Docket: IMM-5156-14
Citation:
2015 FC 321
Ottawa, Ontario, March 13, 2015
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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JATINDER SINGH DHILLON
HARPREET KAUR DHILLON
PARAMJEET KAUR DHILLON
GUCHARAN KAUR
SARABJOT SINGH DHILLON
MARENPREET KAUR DHILLON
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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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ORDER AND REASONS
I.
Introduction
[1]
The Applicants seek judicial review pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (the Act) of a decision rendered on May 5, 2014 by the Refugee Appeal
Division of the Immigration and Refugee Board of Canada (the RAD), wherein the RAD
denied the Applicants’ appeal and confirmed the decision of the Refugee
Protection Division (the RPD) that the Applicants are neither Convention
refugees nor persons in need of protection pursuant to sections 96 and 97 of
the Act, because an Internal Flight Alternative (IFA) is available to them.
[2]
The Applicants claim that to the extent the RAD
has the authority under paragraph 111(1)(b) of the Act to set aside the
decision of the RPD and substitute the determination that, in its opinion,
should have been made, it had an inherent duty to consider all arguments that could
support a finding that the RPD erred in concluding as it did, including those
that were not raised before it or the RPD. Here, the Applicants say that the
RAD had the duty to consider an IFA risk factor that was raised for the first
time before this Court. They claim that the failure to do so was fatal to the
RAD’s decision.
[3]
I find no support in the Act or in the case law
for this rather unusual proposition. Therefore, the Applicants’ application
for judicial review is dismissed.
II.
Background
[4]
The Applicants, Mr Jatinder Singh Dhillon (Mr
Dhillon), his wife, their two children, as well as Mr Dhillon’s mother and
grandmother, are citizens of India and members of the Sikh minority.
[5]
Their refugee protection claim stems from a
family dispute over lands that were owned by Mr Dhillon’s grandfather who
passed away in 2000. In 2003, the property was given to Mr Dhillon by his
grandmother. This gave rise to a land possession conflict with one of Mr.
Dhillon’s great-uncles and two sons. In particular, this great-uncle illegally
appropriated the property with the help of a corrupt local officer. In the
years that followed, Mr Dhillon attempted, unsuccessfully, to convince his
great-uncle to return ownership of the property. In January 2013, in the midst
of this dispute, Mr Dhillon was arrested on false allegations of militancy and was
threatened by his great uncle and his great uncle’s two sons, one of whom works
for the Indian Army (the Relatives) warning him that “his
problems were only beginning”. Mr Dhillon was arrested a second time in
April 2013. Fearing his Relatives, Mr Dhillon left India with the other
Applicants on July 4, 2013 and claimed refugee protection in Canada on October 22, 2013.
[6]
The RPD rejected the Applicants’ claim on
January 6, 2014. Although it identified credibility concerns, the RPD’s
decision was based on the existence of an IFA for the Applicants in Mumbai. Before
the RPD, the Applicants argued that they could not move elsewhere in India because their persecutors would be able to find and kill them. They based that
argument on the fact police officers are easily bribed and that his great-uncle
would have the ability to pursue them anywhere in the country because of his
son’s position in the Army. The RPD dismissed these contentions on the ground
that the Applicants had failed to establish that the Indian authorities were
interested in pursuing them throughout India and that Mr Dhillon’s Relatives
would have the resources and desire to do the same.
[7]
When questioned by the RPD on his intentions
regarding the disputed land, Mr Dhillon stated that he wished to hand the issue
to a lawyer in India, in order to sell the land and have the money transferred
to Canada. He indicated that he could not have done so from India as his life was in danger.
[8]
The Applicants appealed the RPD decision to the
RAD and did not submit any new evidence nor did they request an oral hearing. Their
sole argument before the RAD was that the RPD had failed to consider two
documents from the National Documentation Package in relation to the IFA
finding. The first document dealt with mandatory tenant verification in
Mumbai, consisting of landlords registering their tenants at their nearest
police station. The second document spoke of the difficulty for Sikh farmers
to find work in India unless they are skilled and educated.
[9]
The RAD considered both documents and found that
they did not advance the Applicants’ case. As a result, the appeal was
dismissed.
[10]
The Applicants, who have hired new counsel to
challenge the RAD decision, now claim that the RAD should have considered the
RPD’s IFA finding from the perspective that their location would be exposed if
they were to seek legal remedies against Mr Dhillon’s Relatives regarding the
disputed land. This consideration would have allowed the RAD, according to the
Applicants, to reasonably infer their vulnerability to persecution in a way similar
to the one that led them to flee India.
III.
Issue
[11]
To put it bluntly, the sole issue in this case
is whether the RAD committed a reviewable error by not considering an argument
that was not in fact raised before it or before the RPD.
[12]
This amounts to determining whether the Applicants’
interpretation of paragraph 111(1)(b) of the Act is defensible in law. Such an
interpretation would invest the RAD with a duty to consider risk factors and
submissions that were not raised before it, let alone the RPD, and allow failed
refugee claimants to identify errors that were not previously identified and
bring them to the attention of this Court.
[13]
Given the peculiar nature of the issue at hand
it is not necessary to embark on a discussion as to the appropriate standard of
review the RAD is bound to apply when adjudicating an appeal from a RPD’s
decision.
IV.
Analysis
[14]
The RAD is a creature of statute and so is the appeal
before it. Therefore, the scope of its role and the extent of its jurisdiction
are to be determined by looking at the legislative provisions creating the RAD
and the appeal before it (R. v Meltzer, [1989] 1 S.C.R. 1764, at page 1773;
Kourtessis v Canada (Minister of National Revenue), [1993] 2 S.C.R. 53, at
page 69; Huynh v Canada (FC), [1995] 1 FC 633, [1994] FCJ. No. 1766, at
para 38 (confirmed in Huynh v Canada (FCA), [1996] 2 FC 976, [1996] FCJ
No. 494, at para 14)). In this case, the relevant provisions of the Act are
sections 110 and 111.
[15]
According to section 110 of the Act, the RAD is
empowered to hear appeals against decisions of the RPD allowing or rejecting a
person’s claim for refugee protection, on questions of law, of fact or of mixed
fact and law. The appeal normally proceeds without a hearing, on the basis of
the record that was before the RPD and is conducted in accordance with the Refugee
Appeal Division Rules, SOR/2012/257 (the Rules). The RAD may accept
documentary evidence and written submissions from the parties. In particular,
the refugee claimant may present evidence that was not before the RPD, provided
that this evidence arose after the rejection of the refugee claim or was not
reasonably available, or that the claimant could not have been expected to have
presented it at the time of the rejection. As indicated previously, the
Applicants did not file – or attempt to file – any new evidence before the RAD.
[16]
According to subsection 3(g) of the Rules, an appellant
before the RAD must file a record that includes, inter alia, the RPD’s decision,
all or part of the transcript of the RPD hearing, any documents the RPD refused
to accept but that the appellant wants to rely on in the appeal, as well as a
memorandum containing the full and detailed submissions regarding, in
particular: (a) the errors that are the grounds of the appeal; (b) where the
errors are located in the RPD’s written decision, in the transcript of the
hearing or in any audio or electronic recording of the hearing; and (c) the
decision the appellant wants the RAD to reach.
[17]
After having considered the appeal, the RAD has
the authority to do one of three things: confirm the decision of the RPD; set
the decision aside and substitute the determination that, in its opinion,
should have been made by the RPD; or, in very specific circumstances, refer the
matter back to the RPD for re-determination on the basis of directives it
considers appropriate.
[18]
In sum, the appeal before the RAD (i) is
directed at the decision of the RPD, (ii) unless new evidence is accepted, is
to be entertained on the basis of the record as it was constituted at the time
of the RPD’s decision, and (iii) is to be concerned solely with the errors of
law, of fact or of mixed fact and law that, according to the appellant, the RPD
made. This is the statutory configuration of an appeal before the RAD.
[19]
This statutory configuration does not fit with
the Applicants’ argument that the RAD’s authority to substitute its decision to
that of the RPD entails a duty to speculate as to what might have been a
better approach to a failed refugee claimant’s appeal and to ultimately find
that the claim should have been accepted based on risks that were not raised by
the claimant in the first place.
[20]
This approach not only offends the statutory scheme
but it conflicts with the principle that the onus is on a refugee claimant to
prove his or her claim and to establish that the RPD erred in a way that
justifies the intervention of the RAD. It is not the RAD’s function to
supplement the weaknesses of an appeal before it, or, for that matter, of the
refugee protection claim presented in the first place. It is also not its role
to come up with new ideas that might assist appellants in succeeding with their
appeal and, ultimately, their refugee claim.
[21]
Here, the Applicants do not contend that the
RAD’s decision is flawed in any respect when considered in the context of their
appeal, as constituted and framed. Rather, they contend, as indicated
previously, that the RAD erred by not considering a risk factor associated to
the proposed IFA that was not previously raised, which is that if the
Applicants were to institute legal proceedings from Mumbai, their location
would be revealed and it would be reasonable to infer their vulnerability to
future persecution.
[22]
The Applicants offer bare assertions and no case
law in support of the proposition that the RAD is entrusted with such a task.
[23]
Finally, the Applicants’ position is at odds
with the principle often acknowledged by this Court, to the effect that
an issue not raised before an administrative tribunal cannot be examined in
judicial review proceedings before the Court (Mohajery
v Canada (Minister of Citizenship and Immigration), 2007 FC 185, at para 28).
The Federal Court of Appeal, in Guajardo-Espinoza v Minister of Employment
and Immigration (FCA), [1993] FCJ No 797 (QL), at para 5, stressed the
importance of that principle in the following terms:
As this Court recently said in Pierre-Louis [sic] v. M.E.I.,
[F.C.A., No. A-1264-91, April 29, 1993.] the Refugee Division cannot be faulted
for not deciding an issue that had not been argued and that did not emerge
perceptibly from the evidence presented as a whole. [Ibid., at 3.] Saying the
contrary would lead to a real hide-and-seek or guessing game and oblige the
Refugee Division to undertake interminable investigations to eliminate reasons
that did not apply in any case, that no one had raised and that the evidence
did not support in any way, to say nothing of frivolous and pointless appeals
that would certainly follow.
[24]
This principle applies equally to the RAD which,
like the RPD, is an administrative tribunal subject to the supervisory power of
this Court pursuant to section 18 of the Federal Courts Act.
[25]
This judicial review application must therefore
fail.
V.
Request for a Certified Question
[26]
At the hearing, counsel for the Applicants submitted
that his argument raised a serious issue of national
interest and sought the certification of a question for the Federal Court
of Appeal. At the end of hearing, held on January 24, 2015, counsel was given
two days to provide the Court with suggested wording for such a question. That
wording was provided on March 12, 2015 and took the form of the following four
questions:
1. Is the RAD limited in rendering its decision to the arguments
submitted by the parties?
2. If not, does the RAD have the power and duty, proprio motu,
to consider objective material and important factors in rendering its decision?
3. If yes, was the risk of disclosure of the appellant’s location in India an objective, material and important factor in the analysis of an IFA in India?
- If yes, did the
RAD fail in its duty to consider the said factor?
[27]
The test for certification consists in finding
whether there is a serious question of general importance and of broad significance
which would be dispositive of the appeal and which transcends the interests of
the parties to the litigation (Zazai v Canada (Minister of Citizenship and
Immigration) 2004 FCA 89 at para 11; Canada (Minister of Citizenship and
Immigration) v Liyanagamage, 176 NR 4, at para 4, [1994] FCJ No. 1637 (QL)).
[28]
The Respondent opposes the Applicants’ request
on several grounds claiming that:
a. The questions proposed should be dismissed as the Applicants’ did
not file them within the delay imposed by the Court;
b. Save exceptional circumstances, certification involves one question,
not many (Varela v MCI, 2009 FCA 145, at para 28);
c. Certification requires a question that would not only be
determinative of the case, but also which transcends the interests of the immediate
parties to the litigation and contemplates issues of broad significance or
general application (Liyanagamage v Canada (1995) 176 NR 4, at paras 4-6);
d. Questions no 3 and 4 proposed by the Applicants clearly do not meet
these requirements;
- As for Question
no 2, it is formulated using vague terminology (i.e., “objective material,” “important
factors”) that blurs the issue rather than provide a clear and
workable framework that would allow judging it against the certification
criteria.
[29]
I agree with the Respondent that questions 2 to
4 do not meet the test for certification. Question no 1 also fails to meet
that test as it is much too broad and general and does not reflect the actual
position being advanced by the Applicants. As indicated previously, that
position is to the effect that the Act invests the RAD with a duty to consider risk
factors and submissions that were not raised before it, let alone the RPD, and
allows failed refugee claimants to identify errors that were not previously
identified and bring them to the attention of this Court.
[30]
This proposition, on its face, has no reasonable
prospect of success as it has no basis, whatsoever, in the provisions of the
Act. It is therefore not a serious issue.
[31]
Furthermore, it would not be dispositive of the
appeal because, as the Respondent also correctly points out:
a. Having to abandon a possession is no bar to having to secure one’s
safety, provided, as is the case here, this does not result in Mr Dhillon being
prevented from earning a living (Sanchez v The Minister of Citizenship and
Immigration, 2007 FCA 99, at para 17);
b. The Applicants have never demonstrated to any tribunal why they
would be in danger if relocated to Mumbai or why they would be in danger if
they tried to sell the disputed land;
c. Their position before the Court contradicts the evidence that they
intended to resolve the land dispute by selling the land via proxy holder, not
by instituting legal proceedings; and
d. Their fear of being vulnerable to future persecution if they were to
commence legal proceedings from Mumbai is, in any event, purely speculative.
[32]
No question will be certified.
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