Date: 20031017
Docket: IMM-4994-02
Citation: 2003 FC 1210
Montréal, Quebec, October 17, 2003
Present: The Honourable Mr. Justice Martineau
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
ALEXEY KORIAGIN
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application by the applicant, the Minister of Citizenship and Immigration, for judicial review of a decision dated May 10, 2002, by board member Auguste Choquette of the Immigration and Refugee Board (Refugee Division) in docket MA1-08737, granting Convention refugee status to the respondent.
[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 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 pursuant to a request by the Minister of Citizenship and Immigration:
In file no. MA1-08737, the claimant alleged a well-founded fear of persecution in the event of his return to Israel, the country of his nationality. In view of his response to Question 37 on the Personal Information Form, which constitutes an integral part of this decision, to have effect as if reproduced here in full; in view of the essential statements that were made off the record; in view of the claimant's credible testimony, most specifically when he expressed in great detail his conscientious objections to military service; in view of the totality of the evidence; in view of the specific details of the case; 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, 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 he sent the written reasons for the decision. In the absence of an explanation, the board member's inaction in itself amounts to a refusal to fulfil a legal obligation or to an unreasonable delay of its performance. That being said, the decision to grant refugee status to the respondent 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 under 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, where applicable should the decision be appealed, to allow the Court to satisfy itself 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 reaffirmed 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 concerning 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 assessed. When the evidence shows that the claimant did not take advantage of the first opportunity to claim refugee status this 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, which states that a refugee claimant must provide a clear and convincing confirmation of the state's inability to ensure his protection. In the context of this determination, the fact that Israel is a democratic state should be taken into consideration. Therefore, it is presumed 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 the claimant must seek to exhaust the internal remedies available to him.
[9] If all of the evidence available to the board member had been properly analysed it might then have been reasonable to draw the conclusion that he did, but in view of the generic reasons he gave, it is clear in this case that this conclusion was arbitrary and unreasonable. Specifically, the reasons given are not sufficient to determine how the discrimination alleged by the respondent in this case amounts to persecution within the meaning of any of the grounds of the Convention. Similarly, the reasons given are not sufficient to determine whether, in fact, the respondent satisfied his burden of proof to show that he had exhausted all of his recourse in Israel.
[10] It is also clear that the board member's finding that the respondent is a conscientious objector is arbitrary and capricious. The total absence of analysis in this respect taints the validity of the finding. In this case, in order to determine the effect of Israeli law on the respondent, the board member should have evaluated his testimony and all of the evidence in the context of the guidelines established by the Federal Court of Appeal in Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.), which, as a review of the decision indicates, was not done in this case.
[11] Finally, the board member breached the principles of natural justice or otherwise acted in a manner that violated the Act in basing his decision on, inter alia, "the essential statements that were made off the record". [my emphasis]
[12] The respondent proposed the following question for certification:
[Translation] Does the Minister unduly interfere in the decision-making process of this independent tribunal by requiring the Refugee Division to give reasons for a favourable decision when such decisions need not be justified under the policy of this tribunal?
[13] Given paragraph 69.1(11)(b) of the Act, this question has no rationale. On the one hand, all of the Board's policies must be consistent with the Act. Consequently, these policies cannot be contrary to legislation in any way. Also, the proposed question is not determinative in this case.
THE COURT ORDERS:
[14] The application for judicial review is allowed. The decision of the Refugee Division dated May 10, 2002, is set aside and the matter is referred back to the Board for a rehearing and redetermination before a differently constituted panel. No question will be certified.
"Luc Martineau"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4994-02
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
ALEXEY KORIAGIN
Respondent
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:
Sylviane Roy FOR THE APPLICANT
Lucrèce Joseph FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANT
Deputy Attorney General of Canada
Montréal, Quebec
Lucrèce Joseph FOR THE RESPONDENT
Montréal, Quebec