Docket: IMM-6986-14
Citation:
2015 FC 897
Ottawa, Ontario, July 23, 2015
PRESENT: The
Honourable Mr. Justice Annis
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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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NAGWANG JENPA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA or the Act] of a decision by the Refugee Protection
Division [RPD] concluding that Mr. Nagwang Jenpa [the Respondent] is a
Convention refugee.
II.
Background
[2]
The Respondent alleges that he was born in Tibet
and became a monk after completing primary school. In 1991, he left Tibet for
India due to restrictions on religious practices that had been established by
Chinese authorities.
[3]
The Respondent also alleges that initially he continued
to live as a monk in India, but later left religious life and married. He
alleges that he participated in demonstrations in India for a free Tibet and
that India intended to deport him to China due to these political activities. The
Respondent submits that he has no right of citizenship in India.
[4]
The Respondent entered Canada on August 11, 2012
and applied for refugee protection on September 13, 2012, on the basis that he
fears persecution for his political opinions and religious beliefs.
III.
Impugned Decision
[5]
The RPD found that, on a balance of
probabilities, the Respondent is a Tibetan national and does not have a right
to status in India similar to its nationals, so there is a possibility that he
would be returned to China if he is returned to India.
[6]
The RPD also found that the objective
documentary evidence indicated that, amongst other risks, there is ongoing
cultural and religious repression in Tibetan areas by the Chinese authorities
and human rights violations against ethnic Tibetans.
[7]
The RPD found that, on a balance of
probabilities, the Respondent would suffer persecution should he be returned to
China and that state protection would not be forthcoming. As such, the RPD
concluded that the Respondent is a Convention refugee and accepted his claim.
[8]
The Applicant seeks judicial review of the RPD
decision and submits that the RPD’s failure to consider the elements of the
test for refugee protection is a determinative error.
IV.
Issues
[9]
The following issues arise in this application
for judicial review:
(a) Did the
RPD err by failing to consider the elements of the test for refugee protection?
V.
Standard of Review
[10]
The applicable standard of review is
reasonableness.
VI.
Analysis
[11]
The parties agree that the country of reference is
China and not India. The parties also agree that the RPD erred in stating that
despite the Respondent “not having the basic tenets
necessary to acquire refugee status”, Canadian law states that Tibetan
nationals are stateless and are to be declared refugees in Canada if they are
able to prove their identity. The Applicant submits that this error is
determinative of this application.
[12]
The Respondent submits that the RPD’s
misstatement of the law is not fatal to its decision, since not every error of
law is fatal to a tribunal’s decision (citing Ramirez v Canada (Minister of Employment
and Immigration), [1992] 2 FC 306, 89 DLR (4th) 173 (FCA) [Ramirez],
Schaaf v Canada (Minister of Employment and Immigration), [1984] 2 FC
334 [1984] FCJ No 157 (QL) (FCA) [Schaaf]). It is the Respondent’s view
that the RPD’s statement was general and not specific to his claim, and argues
that the RPD conducted a reasonable assessment of the evidence and did not base
its positive decision on its mistaken understanding of the law regarding
Tibetans as stateless persons.
[13]
The Court agrees with the parties that Canadian
jurisprudence does not support the RPD’s proposition that Tibetan nationals
must be conferred refugee status once their identities are established. Further,
the jurisprudence cited by the Respondent is distinguishable and not
applicable. The Court in Ramirez found that it was unclear what legal
test was applied by the Refugee Division and further that the appellant's case,
which was based on an extensive record, as being even near the borderline. The
matter before the Court in Schaaf was concerned with a procedural
failure and the Court found that the conduct of the applicant and his counsel
indicated that an allegation was not contested such that any failure was not a
matter of which the applicant complained.
VII.
Conclusion
[14]
The Court agrees with the Applicant that the
RPD’s legal error went to the very heart of the analysis, raising concerns that
affected the extent of the analysis, including a potential failure to consider
all the evidence and undertake a proper analysis. While the failure of the RPD
to include all the arguments, statutory provisions, jurisprudence or other
details that may have been preferred by the reviewing court is not determinative
in and of itself, I find that the absence of this in its reasons may be the
result of a predetermined outcome of the RPD based on an erroneous principle of
law.
[15]
The Court further agrees with the Applicant that
the RPD’s reliance on this incorrect proposition demonstrates that the very
basis of its determination was erroneous and that the RPD misapprehended the
test that the Respondent needed to meet.
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