Date: 20140227
Docket:
IMM-3808-13
Citation: 2014 FC 187
Ottawa, Ontario, this 27th
day of February 2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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And
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Mirela GRDAN
Sasa GRDAN
Korina GRDAN
Borna GRDAN
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review made by
the Minister of Citizenship and Immigration pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 (the “Act”). The Minister
argues that the Refugee Protection Division of the Immigration and Refugee
Board of Canada (the “Board”) was wrong to conclude that the respondents are
persons in need of protection, in accordance with section 97 of the Act.
[2]
The Minister challenges the findings made by the
Board that the respondents would not benefit from state protection if they were
to be returned to Croatia and that there is not in the circumstances a
reasonable Internal Flight Alternative [IFA]. The Minister urges the Court to
reverse those findings as being unreasonable.
[3]
Because the Minister was late in filing his
application for leave to commence an application for judicial review, an
extension of time must be granted. The parties argued before the Court on the
extension at the start of the hearing. I note that in his Order of November 27,
2013, Justice Sean Harrington had already granted the said extension in the
following terms:
1. The
application for an extension of time and for leave is granted and the
application for judicial review is deemed to have been commenced.
At any rate, I
would also have granted the extension of time. The matter before the Court
needs to be addressed on its merit.
[4]
I am not prepared to find in favour of the
applicant on the basis that is proposed, i.e. that findings about state
protection and an IFA are unreasonable in view of the evidence put forward. Rather
I would quash the decision for a slightly different reason. I have found the
reasons given by the Board to be wholly unsatisfactory, to the point of not
being able to permit the Court to understand why the Board concluded as it did,
and, on that basis, the matter has to be returned for a new determination by a
different panel.
[5]
Given the conclusion reached, it will not be
necessary to delve into the facts of this case. Suffice it to say that the
principal respondent was abused for years by her father in Croatia. Now that he has been released from prison in Croatia, the respondent contends that
there have been a small number of encounters with him and she fears for her
safety and that of her family. The Board, in short reasons, delivered orally,
concluded that the respondents are persons in need of protection, in
application of section 97 of the Act.
[6]
The parties are in agreement that the two issues
raised are to be reviewed on a standard of reasonableness (Burai v The
Minister of Citizenship and Immigration, 2013 FC 565; Velez v The
Minister of Citizenship and Immigration, 2013 FC 132).
[7]
It is a given that the adequacy of reasons is
not enough, in and of itself, to quash a decision. I readily accept that
reasons do not have to be perfect or that they do not have to include all
arguments and other details reviewing judges might be interested in. Indeed, reviewing
courts must “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 v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708 at paragraph 17).
[8]
The reason why this matter has to be sent back
is because the decision does not satisfy the test found in Newfoundland and
Labrador Nurses’ Union. It reads:
[16] .
. . 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.
[9]
The reference to Dunsmuir is with respect
to the Court’s comments at paragraph 47 (Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190). In it, one finds the following passage:
[47] .
. . 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.
[10]
With respect, what is missing in this case is
that justification, transparency and intelligibility that would support a
finding of reasonableness. Without any reason, I fail to see how it can be said
that a decision is reasonable, as opposed to arbitrary. The only way a
reviewing judge would be able to conclude that the outcome is reasonable is if
he agrees with that outcome. But he would do so for his own reasons as opposed
to ruling on the reasonableness of the reasons of the decision-maker that make
the outcome one within a range of possible, acceptable outcomes. However, that
is not the role to be played by a reviewing court. Indeed, the expertise
resides, and ought to reside, with the tribunal whose decisions are subject to
judicial review. A judge should not have to come to his own conclusion about
the merits of a case to be decided on a reasonableness standard; his role is
rather to control the legality of decisions made by administrative tribunals in
their areas of expertise.
[11]
I find myself in agreement with Justice Donald
J. Rennie, of this Court, who wrote in Komolafe v The Minister of
Citizenship and Immigration, 2013 FC 431:
[11] Newfoundland Nurses is not an open invitation to the Court to provide reasons
that were not given, nor is it licence to guess what findings might have been
made or to speculate as to what the tribunal might have been thinking. This is
particularly so where the reasons are silent on a critical issue. It is ironic
that Newfoundland Nurses, a case which at its core is about deference
and standard of review, is urged as authority for the supervisory court to do
the task that the decision-maker did not do, to supply the reasons that might
have been given and make findings of fact that were not made. This is to turn
the jurisprudence on its head. Newfoundland Nurses allows reviewing
courts to connect the dots on the page where the lines, and the direction they
are headed, may be readily drawn. Here, there were no dots on the page.
In the case at
bar, we ended up at the hearing looking for evidence in the record and
speculating as to what the Board may have meant. The reviewing court is not
there “to supply the reasons that might have been given or make findings of
fact that were not made”. It does not matter that the decision is rendered
orally or after deliberations.
[12]
As for state protection, the only justification
offered by the decision-maker is this:
As
for state protection, in light of your particular circumstances, I find that it
would be objectively unreasonable for you to seek the protection of the state.
I find that the actions of your father, the revenge that you fear, would
clearly be acts of criminality which would not be sanctioned by the Croatian
authorities.
That
being said, I note that you have sought assistance from the police on more than
one occasion. Mr. and Mrs. Grdan, you both testified as to these occasions, I
note three separate incidents when you attempted to have protection from the
police and the results were inadequate. This led you to believe that the
protection from the authorities in Croatia for you was not adequate.
[13]
This is very thin. First, the comment that acts
of criminality would not be sanctioned by Croatian authorities does not seem to
be supported by the evidence. Mrs. Grdan’s father, whom she fears and is the
reason why she sought refuge in Canada, appears to have spent eight years in
prison for offences committed against his daughter and others. It is less than
clear that encounters since his release from jail are anything but chance
encounters. Furthermore, the mere fact that the respondent’s father spent eight
years in prison is an indication that acts of criminality are sanctioned.
[14]
Second, the decision-maker refers to three
separate incidents to suggest that state protection would not be forthcoming.
As pointed out by the Minister, it is unclear what those incidents might be. None
is connected to actions of the respondent’s father. If we are to judge by the
respondents’ view of these three incidents, they would be when Mrs. Grdan was
attacked by a security guard before her father went to prison many years ago; second,
when there was a complaint for some noise at the family’s apartment building
and the police action was less than forthcoming, and, third when the police
would have refused to intervene during a burglary when Mr. Grdan was a
security officer. If these were the incidents the Board was referring to, that
deserved a better explanation than what is offered in order to displace the
presumption that state protection exists absent a complete breakdown of state
apparatus (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689). It is
not clear, to say the least, how such evidence would be enough to meet the test
of clear and convincing to rebut the presumption.
[15]
Finally, the Board limits its analysis to the
subjective fear of the respondents. More than subjective fear of the respondent’s
father’s revenge is needed (Carrillo v Canada (Minister of Citizenship and
Immigration), [2008] 4 FCR 636). There must be a measure of reasonableness.
[16]
The justification for the conclusion that there
would not be an IFA is even more limited. In a short paragraph, the Board
states:
As
for Internal Flight Alternative, I have considered whether a viable Internal Flight
Alternative exists for you and I find that, on a balance of probabilities,
there is a risk to life or a risk of cruel and unusual treatment or punishment
throughout the country of Croatia.
[17]
With respect, I find it impossible, as a
reviewing court, to understand how the decision-maker reached the conclusion we
have on this record. Indeed it is not clear what test the Board applied in
order to reach the conclusion that there is no viable IFA.
[18]
I do not wish to be seen as commenting on
whether or not there is adequate state protection in Croatia or that there
exists an IFA in that country. That was an invitation that was made by the
Minister that I am not willing to take. It is for the Board to make that
determination which would be controlled in due course by this Court using a
standard of reasonableness. What I have found however is that the reasons for
the decision are wholly unsatisfactory and deficient to the point of making it
impossible for the Court to understand how the decision was made. As such, the
decision must be quashed and the matter sent back to the Board for a
re-determination by a different panel.
[19]
The parties did not submit any serious question
of general importance and none is certified.
JUDGMENT
The
application for judicial review is allowed. The decision rendered on April 5,
2013 by the Refugee Protection Division of the Immigration and Refugee Board of
Canada is quashed and the matter is sent back for re-determination by a
different panel.
“Yvan Roy”
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