Docket: IMM-2845-14
Citation:
2014 FC 1209
Ottawa, Ontario, December 12, 2014
PRESENT: The
Honourable Mr. Justice S. Noël
|
BETWEEN:
|
|
SAROM YIN
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for leave to commence an
application for judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision of Stephen
J. Gallagher of the Refugee Appeal Division [RAD] of the Immigration and
Refugee Board of Canada, dated March 19, 2014, which upheld the decision of the
Refugee Protection Division [RPD] determining that the Applicant was neither a
Convention Refugee nor a person in need of protection within the meaning of
sections 96 and 97 of IRPA.
II.
Facts
[2]
The Applicant is a 57 year old citizen of Cambodia.
[3]
She is at risk of persecution because of her
husband’s political activities.
[4]
The Applicant’s husband was beaten by thugs on
June 2, 2012 after his decision to stand for elected office for the Cambodian
National Rescue Party [CNRP].
[5]
Following the accusations from the police that
he was holding illegal political meetings at his home, he was forced into
retirement from his public service job at the Ministry of Finance and Economy.
[6]
The Applicant’s husband received a number of
high ranking members of the CNRP at his residence in March 2013. Four policemen
came and threatened to charge him with the crime of holding an illegal
political meeting.
[7]
The Applicant and her husband fled Cambodia and arrived on May 22, 2013 in Canada, where their three children live. They claimed
refugee protection soon after. The Applicant’s husband passed away on June 20,
2013.
III.
RPD Decision
[8]
In its decision dated August 15, 2013, the RPD
denied the Applicant’s refugee claim because it did not find the Applicant’s
allegations of persecution of her husband, and by extension to herself,
credible.
[9]
The Applicant filed an appeal of this decision
to the RAD on December 9, 2013.
[10]
The RAD rendered a negative decision on March
26, 2014.
IV.
Contested Decision
[11]
The Applicant did not present new evidence nor
did she request an oral hearing.
[12]
The RAD first discusses the applicable standard
of review to the RPD decision. According to the RAD, its assessment of the RPD
determination of the Applicant’s credibility attracts the reasonableness
standard, as applied by the Federal Court in evaluating RPD decisions related
to credibility. The RAD objective is therefore to “review
the RPD decision for the “existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law”. This
understanding flows from Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 [Dunsmuir]”.
[13]
The RAD frames the core issue of its review as
follows: did the RPD reach a conclusion on the credibility of the claimant,
which is “unreasonable”? In answering this question, the RAD listed the
different credibility findings the RPD made. The RAD is of the opinion that the
RPD reasonably concluded that the Applicant had not shown, on a balance of
probabilities, that her or her husband had been targeted by the Cambodian
People’s Party [CPP] and that the Applicant and her husband’s travel are
inconsistent with what would be expected if they were in fact at risk of
persecution or persons in need of protection under sections 96 and 97 of IRPA.
[14]
The RAD subsequently analyses the background
documentation of the political situation in Cambodia and finds that the “general thrust of the background documentation is that there
is significant corruption and cronyism in Cambodia, but little targeting of
opponents […] which is inconsistent with the Applicant’s allegations”
(RAD decision at para 6).
[15]
The RAD finally concludes that the RPD analysis
of the Applicant’s testimony and corroborative evidence reasonable. The RPD
decision therefore “falls within the range of possible,
acceptable outcomes which are defensible in respect of the facts and the law”
(RAD decision at para 24).
V.
Parties’ Submissions
[16]
The Applicant first submits that the applicable
standard of review to be applied by the RAD is that of correctness and not of
reasonableness. The Applicant grounds its position on the decision of The
Halifax Regional Municipality v Anglican Diocesan Centre Corporation, 2010
NSCA 38, where the Court of Appeal stated that “the
Board, itself an administrative tribunal under a statutory regime, does not
immerse itself in Dunsmuir’s standard of review analysis that governs a
court’s judicial review. The Board should do what the statute tells it to do”.
The Applicant then states that based on sections 110, 111, 111.1, 171 of IRPA,
section 159.91 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 and section 24 of the Refugee Appeal Division Rules,
SOR/2012-257 [RAD Rules], the legislator intended for the RAD to apply a
correctness standard, particularly because section 111 of IRPA states that the
tribunal will refer a case back to the RPD for re-determination, only when it
finds that the decision is wrong in fact or in mixed law and fact. Therefore, a
right to an appeal and not a right to a judicial review was created. Therefore,
because the RAD applied the wrong standard of review, the intervention of this
Court is warranted.
[17]
The Respondent argues, however, that the RAD
applied the correct standard of review, namely reasonableness, because, as per
sections 110 and 111 of IRPA, the RAD may allow an appeal if it is satisfied
that there is an error of law, error of fact or error of mixed fact and law
with the RPD decision. It can only substitute its opinion or return the matter
for re-determination when such an error is made. The Respondent adds that an
appeal to the RAD is a ““true appeal” in the sense that
the appellate body is bound by the findings of fact and of mixed fact and law
of a lower tribunal absent a demonstrable error” (Respondent’s
memorandum at para 31). An appeal to the RAD is therefore not a hearing de
novo.
[18]
The Applicant further submits that the RAD erred
when it went beyond the content of the RPD decision and looked at the
documentation pertaining to the political situation in Cambodia as this was not addressed in the RPD decision. The Applicant also argues that the
RAD erred by not providing the Applicant with a hearing to address its concerns
about the political context in Cambodia.
[19]
The Respondent replies by saying that the RAD
did not err by referring to the country documentation included in evidence
before the RPD. He is of the opinion that the Applicant did not demonstrate any
reviewable error. Further, the RAD did not exceed its jurisdiction when it
referred itself to the documentary evidence, as it was part of the RPD record.
VI.
Defendant’s Further Memorandum
[20]
The Respondent begins by reiterating the same
arguments as in their original submissions. A few new arguments are also added.
[21]
In terms of new arguments, the Respondent first
states that in the event that the RAD applied the wrong standard of review with
respect to the credibility of the Applicant under appeal, it has no bearing on
the results, which in turn means that it would be useless to send the matter
back to be re-examined.
[22]
The Respondent adds that Justice Shore’s
decisions in Eng v Canada (Minister of Citizenship and Immigration),
2014 FC 711 [Eng] and Alvarez v Canada (Minister of Citizenship and
Immigration), 2014 FC 702 [Alvarez] suggesting that the RAD must
conduct its own independent analysis of the totality of the evidence that was
before the RPD and come to its own conclusions contradict the wording of
section 110 of IRPA, since this section created a right of appeal for certain
refugee claimants, where the appellant before the RAD has the burden to raise
specific questions of fact, of law or of mixed law and fact.
[23]
The Respondent further submits that:
“it should be noted that the subsection 110(1)
indicated that the appeal must be in accordance with the RAD Rules of practice.
RAD Rule 3(3)(g)(i) requires the appellant to outline the errors made by the
RPD which form the grounds of the appeal. In addition, RAD Rule 3(3)(g)(ii)
imposes the onus on the appellant of identifying the specific location of the
error within the RPD record. Rule 9(2)(f) imposes a similar obligation on the
Minister when he brings and appeal of an RPD decision to the RAD” (Respondent’s
further memorandum at para 42).
[24]
The Respondent also adds that because the RPD is
the trier of fact at first instance, it has the benefit of seeing the claimant
and witnesses, whereas an appeal to the RAD is, by contrast, a paper process.
The RPD is therefore in a better position than the RAD to assess testimonial,
factual and evidentiary issues with perhaps the exception where the RAD holds a
hearing.
[25]
With regards of the role of the RAD on appeal of
a RPD decision, the Respondent states that the RAD decision to apply the
reasonableness standard in reviewing the RPD decision is a question closely
tied to its function and process. This issue is not a question of law of
central importance to the legal system as a whole, it is not a “true
jurisdictional issue” and is instead a question connected to the RAD home
statute; as such the correctness standard should not apply. The RAD has the
necessary degree of expertise to determine the appropriate standard of review
to apply on appeal of a RPD decision.
[26]
The Respondent further states that IRPA contains
a privative clause at section 162, which gives each division of the Board,
including the RAD, exclusive jurisdiction over questions of law, fact and
jurisdiction. This militates in favour of deference to the RAD on a question
such as to the appropriate standard of review.
[27]
In the case at bar, the Respondent argues that
because the RPD decision related to an issue of credibility, which is a
question of fact, the reasonableness standard applies.
[28]
The Respondent also submits that based on recent
jurisprudence of this Court, even though the wrong standard of review has been
applied by the RAD, deference is owed by the RAD to the RPD when it comes to
questions of credibility. The RAD decision should thus stand, even if the wrong
standard was applied.
[29]
Finally, the Respondent states that the RAD did
not have to give notice to the Applicant that it might examine other documents
than those referred to by the RPD in its decision, namely the US Country
Reports on Human Rights Practices for Cambodia for 2012, which was part of the
record.
VII.
Issues
[30]
The parties address two main issues in their
submissions, namely the applicable standard of review the RAD should apply to
the RPD decision on appeal and whether or not the RAD properly assessed the
credibility findings of the Applicant.
[31]
Having reviewed the submissions, the RPD and the
RAD decisions, I find that it will be necessary to deal only with the
credibility findings as assessed by the RAD in light of the RPD analysis on
these matters. It will be seen that this issue is wholly determinative of the
application for judicial review. Therefore, the question to be answered is as
follows:
- Did the RAD do a thorough analysis of the Applicant’s claim in
light of the credibility findings made by the RPD?
VIII. Standard of Review
[32]
Several judges of this Court have issued an
opinion as to which standard of review this Court should apply to the scope of
the review by the RAD on an appeal. In Djossou c
Canada (Ministre de la Citoyenneté et de l’Immigration), 2014 CF 1080 at para 18 [Djossou], Justice Martineau
explains that many judges are of the opinion that the correctness standard
applies (Iyamuremye v Canada (Minister of Citizenship and Immigration),
2014 FC 494 at para 20 [Iyamuremye]; Garcia Alvarez v Canada
(Minister of Citizenship and Immigration), 2014 FC 702 at para 17 [Garcia
Alvarez]; Eng v Canada (Minister of Citizenship and Immigration),
2014 FC 711 at para 18 [Eng]; Huruglica v Canada (Minister of
Citizenship and Immigration), 2014 FC 799 at paras 24 to 34 [Huruglica];
Yetna v Canada (Minister of Citizenship and Immigration), 2014 FC 858 [Yetna]
at para 14; Spasoja c Canada (Ministre de la
Citoyenneté et de l’Immigration), 2014 CF 913 at paras 7 to 9 [Spasoja]). Other decisions state, however, the opposite, namely that this
Court should perhaps apply the reasonableness standard when reviewing the
standard of intervention chosen by the RAD in its review of a RPD decision (Akuffo
v Canada (Minister of Citizenship and Immigration), 2014 FC 1063 [Akuffo]
at paras 16 to 26; Djossou, supra at para 18).
[33]
As such, the standard of review this Court
should apply when reviewing the standard of intervention chosen by the RAD in
its review of a RPD decision is undecided. As noted, this question is not
determinative with regards to the case at bar. I therefore adhere to Justice
Martineau’s approach in Djossou, supra at para 37, that until
this question is resolved by the Federal Court of Appeal, a pragmatic approach
should be used for the determination of the present judicial review.
[34]
In the present appeal, the RAD is being asked to
deal only with the credibility findings made by the RPD, as the appeal shows.
As it is well recognized, in such cases, the standard of review applicable is
that of reasonableness.
IX.
Analysis
A.
Did the RAD do a thorough analysis of the
Applicant’s appeal in light of the credibility findings made by the RPD?
[35]
In our case, the central issue raised by the
appeal is the credibility of the Applicant. There is currently an ongoing trend
in the jurisprudence from this Court with regards to the level of deference the
RAD should give to RPD decisions when credibility is the heart of the matter.
[36]
There are, at the moment, and to my knowledge,
four decisions from this Court that maintain the RAD decisions confirming the
RPD conclusions when the central issue was that of the credibility of the
Applicant. In Njeukam v Canada (Minister of Citizenship and Immigration),
2014 FC 859, the RPD concluded that the Applicant lacked credibility based on
her testimony. Justice Locke states that, in this case, it was right for the
RAD to show deference to the RPD credibility finding (at para 19). Justice
Locke further adds that the RAD seems to have conducted its own credibility
analysis of the Applicant in its decision (at para 20). He therefore rejects
the application for judicial review. In Akuffo v Canada (Minister of
Citizenship and Immigration), 2014 FC 1063, Justice Gagné states that she
is of the opinion that “deference is only owed by the RAD
to the RPD credibility findings and where the RPD enjoys a particular advantage
in reaching its conclusion” (at para 39). Justice Gagné goes on to say
that the RAD reviewed and assessed the evidence presented before the RPD and
gave proper deference to the RPD credibility findings (at paras 46-48). She
also notes that the RAD made its own assessment of the evidence and provided a
more detailed analysis than the RPD with regards to the subjective fear of the
Applicant of returning to his home country (at para 49). She therefore
dismisses the application for judicial review (at para 50). In Allalou v Canada (Minister of Citizenship and Immigration), 2014 FC 1084, Justice Shore arrives at a
similar conclusion, where he concludes that because the RPD decision was “solely founded on credibility, the RAD applied the appropriate
level of deference towards the RPD determinations of the Applicant’s
credibility” (at para 20). Justice Shore concludes, again, in Sajad c Canada (Ministre de la Citoyenneté et de l’Immigration), 2014 CF 1107 that the RAD validly
exercised deference to the RPD credibility conclusions (at para 26). However,
in Djossou, supra, Justice Martineau states that he will not judicially
impose on the RAD any degree of deference whatsoever to be applied to RPD
decisions (at para 91). Being prudent, Justice Martineau also does not
speculate nor gives a definitive opinion as to the scope of the examination of
a RPD decision on appeal to the RAD (Alyafi v Canada (Minister of
Citizenship and Immigration), 2014 FC 952 at paras 51-52).
[37]
In the case at bar, in its decision, the RAD
reiterates the RPD credibility conclusions and concludes that the RPD findings
were reasonable. A reading of the RAD decision shows that it read the
transcript of the RPD hearing, the documentation filed and that it reassessed
the credibility findings of the RPD. It even went further than the RPD in its
analysis of the political context in Cambodia by comparing the Applicant’s
allegations to the US Country Reports on Human Rights Practices for Cambodia for 2012. The RAD notes that the Applicant’s allegations contradict this
documentary evidence. It is also based on this last evaluation that the RAD
confirmed the RPD conclusions. The RAD assessment therefore goes further than
simply confirming the RPD decision. The RAD conducted its own examination of
the record before the RPD in making its decision. This situation is therefore
very similar to the four cases identified above, where this Court confirmed the
RAD decision and rejected the application for judicial review. Whatever the
deference to be given by the RAD to RPD credibility findings, the RAD in this
case looked at the evidence, dealt with the credibility issues raised by the
appeal and concluded that the RPD credibility findings were sound, as its own
assessment reveals. I, therefore, conclude that the RAD, by doing its review
and own assessment of the evidence, did assume fully its role as an appellate
tribunal and did show the required deference to the credibility findings made
by the RPD.
[38]
The Applicant makes the argument that the RAD
went beyond the decision of the RPD and found additional non-credibility
reasons to maintain the RPD decision when it examined documentary evidence on Cambodia as they relate to the political context. The Applicant submits that this is a
reviewable error because the RAD exceeded its jurisdiction. She also argues
that when she filed her appeal she did not know that she had to address matters
not discussed in the RPD decision. She further submits that the RAD erred
because it did not provide the Applicant with a hearing to address its concerns
about the political context in Cambodia. I disagree with the Applicant for the
reasons below.
[39]
First, subsection 110(3) states that “Subject to subsections (3.1), (4) and (6), the Refugee Appeal
Division must proceed without a hearing, on the basis of the record of the
proceedings of the Refugee Protection Division […]”. The documentation
regarding the political context in Cambodia was part of the record before the
RPD. The RAD could therefore refer to it in making its decision. Is it not the
role of an appellate tribunal to look at the record and assess the evidence in
light of the arguments made? Obviously, the answer is affirmative. The
Applicant is also wrong in arguing that the RAD erred by not providing the
Applicant with a hearing to address its concerns about the political context in
Cambodia. As Justice Shore explains in Sajad, supra, a hearing
can only be held before the RAD when an Applicant raises new documentary
evidence as referred to in subsection 110(4) of IRPA. In the case at bar, just
as in Sajad, no new evidence was presented before the RAD to justify
holding a hearing under subsection 110(6). I also add that consulting the
documentation was directly related to the arguments made on appeal. They are
based on the Cambodia political climate which is not supported by some of the
background documentation. The RAD found that: “the general
thrust of the background documentation is that there is significant corruption
and cronyism in Cambodia, but little targeting of opponents” which was
inconsistent with the applicant’s allegations. The RAD, thus, committed no
error by referring itself to the documentary evidence as part of the record of
the RPD and not holding a hearing.
X.
Conclusion
[40]
The application for judicial review is
dismissed. I find reasonable the RAD assessment of the RPD credibility findings
on appeal and I therefore conclude that the RAD has shown proper deference of
the RPD credibility findings.
[41]
The parties were invited to submit questions for
certification and counsel for the Respondent did suggest the following:
- What is the
scope of the Refugee Appeal Division’s review when considering an appeal
of a decision of the Refugee Protection Division?
[42]
For the reasons mentioned above, it will not be
necessary to deal with it.
Email this Content