicant showed a lack of subjective fear. However,
the Board fails to tie these individual findings to its overall conclusion or,
indeed, to make any determination on the well-foundedness of the Applicants’
fears. Rather, the Board, under a bolded heading, “CONCLUSION FOR INCLUSION”,
simply concludes as follows:
Having regard to the totality of
the evidence, the panel finds that the principal claimant does not have clear
and convincing proof that the state of Colombia is not able to protect the
principal claimant. The panel, therefore, finds that there is not a serious
possibility that the principal claimant will be harmed in Colombia, regardless
whether the alleged harm would amount to persecution, a risk to his life, cruel
and unusual treatment or punishment or torture.
[6]
There is no reference to the subjective component of the
Applicants’ fears. Does this mean that, in spite of the concerns about the
re-availments, the Board was prepared to conclude that there was subjective
fear? Or, was the conclusion of state protection an alternative finding? Try as
I might, I am unable to discern the basis of the Board’s decision.
[7]
On its face, the decision indicates that the determinative issue
for the Board was the availability of state protection. However, other than one
concluding sentence, there is absolutely no analysis of the state protection
issue. There is no other mention of the issue in the decision (or even at the
hearing). In short, the Board failed to
provide a clear basis for the reasoning behind its decision; in fact, there is
no basis whatsoever.
[8]
I agree with the Respondent that a lack of evidence going to the
subjective element of a claim is a fatal flaw in a claim for protection under
s. 96 of the IRPA (see, for example, Maqdassy v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 182; Kanyai v. Canada (Minister
of Citizenship and Immigration), 2002 FCT 850). However, this does not
relieve the Board of its obligation to provide adequate reasons and to state
clearly its conclusions. Nor, in this case, does it excuse the Board from
addressing the claims of the Applicants under s. 97 of the IRPA.
[9]
For these reasons, the application for judicial review will be
allowed and the matter remitted to a different panel of the Board for
reconsideration.
[10]
The parties did not propose a question for certification. I agree
that the issue in this case is not one of general importance. No question will
be certified.
ORDER
THIS COURT ORDERS that
1.
The application for judicial review is allowed.
2.
The decision of the Board is quashed and the matter remitted back to the
Board for determination by a different panel of the Board.
“Judith A. Snider”
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