Docket: IMM-642-14
Citation:
2014 FC 1233
Ottawa (Ontario), December 18, 2014
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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YANI MEILINA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Defendant
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JUDGMENT AND REASONS
[1]
Ms. Yani Meilina, a 58 year old Christian
citizen of Indonesia, seeks judicial review of a decision of the Refugee Appeal
Division [RAD] of the Immigration and Refugee Protection Board, dismissing her
appeal of findings made by the Refugee Protection Division [RPD] that she is
neither a refugee nor a person in need of protection. Although the RPD found
that the applicant was a victim of gender-based persecution at the hands of her
ex-husband, it also found that the availability of an internal flight
alternative [IFA] was determinative of all claims under either section 96 or
subsection 97(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [Act].
[2]
As superior courts of justice do in similar
circumstances, the RAD engaged in a standard of review analysis and found that
the reasonableness standard applied to the RPD’s finding of fact and mixed fact
and law. As such, it found that the RPD’s analysis of the available IFA was
reasonable and that its findings fell within the range of possible outcomes.
I.
Issues and standard of review
[3]
This application for judicial review raises a
single issue:
•
Whether the RAD erred by holding that it should
apply the reasonableness standard to the RPD’s findings of fact and mixed fact
and law.
[4]
The respondent submits that even if I find the
RAD committed a reviewable error by applying the reasonableness standard, I
should dismiss the application since the RPD would have reached the same
conclusion if it had applied the correctness standard.
[5]
With respect, I do not agree with the respondent
that this Court should substitute its own assessment of the evidence adduced
before the RAD, and, as this application does not raise a pure question of
credibility, I am therefore of the view that if I am to find the RAD erred in
applying the reasonableness standard, the application for judicial review
should be granted and the matter sent back to the RAD for a new determination.
[6]
That said, errors of law reviewed by this Court
are generally governed by the correctness standard (Canada (Minister
of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 44). Questions
which concern the interpretation of a tribunal’s own statute and the tribunal’s
own function are presumed to be reviewable on the reasonableness standard (Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61 [Alberta Teachers]. This presumption applies unless the
interpretation of the home statute is: 1) a constitutional question; 2) a
question of law that is of central importance to the legal system as a whole
and that is outside the adjudicator’s expertise; 3) a question regarding the
jurisdictional lines between two or more competing specialized tribunals; or 4)
a true question of jurisdiction or vires (Dunsmuir v New Brunswick, 2008
SCC 9, at paras 59-61; Alberta Teachers, above).
[7]
Since this case was argued, this Court has
issued several decisions on the subject and it has engaged in several standard
of review analyses. In Huruglica v Canada (Minister of Citizenship and
Immigration), 2014 FC 799 [Huruglica], relying on Newton v
Criminal Trial Lawyers’ Association, 2010 ABCA 399 and Halifax (Regional
Municipality) v United Gulf Developments Ltd, 2009 NSCA 78, Justice Phelan
found that, as “the issue of law is one of general interest to the legal
system”, this Court should apply the correctness standard when reviewing the
standard of intervention chosen by the RAD sitting in appeal of RPD decisions.
[8]
However, in Akuffo v Canada (Minister of
Citizenship and Immigration), 2014 FC 1063 [Akuffo], I reviewed the
jurisprudence of the Supreme Court of Canada and found myself unable to agree
with Justice Phelan. At paragraph 26, I express the view that “the interpretation of the RAD Provisions by the RAD does not
involve a question of central importance to the legal system as a whole or any
other special circumstances that would require review on a correctness
standard. The issue of interpretation does not have significance outside the
operation of these specific provisions, the very same provisions that only
dictate the role and duties of the RAD.” I certified the question so
that the parties have the opportunity to have the issue clarified by the
Federal Court of Appeal.
[9]
In the case at bar, the choice of standard of
review to be applied is not determinative as I would arrive at the same
conclusion should I apply either one.
II.
Analysis
[10]
Although the Federal Court of Appeal [FCA] has
yet to hear a case involving a decision of the RPD, there is a consensus
amongst the judges of this Court that the judicial review regime does not apply
to appeals of RPD decisions before the RAD.
[11]
However, several issues will need to be decided
by the FCA, for example: What is the level of deference that is owed by the RAD
to the RPD’s findings, if any and what is the scope of the questions of fact
and questions of mixed fact and law for which deference would be owed?
[12]
In any event, it seems clear in this case that
the plaintiff did not benefit from the appeal she was entitled to and, as found
by Justice Martineau in Djossou c Canada (Ministre de la Citoyenneté et de
l’Immigration), 2014 CF 1080, I find that this is sufficient to quash the
RAD’s decision, and to send the file back for re-determination.
[13]
At the hearing, both parties suggested that I
certify the same question as was certified by Justice Phelan in Huruglica. However,
to be consistent, I will certify the same question as I certified in Akuffo
which, in my view, is better suited for this case:
Within the Refugee Appeal Division [RAD]’s
statutory framework where the appeal proceeds on the basis of the record of the
proceedings of the Refugee Protection Division [RPD], does the RAD owe
deference to RPD findings of fact and of mixed fact and law?
[14]
Although this question has been certified in
several files and although the present case might not be the best case for the
respondent to bring before the Federal Court of Appeal, I will nevertheless
certify that question, as it is determinative of the case and would be
determinative of an appeal.
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