Ottawa, Ontario, January 25, 2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
(A.K.A. JOHN CHRIS SHWABA)
REASONS FOR JUDGMENT AND JUDGMENT
[1] In this judicial review proceeding, the Minister of Citizenship and Immigration (the Minister) seeks to set aside a decision of the Immigration and Refugee Board’s Refugee Protection Division (the Board). In its decision, dated February 8, 2006, the Board determined the respondent, Chris John Shwaba, was a Convention refugee, pursuant to section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA).
[2] For the reasons that follow, I am allowing the Minister’s application for judicial review.
FACTS
[3] Mr. Shwaba, a citizen of Grenada born April 18, 1988, arrived in Canada on November15, 2004, and stated his intention to take up permanent residence. His claim for refugee protection was referred to the Board on May 10, 2005.
[4] In his Personal Information Form (PIF), Mr. Shwaba alleges that his stepfather began sexually abusing him when he was five years old. He apparently told his mother, despite his stepfather’s warning not to tell anyone, but she did nothing about it.
[5] Then, as he grew up, Mr. Shwaba says he developed an interest for both boys and girls. When he was fifteen years old, he became sexually intimate with a male student. Nobody knew about this relationship until his friend was caught with another man who had HIV. His friend was then questioned about his partners, because the authorities wanted to test them for HIV. At that point, Mr. Shwaba decided to leave Grenada. He came to Canada on a visitor’s visa he had obtained prior to these events.
[6] Mr. Shwaba also told the officer at the point of entry that he is afraid of his stepfather, because he has told his aunt, with whom he is now living in Canada, about his stepfather’s behaviour and sexual harassment.
THE BOARD’S DECISION
[7] The Board heard Mr. Shwaba’s claim on December 21, 2005. At the end of a forty-minute hearing, the Member provided oral reasons for accepting Mr. Shwaba’s refugee claim under section 96 of the IRPA. By correspondence, dated January 3, 2006, the Minister requested written reasons for the Board’s decision.
[8] The Board rendered written reasons on February 8, 2006, which are set out in the following three brief paragraphs:
These are the reasons for the decision of the Refugee Protection Division (RPD) with respect to the refugee protection claim made by Chris John Shwaba, a citizen of Grenada. The hearing for this claim was held pursuant to section 170(b) of the Immigration and Refugee Protection Act (IRPA) on December 21, 2005 at Toronto, Ontario. At the conclusion of the hearing the panel rendered an oral positive decision. These are the written reasons which have been edited and syntax and grammar with added references to the documentary evidence and relevant case law where appropriate.
I find that Chris John Shwaba, is a Convention refugee based on his orientation as a homosexual or bisexual male.
I am satisfied by his straightforward evidence today that this is his sexual orientation. Based on the documentary evidence in the file, I know that there is legislation in Grenada that does not protect people of his sexual orientation and for this reason I find him to be a Convention refugee.
ISSUE
[9] The only issue to be decided in this application for judicial review is whether the Board erred by failing to meet its obligation to provide adequate written reasons.
ANALYSIS
[10] It is by now well established that the duty of procedural fairness requires, in certain circumstances, that reasons be provided by administrative authorities. The reasons most commonly invoked to support such a requirement are that it leads to better reasoned and more articulate decisions, that it reinforces public confidence in the judgment and fairness of administrative tribunals, and that it allows parties to assess the strength of a particular ruling and to determine the grounds upon which they may wish to appeal or to apply for judicial review: see, in particular, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[11] In the present case, it is not necessary to go through the factors that have been considered relevant to determining the content of the duty of fairness. The IRPA, like its predecessor, the Immigration Act, R.S.C. 1985, c. I-2, imposes a statutory duty on the Board to provide reasons. Section 169 of the IRPA provides a complete code on the subject, as can be seen from a reading of that provision:
169. Decisions and reasons – In the case of a decision of a Division, other than an interlocutory decision:
(a) the decision takes effect in accordance with the rules;
(b) reasons for the decision must be given;
(c) the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which much be rendered in writing;
(d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;
(e) if the person who is the subject of proceedings before the Board or the Minister requests reasons for a decision within 10 days of notification of the decision, or in circumstances set out in the rules of the Board, the Division must provide written reasons; and
(f) the period in which to apply for judicial review with respect to a decision of the Board is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later.
[12] While the Board provided oral reasons at the end of the hearing, counsel for the Minister of Public Safety and Emergency Preparedness requested written reasons for the decision of the Board pursuant to subsection 169(e) of the IRPA and rule 62 of the Refugee Protection Division Rules, SOR/2002-228. In response to that request, the Minister received a transcript of the Board member’s oral reasons.
[13] The Minister is of the view that these reasons are totally deficient, as they fail to provide an adequate explanation for why the Board accepted Mr. Shwaba’s claim. Mr. Shwaba, on the contrary and not unexpectedly, argues that the reasons are intelligible and provide a sufficient explanation why the claim was accepted. In any event, Mr. Shwaba claims, the Minister could have raised his concerns had he chosen to be represented at the Board hearing.
[14] There is a long line of cases supporting the Minister’s argument that reasons must not only be given, but must also be adequate and address the arguments and the most salient part of the evidence submitted by the parties. My colleague Mr. Justice Luc Martineau aptly summed up the relevant cases in Canada (Minister of Citizenship and Immigration) v. Shpigelman, 2003 FC 1209:
5. To fulfill the obligation described in paragraph 69.1(11)(b) of the Act, the reasons must be sufficiently clear, precise and intelligible to allow the Minister or the person making the claim to understand the grounds on which the decision is based and to allow the Court to ensure that the Refugee Division exercised its jurisdiction in accordance with the Act. See inter alia: Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.)(QL); Minister of Citizenship and Immigration v. Roitman, [2001] F.C.J. No. 718 (F.C.T.D.)(QL); Zannat v. Minister of Citizenship and Immigration (2000), 188 F.T.R. 148; Zoga v. Minister of Citizenship and Immigration, [1999] F.C.J. No. 1253 (F.C.T.D.)(QL); Khan v. Minister of Citizenship and Immigration, [1998] F.C.J. No. 1187 (F.C.T.D.)(QL).
6. A determination that there is a reasonable fear of persecution based on one of the grounds listed in the Convention raises a question of mixed fact and law. In Chan v. Canada (Minister of Employment and Immigration), [1995] 187 N.R. 321, the Supreme Court of Canada emphasized that a refugee claimant has the burden of proof in establishing a well-founded fear of persecution. Clearly, this determination calls for a careful analysis of the claimant’s testimony and of the documentary evidence about the conditions in the country. When written reasons are required, it is not sufficient to state that the determination in the affirmative is based on the evidence without further explanation.
[15] It is not enough to summarize the parties’ submissions, and then state a conclusion without more. Both of the parties are entitled to an analysis of their arguments and of the supporting evidence if the reasons are to serve their purpose: VIA Rail Canada Inc. v. Canada (National Transportation Agency) (C.A.), [2001] 2 F.C. 25; 193 D.L.R. (4th) 357. Of course, the adequacy of the reasons in any particular case will be contingent on the particular facts of that case and will also be assessed in light of the entire record. If, for example, the transcript of the hearing allows the reader to understand the Board’s decision, the reasons may not have to be as detailed.
[16] Admittedly, this jurisprudence derives from paragraph 69.1(11)(b) of the now repealed Immigration Act, but that section was almost identically worded to subsection 169(e) of the IRPA. The old provision provided that “if the Minister or the person making the claim requests written reasons within ten days after the day on which the Minister or the person is notified of the decision, the Division shall forthwith give written reasons.” Indeed, my colleague Mr. Justice François Lemieux reviewed these cases and applied them to subsection 169(e) of the IRPA in his recent decision of Canada (Minister of Citizenship and Immigration) v. Ryjkov, 2005 FC 1540.
[17] These principles being too well established to dwell on any further, the only question left to resolve is whether the Board met its obligation in the present case. The simple and unequivocal answer is no. The Board’s reasons fail to meet even a skeletal threshold. The absence of any analysis makes a mockery of the right to judicial review. It is impossible to review a decision without being able to evaluate the decision-maker’s reasons. Furthermore, the Board’s reasons here do not refer to many issues that were critical to Mr. Shwaba’s claim.
[18] In fact, these very issues were raised by the Board itself at the outset of the hearing (Tribunal Record, page 103). The first has to do with Mr. Shwaba’s credibility. This Court has stated on a number of occasions that whether a claimant has established a well-founded fear of persecution is a question of mixed fact and law, and calls for a careful analysis of the claimant’s testimony and of the documentary evidence about country conditions. Here, we have none of the two.
[19] For example, it is not entirely clear what Mr. Shwaba’s precipitating reason was for fleeing Grenada. His two stories respecting this issue - first at the point of entry, and then in his PIF – are not entirely consistent. Does he fear returning to Grenada because of his stepfather, or because gays are persecuted in his country? And why would telling his aunt about his stepfather’s abuse put him at risk? According to his PIF, Mr. Shwaba had already told his mother (Tribunal Record, page 18). As well, according to the notes at the Port of Entry, his community knows about his stepfather’s history of abuse (Tribunal Record, page 84). Yet, the Board did not deal with these issues, though the member actually raised them during the hearing, and did not explain how these inconsistencies were resolved in Mr. Shwaba’s favour.
[20] Similarly, there is no discussion about the country conditions in Grenada with respect to the alleged persecution of homosexuals. The only document dealing with the situation of homosexuals listed in the Board’s Information Package (footnoted in the third paragraph of the Board’s reasons) is ten years old. The U.S. Department of State Report of February 28, 2005, does not mention this subject at all. How, then, could the Board member be certain “that there is legislation in Grenada that does not protect people of his sexual orientation”?
[21] The Board’s reasons are equally deficient because it is impossible to tell whether it considered the issue of state protection. How do we know whether Mr. Shwaba satisfied his burden and exhausted avenues of recourse available in his country of origin? Does that mean all homosexuals from Grenada are eligible for refugee status? These are all questions that beg for an assessment and analysis before they can be properly answered.
[22] The reasons are also devoid of any comment about the fact that Mr. Shwaba returned to Grenada twice, after having visited relatives in Trinidad. Nor is there any consideration of the delay between Mr. Shwaba’s arrival in Canada and when he made his refugee claim, and of the impact such delay might have on Mr. Shwaba’s credibility and his subjective fear.
[23] In the result, I find the reasons to be clearly insufficient and inappropriate to fulfill any of the rationales for requiring them. The Board cannot be absolved of its duty to provide reasons, pursuant to section 169 of the IRPA, simply because the Minister did not intervene at the hearing. The Minister and the public at large have the right to see that the system is properly applied and that the integrity of the Board’s decision-making process is maintained.
[24] Accordingly, this application for judicial review will be allowed, the Board’s decision will be set aside and the matter will be referred back to the Board for rehearing and redetermination by a differently constituted panel.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is allowed. The decision of the Board dated December 21, 2005 (February 8, 2006 for the written reasons) is set aside and the matter is referred back to the Board for rehearing and redetermination by a differently constituted panel. No question was proposed for certification and none will be certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1098-06
STYLE OF CAUSE: The Minister of Citizenship and Immigration v.
Chris John Shwaba (a.k.a. John Chris Shwaba)
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 9, 2007
APPEARANCES:
Mr. Gordon Lee
FOR THE APPLICANT
Ms. Leigh Salsberg
FOR THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE APPLICANT
Jackman & Associates
Barristers & Solicitors
Toronto, Ontario FOR THE RESPONDENT