Date: 20031017
Docket: IMM-4993-02
Citation: 2003 FC 1209
Montréal, Quebec, October 17, 2003
Present: The Honourable Mr. Justice Martineau
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
IGOR SHPIGELMAN
LILIA SHPIGELMAN
AHITAL SHPIGELMAN
ARTUR SHPIGELMAN
MICHAEL SHPIGELMAN
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review by the applicant, the Minister of Citizenship and Immigration, of a decision by the Immigration and Refugee Board (Refugee Division), dated May 14, 2002, by the board member Auguste Choquette (the member) in dockets MA1-11866, MA1-11867, MA1-11868, MA1-11869 and MA1-11870, granting Convention refugee status to the respondents.
[2] Paragraph 69.1(11)(b) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act) obliges the Refugee Division to give written reasons for its decision if the Minister or the person making the claim requests them within ten (10) days after being notified of the decision, in which case the reasons shall be given forthwith.
[3] The decision of the board member was made on May 10, 2002. The following reasons were given on October 2 of that year after a request was made by the Minister of Citizenship and Immigration:
File no. MA1-11866 pertains to a group of claimants - a wife, her husband and their three children - all of whom hold Israeli citizenship. However, they are originally from the former Soviet Union. The wife no longer holds Russian citizenship and the husband no longer holds Ukrainian citizenship. They alleged a well-founded fear of persecution should they return to the country of their new nationality. In view of their response to Question 37 on the Personal Information Form, which forms an integral part of this decision, to have effect as if reproduced here in full; in view of the essential statements made by the principal claimants (the wife and her husband), who are highly distinguished, educated, credible and intellectually honest people; in view of the totality of the documentary evidence; in view of the objective and subjective factors that were demonstrated in accordance with the instructions contained in the United Nations Handbook issued under the authority of the High Commission for Refugees; and in view of the specific details of the case, the decision is positive and the claim is allowed.
[4] In this case, the board member waited for more than four months after the Minister's request before giving the written reasons for his decision. In the absence of explanations, the board member's inaction in itself amounts to a refusal to fulfill a legal obligation or to an unreasonable delay in its performance. That being said, the decision to grant the respondents' refugee claims is not supported by the general comments of the board member at the hearing or by the terse reasons that he gave afterward.
[5] To fulfil 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.
[7] The subjective fear of the claimant must always be considered. When the evidence shows that the claimant did not take advantage of the first opportunity to claim refugee status, it could compromise his claim under certain circumstances. Although this consideration is not determinative in itself, it is relevant in assessing the claimant's credibility: Gavryushenko v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. 1209 (QL); Ilie v. Minister of Citizenship and Immigration (1994), 88 F.T.R. 220; Huerta v. Minister of Employment and Immigration, [1993] 157 N.R. 225, paragraph 4 (F.C.A.).
[8] Further, it is necessary to consider the principle set out by the Supreme Court of Canada in Ward v. Canada (A.G.), [1993] 2 S.C.R. 689, that refugee claimants must provide a clear and convincing confirmation of the state's inability to protect them. In the context of this determination, the fact that Israel is a democratic state should be taken into consideration. Therefore, one can presume that the state of Israel has political and judicial institutions that are able to protect its own citizens. The Federal Court of Appeal, in Kadenko v. Canada (Minister of Citizenship and Immigration) (1996), 206 N.R. 272 (F.C.A.), set out the appropriate burden of proof. In a sense, the claimant's burden is directly proportional to the degree of democracy of the state in question. In other words, the more democratic the state's institutions, the more effort is required of the claimant to seek out the internal recourses available to him.
[9] If all of the evidence available to the board member had been properly reviewed he might then have been reasonably open to him to reach the conclusion that he did, but, in view of the vagueness of the reasons that he gave, it is clear that this conclusion is arbitrary and unreasonable. Specifically, the reasons given do not enable one to determine how the discrimination alleged by the respondents in this case amounts to persecution within the meaning of any of the grounds of the Convention. Similarly, it cannot be determined from the reasons given whether the respondents did in fact discharge their burden of proof to show that they had exhausted all of their recourses in Israel.
THE COURT ORDERS:
[10] The application for judicial review is allowed. The decision of the Refugee Division dated May 14, 2002 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.
"Luc Martineau"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4993-02
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND
IMMIGRATION
Applicant
and
IGOR SHPIGELMAN ET AL.
Respondents
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 14, 2003
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATE OF REASONS: October 17, 2003
APPEARANCES:
Marie-Nicole Moreau FOR THE APPLICANT
Noël Saint-Pierre FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANT
Deputy Attorney General of Canada
Montréal Quebec
Saint-Pierre, Grenier, S.E.N.C. FOR THE RESPONDENTS
Montréal, Quebec