Docket: IMM-1161-14
Citation:
2014 FC 1208
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 12, 2014
PRESENT: The Honourable Mr. Justice Simon Noël
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BETWEEN:
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NAHAL, KULWINDER SINGH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a decision by Member Normand Leduc of the Refugee
Appeal Division [RAD] of the Immigration and Refugee Board of Canada [IRB],
dated January 23, 2014, upholding an earlier decision of the Refugee Protection
Division [RPD] rejecting the refugee claim.
II.
Facts
[2]
The applicant, Mr. Nahal, is a 36-year-old
originally from India’s Punjab state. He is married and the father of two
children.
[3]
He engaged in homosexual relations with a friend
named Sukhvir.
[4]
He was subsequently beaten by Sukhvir’s family,
on February 17, 2013, after having been caught by members of his family during
one of his intimate encounters with Sukhvir.
[5]
He was also arrested, detained and tortured by
the police on March 8, 2013, due to his ties to Sukhvir, among others. He was
released on March 10, 2013.
[6]
He then went to stay with his uncle in a village
in the state of Haryana in March 2013.
[7]
The applicant left India for Canada and claimed
refugee protection on June 4, 2013, with the help of an “agent” who provided
him with false documents.
III.
RPD’s decision
[8]
The RPD rejected his claim for refugee
protection in its decision dated October 25, 2013, on the ground that the
applicant’s allegations were not credible.
[9]
The RPD found a number of contradictions and
inconsistencies that were not explained in a satisfactory manner by the
applicant, which undermined his credibility.
[10]
The applicant appealed the RPD decision to the RAD.
IV.
Impugned decision
[11]
The sole member assigned by the RAD to hear the
matter confirmed the determination of the RPD, pursuant to subsection 111(1) of
the IRPA, that the applicant was not a refugee within the meaning of section 96
of the IRPA or a “person in need of protection” under
subsection 97(1) of the IRPA.
[12]
Central to the RAD’s decision is whether the RPD
erred in its assessment of the applicant’s credibility.
[13]
The RAD began by addressing the issue of
standard of review. It was of the view that although it does not conduct
judicial reviews of RPD decisions, but rather acts as an appellate body within
the IRB, without direction from the higher courts, the RAD may apply the
principles developed by the Supreme Court of Canada in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir].
[14]
Thus, the RAD decided to apply a standard of reasonableness
because the main issue in the matter was whether the RPD erred in its
assessment of the applicant’s credibility, which is a question of fact. It
added that judicial deference was called for and owed to the decision of the RPD.
[15]
The RAD then examined the RPD’s decision finding
that the applicant was not a credible witness. It noted the nine reasons that
had led to this conclusion. For each one of these, the RAD reiterated the
contradictions in the applicant’s testimony identified by the RPD.
[16]
The RAD noted that it concurred with the
applicant’s submission that the RPD had erred in four of the nine points
identified. It further noted that the applicant did not contest the five other
points on which the RPD relied in its decision. The RAD added that in the
absence of clarification on the applicant’s part, there were no grounds for it
to intervene.
[17]
In the end, the RAD concluded by stating that “[i]n any event, while I am not stating that I would have
come to the same conclusion as the RPD, I conclude that, overall, the RPD’s
decision is reasonable because it is transparent and intelligible and falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law” (Applicant’s Record at page 9, RAD decision at
para 27). Thus, the RAD confirmed the decision of the RPD, namely, to reject
the applicant’s claim for refugee protection.
V.
Parties’ submissions
[18]
First, the applicant submits that the RAD did
not properly assess the applicable standard of review. As an appeal tribunal,
the RAD has jurisdiction to hear de novo appeals. As such, it must
review the evidence before it and draw its own conclusions, without affording
any deference to the RPD. Thus, the RAD had jurisdiction to make its own
findings as to the applicant’s credibility.
[19]
In reply, the respondent contends that the RAD
applied the appropriate standard in the circumstances, claiming that the role
of the RAD is not to reweigh all of the evidence, but to verify whether the RPD
made an error. Unless the applicant can point to an error in the RPD’s
decision, the RAD is bound to respect the findings of fact or of mixed fact and
law made by the RPD. The proceeding before the RAD cannot be characterized as a
de novo appeal, as the applicant asserts.
[20]
Second, the applicant submits that the RAD did
not properly assess the applicant’s credibility, as it simply relied on the
fact that the applicant had difficulty remembering the name of a village where
he had sought refuge, as well as the date on which he began his relationship
with Sukhvir. The applicant further argues that, upon reading paragraph 27 of
the RAD’s decision, it appears that the RAD would not have come to the same
conclusion as the RPD if it had reviewed the applicant’s file itself.
[21]
The respondent counters that it was reasonable
for the RAD to uphold the RPD’s findings as to the applicant’s credibility,
claiming that, taken as a whole, the RPD’s findings are reasonable. The finding
that the applicant lacked credibility made by the RPD is therefore justified.
VI.
Issue
[22]
There were no issues raised by the parties.
[23]
After having reviewed the parties’ submissions,
as well as the case law of this Court regarding judicial reviews of RAD
decisions, I would submit the following issue:
- Did the RAD, in
applying a reasonableness standard to an appeal proceeding, properly
assess the findings made by the RPD with respect to the applicant’s credibility?
VII.
Standard of review
[24]
A number of judges of this Court have weighed in
on the choice of standard of review to be applied by the Federal Court with
respect to the scope of the review conducted by the RAD on appeal. As Justice
Martineau explains in Djossou v Canada (Minister of Citizenship and Immigration),
2014 FC 1080 at para 18, a number of decisions of the Court concluded, on the
one hand, that a standard of correctness should be applied (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 v Canada (Minister
of Citizenship and Immigration), 2014 FC 913 [Spasoja] at paras 7 to
9). On the other hand, and on the contrary, there are decisions that adopt the
view that the Court should apply a reasonableness standard to RAD decisions (Akuffo
v Canada (Minister of Citizenship and Immigration), 2014 FC 1063 [Akuffio]
at paras 16 to 26; Djossou, supra at para 18).
[25]
In this case, the RAD, on the basis of the
grounds of appeal presented, dealt solely with questions of fact regarding the
credibility assigned to the applicant by the RPD. In such situations, when a
judicial review deals with questions of fact related to a case, a standard of
reasonableness must be applied (Dunsmuir, supra at para 53).
VIII. Analysis
A.
Did the RAD, in applying a reasonableness
standard to an appeal proceeding, properly assess the findings made by the RPD
with respect to the applicant’s credibility?
[26]
In this case, the interpretation adopted by the RAD,
namely, to apply a reasonableness standard of review to the RPD’s decision, is
an approach that is not acceptable in law and constitutes a reviewable error
that is determinative in this case (Alyafi v Canada (Minister of Citizenship
and Immigration), 2014 FC 952 at para 10 [Alyafi]; Spasoja,
supra at paras 3, 9, 11 and 47; Djossou, supra at para
37; Guardado v Canada (Minister of Citizenship and Immigration), 2014 FC
953 at paras 3 and 4 [Guardado]). In the present case, after having
concluded that the principles developed in Dunsmuir applied to the case,
the RAD wrote as follows:
At paragraph 47 of Dunsmuir, the
court states that “reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” Judicial deference is therefore required, and deference must be
given to the RPD decision (Applicant’s Record at page 9, RAD decision at para
17).
[27]
The RAD arrives at such a pronouncement without
providing an explanation with respect to the statutory provisions of the IRPA
that describe the powers and appeal process. It would appear to me that an appeal,
before addressing questions of fact, requires a certain amount of deference
with regard to the factual findings of the lower court, but not necessarily the
same degree of deference than that which is applicable to the reasonableness
standard of a judicial review. Like Justice Martineau in Djossou, supra
at para 37, I will refrain from making any sort of final ruling on the
matter. It is important that the Federal Court of Appeal rule on this matter
and others, so as to clarify the situation for once and for all.
[28]
I would add that the RAD’s decision is also
unreasonable when one reads the determinations made with regard to the
applicant’s credibility and finds, at the very end, the RAD stating: “… while I am not stating that I would have come to the same
conclusion …” only to ultimately conclude that, on the whole, the RPD’s
decision is reasonable. Based on the degree of deference accorded to questions
of fact, taking into account this appeal process, the RAD might have arrived at
a different conclusion. Such a statement suggests that the RAD would have
concluded differently.
[29]
The application for judicial review is therefore
allowed and the matter referred back to the RAD for reconsideration of the
applicant’s appeal.
IX.
Conclusion
[30]
The RAD’s decision is unreasonable. The
interpretation adopted by it, namely, to apply a reasonableness standard of
review to the decision of the RPD, is not an acceptable approach in law and
constitutes a reviewable error that is determinative in this case. The
intervention of this Court is therefore warranted. In addition, the RAD, being
under no requirement to apply a standard of reasonableness, might have
concluded differently based on the degree of deference to be accorded to
findings of fact made by the RPD. The matter is referred back to the RAD for
reconsideration of the applicant’s appeal, guided by the jurisprudence of our Courts.
[31]
The parties were invited to submit questions for
certification, but none was proposed.
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