Docket: IMM-6640-13
Citation:
2014 FC 1063
Ottawa, Ontario, November 12, 2014
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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EDWIN YAW SARFO AKUFFO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Mr. Edwin Yaw Sarfo Akuffo [applicant] seeks
judicial review of a decision by the Refugee Appeal Division [RAD] of the
Immigration and Refugee Board, dated September 18, 2013, whereby it
confirmed the decision of the Refugee Protection Division [RPD] that the
applicant was neither a Convention refugee within the meaning of section 96 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] nor a
person in need of protection under its subsection 97(1). The RPD found the
applicant’s claim to be devoid of credibility. The RAD applied the
reasonableness standard to the RPD’s finding of credibility and, after
analyzing the three main issues raised by the applicant, found that it fell
well within the range of possible outcomes.
[2]
For the reasons discussed below, this
application for judicial review will be dismissed.
II.
Background
[3]
The applicant is a citizen of Ghana. He alleged
before the RPD a well-founded fear of persecution based on his homosexuality
and, as homosexuality is illegal in Ghana, that he is a person in need of
protection.
[4]
The applicant was in a relationship with a Mr.
Manu for 8 years prior to leaving Ghana. They kept their relationship “secret
and low key.”
[5]
On November 8, 2012, the applicant hosted his
own birthday party, and he and Mr. Manu went to a bedroom to engage in sexual
relations. A group of vigilantes apprehended them during the act, assaulted and
threatened them. Later that night, he was once more apprehended walking hand in
hand with Mr. Manu and aggressed by the vigilantes. The applicant went to file
a report at the police station the same day. The police allegedly refused to
help him due to his sexual orientation. The applicant began to receive threats
from the vigilantes. As a result, he hid in his mother’s storage space.
[6]
The applicant is a musician and rumours of his
homosexuality spread in his neighbourhood. He is also director of a travel
agency and tour company. In that capacity, the applicant applied for a visitor
visa to come to Canada, as he feared for his life.
[7]
The applicant flew to Canada via London to ask
his sisters who live there for financial help. He did not claim refugee status
in the UK because he is well known in the Ghanaian community in Britain and he
feared his life would be in danger there too.
III.
The RPD Decision
[8]
On May 14, 2013, the RPD determined he was
neither a Convention refugee nor a person in need of protection. The RPD
simply did not find him to be credible. Notably:
[8] […] The tribunal is of the opinion that
risking making love in a house where there is twenty people inside and then
walking hand in hand in the streets of Ghana after having been caught making
love, is not compatible with the behavior of someone who declared having been
scared once caught in the act, nor with the behavior of someone who claims to
have been secretive and low key about his relationship for eight years.
[…]
[13] […] The tribunal simply finds not
plausible that a young educated artist and businessman who claims having had an
intimate relationship with another man for eight years, would have no knowledge
that having sex with another man is a crime in his country, nor have not known
that the conditions for homosexuals in his country are quite serious and that
the Ghanaian society in general is against them, not just the vigilantes. For
all these reasons, there is a serious doubt in the mind of the Tribunal that
the claimant is a homosexual.
[…]
[16] The tribunal finds the claimant’s answers
unsatisfactory. The tribunal is of the opinion that an individual who flees his
country because he fears for his life and with the intention of seeking asylum,
would not have tried to get admitted in Canada as a visitor, argued about it
and in the end, accepted to go back to the United Kingdom where he believed he
could not ask for asylum, because he first wanted to talk to a lawyer or figure
out “how to come up with the asylum issue.”
[17] The tribunal, given the claimant’s
inability to give a satisfactory explanation to his behavior when he arrived in
Canada, gives more weight to the evidence and facts presented by the minister’s
representative which demonstrate that the claimant went to the United Kingdom
to attend one of his sisters’ wedding, then came to Canada as a visitor but
when refused entry, asked for asylum. Therefore, the tribunal finds that the
claimant’s behavior is not compatible with someone who fears for his life. The
claimant’s credibility is further diminished.
[…]
[22] The tribunal finds that had the claimant
been homosexual, he would not have used such general and distant terms as, for
example, “that category” when talking about his sexual orientation or be unable
to give detailed information about an eight year relationship with the same
man, especially if they were, as mentioned by the claimant, seeing each other
two to three times a week. The claimant’s credibility with regard to his sexual
orientation is further impugned.
[9]
The RPD also was of the opinion that someone who
is homosexual and who is asking refugee status based on that issue would not
have omitted to mention that he was now seeing a man in Canada, until the very
end of the hearing.
IV.
The Impugned RAD Decision
[10]
On June 11, 2013, the applicant appealed to the
RAD. The Minister of Public Safety and Emergency Preparedness intervened on
July 9, 2013. The applicant did not present new evidence nor request an oral
hearing. His application invoked two grounds: the first relates to which
standard of review the RAD should use to determine the appeal and the second
pertains to the reasonableness of the RPD’s determination with respect to his
credibility and, more generally, to his claim.
[11]
On September 18, 2013, the RAD confirmed the
RPD’s decision.
[12]
With respect to the standard of review to be
applied to the RPD’s decision, invoking Newton v Criminal Trial Lawyers’
Association, 2010 ABCA 399 [Newton], the RAD held that the RPD, as a
first instance tribunal, is owed deference, and so its credibility findings
must be assessed on a reasonableness standard. The rationale is that the appeal
did not qualify for a hearing and only the RPD held a hearing directly
questioning the applicant and reviewed the evidence before reaching its
conclusion. The RAD added that it was not intended to act as a de novo
appeal board, but rather to review the RPD decision for reasonableness, as
understood by the Supreme Court of Canada’s pronouncements in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir].
[13]
As for the RPD’s credibility determination, the
RAD found that it was within the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir at para 47). While the claimant’s explanations for his behaviour for
the events that occurred during his birthday party—notably that his boyfriend
was “passionate” and that the invitees were viewed as “open-minded”—may be
viewed as reasonable, the RAD concluded that the RPD’s analysis is reasonable
“when looking at the claim as a whole.” Moreover, found the RAD, the RPD did
not engage with “stereotypical considerations.”
[14]
Finally, considering the great lengths the
applicant went to come to Canada, he should have had a better idea of Canada’s
refugee system. The applicant did not seek protection upon arrival but only
after he was denied entry and accepted to make arrangements to be returned to
the United Kingdom [UK]. In proceeding with this analysis, the RAD went over
facts not mentioned in the RPD’s decision.
V.
Issues and Standard of Review
[15]
This application raises the following issues:
1.
What is the appropriate standard of
intervention to be applied by the RAD to RPD determinations of fact or mixed
fact and law and credibility findings?
2.
Is the RAD’s decision reasonable?
[16]
The parties do not take a position as to the
standard of review that should be used by this Court while reviewing the RAD’s
interpretation of sections 110, 111, 162 and 171 of the Act [RAD Provisions],
and its application to the facts of this case.
[17]
In Huruglica v Canada (Minister of
Citizenship and Immigration), 2014 FC 799 [Huruglica], Justice
Phelan acknowledged that there was no jurisprudence of the Federal Court of
Appeal or of this Court on that specific issue. However, at paragraph 26,
relying on Newton and Halifax (Regional Municipality) v United Gulf
Developments Ltd, 2009 NSCA 78, he finds 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. In doing so,
he rejects the respondent’s view that the Supreme Court of Canada in Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61 [Alberta Teachers] would have dictated otherwise. At
paragraph 31, Justice Phelan states that the excerpts of Alberta Teachers
relied upon by the respondent are not relevant as they are “predicated on the administrative tribunal using its expertise
in interpreting its home statute”.
[18]
With all due respect, I do not agree with
Justice Phelan for two main reasons.
[19]
First, in Saskatchewan Human Rights Commission v Whatcott,
2013 SCC 11 at para 167, interpreting Alberta Teachers, the Supreme
Court of Canada revisits the exceptions where the correctness standard will
apply:
This principle [of deference] applies unless
the interpretation of the home statute falls into one of the categories of
questions to which the correctness standard continues to apply, i.e.,
“constitutional questions, questions of law that are of central importance to
the legal system as a whole and that are outside the adjudicator’s
expertise, . . . [q]uestions regarding the jurisdictional lines between two or
more competing specialized tribunals [and] true questions of jurisdiction or
vires” (Canada (Canadian Human Rights Commission) v. Canada (Attorney
General), 2011 SCC 53, [2011] 3 S.C.R. 471, at para. 18, per LeBel
and Cromwell JJ.) . . . [Emphasis added].
[20]
In other words, in order for this Court to apply
a correctness standard to an administrative tribunal’s interpretation of its
own statute, each criterion must be met: i) the question of law has to be of
central importance to the legal system as a whole; and ii) the question of law
has to fall outside the adjudicator’s expertise. Even if I agreed with Justice
Phelan that “the determination of the RAD’s standard of intervention for an
appeal of the RPD decision is outside its expertise and experience”, the first
part of the test still must be met in order for the correctness standard to
apply.
[21]
Second, in Alberta Teachers, Justice
Binnie elaborated that an issue of general legal importance is one “whose resolution has significance outside the operation of the
statutory scheme under consideration.” Since Alberta Teachers,
the Supreme Court of Canada has reiterated its strict limitations to the use of
the exceptions to the reasonableness standard (see for example McLean v British Columbia (Securities Commission), 2013 SCC 67 [McLean]). More importantly, since Alberta
Teachers, the Supreme Court of Canada has not yet found one situation which
falls into this particular exception to the reasonableness standard.
[22]
In Nor-Man Regional Health Authority Inc v
Manitoba Association of Health Care Professionals, 2011 SCC 59 [Nor-Man],
Justice Fish, for a unanimous Court, found that the Manitoba Court of Appeal
erred in choosing correctness as an applicable standard to an arbitrator allegedly
misconstruing the equitable remedy of estoppel. The Court of Appeal had seen
this as a question of law of central importance to the legal system as a whole,
and that it did not fall within the expertise of labour arbitrators. The
Supreme Court found that arbitrators had a broad mandate (albeit, not
boundless) where their expertise allowed them to issue arbitral awards by
reasonably applying a common law or equitable principle.
[23]
In Communications, Energy and Paperworkers
Union of Canada, Local 30 v Irving Pulp & Paper Ltd, 2013 SCC 34,
[2013] 2 S.C.R. 458, the Supreme Court of Canada held that its findings in Nor-Man
above were directly applicable to the case. The New Brunswick Court of Appeal,
as a result of its finding that the dispute was of wider public concern, had
felt otherwise; it had applied a correctness standard to the board’s analytical
framework for determining the validity of an employer’s random alcohol testing
policy. Continuing on the standard of review, the Supreme Court found that the
dispute had “little legal consequence outside the sphere
of labour law and that, not its potential real-world consequences, determines
the applicable standard of review” (at para 66, per Justice
Moldaver, dissenting on other issues).
[24]
In McLean, the British Columbia Court of
Appeal had found that the interpretation of a statutory limitation period
provision by an administrative tribunal would attract a standard of
correctness. In rejecting this standard of review, the Supreme Court of Canada held
that the question was not one of law of central importance to the legal system
as a whole because while as a conceptual matter, limitation periods are generally
of central importance to the fair administration of justice, there was no
reason why the particular limitation period at issue in the appeal was of
particular significance. The Court found that the impugned provisions in the
case merely implicated a question of statutory interpretation, though it
featured complex legal doctrines.The Court reiterated at paragraph 27, that the
“general question” exception was simply one that “[b]ecause
of [its] impact on the administration of justice as a whole, . . . [required]
uniform and consistent answers” (citing Dunsmuir, at para 60) and
is said to “safeguard a basic consistency in the
fundamental legal order of our country” (citing Canada (Canadian
Human Rights Commission) v Canada (Attorney General) 2011 SCC 53 at para
22). In the case before it, the Court did not view the “uniformity” criterion
mentioned above, as adequately engaged by the mere possibility that in the case
before it, other provincial and territorial securities commissions could have
arrived at different interpretations of their own statutory limitation periods.
[25]
Finally, in Canadian National Railway Co v
Canada (Attorney General), 2014 SCC 40, the Court found that the question
raised did not fit into the exceptional category because it did not “have precedential value outside of issues arising under [the]
statutory scheme”. The question involved confidential contracts as
provided under the Canada Transportation Act, SC 1996, c 10 and the
availability of a mechanism set up to deal with complaints, limited to shippers
that met conditions stipulated in the provision at issue (paras 55 and 60).
[26]
In my view and in light of the consistent and firm position taken by the
Supreme Court of Canada, 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.
[27]
Finally, the application of the RAD Provisions
to the facts of this, or any given case, is a question of mixed fact and law
and also attracts the reasonableness standard.
VI.
Analysis
1.
What is the appropriate standard of intervention
to be applied by the RAD to RPD determinations of fact or mixed fact and law or
to its credibility findings?
[28]
The parties do not agree which standard of intervention
the RAD must apply in appeal of RPD’s decisions on questions of fact or mixed
fact and law.
[29]
The applicant argues that the RAD should have
used a correctness standard. The RAD does not owe the RPD the same level of
deference as the Alberta Court of Appeal found in Newton. Newton
concerns the basic structure and interrelationship of the tribunals in Alberta
that review the conduct of police officers when that conduct is called into
question during disciplinary proceedings under the Police Act, RSA
2000, c P-17. The initial investigation and prosecution of police misconduct is
performed within police forces, by senior police officers. Appeals are then
available to the Law Enforcement Review Board, which is a civilian tribunal.
The Court of Appeal held that the court of first instance (the Presiding
Officer) had considerable expertise over the matter more so than did the
appellate tribunal (Law Enforcement Review Board), which provides civilian
oversight. As such, the Presiding Officer’s greater expertise led to a greater
deference owed.
[30]
Meanwhile, the RPD and RAD are both divisions of
the same tribunal. Both possess specialized knowledge and skills with regard to
adjudicating refugee claims, therefore, there is no need for the RAD to defer
to the RPD.
[31]
The respondent argues that an appellate
administrative tribunal should apply the reasonableness standard when reviewing
questions of fact or mixed fact and law from the decision of a lower tribunal.
The respondent points us to pronouncements by the Federal Court of Appeal, in
the context of employment insurance claims (Budhai v Canada (Attorney
General), 2002 FCA 298 at paras 22-48; Canada (Attorney General) v White,
2011 FCA 190 at para 2; Karelia v Canada (Minister of Human Resources and
Skills Development), 2012 FCA 140 at para 12). This approach has also been
followed where administrative tribunals sit on appeal (Newton).
[32]
This Court has recently issued several decisions
concerning the role of the newly created RAD (see Iyamuremye v Canada (Minister
of Citizenship and Immigration), 2014 FC 494; Garcia Alvarez v Canada (Minister
of Citizenship and Immigration), 2014 FC 702 [Garcia Alvarez]; Eng
v Canada (Minister of Citizenship and Immigration), 2014 FC 711 [Eng];
Huruglica; Njeukam v Canada (Minister of Citizenship and Immigration),
2014 FC 859 [Njeukam]; Yetna v Canada (Minister of Citizenship and
Immigration), 2014 FC 858 [Yetna] and Spasoja v Canada
(Minister of Citizenship and Immigration), 2014 FC 913 [Spasoja] . In addition, in Alyafi v Canada (Minister of Immigration and
Citizenship), 2014 FC 952, Justice Martineau who did not specifically need
to take position on these issues, conducted an interesting review of this
Court’s previous decisions.
[33]
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. In my view, this implies that the RAD should avoid
using and relying on both the jurisprudence and the vocabulary as developed in
the context of judicial review.
[34]
With that said, there also appears to be a
consensus that when no hearing is held before the RAD, the latter owes deference
to the RPD’s credibility findings.
[35]
The opinions rather diverge on: i) the level of
deference that is owed or its exact definition; and ii) the scope of the
questions of fact and questions of mixed fact and law for which deference is
owed.
[36]
Justices Phelan (Huruglica) and Locke (Njeukam
and Yetna) relying on the language of RAD Provisions along with the
broad remedial power conferred to the RAD, concluded that except when a
witness’ credibility is critical or determinative, or where a particular
advantage is enjoyed by the RPD, no deference is owed by the RAD to the RPD’s
finding of law, fact and mixed fact and law (see e.g., Yetna at para
17). While Justice Phelan does not indicate the level of deference that would
be owed to the RPD’s credibility finding, Justice Locke, citing Justice Phelan,
refers to the RAD as having erred in concluding a reasonableness standard was
applicable to the RPD decision.
[37]
Justices Shore (Garcia Alvarez and Eng)
and Roy (Spasoja) are rather of the view that the RAD owes deference
to the RPD on all questions of fact and mixed fact and law, not just on
credibility findings or on matters where the RPD enjoys a particular advantage
in reaching such a conclusion. In addition, they are of the view that the RAD
should only intervene where there is an “overriding and palpable” error.
[38]
Although I am far from being convinced that
there is a real and pragmatic difference between an “unreasonable” error and an
“overriding and palpable” one, I am of the view that said distinction would
have no impact in the case at bar.
[39]
However, I agree with Justice Phelan’s finding
that deference is only owed by the RAD to the RPD’s credibility findings and
where the RPD enjoys a particular advantage in reaching its conclusion.
2.
Is the RAD’s decision reasonable?
[40]
The applicant argues that the RAD was
unreasonable in its determination that the RPD reasonably assessed the
claimant’s credibility on the basis of three different matters.
[41]
Firstly, with regards to the events that
occurred at his birthday party, the RAD failed to properly consider the
applicant’s arguments before it with respect to plausibility of naïve or
imprudent behaviour. While the applicant may not have acted prudently at all
times during that night, this does not warrant a negative credibility finding.
The applicant explained that he thought people might not notice the handholding
and that it was late at night. He explained his boyfriend was feeling
passionate, which led them to spontaneously make love during his house party.
Furthermore, the applicant is a musician and an artist, meaning the individuals
in his social circle hold more liberal views about homosexuality. Thus, the
applicant was less worried about engaging in sexual intimacy in the privacy of
his bedroom, during a party with open-minded guests.
[42]
Secondly, the RAD erred in finding it reasonable
that the RPD found it implausible that the appellant was unaware of the risks
he faced in Ghana as a homosexual, given the documentary evidence. Moreover,
the RAD erred in finding that the RPD did not rely on stereotypical
considerations in determining that the applicant is not a homosexual. The
applicant was aware that homosexuality was socially unacceptable in Ghana, but
did not think it was serious until he was attacked. He may still be coming to
terms with his identity and may have difficulty speaking freely about sexual
orientation to an authority figure.
[43]
Finally, the RAD erred with respect to the RPD’s
determination of the applicant’s lack of subjective fear of persecution. The
RAD should not have expected the applicant to know the asylum process in
Canada.
[44]
The respondent argues that it is not the RAD’s
role to reassess evidence on appeal and conduct a new evaluation of the
applicant’s credibility, absent new evidence. There was no de novo hearing
and the RPD’s decision was to be reviewed on a standard of reasonableness.
Furthermore, the reasons need not mention all evidence in microscopic detail.
The RAD – as well as the RPD – rejected the applicant’s refugee claim
considering the evidence as a whole.
[45]
Again, there is no need in this case to analyze
whether the appeal before the RAD is a de novo hearing when new evidence
is presented and a hearing is held, as suggested by the respondent’s argument.
However, the RAD is to review and reassess the evidence even if no new evidence
is presented and no hearing is held. That is its role as an appellate tribunal.
[46]
In the case at bar, I am of the view that the
RAD did just that. In its assessment of the evidence presented before the RPD,
the RAD gave proper deference to the RPD’s credibility findings, which were
sufficient for the RAD to reasonably confirm the RPD’s overall conclusion that
the applicant was neither a Convention refugee nor a person in need of
protection.
[47]
The RAD did consider the applicant’s
explanations for his behaviour during his birthday party and later on the same
night. The RAD concluded that even if these explanations seemed reasonable, it
was nevertheless of the view that the RPD’s analysis was reasonable when
looking at the claim as a whole. This is a strong indication that the RAD had
reviewed the evidence given by the applicant and reassessed the claim in light
of its own finding that some explanations given by the applicant were
reasonable.
[48]
The RAD reasonably found that the RPD’s
credibility assessment was a determinative issue in the appeal and that there
were enough negative inferences to be drawn from the applicant’s testimony to
uphold the RPD decision. The RPD did note that the applicant was vague and
halted when answering questions regarding his lifestyle. It was reasonable for
the RAD to consider the applicant’s age and the fact that he had allegedly been
in a long term homosexual relationship, when assessing whether or not the RPD
was, as accused by the applicant, only relying on stereotypes.
[49]
Finally, as to the question of the applicant’s
subjective fear of returning to Ghana, the RAD did in fact make its own
assessment of the evidence and provided a more detailed analysis than did the
RPD.
VII.
Conclusion
[50]
I find it reasonable that the RAD deferred to
the RPD’s credibility findings. I also find that its overall reassessment of
the evidence is reasonable. Therefore, the application for judicial review will
be dismissed.
* * *
[51]
In a correspondence addressed to the Court after
the hearing, the respondent expressed the view that it is not appropriate to
certify a question in this case, in light of the number of cases challenged
before the Court, dealing with RAD decisions and the numerous questions of
general importance already certified. However, as I am dismissing the
applicant’s application, it is the applicant that would loose a right if no
question is certified and the applicant has not waived his right to propose a
question for certification.
[52]
At the hearing, counsel for the applicant
suggested that the question “what is the appellate role of the RAD?” be
certified in this case. I do not agree with the applicant because such a
general question is not determinative of this case, nor would it be
determinative of an appeal.
[53]
I believe the following questions are
determinative of this case and would be determinative of an appeal:
(a)
What standard of review should be applied by this Court
when reviewing the Refugee Appeal Division’s interpretation of sections 110, 111, 162 and 171 of the Immigration and Refugee
Protection Act, SC 2001, c 27, and more specifically when
reviewing its determination of the level of deference owed to the Refugee
Protection Division’s credibility findings?
(b)
Within the
Refugee Appeal Division’s statutory framework
where the appeal proceeds on the basis of the Refugee Protection Division
record of the proceedings, what is the level of deference owed by the Refugee
Appeal Division to the Refugee Protection Division findings of fact and of
mixed fact and law, more specifically to its credibility findings?
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