Date: 20081006
Docket: IMM-783-08
Citation: 2008 FC 1120
Toronto, Ontario, October 6,
2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
NAI
QIANG ZHANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is a case of a poorly drafted motion to reopen a refugee claim being answered
by an equally poorly drafted response.
[2]
For
the reasons that follow, I am granting the application for judicial review and
am quashing the decision of the Refugee Protection Division dated January 29,
2008, which dismissed the Applicant’s application to reopen his claim for
refugee protection.
BACKGROUND
[3]
The
Applicant is a citizen of China who arrived in Canada from Hong Kong on April 1,
2005. A few days later he claimed refugee protection. He claimed to fear
persecution by the Public Security Bureau police force of China on account
of his membership in an underground Christian church. His claim was rejected
on April 12, 2006, on the basis that he had not clearly established his
identity as a resident of mainland China. No application for leave
and judicial review of that decision was submitted.
[4]
During
the hearing there was friction between the Member and the Applicant’s counsel
over the Member’s treatment of an original document. The Member used a
highlighter to mark a passage that she wished the translator to draw to the
Applicant’s attention. Counsel objected that the member was “defacing” the
document. A formal complaint was subsequently lodged with the Board concerning
the Member’s conduct. The complaint was made prior to the Member’s decision on
the claim.
[5]
The
Applicant, several months after the Member’s decision, applied for travel
documents from the Chinese embassy. When these were granted, he applied to
re-open his claim under Rule 55 of the Refugee Protection Division Rules
SOR 2002/228. He was of the view that this new evidence established his
identity as a citizen of mainland China. Clearly, he wished to
have his refugee claim heard on the merits.
[6]
The
application to re-open was dismissed with no formal reasons. The endorsement
on file, dated January 20, 2008, reads as follows:
Counsel (sic) request
for a re-opening is denied. Counsel is aware that the claimant must establish
his or her identity which according to the member who presided on this claim
was not established. Furthermore the claimant could have sought leave with the
Federal Court but chose not to. Motion denied.
ISSUE
[7]
The
Applicant in his memorandum submitted that the issue for determination was whether
the Board erred in failing to provide written reasons for its decision. While
that issue was dealt with by counsel and will be discussed below, in light of
the oral submissions made to the Court, the real issue for determination is
whether the reasons that were provided were sufficient at law.
ANALYSIS
[8]
The
Applicant submitted that the Board failed to comply with subsection 169(b) of
the Immigration and Refugee Protection
Act, S.C. 2001, c.27 which requires
that written reasons be given except in interlocutory matters. He submits that
the decision not to reopen is a final, not an interlocutory decision.
Subsection 169(b) reads as follows:
|
169. In the case of a decision of
a Division, other than an interlocutory decision:
(a)
(…)
(b) reasons for the
decision
must be given;
|
169. Les
dispositions qui suivent s’appliquent aux décisions, autres
qu’interlocutoires, des sections :
a) (…)
b) elles sont motivées;
|
It is further submitted that the endorsement
on the file cannot be construed as reasons.
[9]
The
Respondent submits that the endorsement on the file does form a part of the
decision and does constitute written reasons. It is submitted that while
brief, the endorsement informed the Applicant of the reasons for rejecting his
application to re-open his claim. The Respondent relies on the decision of the
Supreme Court of Canada in R. v. Sheppard, [2002] 1 S.C.R. 869, and in
particular paragraphs 33, 46 and 53, as standing for the proposition that the
requirement for reasons is to be given a functional and purposeful approach.
The function and purpose of reasons, it is asserted, is to inform the parties
that the issues have been considered and permit them to effect any right of
appeal or judicial review. It is submitted that the endorsement meets both
these requirements.
[10]
Justice
Simpson in Shahid v. Canada (The Minister of Citizenship and Immigration),
2004 FC 1607, held that a decision of a Board member dismissing an application
to reopen a refugee claim is a final decision, thus reasons are required
pursuant to subsection 169(b) of the Act. Justice Mosley came to the contrary
view in Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC
1153 and Vranici v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1417. While I am of the view
that Justice Simpson’s analysis is correct and that a decision not to reopen is
a final decision, I am also of the view that little turns on a determination of
whether the decision is final or interlocutory. Reasons are required
regardless of the characterization of the decision. Justice Mosley in Ali and
Vranici held that given the importance of the decision not to reopen,
which effectively ends an applicant’s refugee claim, “some form of written reasons
must be provided to the applicant”.
[11]
I
agree. Further, in my view, the endorsement constitutes the reasons for the
decision under review. It is for this reason that I am of the view that the
real issue for determination is whether or not the endorsement constitutes sufficient
reasons for dismissing the application. That, in turn requires an analysis of
the basis of the request to reopen the claim.
[12]
The
Rule 55 application to reopen was set out in a letter from counsel and
accompanied by an affidavit from the Applicant. Counsel did not specify
precisely the grounds on which she was seeking to reopen the claim. She wrote:
“The claimant is now applying to re-open the case on the following grounds:…”.
She then wrote 11 paragraphs that discuss the RPD’s decision, the evidence
before it, the conduct of the Member regarding the highlighting of a document, and
the new evidence proving the Applicant’s identity, that is, the Chinese travel
documents he had obtained. She concluded with this statement: “Since the
Board did not hear any evidence on the merits of the Refugee Claim, having made
a decision that the claimant was not a National of China, it is respectfully
submitted that the claim be re-opened so that the Refugee Division may assess
the claim on its merits”.
[13]
It
is impossible to determine with any degree of certainty exactly what grounds were
being advanced as the basis for the application to reopen. It appears that the
Member who dismissed the application to reopen was of the view that the only
ground being advanced was the existence of new evidence to establish the
Applicant’s identity, as this is all that was addressed in the endorsement.
[14]
If
that was the sole ground being advanced in support of the application to
reopen, the endorsement of the Member is unsatisfactory for two reasons.
First, it has been held that the Board may only reopen a claim under Rule 55 if
there has been a breach of procedural fairness: see Krishnamoorthy v.
Canada (Minister of Citizenship and Immigration), 2005 FC 237, in addition
to the cases cited above. The claim that there was new evidence was not an
allegation that procedural fairness had been denied. Accordingly, if that was
the sole basis for the application to reopen, the Member ought simply to have indicated
that the existence of new evidence was not grounds to reopen the claim.
[15]
This
then leads to the second reason why the endorsement is unsatisfactory. The
endorsement says no more than what the Applicant already knew, namely that he
had to establish his identity, and that he had not done so to the satisfaction
of the Member at the hearing. None of this tells the Applicant why his new
evidence was not sufficient to reopen his claim. The endorsement also states
that the Applicant could have sought leave of this Court but did not do so. If
this was meant to inform the Applicant that his claim could not be reopened
because he failed to seek leave to review the decision, it is in error. A
claim may be reopened by the RPD if there has been a breach of procedural
fairness regardless of whether the original decision was reviewed by this Court
or not.
[16]
The
Supreme Court
in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 43, said that reasons,
in an administrative context, are a “written explanation for a decision”. In
the context of this case, the question to be asked, if the request was simply
to reopen to consider the new evidence, is: ‘Does the endorsement provide the
Applicant with an explanation of why this new evidence was insufficient to
reopen his claim?’ In my view, there can be no question that the endorsement
provides no explanation at all as to why the claim could not be reopened in the
face of new evidence. It does not provide insufficient reasons – it provides
no reasons at all.
[17]
On
this basis alone, the application to quash must be allowed.
[18]
However,
it is my view that the application to the Board to reopen the claim did rely on
more than the simple allegation that there was new evidence – it also relied,
in material part, on the conduct of the Member. The motion raised an issue of
procedural fairness and natural justice which, if founded, would require that the
Board reopen the claim.
[19]
I
have previously noted that the letter from counsel, while describing the dispute
with the original Member over the marking of the document, does not clearly allege
that there was a breach of procedural fairness. However, in my view, the Applicant’s
affidavit which accompanied the motion clearly states as much. In his
affidavit Mr. Zhang affirmed: “I believe that the dispute between my lawyer
and the member must have influenced the member to make a negative
decision against me…” (emphasis added). In my view this statement was sufficient
to alert the RPD that a claim was being advanced that there had been a breach
of natural justice and procedural fairness by the Member hearing the case. The
statement amounted to an allegation of bias on the part of the Member or,
alternatively, a claim that the Member did not render the decision based only
on the evidence before her, but was influenced by improper considerations. In
other words, it was a claim by the Applicant that he had been denied natural
justice and procedural fairness.
[20]
As
noted, this aspect of the application was not dealt with at all by the Member in
the endorsement dismissing the application to reopen the claim. Accordingly, the
reasons are insufficient at law and the decision must be set aside.
[21]
Neither
party proposed any question for certification and on these facts, there is no
certifiable question.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for
judicial review is allowed and the application to reopen is referred to a
different Member of the RPD for redetermination.
“Russel W. Zinn”
Email this Content