Date:
20070213
Docket:
IMM-3959-06
Citation: 2007
FC 162
Ottawa, Ontario, the
13th day of February 2007
PRESENT:
THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
GAELLE SOLIMAN
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision delivered
on June 6, 2006 by the Refugee Protection Division (RPD) of the Immigration and
Refugee Board (IRB) that Gaelle Soliman (the applicant), citizen of Haiti, was
neither a “refugee” within the meaning of section 96 of the IRPA nor a “person
in need of protection” under section 97 of the IRPA.
I. Facts
[2]
The
applicant’s mother, Ms. Daniella Bernardin, arrived in Canada on November 29,
2005 and claimed refugee status on December 21, 2005, claiming fear of
persecution in Haiti by reason of her political opinions. Ms. Bernardin’s claim
for refugee protection was based on the fact that she had worked as a recording
secretary at a Cap-Haïtien radio and television station. On February 23, 2004,
opponents of Aristide took over the radio station to broadcast anti‑Aristide
statements. From that time, Ms. Bernardin was perceived to be a member of the
anti‑Aristide movement, and she received death threats. On September 15,
2005, Ms. Bernardin was kidnapped by armed men, who raped and beat her and
pulled out one of her teeth. A ransom was demanded for her release. Once the
ransom had been paid, Ms. Bernardin was released and she left Haiti for Canada.
[3]
The
applicant, Ms. Bernardin’s daughter, arrived in Canada on September 6, 2005 as
a tourist and claimed, on that date, that she intended to return to Haiti.
However, on December 21, 2005, she and her mother made a joint claim for
refugee protection in Canada. The applicant’s claim was based on the fact that
she fears persecution for reasons of membership in a particular social group,
namely, the “family”. The applicant allegedly fears being persecuted if she
returns to Haiti based on the fact her mother was kidnapped and believed to be
anti‑Aristide; as the eldest daughter in the family, she would suffer the
same fate if she returned to Haiti.
[4]
On June 6,
2006, the RPD found that Ms. Bernardin was a “Convention refugee” under section
96 of the IRPA. However, in the same decision, the RPD found that the applicant
was neither a Convention refugee nor a “person in need of protection” under
section 97 of the IRPA.
II. Issues
(1) Did the RPD err in deciding
that the applicant was neither a Convention refugee nor a “person in need of
protection” under section 97 of the IRPA?
I.
Analysis
(1) Did the RPD err in deciding
that the applicant was neither a Convention refugee nor a “person in need of protection”
under section 97 of the IRPA?
[5]
Section 96
of the IRPA is clear. To be considered a Convention refugee, a refugee
claimant must have a well‑founded fear “…of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion”. The existence of a nexus between the alleged persecution
and one of the five grounds listed in the definition of “Convention refugee”
under section 96 of the IRPA is principally a question of mixed fact and law.
Mr. Justice Blanchard in La Hoz v. Canada (Minister of Citizenship and
Immigration), 2005 FC 762, [2005] F.C.J. No. 940 (QL), following a
pragmatic and functional analysis, found that the appropriate standard of
review for such an issue is reasonableness simpliciter. At paragraph 44
of La Hoz, supra, Blanchard J. states the following:
After reviewing the criteria of the pragmatic and
functional analysis, I find that, with respect to determining whether there is
a nexus between a refugee claim and the persecution grounds under section 96 of
the Act, the appropriate standard of review is reasonableness simpliciter.
This was Gibson J.’s finding in Jayesekara v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 1014.
[6] The applicant argues that her
fears of persecution if she returns to Haiti are related to her membership in
the social group of the family because she fears persecution by reason of her
mother’s employment. The applicant also argues that she is a “person in need of
protection” under section 97 of the IRPA. The RPD did not agree and found that
the actual harm feared by the applicant was a risk face generally by the
population of Haiti.
[7] The RPD decision was delivered
orally. Oral decisions are not in and of themselves problematic. That being
said, procedural fairness requires that decision‑makers provide adequate
reasons to justify their decisions. In VIA Rail Canada Inc. v. National
Transport Agency et al., [2001] 2 F.C. 25 (C.A.), [2000] F.C.J. No. 1685,
the Federal Court of Appeal explained the obligation to provide adequate
reasons at paragraph 22:
[22] The obligation to provide adequate
reasons is not satisfied by merely reciting the submissions and evidence of the
parties and stating a conclusion…. Rather, the decision‑maker must set
out its findings of fact and the principal evidence upon which those findings
were based…. The reasons must address the major points in issue. The reasoning
process followed by the decision-maker must be set out…and must reflect
consideration of the main relevant factors….
This case was cited with approval by Mr. Justice Pinard in Zarghami
v. Canada (Minister of Citizenshp and Immigration), 2006 FC 151, [2006]
F.C.J. No. 215 (QL), to explain the obligation on the IRB to provide adequate
reasons. Based on VIA Rail Canada Inc., supra, and Zarghami,
supra, the RPD in this case had a duty to set out its findings of fact
and the principal evidence upon which those findings were based.
[8]
With
regard to the analysis involving section 96 of the IRPA, the RPD’s decision
limited itself to a narrow summary of the applicant’s factual situation. No
references to the grounds in section 96 of the IRPA that applied to the
applicant were made in the oral decision, reported in writing. Furthermore,
there was no legal reasoning evident in that decision that would allow the
reader to identify the process of the RPD used to find that the applicant’s
fears of persecution if she returned to Haiti were not related to her
membership in the particular social group of the family. The fact that the
decision in this case was an oral decision, reported in writing, does not
justify the absence of legal reasoning or the lack of an analysis applying the
evidence and the facts to the relevant legislative provisions.
[9]
As for the
decision that the applicant is not a “person in need of protection” under
section 97 of the IRPA, the RPD limited itself to stating the law. No
references to the facts were made to contextualize the legal process followed.
In Anthonimuthu v. Canada (Minister of Citizenship and Immigration),
2005 FC 141, [2005] F.C.J. No. 162 (QL), Mr. Justice De Montigny states
the following at paragraphs 51 and 52:
[51] The
Applicant also contends that the Refugee Division erred in not assessing her
claim under section 97 of the IRPA, taking it for granted that she must fail on
the grounds of a risk to like [sic] or to a risk of cruel and unusual treatment
or punishment and danger to torture if she could not establish a well‑founded
fear of persecution. The Court has repeated on a number of occasions that
the analysis under section 97 is different from the analysis required under
section 96 and that claims made under both sections therefore warrant separate
treatment. The Court said, in Bouaouni, supra, at paragraph
41:
It follows
that a negative credibility determination, which may be determinative of a
refugee claim under s. 96 of the Act, is not necessarily determinative of a
claim under subsection 97(1) of the Act. The elements required to establish
a claim under section 97 differ from those required under section 96 of the Act
where a well‑founder [sic] fear of persecution to a convention [sic]
ground must be established. Although the evidentiary basis may well be the same
for both claims, it is essential that both claims be considered as separate.
[52] The
only circumstance in which the Refugee Division may dispense with a separate
section 97 analysis is where there is absolutely no evidence that could support
a claim that a person is in need of protection: Soliemanian, supra,
at paragraph 22.
[Emphasis added.]
[10]
I am in
complete agreement with De Montigny J.’s observations. In this case, the RPD
had a duty to justify its finding that the principal applicant was not a
“person in need of protection” within the meaning of section 97 of the IRPA in
order not to breach the principles of procedural fairness. This was not done;
the decision of the RPD did not in any way show the legal reasoning followed to
come to the conclusion that the applicant was not a “person in need of protection”
under section 97 of the IRPA. I repeat, the fact that the decision in this case
was an oral decision, reported in writing, does not justify the absence of
legal reasoning or the lack of an analysis applying the evidence and the facts
to the relevant legislative provisions.
[11]
The
appropriate standard of review for issues of procedural fairness is correctness
(Sketchley v. Canada (Attorney
General), 2005
FCA 404, [2005] F.C.J. No. 2056 (QL)). Since the duty of procedural fairness to
provide adequate reasons was breached in this case, I set aside the RPD
decision and refer the matter for rehearing.
V. Conclusion
[12]
Based on
the foregoing reasons, the intervention of the Court is warranted, and the
application for judicial review is allowed.
[13]
The
parties were invited to submit a question to be certified but none was
submitted.
JUDGMENT
THE COURT
ORDERS THAT:
-
The
application for judicial review be allowed in part and the matter be referred
to another member of the RPD to address the issue of law arising from the
applicability of sections 96 and 97 of the IRPA.
-
There is
no question to be certified.
Judge
Certified true translation
Gwendolyn May, LLB
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