Date: 20030613
Docket: IMM-2627-02
Citation: 2003 FCT 728
Between:
ZDENEK KOURIL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated April 23, 2002, determining him not to be a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
The applicant is a citizen of the Czech Republic, and claims refugee status on the grounds of political opinion and membership in a particular social group (victims of organized crime).
The applicant was an entrepreneur in his home country, and needed extra funds in order to expand his business. However, the bank required a guarantee before it would grant him a loan. The applicant paid a certain amount of money to a loan guarantee company called Holub and Company, who subsequently failed to arrange the loan. When the applicant demanded a return of his deposit, Mr. Holub and an associate threatened to harm him and his family if he went to the police. The applicant filed a complaint with the police, and Mr. Holub and his associate were arrested, convicted, and sentenced to six years of imprisonment.
The applicant claims he then began to receive threatening telephone calls, but did not contact the police, as on previous similar occasions they had not assisted him. Instead, the applicant fled the Czech Republic and came to Canada. The applicant alleges that Mr. Holub has since threatened to harm him once he is released from jail.
The Board's determination is found at the first page of its reasons, and reads as follows:
Regarding the ground of membership in a particular social group, the panel determined that the claimant's fear has no nexus of Convention definition. The panel also considered the ground of political opinion. On this ground, the panel determined that there is insufficient credible or trustworthy evidence on which to base a positive determination.
The Board's conclusion is at page 7 of its reasons, and reads as follows:
Each member of the Refugee Division who heard this claim is of the opinion that the claimant is not a Convention refugee and is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the claimant was a Convention refugee. Accordingly, the Refugee Division determines that the claimant Zdenek Kouril is not a Convention refugee, and pursuant to subsection 69.1(9.1) of the Immigration Act, the Refugee Division finds that there was no credible basis for the claim.
The applicant submits that the Board should have addressed the documentary evidence regarding state corruption and a lack of state protection for those complaining against organized criminal elements. He relies on Klinko v. Canada (M.C.I.), [2000] 3 F.C. 327 (C.A.), for the proposition that filing a complaint against organized criminal elements may be an expression of political opinion where corruption is endemic to the state. However, in Klinko, the political opinion expressed took the form of a denunciation of state officials' corruption. In the case at bar, the applicant has not complained about the actions of state officials, but about a group of private citizens acting outside the law. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the Supreme Court of Canada adopted a broad interpretation of the term "political opinion", which includes "any opinion on any matter in which the machinery of state, government, and policy may be engaged". Even under this broad interpretation, the applicant's complaint against Holub and Company cannot constitute an expression of political opinion, especially since the Board came to the conclusion, based on credible evidence, that corruption is not endemic in the Czech Republic. The Board did not err on this point.
The applicant also submits that the Board failed to examine all the evidence to determine if there was any credible evidence that could support his refugee claim, and failed to give express reasons for making a "no credible basis" finding, or to make an express assessment of all the evidence. The Board states unequivocally in its conclusion that it is applying subsection 69.1(9.1) of the Act in dismissing the applicant's claim. The effect of this subsection has been explained by Denault J. in Foyet v. Canada (M.C.I.) (2000), 187 F.T.R. 181, as follows:
[18] As a result of amendments to the Immigration Act in 1992, the two-level system no longer exists, and a no credible basis finding, as provided in subsection 69.1(9.1) of the Act, has very serious consequences. When the panel finds that a claim has no credible basis, the claimant is now entitled only to a seven-day stay of execution of the removal order (paragraph 49(1)(f) of the Act). However, when the Refugee Division does not make a no credible basis finding, execution of the removal order is automatically stayed, and the claimant is eligible for consideration under the procedures with respect to a claimant who has been denied refugee status in Canada. A no credible basis finding is therefore very significant for refugee claimants.
The Federal Court of Appeal has also explained its effect in Rahaman v. Canada (M.C.I.), [2002] 3 F.C. 537, at page 545:
[2] The principal effects of a "no credible basis"finding are that the unsuccessful claimant for refugee status has no right to apply to remain as a member of the post-determination refugee claimants in Canada (PDRCC) class and is liable to be removed from Canada seven days after the removal order is effective.
Subsection 69.1(9.1) requires the fulfilment of two conditions before a "no credible basis" finding can be made. First, each member of the Board must be of the opinion that the claimant is not a Convention refugee. Second, each member must be satisfied that there was no credible or trustworthy evidence on which it could have been determined that the claimant was a Convention refugee. The subsection, therefore, goes a step further than a simple determination that the claimant is not a Convention refugee, and in effect acts as a filter for cases that would not be accepted under the Post Determination Refugee Claimants in Canada ("PDRCC") class, by assessing those cases for which there is absolutely no credible supporting evidence.
As a result of the severe consequences attached to a "no credible basis" finding, subsection 69.1(9.1) has been strictly interpreted. It has been held that a Board must make an examination of all the evidence to determine whether there is any credible, trustworthy, and independent evidence which could have supported the claim before making a "no credible basis" finding (Rahaman, supra), and it must give express reasons for such a finding (Foyet, supra). The Board has failed to meet either requirement.
The Board has correctly satisfied the first condition of subsection 69.1(9.1), by finding a lack of nexus between the applicant's fear and either of the two Convention grounds which he cited. It indicates that "victims of fraudulent actions of organized crime do not constitute a particular social group" within the Convention definition. Similarly, it states that the applicant's actions in denouncing Holub and Company did not constitute the expression of a political opinion.
The Board has thus effectively found the applicant not to be a Convention refugee.
The Board continues in its analysis and discusses some of the documentary evidence before it concerning the Czech government's ability and willingness to fight organized crime, and concludes that the government has taken steps to do so. In reaching this conclusion, the Board preferred the documentary evidence over the applicant's testimony, which it is entitled to do (see, for example, Nijjar v. Minister of Citizenship and Immigration (December 4, 1998), IMM-408-98 (F.C.T.D.) and Zhou v. Minister of Employment and Immigration (July 18, 1994), A-492-91 (F.C.A.)). However, this is the extent of the Board's examination of the documentary evidence. It makes no mention of the documents submitted by the applicant in support of his claim.
Furthermore, the Board questions the credibility of the applicant's testimony only with respect to his assertion that he would be unable to receive state protection upon a return to the Czech Republic. The Board has not raised any other issue of credibility with respect to the applicant's testimonial or documentary evidence. The Board has, therefore, not satisfied the second condition required by subsection 69.1(9.1), and has not established that there is no credible or trustworthy evidence on which it could have been determined that the applicant is a Convention refugee.
The respondent argues, on the other hand, that there is case authority for the proposition that the Board is not required to give reasons for its "no credible basis" finding. However, in each case which the respondent cites, the Board had found the claimant's testimony not to be credible before concluding that there was no credible basis for the claim. In such cases, there may be no requirement for a further explanation other than that given on the question of the claimant's personal credibility, as I have stated in Nizeyimana v. Minister of Citizenship and Immigration (March 30, 2001), IMM-1789-00, 2001 FCT 259:
[9] This provision of the Act clearly requires that a conclusion that there is no credible basis should be part of the same decision as that dealing with the refugee status claim. If a separate decision is not required on the question of a credible basis, it follows that separate reasons are not required either. As the duty imposed on the tribunal by subsection 69.1(11) of the Act to give written reasons in support of a decision against a refugee status claimant was met, all that is required is to ensure that the reasons fully support the conclusions of the decision in question, including if necessary the conclusion that a credible basis was lacking.
Justice Blais reached a similar conclusion in Sarker v. Minister of Citizenship and Immigration (May 25, 2001), IMM-3392-00, 2001 FCT 526. In Kanvathipillai v. Minister of Citizenship and Immigration (August 16, 2002), IMM-4509-00, 2002 FCT 881, another case cited by the respondent, Pelletier J. found that, where a Board takes into account all the evidence, both oral and documentary, its reasons for finding that there is no trustworthy evidence supporting the applicant's claim will also serve as reasons for justifying a finding of "no credible basis".
In the case at bar, the Board did not question the applicant's credibility, and indeed, it seems to have accepted that he was the victim of organized crime. It did not find that there is no trustworthy evidence supporting the applicant's claim. Under these circumstances, it was required to explain its "no credible basis" finding explicitly. I am not convinced that the reasons given for the Board's finding of a lack of nexus are sufficient to also act as an explanation for the claim's lack of credible basis. The cases cited by the respondent do not apply to the facts of this case.
The Board erred in dismissing the applicant's claim because it had "no credible basis"without satisfying the conditions of subsection 69.1(9.1) of the Act. However, it did not err in its analysis concerning the lack of nexus between the applicant's fears and the Convention grounds which he cited. It did not take issue with the applicant's general credibility in its analysis. In a case such as this, I believe the best and most efficient remedy is to strike the references to subsection 69.1(9.1) and the lack of credible or trustworthy evidence out of the Board's decision, without invalidating the decision itself. This addresses the Board's error without annulling its finding that the applicant is not a Convention refugee, and at the same time it allows the applicant to apply under the PDRCC class for a stay of his removal from Canada.
An order is made accordingly.
JUDGE
OTTAWA, ONTARIO
June 13, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2627-02
STYLE OF CAUSE: ZDENEK KOURIL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 21, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: June 13, 2003
APPEARANCES:
Mr. Ron Shacter FOR THE APPLICANT
Mr. Lorne McClenaghan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Ron Shacter FOR THE APPLICANT
Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario