Date:
20141219
Docket: IMM-7949-13
Citation:
2014 FC 1236
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 19, 2014
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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LAMIA ALOULOU
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HAMDI BATRI
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Applicants
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicants are a mother and son who are
originally from Tunisia. They left that country for Canada in January 2013 and
claimed protection in Canada under sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (Act) the following month. They allege
that they were persecuted by the ex-husband of Ms. Aloulou and father of Mr. Batri
(or the co‑applicant), a violent man who, following his release from
prison in March 2012, apparently resumed his campaign of harassment and death threats
against them.
[2]
The Refugee Protection Division of the
Immigration and Refugee Board of Canada (RPD) did not believe their account and
therefore rejected their refugee protection claim. The applicants appealed that
decision to the Refugee Appeal Division (RAD), but the RAD dismissed the appeal
on November 15, 2013.
[3]
It is that decision by the RAD that the
applicants are appealing in this case. They are of the opinion that the RAD
erred in three ways: first, by finding that the RPD did not exhibit bias in
rejecting their refugee claim; second, by abdicating its role as an appellate administrative
tribunal by applying a standard of review of the RPD decision that was too restrictive;
and in any event, by concluding, on the basis of that restrictive standard,
that there was no need for it to intervene.
[4]
For the following reasons, the applicants’ application
for judicial review is allowed in part.
I.
Background
A.
The applicants’ claim for refugee protection
[5]
The applicants claim to fear Ms. Aloulou’s
ex-husband, a man named Boujemâa Batri, whom she married at the end of August 1989.
Ms. Aloulou alleges that, just after they were married, her ex‑husband started
to insult her and became violent towards her to the point of slapping her in
public and breaking one of her ribs. Save one incident where her ex-husband
punched her, that abuse, which was almost daily according to Ms. Aloulou, stopped
in March 1990 when she became pregnant with the co-applicant. He was born
in December 1990 and a few months later, that is, in May 1991, Ms. Aloulou stated
that her ex‑husband physically attacked her again, which resulted in the
termination of an accidental pregnancy.
[6]
She also stated that soon thereafter, that is,
in August 1991, her ex-husband was arrested and incarcerated on a murder charge
for which he was found guilty and sentenced to life in prison. She obtained a
divorce in December 1998.
[7]
However, according to Ms. Aloulou, in March
2012, her ex-husband was released from prison as a result of a presidential
amnesty and again started to pursue, harass and threaten her. She was, however,
no longer the only one to experience that treatment, which was now also
directed towards the co-applicant. In October of that same year, after seeing
the ex-husband in front of their house, the applicants filed a complaint with
the police and hastily moved to a community located 100 km from their place of
residence. Despite their efforts to create distance and hide from the ex-husband,
he found them again, which convinced them to leave Tunisia to seek refuge in Canada.
[8]
The applicants obtained a visitor’s visa in
mid-December 2012 and left Tunisia for Canada on January 22, 2013. Their claim
for refugee protection was filed in mid-February 2013.
[9]
On August 15, 2013, the RPD found that the
applicants were not refugees or persons in need of protection under sections 96
and 97 of the Act because their testimony revealed a number of contradictions, inconsistencies
or implausibilities that undermined their credibility.
[10]
The applicants appealed that decision to the
RAD. They are of the view that the conduct of the member of the RPD hearing gives
rise to a reasonable apprehension of bias. They are also of the opinion that
the RPD’s assessment of their credibility was erroneous to the extent that it
was based on an incomplete, erratic, imprecise or inaccurate reading of the
facts in evidence.
B.
RAD decision
[11]
On November 15, 2013, the RAD dismissed the
applicants’ appeal. It found, first, after listening to the recording of the hearing
in light of the applicants’ criticisms, that no reasonable apprehension of bias
or even appearance of bias by the RPD was objectively demonstrated. In
particular, it did not find any evidence of the RPD member acting in a
derogatory manner that could have been interpreted by an informed and
reasonable observer as giving rise to an appearance of bias. According to the
RAD, in the recording of the hearing there is no indication of, inter alia,
the acrimonious, ironic, sarcastic, disparaging, incongruous, inappropriate or disruptive
comments that were attributed to that member by the applicants.
[12]
Regarding the issue of the assessment of the
applicants’ credibility, the RAD carried out its review on a reasonableness standard
and , in doing so, adopted the same deference to RPD decisions as courts of law
are required to extend to first-level decision‑makers in determining the
reasonableness of their decisions.
[13]
The RAD was of the opinion, based on that
standard of review, that the RPD’s findings with respect to credibility and
assessment of the evidence were entitled to a high level of deference and that,
in that context, its role was not to re-weigh the evidence in the record or to
conduct a microscopic analysis of the RPD decision but instead to determine
whether, when analyzed as a whole, that decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law. It found that it does.
II.
Issues
[14]
Three issues arise here. The first is whether
the RAD erred by rejecting the applicants’ bias argument. The second is whether
the RAD adopted the proper standard of review of the RPD decision, that is, a
standard of review appropriate for its role as an appellate administrative
tribunal, as defined in the Act.
[15]
Finally, and assuming that the standard of
review chosen was the proper one, the third issue is whether the RAD committed
a reviewable error by finding that the RPD’s decision to reject the applicants’
refugee claim on the grounds that they were not credible was reasonable,
meaning that it falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[16]
For the following reasons, the first ground
raised by the applicants must fail, but not the second ground, which concerns
the standard of review. In these circumstances, the third issue need not be addressed.
III.
Analysis
A.
The issue of bias
[17]
The applicants allege that the panel member who
presided over their hearing before the RPD was disparaging, disrespectful,
impatient and insensitive towards them, particularly by way of ironic chuckling
and comments, which thus created doubt as to his impartiality.
[18]
In light of the applicable legal principles, the
RAD carefully reviewed the criticisms against the RPD in that respect and concluded
that they were unfounded. Because the rule against bias of decision-makers is a
component of procedural fairness, I must examine the RAD’s decision in that
respect on a standard of correctness. In other words, I need not defer to it. The
principle is widely accepted and need not be demonstrated any further (Kozak
v Canada (Minister of Citizenship and Immigration), 2006 FCA 124, [2006] 4
FCR 377 at paragraph 44; Muhammad v Canada (Minister of Citizenship and
Immigration), 2014 FC 448 at paragraph 51; Morales v Canada (Minister of
Citizenship and Immigration), 2007 FC 1220, at paragraph 7).
[19]
That said, and having carefully listened to the recording
of the hearing myself and weighed the arguments of the parties, I can only
conclude in favour of the RAD on that issue. In my opinion, and with respect,
there is not a shred of evidence of conduct, on the part of the member who
presided over the applicants’ hearing before the RPD, that could give rise to
an argument of actual or perceived bias.
[20]
The most widely accepted wording for the
applicable test to determine whether there is a reasonable apprehension of bias
in a given case comes from the Supreme Court of Canada in Committee for
Justice v National Energy Board, [1978] 1 S.C.R. 369. Thus, for an
apprehension of bias to be founded, it “must be a
reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information”.
In other words, that test is “what would an informed
person, viewing the matter realistically and practically—and having thought the
matter through—conclude”. In trying to answer this question, one must
also be careful to not confuse that reasonable and informed person with a
sensitive or scrupulous conscience (Committee for Justice, at pages 394
and 395).
[21]
The applicants are correct in noting the
comments of my colleague Mr. Justice Martineau in Kabongo v Canada (Minister
of Citizenship and Immigration), 2011 FC 1106, 397 FTR 191, where he pointed
out that maintaining the appearance of impartiality of the Canadian refugee
protection system must be reflected on a day-to-day basis and in how the members
of the RPD prepare, hear and decide cases (Kabongo, at paragraph 34).
[22]
The question to resolve, however, remains the
same: what would an informed person, viewing the matter realistically and
practically—and having thought the matter through—conclude. In answering that
question, one must remember that the allegation of bias is serious because it challenges
the integrity of the decision-maker and cannot, as a result, be made lightly. The
case law has established that such an allegation must be supported by material evidence
demonstrating conduct that derogates from the standard. Put differently, it
cannot rest on mere suspicion, insinuations or even mere impressions of a party
or its counsel (Arthur v Canada (Attorney General), 2001 FCA 223, at
paragraph 8; Ramirez v Canada (Minister of Citizenship and Immigration),
2012 FC 809, at paragraph 11; Maxim v Canada (Minister of Citizenship and Immigration),
2012 FC 1029, at paragraph 30).
[23]
However, in this case, as noted by the RAD, the
recording of the hearing reveals a member who was methodical but level-headed,
patient, courteous and respectful. Unless one is in a firm mindset that is not
that of a reasonable, informed person, viewing the matter realistically, and
having thought the matter through, that recording reveals no trace of acrimonious,
ironic, sarcastic, disparaging, inappropriate or disruptive remarks or comments,
interspersed with incongruous chuckling, as claimed by the applicants.
[24]
The applicants place a great deal of importance
on the fact that, in trying to understand Ms. Aloulou’s evidence on the
frequency of the abuse that her ex‑husband allegedly put her through, the
RPD member stated, followed by a chuckle, that when the ex-husband was in
Europe, he did not hit her. Ms. Aloulou is of the opinion that that comment, which
was made 15 minutes into a hearing that lasted more than three hours and which
she perceived as derogatory and indicative of a bias against her version of the
facts, affected the rest of her testimony. The co-applicant stated that, from
that episode, he remembered that he [translation]
“felt his mother’s shock and her burden of disapointment
from that remark”.
[25]
However, first, that chuckle was imperceptible
on the recording and is difficult to reconcile with the flow and tone of the conversation
at that specific time of the hearing. That same flow and that same tone
contrast with the whole idea that Ms. Aloulou may have been shocked by that review
question by the member to the extent that she elaborated on it, without any hesitation,
saying to the panel member that her ex-husband’s trips did not affect her
situation because at those times, his mother, who, according to the applicant, was
as harsh and controlling as her son, monitored her. Regardless, a reasonable
and informed person, viewing the matter realistically and practically—and
having thought the matter through—would not detect from the recording of the
hearing any “shock” on the part of Ms. Aloulou at that time; quite the
contrary.
[26]
Second, that comment, which the RPD panel member
is criticized for, clearly reflects a review effort, as the panel member was
trying to understand and clarify Ms. Aloulou’s testimony with respect to
the frequency of the abuse that she claims to have suffered between her wedding
and when she became pregnant with the co-applicant, a period where almost daily
abuse and periods of calm seem to be interspersed, so to speak.
[27]
The RPD panel member was simply doing his job
here. In that regard, it is important to note that the RPD’s work is inquisitorial
and that it is at the heart of a process that is non‑adversarial, in that
no one appears to object to the refugee claim. In that sense, its role differs
from that of judges of traditional courts, which is to consider the evidence
and arguments that the parties choose to present while refraining from telling
the parties how to present their cases. In contrast, the RPD must be actively
involved in the hearings before it to make its inquiry process work properly.
Furthermore, for that purpose, its members have the same powers as
commissioners who are appointed under the Inquiries Act, which gives
them the power to inquire into anything they consider relevant to establishing
whether a claim is well-founded (Canada (Minister of Citizenship and
Immigration) v Nwobi, 2014 FC 520, at paragraphs 16 and 17; Velasquez
v Canada (Minister of Citizenship and Immigration), 2013 FC 273, 429
FTR 143, at paragraph 15).
[28]
Even if I did not observe any of that in this
case, the inquisitorial process could give rise to sometimes extensive and
energetic questioning, expressions of momentary impatience or loss of
equanimity, even sarcastic or harsh language, without leading to a reasonable
apprehension of bias (Fenanir v Canada (Minister of Citizenship and
Immigration), 2005 FC 150, at paragraph 14; Acuna v Canada (Minister
of Citizenship and Immigration), 2006 FC 1222, 303 FTR 40 at paragraph
15; Ramirez, above, at paragraph 23).
[29]
Here, was the review effort clumsy when it referred
to her ex-husband’s trips to Europe? Ultimately, perhaps. However, that does
not suffice to establish a criticism of individual bias.
[30]
The other remarks attributed to the member that,
according to the applicants, reinforced their apprehension of bias based on a comment
about the ex‑husband’s trips, are also all within the balanced,
methodical, orderly and respectful exercise of the powers given under the Act
to the RPD, whether it was when the member
a.
sought to obtain responses from the co-applicant
when Ms. Aloulou intervened;
b.
asked the applicants’ representative to keep
some of his submissions for his final representations;
c.
legitimately asked questions on the place and
role of the ex-husband’s brother, who is a police officer, in the entire account;
or even
d.
inquired about an internal flight alternative, asking
Ms. Aloulou about her ability to find work given her level of education.
[31]
Once again, there is nothing in his comments or interventions
that could cause a reasonable and informed person, viewing the matter
realistically—and having thought the matter through—to conclude that they are sufficient
to raise a reasonable apprehension of bias, real or perceived. Those remarks
and interventions are unquestionably within the standards of conduct that apply
to the RPD under the rules against bias and, more generally, the principles of
procedural fairness.
[32]
There is also one last point, equally fatal to
the applicants’ argument. An allegation of bias must be raised without delay so
that the decision-maker can recuse him- or herself and so that judicial and
quasi-judicial resources, which are not unlimited, can be saved. That principle
is firmly established in the case law, and non-compliance generally precludes
the bias argument (Acuna, above, at paragraph 35; Fletcher v Canada
(Minister of Citizenship and Immigration), 2008 FC 909, at paragraph 17; Cao
v Canada (Minister of Citizenship and Immigration), 2012 FC
1398, 422 FTR 108 at paragraph 26).
[33]
In this case, the applicants, who were nevertheless
assisted by a representative at the hearing, did not request that the member
recuse himself or even express their concerns at the hearing regarding what
they perceived as misconduct on his part.
[34]
The applicants’ bias argument is without merit, untimely
and purely retrospective. It is rejected.
B.
The standard of review of RPD decisions in the
context of an appeal before the RAD
[35]
This issue is new and has generated several
judgments of this Court in the last few months. It is new because even though the
creation of the RAD had been contemplated since the enactment of the Act, which,
in 2001, replaced the Immigration Act, RSC 1985, c I-2, the RAD did not
become operational until December 2012.
[36]
To date, the RAD’s position regarding the
standard of review it should apply when sitting in appeal of an RPD decision, a
position that was essentially the same from one case to another, has been systematically
rejected by the Court, regardless of the standard of review—be it correctness
or reasonableness—applied by the Court to arrive at that result (Iyamuremye
v Canada (Minister of Citizenship and Immigration), 2014 FC 494; Triastcin
v Canada (Minister of Citizenship and Immigration), 2014 FC 975; Akuffo
v Canada (Minister of Citizenship and Immigration), 2014 FC 1063; Alvarez
v Canada (Minister of Citizenship and Immigration), 2014 FC 702; Eng v
Canada (Minister of Citizenship and Immigration), 2014 FC 711; Njeukam
v Canada (Minister of Citizenship and Immigration), 2014 FC 859; Yetna
v Canada (Minister of Citizenship and Immigration n), 2014 FC 858; Spasoja
v Canada (Minister of Citizenship and Immigration), 2014 FC 913; Huruglica
v Canada (Minister of Citizenship and Immigration), 2014 FC 799; Diarra
v Canada (Minister of Citizenship and Immigration), 2014 FC 1009; Guardado
v Canada (Minister of Citizenship and Immigration), 2014 FC 953; Alyafi
v Canada (Minister of Citizenship and Immigration), 2014 FC 952; Djossou
v Canada (Minister of Citizenship and Immigration), 2014 FC 1080).
(1)
The RAD’s position regarding the scope of review
of RPD decisions
[37]
It is interesting to point out that the RAD, in
the decision under review, noted at the outset that it is not a court of law
and that it does notreview
RPD decisions but determines appeals from decisions of the RPD and is a
sub-entity of the same larger administrative organization, the Immigration and
Refugee Board of Canada. It is also interesting to note that it continued by pointing
out that it and the RPD both, in their respective roles, have to deal with whether
or not to grant refugee protection to people who ask for it within a
legislative scheme that governs them both and whose objectives include
establishing fair and efficient procedures that will maintain the integrity of
the refugee claims process while upholding respect for the human rights and
fundamental freedoms of all human beings.
[38]
Until now, its position has not been a problem.
[39]
It then noted that while it generally proceeds without
holding a hearing, the RPD generally disposes of a claim for refugee protection
by holding a hearing, which thus allows it to see and question the refugee
protection claimants, which gives it [translation]
“a significant advantage in making findings of fact and
assessing the credibility of the refugee protection claimants” (RAD
decision, at paragraph 36).
[40]
In my opinion, with respect, the RAD adopted a
position on this point that is inconsistent with the role that Parliament set
out for it.
[41]
In fact, the RAD, in this context, and relying
on the Alberta Court of Appeal’s decision in Newton v Criminal Trial
Lawyers’ Association, 2010 ABCA 399, 413 AR 89, was of the opinion that
except for [translation] “strict questions
of law” and questions of natural justice, RPD decisions are entitled to the
same deference [translation] “as courts of law are required to extend to first-level
decision-makers in matters involving questions of fact or questions of mixed
law and fact” (RAD decision, at paragraph 43).
[42]
In practical terms, it specified that the
deferential standard, to the extent that the applicants raised errors in respect
of the assessment of their credibility in support of their appeal, is what this
Court applies on judicial review of this type of error, that is, the standard
of reasonableness (RAD decision, at paragraph 45).
[43]
It follows, according to the RAD, that its role [translation] “is
not to re-weigh the evidence, or to conduct a microscopic analysis of the RPD
decision, but rather to determine whether, when analyzed as a whole, this
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”. It found that this standard
of review implies that [translation] “[t]he RPD’s findings affecting issues of credibility and
the assessment of evidence” are entitled to [translation] “great deference” (Decision of the RAD, at paragraph
66).
[44]
Before addressing what motivated the Court to reject
the RAD’s position on this issue, it is useful, I believe, to provide an
overview of the jurisdictional attributes of the RAD and what makes it a
specialized administrative tribunal sharing important common traits with the
RPD, which, as an appellate tribunal, is responsible for reviewing decisions that
address the merits of refugee claims.
(2)
The jurisdictional attributes of the RAD
[45]
The jurisdiction of the RAD is set out in
sections 110 and 111 of the Act. A refugee claimant or the Minister of
Citizenship and Immigration (Minister) may appeal to it, on a question of law,
of fact or of mixed law and fact, against a decision of the RPD “to allow or reject the person’s claim for refugee
protection” (subsection 110(1)).
[46]
The RAD normally proceeds without a hearing, on
the basis of the record of proceedings of the RPD, which, however, does not
prevent it from accepting documentary evidence and written submissions from the
refugee claimant and the Minister (subsection 110(3)). In particular, the
refugee claimant may present evidence only if it is evidence that arose after
the rejection of the refugee claim or evidence that was not reasonably
available at that time, or that the person could not reasonably have been
expected in the circumstances to have presented, at the time of the rejection
of the claim (subsection 110(4)).
[47]
It is also open to the RAD to hold a hearing if,
in its opinion, the documentary evidence that was presented before it, as referred
to in subsection 110(3), has the following three characteristics: it raises a
serious issue with respect to the credibility of the refugee claimant; it is
central to the decision with respect to the refugee protection claim; and it
would justify, if accepted, allowing or rejecting the refugee protection claim (subsection
110(6)).
[48]
Once its review of the RPD decision is complete,
the RAD is able to either confirm said determination or set it aside and
substitute a determination that, in its opinion, should have been made, or
refer the matter to the RPD for re-determination, giving the directions to the
RPD that it considers appropriate (subsection 111(1)). In the last scenario,
the referral to the RPD is only possible if the RAD is of the opinion that the
decision is wrong and it cannot make a decision under paragraph 111(1)(a)
or (b) without hearing evidence that was presented to the RPD (subsection
111(2)).
[49]
Furthermore, regarding the exercise of its
jurisdiction, there are provisions that apply to both the RAD and the RPD:
a.
they each have their own sole and exclusive
jurisdiction (section 162(1));
b.
they both deal with proceedings as informally
and quickly as the circumstances and the consideration of fairness and natural
justice permit (section 162(2));
c.
save instructions to the contrary from the
Chairperson of the Immigration and Refugee Board, their matters are conducted before
a single member (section 163);
d.
members working for either one have the powers
and authority of a commissioner appointed under the Inquiries Act and
may do any other thing they consider necessary to provide a full and proper
hearing (section 165);
e.
unless they decide otherwise, their proceedings
are held in the absence of the public (subsection 166(c)), and the
refugee claimant and the Minister may be represented by legal or other counsel (section
167);
f.
they both may determine that a proceeding has
been abandoned or refuse to allow an applicant to withdraw from a proceeding if
they are of the opinion that the withdrawal would be an abuse of process (section
168); and
g.
neither is bound by any legal or technical rules
of evidence (paragraphs 170(g) and 171 (a.2)), and both may
receive and base a decision on evidence that is considered credible or
trustworthy (paragraphs 170(h) and 171(a.3)) and may take notice
of any facts that may be judicially noticed, any other generally recognized
facts and any information or opinion that is within its specialized knowledge (paragraphs
170(i) and 11(b).
[50]
Finally, Parliament has vested in the RAD the
function of standardizing refugee protection law. As such, a decision of a
panel of three members of the RAD has, for the RPD and for a panel of one
member of the RAD, the same precedential value as a decision of an appeal court
has for a trial court (paragraph 171(c)).
(3)
The RAD’s position does not reflect its actual
role
[51]
In terms of the manner in which it is expressed,
the RAD’s position proposes in a way a duplication of this Court’s judicial
review function with respect to RPD decisions. However, in the opinion of the
judges of this Court who have addressed the issue to date, that cannot have
been the intention of Parliament when it created the RAD. That approach has
been deemed either erroneous when considered on a standard of correctness or outside
the range of possible, acceptable outcomes which are defensible in respect of
the law when reviewed on a standard of reasonableness.
[52]
More specifically, consensus was achieved around
the reasons of my colleague, Justice Phelan, in Huruglica, above, a
judgment rendered shortly after the hearing of this case and discussed by the
parties at the hearing, regarding the rationale for rejecting the RAD’s approach.
That rationale can be summarized as follows:
a.
formulating the standard of review of RPD
decisions by the RAD as being equivalent to the standard of reasonableness
developed in the context of judicial review of administrative decisions leads
to duplicating the role of the RAD and that of the Court;
b.
the idea of such duplication is inconsistent
with the creation of the RAD and the responsibilities and powers that
Parliament assigned to it as a specialized appellate administrative tribunal, notably
with respect to its decision-making and reforming powers, which are broader
than those normally applicable in judicial review, and the function vested in
it of standardizing the law;
c.
for the little they can contribute to defining
the role of the RAD, nothing in the legislative debates supports the idea that
the RAD was required to play a limited role, as is judicial review based on the
reasonableness standard;
d.
that duplication idea also directly contravenes the
presumption that by creating the RAD, Parliament intended to establish a method
of reviewing RPD decisions that is different from what already existed;
e.
finally, the RAD’s approach disregards the basic
differences between appeals and
judicial review and in
that respect trivializes the fact that the concept of the standard of review, from
the perspective of the principle of the separation of powers, falls within the
relationship between the executive and the judiciary, and not, strictly
speaking, between two branches of the executive, as is the case with the RPD
and the RAD.
[53]
I completely agree. As my colleague Justice Roy pointed
out in Spasoja, above, and as can be observed from the jurisdictional
attributes of the RAD described previously, the Act, taken as a whole, in no
way suggests that the RAD owes deference to RPD decisions on a standard of
reasonableness. According to him, the Act suggests the opposite:
. . . the Act instructs the RAD to examine
the record of proceedings before the RPD while admitting additional evidence,
in the prescribed circumstances. The English version of subsection 111(1)
specifically states “[a]fter considering the appeal” before stating the
possible outcomes for the RAD. There is no question of owing deference: the
determination is confirmed or a new determination is substituted. If there was
an error of fact or law, or mixed fact and law, but the RAD cannot confirm or
substitute its determination without a new hearing to reassess the evidence
before the RPD, the matter is referred back. I fail to see where deference,
arising from the reasonableness standard, fits into that scheme considered as a
whole.
(Spasoja, above at paragraph 20)
[54]
I am also of the opinion, as is Justice Roy, who
cited the Quebec Court of Appeal in Parizeau c Barreau du Québec,
2011 QCCA 1498, that respect for legislative intent weighs against treating
appeals before the RAD as a form of judicial review and against developing a
policy of deference the effect of which would be to turn appeals before the RAD
into pseudo‑judicial reviews of RPD decisions (Spasoja, above, at
paragraph 30).
[55]
I would add this. As pointed out by the Supreme
Court in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, judicial
review is intimately connected with the preservation of the rule of law and
enjoys constitutional protection, which gives it its purpose while guiding its
function and operation. More specifically, it seeks to address “an underlying tension between the rule of law and the
foundational democratic principle, which finds an expression in the initiatives
of Parliament and legislatures to create various administrative bodies and
endow them with broad powers”. The Supreme Court added that, as a
result, the courts that are called upon to exercise it “must
be sensitive not only to the need to uphold the rule of law, but also to the
necessity of avoiding undue interference with the discharge of administrative
functions in respect of the matters delegated to administrative bodies by
Parliament and legislatures” (Dunsmuir, at paragraph 27).
[56]
The function of judicial review is therefore to
ensure “the legality, the reasonableness and the
fairness of the administrative process and its outcomes” (Dunsmuir,
at paragraph 28), hence the development of the reasonableness standard as a
means to preserve that balance between the principle of the rule of law and the
democratic principle while acknowledging the importance of the exercise of
those administrative functions as evidenced by the recent extension of the
application of said standard to questions of law that fall within the area of
expertise of bodies that exercise those functions (Alberta (Information and
Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61,
[2011] 3 S.C.R. 654, at paragraph 46).
[57]
The appellate body has a different purpose and
origin. It can only be a creature of statute, it does not benefit from any
constitutional protection and it has its own functionality: it serves to
rectify any error in law in the decision or any palpable and overriding error
in the determination of the facts or in the application of the law to the
facts, assuming that it was correctly identified (Spasoja, above at
paragraph 39).
[58]
That is, in my view, the purpose of the recourse
to the RAD, a purpose that is more consistent with the statutory environment in
which it is used and the status of the RAD as a specialized administrative
tribunal.
[59]
In the very recent Djossou case, above, my
colleague Justice Martineau opined, correctly in my opinion, that Parliament’s
creation of the RAD had a dual purpose: on the one hand, to enable the RAD,
which exercises exclusive jurisdiction that is at least equal to that of the
RPD, to efficiently correct errors made by the RPD by conducting a complete
review of questions of fact, law and mixed law and fact raised in the appeal,
and, on the other hand, to enable the RAD to ensure consistency in the
decision-making process by establishing uniform jurisprudence on refugee law
issues (Djossou, at paragraphs 41 and 86).
[60]
This double objective is inconsistent with the view
the RAD has of its role is as an appellate administrative tribunal.
[61]
Thus, in attempting to avoid duplicating the
RPD, the RAD has given itself here, as in other cases that ended up before the
Court, a role comparable to that exercised by the Court on judicial review. It
chose to show the same deference to questions of fact and questions of mixed
fact and law raised against the RPD decision as courts of law show to decisions
by administrative decision-makers.
[62]
Like my colleagues before me, I find that, in
doing so, it committed an error that taints the lawfulness of its decision. I
am also of the view, like them, that to comply with the mandate conferred on it
by Parliament the RAD had to carry out a complete review of the questions of
fact, law and mixed fact and law raised in the applicants’ appeal. However, nothing
in the decision under review indicates that that was done and that the
applicants were thus entitled to the appeal granted to them by the Act.
[63]
The respondent is of the view that to the extent
that the RAD listened to the recording of the hearing for the purposes of
disposing of the bias argument, it must be assumed that its decision to reject
the merits of the applicants’ appeal was also preceded by an independent review
of the applicants’ refugee claim. However, this is a step that I cannot take in
the absence, as is the case here, of indications in the RAD’s decision that
make it possible to draw such an inference.
[64]
To the contrary, everything indicates, as we
have seen, that the RAD felt it was justified in assessing the merits of the
applicants’ appeal on a standard of reasonableness while being very careful to
specify, first, that its role [translation]
“is not to re-weigh the evidence, or to conduct a
microscopic analysis of the RPD decision, but rather to determine whether, when
analyzed as a whole, this decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law”, and, second,
that “[t]he RPD’s findings affecting issues of
credibility and the assessment of evidence” are therefore entitled to “great
deference” (RAD Decision, at paragraph 66).
[65]
The respondent also claims that there is no
practical interest in allowing this application for judicial review because, to
the extent that it simply raises, at least with respect to the merits of the
RPD decision, questions related to the assessment of the evidence, deference is
in order, regardless of the applicable standard of review, meaning that the
result of the appeal before the RAD would have been the same regardless of the
deferential standard it applied.
[66]
It is true that the standard of reasonableness,
which is unique to judicial review, and that of palpable and overriding error, which
is unique to appeals, both impose on the reviewing or appellate court some
deference to the first-level decision-maker’s assessment of the evidence.
[67]
However, the two standards are not identical (Housen
v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235; H.L. v Canada
(Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401) and may, in respect of
the same factual matrices, give nuanced results. I am therefore not prepared to
assume that, even seen from the standpoint of the palpable and overriding error
standard, the result of the appeal before the RAD in this case would have been
the same.
[68]
But there is more. I have already stated that
the RAD, in its role as an appellate administrative tribunal, must carry out a
complete review of the questions of fact, law or mixed fact and law raised in
the applicants’ appeal. The applicants also complain that the portion of the
RAD decision dealing with the criticisms of the RPD with respect to its
assessment of the evidence did not even refer to their accusations and that,
for all practical purposes, it simply summarized the RPD decision and found
that it was intelligible.
[69]
In fact, the RAD barely, if at all, dealt with the
questions of fact, law, or mixed fact and law raised in the applicants’ appeal
with respect to the merits of the RPD decision. Nothing indicates that those
questions were completely reviewed as the Act requires, in my view.
[70]
It is possible, as the respondent claims, that
by returning this matter to the RAD, the result would ultimately be the same.
However, in doing so, and regardless of the outcome, the applicants would have been
entitled to the appeal that Parliament created for the benefit of refugee
claimants who are unsuccessful before the RPD.
[71]
The application for judicial review will therefore
be allowed in part, and the matter returned to a differently constituted panel
of the RAD for redetermination of the applicants’ appeal that must take these
reasons into consideration regarding the scope of the review of the RPD
decision that the RAD is required to carry out.
[72]
I told the parties, at the end of the hearing in
this case, that they would be given the opportunity to make written submissions
to me regarding the appropriateness of certifying a question for the Federal
Court of Appeal in accordance with paragraph 74(d) of the Act.
[73]
Since then, the following question was certified
in Huruglica, above:
What is the scope of the Refugee Appeal
Division’s review when considering an appeal of a decision of the Refugee
Protection Division?
[74]
Similar questions have also been certified,
namely in Akuffo and Spasoja, above. The question in Akuffo
focused on the applicable standard for appeals that specifically raise credibility
issues.
[75]
Therefore, the parties have until January 14,
2015, to file their written submissions regarding the appropriateness of certifying
a question in the circumstances.
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