2014 FC, 2014 FC 1183

Date: 20141208 Docket: IMM-5140-13 Citation: 2014 FC 1183 Ottawa, Ontario, December 8, 2014 PRESENT: The Honourable Mr. Justice Roy BETWEEN:LJUCA JUNCAJ, DIELL LUCA (A.K.A. DIELL JUNCAJ), VINCE JUNCAJ AND VIKTOR JUNCAJApplicantsand MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] UPON an application for judicial review of a decision of the Refugee Protection Division [RPD] of the Immigration andRefugee Board made pursuant to

section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27; [2] AND UPON reviewing the record and receiving the representations of counsel; [3] For the reasons that follow, the application for judicial review is granted. [4] This case brings forth the tension between insufficient reasons for a decision and what appears to be significant confusion inthe reasons for the decision. [5] On one hand, the Supreme Court of Canada states unequivocally that inadequate reasons are not a stand-alone basis forquashing a decision (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,[2011] 3 SCR 708 [Nurses’ Union]).

Indeed, reviewing judges are invited to consider “the record for the purpose of assessing thereasonableness of the outcome” (at para 15). [6] On the other hand, it must be possible for the reviewing judges to ascertain the reasonableness of a decision. Repeatedmistakes on important issues affect the reasonableness of the decision (Nurses’ Union, at para 22). [7] In its reasons, the RPD made many serious errors and mistakes about the evidence presented before it by the applicants, asreflected in the hearing transcripts.

Multiple events and circumstances are incorrectly attributed to the wrong adult applicant, such thatthe narrative laid out by the RPD simply does not make sense. The nationalities of the two adult applicants are confused. Some eventswhich the applicants testified as occurring in Montenegro are presented by the RPD as happening in Albania.

The overall, combinedeffect of these errors is that the decision was drafted and rendered without consideration and appreciation of the evidence before it. [8] A reasonableness review is “concerned mostly with the existence of justification, transparency and intelligibility within thedecision-making process”: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, at paragraph 47. In my view, these mistakes goto the heart of the matter and lead to an unreasonable result; the RPD decision is neither transparent nor intelligible.

Without substitutingthe Court’s view of the evidence for that of the RPD, which is not permissible on judicial review, it is not possible to decipher with anymeasure of precision if the decision under review is reasonable. [9] The comments of the Federal Court of Appeal more than 22 years ago in Uddin v Canada (Minister of Employment andImmigration), [1992] ACF No 445 appear to me to be apposite: -- Despite the admirable submissions by counsel for the respondent, we are all of the opinion that the decision a quo cannot be upheld.

The number of inaccuracies and errors counsel for the appellant was able to identify in the statement of facts as set out in the decision,some of which were of major importance, leave the Court with the impression that the members had difficulty following the claimant’stestimony, and that accordingly their analysis of the evidence and their assessment of the appellant’s credibility are too suspect not torequire the intervention of this Court. [10] The Crown, in a valiant effort to salvage the impugned decision, argues that the RPD’s decision on the availability of stateprotection is reasonable and that, all by itself, is enough to dispose of the matter. [11] There is something to be said for that argument.

The presumption of availability of state protection can only be rebutted byclear and convincing evidence (Canada (Attorney General) v Ward, (SCC), [1993] 2 SCR 689). The law does notrequire that there be perfect protection.

I share the view expressed by the Chief Justice of this Court that “[i]t is not unreasonable toexpect a person who wishes to seek the assistance and generosity of Canada to make a serious effort to identify and exhaust allreasonably available sources of potential protection in his or her home state, unless there is such a compelling or persuasive basis forrefraining from doing so” (Ruszo v Canada (Citizenship and Immigration), 2013 FC 1004, at para 50). [12] However, in view of the numerous mistakes made throughout the decision, it would be unsafe to dispose of this matter on thebasis that the decision on the availability of state protection is satisfactory.

In my estimation, it is not. Even the passage of the transcriptreferred to specifically in the Crown’s memorandum of fact and law on the issue of state protection tends to show a measure of confusionon the part of the RPD. Its decision also reveals what would appear to be non sequitur. The same confusion about the facts appears to

transpire in the reasons given to support the availability of state protection, in spite of the acknowledgement that the phenomenon of “blood feuds” may not have been eradicated. [ 13 ] The adjudication of this matter was deficient and it is in the interests of justice that it be sent back to the RPD for redetermination by a different panel. These reasons should not be taken as supporting a view as to whether the applicants are entitled to refugee status. That issue is entirely in the province of the new RPD panel to consider.

ORDER THIS COURT ORDERS that the application for judicial review is granted and the matter is sent back for redetermination by a different panel. No question is certified. "Yvan Roy" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5140-13 STYLE OF CAUSE: LJUCA JUNCAJ, DIELL LUCA (A.K.A. DIELL JUNCAJ), VINCE JUNCAJ AND VIKTOR JUNCAJ v MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: December 1, 2014 ORDER AND REASONS: ROY J. DATED: december 8, 2014 APPEARANCES : Yehuda Levinson For The Applicants Kareena R.

Wilding For The Respondent SOLICITORS OF RECORD : Levinson & Associates Barristers and Solicitors Toronto, Ontario For The Applicants William F. Pentney Deputy Attorney General of Canada Toronto, Ontario For The Respondent