Date:
20130718
Docket:
IMM-7940-12
Citation:
2013 FC 799
Ottawa, Ontario,
July 18, 2013
Present: The
Honourable Mr. Justice Roy
BETWEEN:
Muhammad Naveed MANGA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review made pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the “Act”) of the decision of a member
of the Refugee Protection Division of the Immigration and Refugee Board (the
“Board”). The Board determined the applicant, Mr. Muhammad Naveed Manga, a
citizen of Pakistan, was not a Convention refugee or a person in need of
protection as defined in sections 96 and 97 of the Act.
[2]
The
Court has determined that, in view of the record before the Board, the matter
has to be returned before a new adjudicator for decision. The reasons provided
by the Board do not meet the required standard. They do not serve the basic
purpose of demonstrating that the decision falls within a range of possible
outcomes. Given my conclusion, I do not express any opinion as to whether or
not the applicant qualifies under sections 96 and 97 of the Act.
Facts
[3]
It
will not be necessary to delve into the facts of this case, other than to point
to the abundance of articulated allegations before the Board that the applicant
was subjected to physical violence, indeed death threat, due to political and
religious reasons.
[4]
The
applicant fled to Canada on December 2, 2010, after a series of events starting
in May 2010. The whole case turns on a plot of land, in Pakistan, that the applicant and his brother wanted to use in order to build an interfaith
English school.
[5]
The
applicant alleges that the piece of land was taken from him by people who
opposed the use of the land for a non-Islamic school.
[6]
The
applicant also alleged that he was politically active since 2007. As part of
his activities, he would have been involved in attempts to discredit a member
of the provincial assembly with, allegedly, ties to an Islamic extremist
organization. Members of the extremist organization would be largely
responsible for the violent events in relation to the applicant that took
place, starting in May 2010.
Decision
[7]
In
spite of the evidence led, and the abundance of allegations made that violent
incidents were related to political and religious motivations, the Board seems,
for all intents and purposes, to have ignored the issue in its June 29, 2012
decision. Without providing any analysis or reason, the Board categorizes the
taking away of the land as merely a land dispute. That characterization does
not give rise to an application of section 96 of the Act because the
persecution would not be on the basis of a Convention ground. As for section 97
of the Act, the Board concludes that the applicant is not at risk if he does
not try to regain his land.
[8]
The
interrogation of the applicant by the Board went over two hearings. Much
attention was given to the applicant’s allegations about the violence towards
him being over a plot of land. Indeed, the interrogation of the applicant conducted
by the Board looked like a cross-examination more than once. Yet, the Board offers
in the end little analysis for its decision.
Arguments and
Standard of Review
[9]
The
parties agree that the standard of review is reasonableness. I concur. We are
not confronted in this case with a situation where reasons are not provided
when they should be. There are reasons. The question before the Court is one of
mixed fact and law that attracts a standard of reasonableness. As the Supreme
Court of Canada ruled in Alberta (Information and Privacy Commissioner) v
Alberta Teachers’ Association, [2011] 3 S.C.R. 654, at paragraph 39:
When considering a decision of an administrative tribunal
interpreting or applying its home statute, it should be presumed that the
appropriate standard of review is reasonableness.
[10]
Where
the issue is whether or not the reasons for a decision are deficient, a
standard of reasonableness applies. In Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708 [Newfoundland and Labrador Nurses’ Union], the Court
disposes of the issue thus:
[22] It is true that the breach of a duty of
procedural fairness is an error in law. Where there are no reasons in
circumstances where they are required, there is nothing to review. But where,
as here, there are reasons, there is no such breach. Any challenge to the
reasoning/result of the decision should therefore be made within the
reasonableness analysis.
[11]
The
applicant argues that the findings made by the Board were made in a perverse
and capricious manner. Furthermore, the Board erred in the view of the
applicant “in finding that the alleged risk lacked a nexus to a Convention
ground” and was unreasonable in finding a lack of subjective fear.
[12]
The
respondent relies heavily if not exclusively on the deference that is owed to
administrative tribunals.
Analysis
[13]
The
starting point of the analysis of what constitutes a reasonable decision is of
course Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir]. It
is paragraph 47 which describes the qualities that make a decision reasonable.
The paragraph reads:
Reasonableness is a deferential
standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[14]
The
reviewing Court will show deference, but it will not abdicate its role. At the
end of paragraph 48 of Dunsmuir, the Court acknowledges that much.
[15]
On
the other hand, the adequacy of reasons cannot, in and of itself, support the
quashing of an administrative tribunal decision. The Supreme Court of Canada,
in Newfoundland and Labrador Nurses’ Union, cited above, saw the reasons
being considered together with the outcome:
[14] Read as a whole, I do not see Dunsmuir as standing for
the proposition that the "adequacy" of reasons is a stand-alone basis
for quashing a decision, or as advocating that a reviewing court undertake two
discrete analyses - one for the reasons and a separate one for the result
(Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action
in Canada (loose-leaf), at ss.12: 5330 and 12: 5510). It is a more organic
exercise - the reasons must be read together with the outcome and serve the
purpose of showing whether the result falls within a range of possible
outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when
it told reviewing courts to look at "the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes" (para. 47).
[16]
In
the case at bar, the Board negates the nexus with Convention grounds by simply concluding,
without more, that the motivation for the acts of violence was the land. It
never connects the taking of the land with a possible religious or political
motivation. Not every argument or small bit of evidence need be addressed in
reasons. But an absence of analysis with respect to what constitutes the heart
of the matter cannot be condoned. The Court in Newfoundland and Labrador Nurses’
Union, at paragraph 16, provides some guidance as to when reasons will
suffice:
Reasons may not
include all the arguments, statutory provisions, jurisprudence or other details
the reviewing judge would have preferred, but that does not impugn the validity
of either the reasons or the result under a reasonableness analysis. A
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin
District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other
words, if the reasons allow the reviewing court to understand why the tribunal
made its decision and permit it to determine whether the conclusion is within
the range of acceptable outcomes, the Dunsmuir
criteria are met.
[17]
Such
is the test: the reasons must allow the Court to know why the decision was
made. The reasons that would allow this Court to understand why the evidence of
political and religious motivation must be discounted are non-existent. They do
not have that intelligibility required by the law. It is not enough, in my
view, to state facts and to reach a conclusion not even connected with the
facts without offering any articulation. There has to be a reason for reaching
a conclusion. In some cases, it may be implicit. In others, it must be
articulated, even minimally, or enough to understand why it was made.
[18]
There
are many examples that could be used to illustrate the point. Thus, it is
difficult to understand why the Board considers what it refers to as “the
situation of similarly situated people in Pakistan.” The evidence shows that
the applicant’s brother chose to leave the place where the plot of land is located
following the violent expulsion. It would appear that the reference to
“similarly situated people” might be for the purpose of contesting the
legitimacy of the applicant’s subjective fear or risk. However, how that is
relevant remains a matter of conjecture since it is the subjective fear of the applicant
that counts, not that of his brother. Indeed the applicant’s brother may not
have left Pakistan but he also departed and would have moved some 100 miles
from where the violence took place for fear of retribution. That, to some
extent, may well show fear.
[19]
The
Board also contests the subjective fear on the basis that the applicant could
have diminished or even eliminated the risk had he and his family sold the land
at any price. To say the least, this is rather odd. This is in line though with
the Board’s belief that this was only a land issue. As it notes, the protection
of property rights is not recognized as a valid basis for refugee protection.
But in doing so, the Board, without reasons that could make understandable to a
reviewing court its decision, does not seem to even consider that the acts of
violence increased in their severity after the plot of land was taken away in
August 2010 and the applicant and his brother were threatened and beaten on the
site itself.
[20]
It
will suffice for the purpose of this decision to note that the applicant
alleges that he continued to be the subject of violent attacks, even after the
plot of land had been taken over. One such incident would have taken the applicant
to hospital. Less than a month later, following a visit to a lawyer, four men
on two motorcycles opened fire on a car he was in.
[21]
In
the end, the Board states on numerous occasions that the refugee claim fails,
but without articulating reasons, whatever they may be, for such rejection. The
reviewing court is left with bold statements, but without knowing if the
evidence was misapprehended or disbelieved, and if so, why it is disbelieved.
Another possibility for rejecting the refugee claim could be that the Board found
that the actions in Pakistan did not rise to the level of persecution or that
other alternatives were available to the applicant. However, on the record
before this Court, there is no way to tell.
[22]
The
admonition of the Supreme Court that “(R)eviewing judges should pay ‘respectful
attention’ to the decision maker’s reasons, and be cautious about substituting
their own view of the proper outcome by designating certain omissions in the
reasons to be fateful” (Newfoundland and Labrador Nurses’ Union, supra,
at paragraph 17) is well taken. In this case, it is not so much certain
omissions in the reasons that are problematic as a general lack of articulation
of reasons to make understandable the outcome chosen by the Board.
[23]
As
was again pointed out very recently by the Supreme Court in a case involving
this Act, the Minister’s reasons were found to be reasonable because
“(A)lthough brief, they made clear the process he had allowed in ruling on the
applicant’s application. He reviewed and considered all the material and
evidence before him. … In short, his reasons allow this Court to clearly
understand why he made the decision he did” (Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, at para 89).
[24]
My
Reasons for Judgment should be taken for what they are. This Court has found
that it was not possible, on the basis of the decision of the Board, to
ascertain if the decision is reasonable. Accordingly, it must be returned to a
different panel for redetermination. Nothing in my reasons should be taken to
suggest any assessment of whether or not the applicant is a refugee under the
Act. That determination is for a differently constituted panel of the Board to
make.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1. The
application for judicial review is granted.
2. This
matter is to be returned to a different panel of the Refugee Protection
Division of the Immigration and Refugee Board for redetermination.
3. There
is no question of general importance to certify.
“Yvan Roy”
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