Date: 20151223
Docket: IMM-5525-14
Citation:
2015 FC 1304
Ottawa, Ontario, December 23, 2015
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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R.K. AND C.K.
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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PUBLIC JUDGMENT AND REASONS
(Confidential Judgment and Reasons were
issued on November 23, 2015)
[1]
Ms. R.K. (the “Principal Applicant”) and her
child C.K. (collectively, the “Applicants”) seek judicial review of a decision
of the Immigration and Refugee Board, Refugee Appeal Division (the “RAD”). In
that decision, the RAD confirmed the decision of the Immigration and Refugee
Board, Refugee Protection Division (the “RPD”), dismissing their claim for
protection as Convention Refugees or persons in need of protection pursuant to
sections 96 and 97(1) of the Immigration and Refugee Protection Act,
S.C. 2001 c. 27 (the “Act”).
[2]
The Applicants are citizens of Ethiopia. They
came to Canada in August 2013 with the assistance of a smuggler. The Principal
Applicant’s Basis of Claim (“BOC”) form, dated September 6, 2013, sets out the
basis of her fear as being her political opinion, specifically a fear of
persecution arising from her activities on behalf of the X Party.
[3]
The Principal Applicant testified before the
RPD. She also provided documentary and further evidence including news articles
detailing the persecution of the X Party members by Ethiopian police and an
Amnesty International Public Statement. The RPD, in a decision dated December
6, 2013, declined her claim on the grounds of lack of credibility.
[4]
By Notice of Appeal dated December 10, 2013, the
Applicants appealed to the RAD.
[5]
The Applicants filed a written statement
pursuant to Rule 3(d) of the Refugee Appeal Division Rules, SOR/2012-257
(the “RAD Rules”), advising as follows:
Please be advised that the Appellants are
relying on evidence referred to in s. 110(4) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, namely her affidavit sworn on January 6,
2014 and enclosed in this Appeal Record and the attached exhibits (not
including exhibits E, F and G which were already before the Refugee Protection
Division).
[6]
The Applicants did not request that a hearing be
held pursuant to subsection 110(6) of the Act. However, the RAD, by Notice
dated April 4, 2014, advised it would convoke an oral hearing of the
Applicants’ appeal. The RAD identified the issues to be considered at the
hearing, as follows:
1. Is the
allegation of rape made by the Principal Appellant … in her affidavit, pages 18
to 24 of the Appellant’s Record credible and trustworthy?
2. If so, are the Principal Appellant and
the Minor Appellant … entitled to refugee protection under sections 96 or 97 of
the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA) and, in
particular, is it established that the appellants have rebutted the presumption
of state protection?
3. All new evidence
4. [sic]
5. [sic]
[7]
By another notice dated April 23, 2014, the RAD
rescheduled the hearing and restated the issues as follows:
1. Is the allegation of rape made by the
Principal Appellant … in her affidavit at pages 18 to 24 of the Appellant’s
Record credible and trustworthy?
2. If so, are the Principal Appellant and
the Minor Appellant … entitled to refugee protection under sections 96 or 97 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IPRA)
and, in particular, is it established that the appellants have rebutted the
presumption of state protection?” [sic]
[8]
The hearing before the RAD proceeded on May 28,
2014. Questioning was conducted first by Counsel for the Applicants and then by
the RAD.
[9]
At the outset of the hearing, the RAD clearly
stated the oral hearing was granted on the basis of a new issue that had “not arisen at the original hearing” and that issue was the sexual assault of the Applicant while arrested
in X date, in connection with her political opinion. The RAD further clearly
stated that the issue of sexual assault raised a question of credibility.
Finally, the RAD said that state protection was in issue.
[10]
The evidence before the RAD included the Principal
Applicant’s personal testimony, new documentary evidence that was submitted
pursuant to Rule 21 of the RAD Rules, a report from a psychotherapist and an
amended BOC narrative in which the Principal Applicant disclosed that she had
been raped by a policeman while detained in X date. She further disclosed that
she had deliberately withheld evidence about this incident when she presented
her original BOC and while testifying before the RPD in November 2013.
[11]
At the beginning of the hearing the RAD clearly
stated that the oral hearing of the appeal was to address the new evidence
only, not to respond to the original decision.
[12]
The RAD further said that the hearing was to be
restricted to matters raised in the Notice of Appeal.
[13]
The most important part of the new evidence was
the Principal Applicant’s disclosure of the sexual assault, that she alleged
was committed against her during her second detention by the police in X date.
[14]
The Principal Applicant had disclosed the sexual
assault in the affidavit that she submitted as part of her Notice of Appeal.
She also testified about this incident.
[15]
The RAD, in its decision, reviewed the decision
of the RPD upon the standard of reasonableness. It purported to apply that
standard to the RPD, in light of the new evidence before it. It gave no weight
to the report of the psychotherapist or to the Notice from the Police
Commission dated X date.
[16]
The RAD found the conclusion of the RPD upon
reavailment to be reasonable. It rejected the Principal Applicant’s evidence about
her involvement with the X Party and that she minimized the degree of her
involvement in order to avoid questions about the sexual assault.
[17]
The RAD found that the credibility concerns were
significant. It noted inconsistencies in her explanation for non-disclosure of
the sexual assault to the RPD. It found insufficient evidence of her membership
in the X Party and ultimately concluded that the negative credibility findings
of the RPD were reasonable.
[18]
In their submissions upon this application for
judicial review, the Applicants raise the following issues:
1. In adopting the reasonableness standard
of review, did the RAD use the appropriate standard, if one was at all
warranted?
2. Did the RAD breach its duty of procedural
fairness and natural justice in not providing appropriate notice of the case to
be met?
3. Is the Panel’s credibility analysis
flawed as a result of its failure to properly consider or apply the General
Guidelines [sic]?
4. Did the Panel engage in misapprehension
of key evidence central to R.K.’s claim?
[19]
The issue of an alleged breach of procedural
fairness is reviewable on the standard of correctness; see the decision in Canada
(Minister of Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339 at
paragraph 43.
[20]
The question whether the RAD should proceed on a
de novo basis when it accepts new evidence raises a question of law and
is reviewable on the standard of correctness. The issues of the negative
credibility finding and assessment of the evidence are reviewable on the
standard of reasonableness; see the decision in Aguebor v. Canada (Minister
of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). On judicial
review, in order to meet the reasonableness standard, the reasons offered must
be justifiable, transparent, intelligible and fall within a range of possible,
acceptable outcomes; see the decision in Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190 at paragraph 47.
[21]
The RAD was created to allow for appeals from
decisions of the RPD granting or refusing claims for refugee protection; see
subsection 110(1).
[22]
Subsection 110(3) provides that an appeal will
proceed on the basis of the record before the RAD and without a hearing.
[23]
New documentary evidence may be present to the
RAD; see subsection 110(4). Subsection 110(6) allows the RAD to hold a hearing,
if the new documentary evidence addresses certain criteria. Subsections 110(4)
and 110(6) are relevant to the within proceeding and provide as follows:
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110. (4) On appeal, the person who is the subject of the appeal may
present only evidence that arose after the rejection of their claim or that
was not reasonably available, or that the person could not reasonably have
been expected in the circumstances to have presented, at the time of the
rejection.
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110. (4) Dans le cadre de l’appel, la personne en cause ne peut
présenter que des éléments de preuve survenus depuis le rejet de sa demande
ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient,
qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment
du rejet.
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…
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[…]
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(6) The
Refugee Appeal Division may hold a hearing if, in its opinion, there is
documentary evidence referred to in subsection (3)
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(6) La section
peut tenir une audience si elle estime qu’il existe des éléments de preuve
documentaire visés au paragraphe (3) qui, à la fois:
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(a) that raises a serious issue
with respect to the credibility of the person who is the subject of the
appeal;
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a) soulèvent une question
importante en ce qui concerne la crédibilité de la personne en cause;
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(b) that is central to the
decision with respect to the refugee protection claim; and
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b) sont essentiels pour la prise
de la décision relative à la demande d’asile;
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(c) that, if accepted, would
justify allowing or rejecting the refugee protection claim.
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c) à supposer qu’ils soient
admis, justifieraient que la demande d’asile soit accordée ou refusée, selon
le cas.
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[24]
The first issue raises a question of law and is
reviewable on a standard of correctness; see the decision in Alvarez v.
Canada (Minister of Citizenship and Immigration), 2014 FC 702 at paragraph
17.
[25]
The Applicants argue that the RAD erred by
failing to conduct a de novo hearing and in purporting to apply the
standard of reasonableness to the findings of the RPD.
[26]
In my opinion, the dispositive issue in this
application is the failure of the RAD to conduct a full de novo review
of the Applicants’ claim on the basis of all the evidence before it.
[27]
The Act is silent as to the manner in which the
RAD is to conduct an oral hearing of an appeal. However, in view of the statutory
provision that allows it to accept new evidence gives it a discretion to accept
new evidence.
[28]
The Applicants argue that the RAD should use
their introduction of new evidence as the basis of a de novo hearing,
similar to the procedure followed before the Immigration Appeal Division.
[29]
The Minister of Citizenship and Immigration (the
“Respondent”) argues that the RAD was not required to conduct a de
novo hearing upon all the evidence but only upon the new evidence that was
presented, after the hearing before the RPD. Otherwise, he submits that the
decision of the RAD was reasonable and the application should be dismissed.
[30]
In Canada (Minister of Citizenship and
Immigration) v. Thanabalasingham , [2004] 3 F.C.R. 572 (F.C.A.) at
paragraph 6, Justice Rothstein (as he then was) said the following about a de
novo hearing:
I think it is important to first clarify the
use of the term de novo. Strictly speaking, a de novo review is a
review in which an entirely fresh record is developed and no regard at all is
had to a prior decision (see Bayside Drive-in Ltd. v. M.N.R. (1997), 218
N.R. 150 (F.C.A.), at page 156; Molson Breweries v. John Labatt Ltd.,
[2000] 3 F.C. 145 (C.A.), at page 166).
[31]
Section 171 of the Act addresses the process to
be followed by the RAD in exercising its appellate function. Subsections
171(a), (a.1), (a.2) and (a.3) are relevant to the within proceeding and
provide as follows:
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171. In the case of a proceeding of
the Refugee Appeal Division,
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171.
S’agissant de la Section d’appel des réfugiés :
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(a) the
Division must give notice of any hearing to the Minister and to the person who
is the subject of the appeal;
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a) la section
avise la personne en cause et le ministre de la tenue de toute audience;
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(a.1) subject
to subsection 110(4), if a hearing is held, the Division must give the person
who is the subject of the appeal and the Minister the opportunity to present
evidence, question witnesses and make submissions;
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(a.1) sous
réserve du paragraphe 110(4), elle donne à la personne en cause et au ministre
la possibilité, dans le cadre de toute audience, de produire des éléments de
preuve, d’interroger des témoins et de présenter des observations;
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(a.2) the
Division is not bound by any legal or technical rules of evidence;
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(a.2) elle
n’est pas liée par les règles légales ou techniques de présentation de la
preuve;
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(a.3) the
Division may receive and base a decision on evidence that is adduced in the proceedings
and considered credible or trustworthy in the circumstances;
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(a.3) elle peut
recevoir les éléments de preuve qu’elle juge crédibles ou dignes de foi en
l’occurrence et fonder sur eux sa décision;
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[32]
The Applicants submit that these provisions show
that Parliament intended that the RAD conduct a de novo review where
presiding by way of an oral hearing.
[33]
The Respondent, on the other hand, argues that
only the new evidence should be treated on a de novo basis.
[34]
I am not persuaded by the submissions of the
Respondent. In my opinion, once the RAD advised that it would accept new
evidence on behalf of the Applicants and proceed with a hearing, it should have
dealt with all the evidence on a de novo basis.
[35]
Implicit in the RAD’s decision to accept new
evidence was its recognition that the new evidence related to credibility.
Credibility of the Principal Applicant was a significant issue for the RPD. In
a manner analogous to proceedings before the Immigration Appeal Division, which
are recognized as de novo proceedings where the decision maker makes an
independent decision, the RAD should have proceeded on a de novo basis
in respect of all evidence. There cannot be a partial de novo
proceeding.
[36]
The Supreme Court of Newfoundland discussed the
elements of a de novo hearing in Newterm Ltd., Re (1988), 215
A.P.R. 216 (Nfld. T.D.) at paragraphs 4-5:
A hearing de novo is, as the term implies,
an altogether fresh or new hearing and not limited to an inquiry to determine
if the tribunal acted properly and correctly on the evidence and material
before it Black's Law Dictionary (5th ed.), at page 649 defines, "hearing de
novo" in the following manner:
“Generally, a new hearing or a
hearing for the second time, contemplating an entire trial in same manner in
which matter was originally heard and a review of previous hearing. On
hearing 'de novo' court hears matter as court of original and not appellate
jurisdiction. (My emphasis added).
On a hearing de novo the Court is not
fettered by the decision of the tribunal and is free to substitute or impose
its opinion for that of the tribunal. Its opinion is based on the entirety of
the evidence presented at the new hearing.
[37]
In my opinion, the RAD committed a reviewable
error by failing to conduct a full de novo hearing upon the Applicants’
appeal. It is no answer to refer to subsection 171(a.2) of the Act and say that
the RAD is master of its own process. The process chosen must give effect to
the appeal right conferred by the Act.
[38]
It is not necessary for me to address the other
issues raised by the parties.
[39]
The Respondent proposed the following question
for certification:
Is there any deference owed by the Refugee
Appeal Division (RAD) to the Refugee Protection Division’s (RPD) credibility
findings where the RAD holds a hearing under section 110(6) of the IRPA?
[40]
The Federal Court of Appeal set out the test for
certification in the decision Zazai v. Canada (Minister of Citizenship and
Immigration) (2004), 318 N.R. 365 (F.C.A.), as “a
serious question of general importance which would be dispositive of an appeal”.
[41]
I am satisfied that the proposed question meets
this test and the question will be certified.
JUDGMENT
THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the
Refugee Appeal Division is set aside and the matter is remitted to a different
panel of the Refugee Appeal Division for a new hearing and, the following
question is certified: Is there any deference owed by the Refugee Appeal
Division (RAD) to the Refugee Protection Division’s (RPD) credibility findings
where the RAD holds a hearing under section 110(6) of the Immigration and
Refugee Protection Act, S.C. 2001, c.27?
“E. Heneghan”
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